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ition No. 2030 of 1980.
Under Article 32 of the Constitution.
Ramjethmalani, M. M. Lodha and Harjinder Singh for the Petitioner.
V. section Desai, Mrs. Shobha Dixit, R. N. Poddar and Miss A. Subhashini for the Respondent.
The Judgment of the Court was delivered by 643 BHAGWATI, J.
This petition for a writ of habeas corpus challenges the continued detention of one Mahendra Chordia under sub section (1) of section 3 of the (hereinafter referred to as COFEPOSA Act).
On 4th June, 1980 an order of detention dated 27th May 1980 was served on Mahendra Chordia (hereinafter referred to as the detenu) and he was taken under detention.
The order of detention recited that the Governor of Maharashtra was satisfied with respect to the detenu that, with a view to preventing him from smuggling goods and abetting the smuggling of goods, it was necessary to make an order directing him to be detained and by the order of detention, the Governor of Maharashtra in exercise of the powers conferred under sub section (1) of section 3 of the COFEPOSA Act read with the Order of the President of India in the notification of the Government of India dated 17 February, 1980 directed that the detenu be detained under that Act.
Simultaneously with the order of detention, another order dated 27th May was also issued by the Governor of Maharashtra directing that the detenu be detained in the Nasik Road Central Prison.
When the petitioner was arrested and taken under detention, he was also served with a document dated 27 May 1980 containing the grounds of detention as required by sub section (3) of the COFEPOSA Act read with clause (5) of Article 22 of the Constitution.
The grounds of detention referred to several documents and statements including two tape recorded conversations, one between the detenu and one Ahluwalia and the other between the detenu, Ahluwalia and an advocate by the name of Kumar Mehta.
The detenu therefore addressed a letter dated 6th June, 1980 to the Deputy Secretary to the Government of Maharashtra requesting him at his earliest to send "all statements documents and material" to enable him to make an effective representation against his detention.
The detenu also sent a representation dated 9th June, 1980 to the Deputy Secretary once again requesting him to supply immediately the documents, statements and materials relied upon in the grounds of detention so that the detenu could make an effective representation and also specifically calling upon the Deputy Secretary to furnish the transcripts of the tapes as also to produce the original tapes for his inspection so that he could prove that the voice recorded on the tapes was not his.
This representation was admittedly received by the Deputy Secretary on 14th June 1980.
The detenu thereafter addressed another communication to the Deputy Secretary requesting him to supply one accurate copy of the tapes, so that he could have the tapes played in the presence of those 644 who would recognise his voice, to enable him to lead evidence through them that the voice recorded on the tapes was not his as also to let him know on whose final satisfaction the order of detention was made.
This letter though originally dated 14th June, 1980 was not despatched to the Deputy Secretary until 1st July, 1980 because in the meanwhile the detenu had been taken to Bombay and it was only after his return to Nasik Road Central Prison that the letter could be despatched through the jailor and hence the date was altered to 1st July, 1980.
It appears that this letter was received by the Deputy Secretary on 8th July, 1980.
But, prior to his forwarding the letter dated 1st July, 1980 to the Deputy Secretary, the detenu addressed another representation dated 26th June, 1980 to the Chairman of the Advisory Board, the Central Government and the Deputy Secretary to the Government of Maharashtra praying for re vocation of the order of detention.
The detenu pointed out in this representation that, by his letters dated 5th, 6th and 14th June, 1980, he had requested for the tapes to be supplied to him to enable him to prove that the voice recorded on the tapes was not his and that this request had not been complied with and, in the circumstances, the hearing of the case before the Advisory Board would be futile.
The detenu also complained in the representation that though he had asked for copies of the documents and statements relied upon in the grounds of detention, they had not been supplied to him.
This representation containing the prayer for revocation of the order of detention was received by the Deputy Secretary on 30th June, 1980.
Now it appears that copies of the statements and documents relied upon in the grounds of detention were forwarded by the Deputy Secretary to the Superintendent of Nasik Road Central Prison by registered letter dated 3rd July 1980 and these copies were handed over to the detenu on 11th July 1980.
Mean while, one Vikraman Investigating officer of the Customs Department was deputed to the Nasik Road Central Prison alongwith the tapes and the tapes were played in the presence of the detenu and the Deputy Superintendent of Nasik Road Central Prison on 8th July 1980.
The representations of the detenu dated 9th June, 1980 and 26th June, 1980 were then considered by the Under Secretary on 11th July, 1980 and since in the mean time the letter dated 1st July 1980 requesting for supply of one accurate copy of the tapes was received by the Government, the Under Secretary suggested, with reference to this request that "since the tapes were given to the detenu for inspection and played before him, the request for supply of copies of the tapes may have to be rejected" and he also recommended that the request of the detenu for revocation of the order of detention may be rejected.
The Deputy Secretary approved the noting of the Under Secretary that the request for revocation of the detention order may 645 be rejected and the file was immediately put up before the Secretary on the same day and the secretary also approved the proposal for rejecting the request for revocation of the order of detention but recommended that the Customs Department must give to the detenu the transcripts of the tapes, as otherwise he would take a stand in the Court that his defence was prejudiced.
It appears that the Chief Minister endorsed the noting of the Secretary on 14th July 1980.
Pursuant to this decision of the Government, a letter dated 15th July 1980 was addressed to the detenu rejecting his representations and declining to revoke the order of detention.
It is difficult to appreciate what purpose could possibly be intended to be served by giving copies of the tapes to the detenu after rejecting his representations, but all the same, copies of the tapes were handed over to the detenu on 20th July, 1980.
The detenu 's mother in the mean while preferred the present petition in this Court and on 10th July, 1980 rule nisi was issued on the petition by this Court.
There were several grounds on which the detention of the detenu was challenged in the petition.
But it is not necessary to refer to all the grounds since there is one ground which is, in our opinion, fatal to the continued detention of the detenu and it will be sufficient if we confine our attention to that ground.
The contention of the petitioner under the ground was that though several statements and documents were relied upon in the grounds of detention and considerable reliance was also placed on two tape recorded conversations in the grounds of detention, the detaining authority did not serve on the detenu along with the grounds of detention, copies of those statements, documents and tapes and it could not therefore be said that the grounds of detention were duly served on the detenu as required by sub section (3) of section 3 of the COFEPOSA Act and clause (5) of Article 22 of the Constitution.
The petitioner urged that sub section (3) of section 3 of the COFEPOSA Act and clause (5) of Article 22 of the Constitution required that the detaining authority should as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and such grounds would comprise not merely a bare recital of the grounds of detention but also all statements and documents relied upon in the grounds of detention, because these latter would also form part of such grounds.
It was also contended by the petitioner in the alternative that, in any event, the detaining authority was bound to give copies of the statements, documents and tapes relied upon in the grounds of detention to the detenu without any avoidable delay in order that the detenu should have the earliest opportunity of making an effective representation against the order of detention.
The argument of the petitioner was 646 that, in the present case, though the detenu asked for the copies of statements, documents and material relied upon in the grounds of detention as early as 6th June, 1980, the detaining authority did not supply copies of such statements, documents and materials until 11th July, 1980 and on that day also, what were supplied were merely copies of the statements and documents and not the copies of the tapes which were supplied only on 20th July 1980.
This delay in supplying copies of the statements, documents and tapes was, in the submission of the petitioner wholly unjustified and the detenu was thus denied the earliest opportunity of making an effective representation and this infected the continued detention of the detenu with the vice of illegality.
This ground of challenge urged on behalf of the petitioner appeared to us to be well founded and that is why, by an order dated 8th August 1980 made immediately on the conclusion of the arguments, we allowed the petition and directed that the detenue be set at liberty forthwith.
We now proceed to give our reasons for making that Order.
We may point out straightway that we are not at all happy at the thought that our order may have resulted in setting free a possible smuggler.
We are not unmindful of the fact that the COFEPOSA Act has been enacted for the purpose of eradicating the evil of smuggling which is eating into the vitals of the nation like a cancerous growth and eroding the economic stability of the country and when an order is made by the Court releasing a person detained under this Act, it is quite possible that the effect of the order may be to let loose on the society, a smuggler who might in all probability, resume his nefarious activities causing incalculable mischief and harm to the economy of the nation.
But at the same time we cannot forget that the power of preventive detention is a draconian power justified only in the interest of public security and order and it is tolerated in a free society only as a necessary evil.
The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the Courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law.
The courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind.
Without it life would not be worth living.
It is one of the pillars of free democratic society.
Men have rightly laid down their lives at its altar in order to secure it, protect it and preserve it.
The Constitution has therefore, while conceding the power of preventive detention, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty and the courts have always zealously tried to uphold and enforce these safeguards.
This Court has also through its judicial pronouncements created various legal bulwarks and breakwaters into the vast powers conferred on the executive by the laws of preventive detention prevalent at different points of time.
It is true that sometimes even a smuggler may be able to secure his release from detention if one of the safeguards or requirements laid down by the Constitution or the law has not been observed by the detaining authority but that can be no reason for whittling down or diluting the safeguards provided by the Constitution and the law.
If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, however wicked or mischievous he may be.
The law cannot be subverted, particularly in the area of personal liberty, in order to prevent a smuggler from securing his release from detention, because whatever is the law laid down by the courts in the case of a smuggler would be equally applicable in the case of preventive detention under any other law.
This Court would be laying down a dangerous precedent if it allows a hard case to make bad law.
We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner tramelled by the fact that this is a case where a possible smuggler is seeking his release from detention.
It is also necessary to point out that in case of an application for a writ of habeas corpus, the practice evolved by this Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies.
Even a postcard written by a detenu from jail has been sufficient to activise this Court into examining the legality of detention.
This Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention.
Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention.
This Court has on many occasions pointed out that when a rule is issued, it is incumbent on the detaining authority to satisfy the court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the law authorising such detention: Vide Naranjan Singh vs State of Madhya Pradesh; Sheikh Hanif, Gudma Majhi & Kamal Saha vs State of West Bengal, and Dulal Roy vs The District Magistrate, Burdwan & Ors.
It has also been insisted by this Court that, in answer to this rule, the detaining authority must place all the relevant facts before the court which would show that the detention is in accordance with the provisions of the Act.
It would be no argument on the part of the detaining authority to say that a particular ground is not taken in the petition:Vide Nazamuddin vs The State of West Bengal.
Once the rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law.:Vide Mohd. Alam vs State of West Bengal and Khudiram Das vs State of West Bengal & Ors.
This practice marks a departure from that obtaining in England where observance of the strict rules of pleading is insisted upon even in case of an application for a writ of habeas corpus, but it has been adopted by this Court in view of the peculiar socio economic conditions prevailing in the country.
Where large masses of people are poor, illiterate and ignorant and access to the courts is not easy on account of lack of financial resources, it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention and make out a prima facie case in support of those grounds before a rule is issued or to hold that the detaining authority should not be liable to do anything more than just meet the specific grounds of challenge put forward by the petitioner in the petition.
The burden of showing that the detention is in accordance with the procedure established by law has always been placed by this Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law.
This constitutional right of life and personal liberty is placed on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the court that it has acted in accordance with the law.
This is an area where the court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the court has not hesitated to strike down the order of detention or to direct the release of the detenue even though the detention may have been valid till the breach occurred.
The court has always regarded personal liberty as the most precious possession 649 of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade.
We must therefore now proceed to examine whether there was any breach of the requirements of Article 22 clause (5) of the Constitution and Section 3, sub section (3) of the COFEPOSA Act, for that is the breach which is claimed by the petitioner as invalidating the continued detention of the detenue.
Clause (5) of Article 22 of the Constitution reads as follows: "article 22(5): When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
" Section 3, sub section of the COFEPOSA Act provides as under: "For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order, of the grounds on which the order has been made shall be made, as soon as may be, after the detention, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention."
The true meaning and import of clause (5) of Article 22 of the Constitution was explained by this Court in Khudiram Das vs State of West Bengal (supra): "The constitutional imperatives enacted in this article are two fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenue the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenue the earliest opportunity of making a representation against the order of detention.
These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security."
It will be seen that one of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must, as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and under sub section (3) of section 3 of the COFEPOSA Act, the words "as soon as may be" 650 have been translated to mean "ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention.
" The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention.
These are the two outside time limits provided by section 3, sub section (3) of the COFEPOSA Act because unless the grounds of detention are furnished to the detenu, it would not be possible for him to make a representation against the order of detention and it is a basic requirement of clause (5) of Article 22 that the detenu must be afforded the earliest opportunity of making a representation against his detention.
If the grounds of detention are not furnished to the detenu within five or fifteen days, as the case may be, the continued detention of the detenu would be rendered illegal both on the ground of violation of clause (5) of Article 22 as also on the ground of breach of requirement of section 3, sub section (3) of the COFEPOSA Act.
Now it is obvious that when clause (5) of Article 22 and sub section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu.
If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them.
It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and section 3, sub section (3) of the COFEPOSA Act.
One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention.
There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with section 3, sub section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of 651 Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.
If this requirement of clause (5) of Article 22 read with section 3, sub section (3) is not satisfied the continued detention of the detenu would be illegal and void.
Now, in the present case, the grounds of detention were detention were served upon the detenu on 4th June, 1980 at the time when he was taken under detention, but these grounds which were served upon the detenu did not include the documents, statements and other materials relied upon in the grounds and forming part of them.
The detenu, therefore by his letter dated 6th June, 1980, requested the Deputy Secretary to send at his earliest "all statements, documents, materials" relied upon in the grounds of detention in order to enable him to make an effective representation against his detention.
But copies of these documents, statements and other materials were not supplied to the detenu until 11th July, 1980 and so far as the tapes were concerned, their copies were furnished to the detenu even later on 20th July, 1980.
It is clear from the discussion in the preceding paragraph that under clause (5) of Article 22 read with section 3, sub section (3) of the COFEPOSA Act, the detaining authority was bound to supply copies of the documents, statements and other materials relied upon in the grounds of detention to the detenu within five days from the date of detention, that is, on or before 9th June, 1980 and in any event, even if we assume that there were exceptional circumstances and reasons for not supplying such copies within five days were recorded in writing, such copies should have been supplied to the detenu not later than fifteen days from the date of detention, that is, on or before 19th June, 1980.
It was, of course, not the case of the detaining authority before us that reasons for not supplying copies of the documents, statements and other materials to the detenu within five days were recorded in writing nor were any such reasons produced before us, but even if there were any such reasons recorded in writing, coupled with the existence of exceptional circumstances, the detaining authority, could not delay the supply of copies of the documents, statements and other materials to the detenu beyond 19th June, 1980.
Even if there were any circumstances justifying the delay in supply of copies of documents, statements and other materials beyond 19th June, 1980 it would afford no defence to the detaining authority, for clause (5) of Article 22 read with section 3, sub section (3) of the COFEPOSA Act lays down an inexorable rule of law that the grounds of detention shall be communicated to the detenu not later than fifteen days from the 652 date of detention.
There are no exceptions or qualifications provided to this rule which operates in all its rigour and strictness and if there is any breach of this rule, it must have the effect of invalidating the continued detention of the detenu.
There can therefore be no doubt that, in the present case, the continuance of the detention of the detenu after 19th June, 1980 was unconstitutional and it was not open to the detaining authority to seek to justify the continued detention on the ground that there were sufficiently compelling reasons which prevented it from supplying copies of the documents, statements and other materials to the detenu until 11th July, 1980 and copies of the tapes until 20th July, 1980.
It may be pointed out that even if our interpretation of the words "the grounds on which the order has been made" in clause (5) of Article 22 and section 3 sub section (3) of the COFEPOSA Act be wrong and these words do not include the documents, statements and other materials relied upon in the grounds of detention, it is unquestionable that copies of such documents, statements and other materials must be supplied to the detenu without any unreasonable delay, because otherwise the detenu would not be able to make an effective representation and the fundamental right conferred on him to be afforded the earliest opportunity of making a representation against his detention would be denied to him.
The right to be supplied copies of the documents, statements and other materials relied upon in the grounds of detention without any undue delay flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available, the later cannot be meaning fully exercised.
This would seem to be clear on a fair interpretation of clause (5) of Article 22 but apart from this view which we are inclined to take on principle as a matter of interpretation, the law is now well settled as a result of several decisions of this court commencing from Ramachandra A. Kamat vs Union of INDIA (1) that: "When the grounds of detention are served on the detenu, he is entitled to ask for copies of statements and documents referred to in the grounds of detention to enable him to make an effective representation.
When the detenu makes a request for such documents, they should be supplied to him expeditiously.
when copies of such documents are asked for by the detenu, the detaining authority should be in a position to supply them with reasonable expedition.
What is reasonable expedition will depend on the facts of each case.
" The facts as we find them here are that the detenu asked for copies of the documents, statements and other materials relied upon 653 in the grounds of detention by his letters dated 6th June, 1980 and 9th June, 1980 and he also complained about non supply of such copies in his representation dated 26th June, 1980 but it was only on 11th July, 1980 that such copies were supplied to him and even then the copies of the tapes were not furnished until 20th July, 1980.
There was thus a delay of more than one month in supply of copies of the documents, statements and other materials to the detenu.
The burden of satisfactorily explaining this delay and showing that there was sufficient cause for it was on the detaining authority and an attempt was made by the detaining authority to discharge this burden by filing an affidavit made by C.R. Mulherkar, Deputy Secretary to the Government of Maharashtra.
It was stated in this affidavit that the letter of the detenu dated 6th June, 1980 requesting for copies of the documents, statements and other materials relied upon in the grounds of detention was received in the Home Department on 10th June, 1980 and on receipt, this letter was forwarded to the Asstt.Collector of Customs for his remarks on 12th June, 1980.
The Assistant Collector of Customs forwarded his remarks to the Deputy Secretary on 24th June, 1980 alongwith one set of copies of documents and statements relied upon in the grounds of detention and these were received by the Deputy Secretary in the Home Department on 27th June 1980.
The next two days, namely 28th and 29th June, 1980 were holidays and on 2nd July 1980 the State Government took a decision to supply these copies to the detenu and they were forwarded to the detenu through the Superintendent of Nasik Road Central Prison alongwith a registered letter dated 3rd July 1980 which, for some inexplicable reason was not received by the Superintendent until 10th July 1980, and hence it was said these copies could not be delivered to the detenu until 11th July 1980.
This was the explanation offered by the detaining authority for the delay in supplying copies of the documents, statements and other materials to the detenu but we do not think this explanation can be accepted by us as satisfactory.
It is clear from the facts narrated above that though the Assistant Collector of Customs received the letter of the detenu forwarded by the Deputy Secretary on 12th June 1980, he did not respond to it until 24th June 1980 and this delay of 12 days has not been satisfactorily explained either in the affidavit of C.R. Mulherkar or in any affidavit filed by the Assistant Collector of Customs.
It was urged before us that the documents and statements of which copies were requested by the detenu ran into 89 pages and it was therefore reasonable to assume that a few days must have been taken in the Customs Department to make copies of these documents and statements and hence the time of 12 days taken up by the Assistant Collector of Customs in sending copies of the documents and statements to the 654 Deputy Secretary could not be said to be unreasonable.
This argument is patently unsound, because the Assistant Collector of Customs ought to have kept ready with him copies of the documents, statements and other materials relied upon in the grounds of detention since it should have been anticipated that these copies would have to be supplied to the detenu in order to enable him to make an effective representation against his detention and it does not lie in the mouth of the Assistant Collector of Customs to say that his department started making copies for the first time when a request for copies was made by the detenu.
In fact, copies of the documents,statements and other materials relied upon in the grounds of detention should have been available with the detaining authority itself so that they could be supplied to the detenu immediately as soon as a request was made in that behalf.
Of course, our view is and that is what we have said in the earlier part of the judgment, that copies of the documents, statements and other materials relied upon in the grounds of detention from part of such grounds and they have to be supplied to the detenu within the time limited under clause (5) of Article 22 and section 3 sub section (3) of COFEPOSA Act, but even if that be not the correct view, there is little doubt that copies of these documents.
statements and other materials should be available with the detaining authority and they should be supplied without unreasonable delay as soon as the detenu makes a request for the same.
The time of 12 days taken up by the Assistant Collector of Customs was therefore unreasonably long for which no explanation at all was forthcoming from the detaining authority.
We must in the circumstances hold that there was unreasonable delay on the part of the detaining authority in supplying to the detenu copies of the documents, statements and other materials relied upon in the grounds of detention and the continued detention of the detenu was accordingly illegal and void and the detenu was entitled to be released forthwith from detention.
It is also necessary to point out that there was unreasonable delay in considering the representations of the detenu dated 9th June 1980 and 26th June 1980.
It is now settled law that on a proper interpretation of clause (5) of Article 22, the detaining authority is under a constitutional obligation to consider the representation of the detenu as early as possible, and if there is unreasonable delay in considering such representation, it would have the effect of invalidating the detention of the detenu.
Vide; V. J. Jain vs Pradhan (1) here in the present case the representation of the detenu dated 9th June 1980 was received by the Deputy Secretary on 14th June 1980 while the representation dated 26th June 1980 was received on 30th June 1980 and yet no decision was taken on these representation of the detenu until 14th 655 July 1980.
The question is whether this delay could be said to have been reasonably explained by the detaining authority.
The representation of the detenu dated 9th June 1980 was received in the Mantralaya on 14th June 1980 but that day and the next day being holidays, it came to the hands of the concerned officer only on 16th June 1980, and a copy of it was forwarded to the Assistant Collector of Customs for his remarks on 23rd June 1980.
It is difficult to see to see why the concerned officer in the Mantralaya should have taken seven days for just forwarding a copy of the representation of the detenu to the Assistant Collector of Customs.
There is no explanation at all for this delay in any of the affidavits filed on behalf of the detaining authority.
The Collector of Customs thereafter forwarded his remarks on 30th June 1980 and here again there was a delay of seven days for which no explanation is forthcoming.
The remarks of the Assistant Collector of Customs were received by the concerned officer on 2nd July 1980 and there after the representation started on its upward journey from the Undersecretary to the Chief Minister.
It appears that by this time the second representation of the detenu dated 26th June 1980 was also received by the State Government and hence this representation was also subjected to the same process as the representation dated 9th June, 1980.
It was only on 11th July 1980 that these two representations dated 9th June 1980 and 26th June 1980 came to be considered by the Under Secretary and he made a noting on the file recommending that the request of the detenu for revocation of the order of detention may be rejected, and this noting was approved by the Deputy Secretary as well as the Secretary on the same day and the Chief Minister endorsed it on 14th July 1980.
It is indeed difficult to see how these two representations of the detenu could be rejected by the detaining authority when the request of the detenu for copies of the tapes was pending and the Secretary to the State Government in fact made a noting on 11th July 1980 that the copies of the tapes must be given to the detenu by the Customs Department.
But even if we take the view that it was not necessary for the detaining authority to wait until after the copies of the tapes were supplied to the detenu, it is difficult to resist the conclusion that the detaining authority was guilty of unreasonable delay in considering the two representations of the detenu, and particularly the representation dated 9th June 1980.
This ground is also in our opinion sufficient to invalidate the continued detention of the detenu.
These were the reasons for which we allowed the writ petition and directed immediate release of the detenu from detention.
We may point out that we have not pronounced upon the validity of the order of detention but merely held the continued detention of the detenu 656 to be illegal on the ground of non compliance with the requirements of clause (5) of Article 22 and sub section (3) of section 3 of the COFEPOSA Act, and therefore nothing that is said by us in this judgment should be considered as an expression of opinion on the validity or correctness of the order of detention as made.
We are unable to appreciate as to why the Customs Department has not yet filed a charge sheet against the detenu for prosecuting him in respect of the incidents referred to in the grounds of detention even though more than six months have passed since then.
If the investigation reveals that the detenu was responsible for smuggling or abetting the smuggling of goods in contravention of law, the Customs officers should adopt criminal proceedings against the detenu as quickly as possible and try to bring him to book in the criminal courts.
We hope and trust that there will be no unreasonable delay on the part of the Customs officers in completing the investigation of the cases against the detenu and prosecuting him in the criminal courts if the evidence gathered by them in the course of the investigation justifies such a course.
N.V.K. Petition allowed.
| IN-Abs | The detenu was taken under detention on 4th June, 1980 by an order of detention dated 27th May, 1980.
The order of detention recited that with a view to preventing him from smuggling goods and abetting the smuggling of goods it was necessary to detain him.
After detention he was also served on the same day, the grounds of detention.
The grounds of detention referred to several documents and statements including two tape recorded conversations.
The detenu addressed a letter dated 6th June, 1980 asking for all statements, documents and material to enable him to make an effective representation against his detention.
The detenu also sent a representation dated 9th June, 1980 to the Deputy Secretary once again requesting him to supply immediately the documents etc.
relied upon in the grounds of detention and to furnish the transcripts of the tapes as also to produce the original tapes, so that he could prove that the voice recorded on the tapes was not his.
The detenu addressed another representation dated 26th June, 1980 to the Chairman of the Advisory Board, the Central Government and the Deputy Secretary to the State Government praying for revocation of the order of detention, wherein he pointed out that by his letters dated 5th, 9th and 14th June, 1980, he had requested for the tapes to be supplied to enable him to prove that the voice recorded on the tapes was not his and that this request had not been complied with and in the circumstances the hearing of the case before the Advisory Board would be futile.
Meanwhile the Investigating Officer of the Customs Department was deputed to the Central Prison alongwith the tapes, and the tapes were played in the presence of the detenu and the Deputy Superintendent of the Central Prison on 8th July, 1980.
The representations of the detenu were examined by the government, who by their letter dated 15th July, 1980 rejected the representations and declined to revoke the order of detention.
In the writ petition under Article 32 of the Constitution filed by the mother of the detenu it was contended: (1) that the detaining authority did not serve on the detenu alongwith the grounds of detention, copies of the statements, documents and tapes referred to in the grounds of detention and it could not, therefore, be said that the grounds of detention were duly served 641 on the detenu as required by sub section (3) of section 3 of the COFEPOSA Act and clause (5) of Article 22 of the Constitution, and (2) that the detaining authority did not supply copies of such statements, documents and materials until 11th July, 1980 and on that day also, what were supplied were merely copies of the statements and documents and not copies of the tapes which were supplied only on 20th July, 1980 and that this delay was wholly unjustified and the detenu was thus denied the earliest opportunity of making an effective representation and consequently the continued detention of the detenu was illegal and void.
Allowing the writ petition.
^ HELD: 1.
There was unreasonable delay on the part of the detaining authority in supplying to the detenu copies of all the relevant documents, and therefore his continued detention was illegal and void.
The detenu was entitled to be released forthwith from detention.
[654 F] 2.
The power of Preventive detention can be justified only in the interest, of public security and order and it is tolerated in a free society only as a necessary evil.
The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the duty of the courts to ensure that his power is exercised strictly in accordance with the requirements of the Constitution and the law, the courts always leaning in favour of upholding personal liberty.
[646 F] 3.
The Constitution has while conceding the power of preventive detention, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty and the courts have always zealously tried to uphold and enforce these safeguards.
[646 H] 4.
If the detaining authority wants to preventively detain a smuggler it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, howsoever wicked or mischievous he may be.
[647 B] 5.
Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention and when a rule is issued, it is incumbent on the detaining authority to satisfy the court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the law authorising such detention.
[647 G] Naranjan Singh vs State of Madhya Pradesh AIR 1971 SC 2215, Sheikh Hanif Gudma Majhi & Kamal Saha vs State of West Bengal , Dulal Roy vs The District Magistrate, Burdwan & Ors.
; , Nazamuddin vs The State of West Bengal ; , Mohd. Alam vs State of West Bengal ; , Khudiram Das vs State of West Bengal & Ors. ; , referred to.
On a proper construction of clause (5) of Article 22 read with section 3, sub section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.
If this requirement of clause (5) of Article 22 read with section 3, sub section (3) 642 is not satisfied, the continued detention of the detenu would be illegal and void.
[650 H 651B] 7.
The right to be supplied copies of the documents, statements and other materials relied upon in the grounds of detention without any undue delay flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available, the latter cannot be meaningfully exercised.
This would seem to be clear on a fair interpretation of clause (5) of Article 22.
[652 E F] Ramachandra A. Kamat vs Union of India ; referred to.
In the instant case the detenu asked for copies of the documents, statements and other materials relied upon in the grounds of detention by his letters dated 6th June, 1980 and 9th June, 1980 and he also complained about non supply of such copies in his representation dated 26th June, 1980 but it was only on 11th July, 1980 that such copies were supplied to him and even then the copies of the tapes were not furnished until 20th July, 1980.
There was thus a delay of more than one month in supply of these copies, and the burden of satisfactorily explaining this delay and showing that there was sufficient cause for it was on the detaining authority.
The delay of 12 days i.e. from 12th June, 1980 until 24th June, 1980 has not been satisfactorily explained either in the affidavit of the Deputy Secretary to the State Government or in any affidavit filed by the Assistant Collector of Customs.
There was, therefore, an unreasonable delay on the part of the detaining authority in supplying to the detenu copies of the documents, statements etc.
relied upon in the grounds of detention.
The continued detention of the detenu was accordingly illegal and void and he was entitled to be released forthwith from detention.
[652 H 653B, G; 654 F] 8.
The representation of the detenu dated 9th June, 1980 was received by the Deputy Secretary on 14th June, 1980 while the representation dated 26th June, 1980 was received on 30th June, 1980 and no decision was taken on these representations of the detenu until 14th July, 1980.
There is no explanation at all for this delay in any of the affidavits filed on behalf of the detaining authority.
This is sufficient to invalidate the continued detention of the detenu.
[654 655 C, G] 9.
The Customs Department has not filed a charge sheet against the detenu for prosecuting him in respect of the incidents referred to in the grounds of detention even though more than six months have passed.
There should be no unreasonable delay on the part of the Customs authorities in completing the investigation of the cases against the detenu and prosecuting him in the criminal courts if the evidence gathered by them in the course of the investigation justifies such a course.
[656 B C]
|
N: Criminal Appeal Nos.
282 283 of 1974.
From the Judgment and Order dated 19 4 1973 of the Bombay High Court (Nagpur Bench) Nagpur in Criminal Appeal Nos. 216 and 243 of 1971.
J. L. Nain and M. N. Shroff for the Appellant.
J. C. Batra (Amicus Curiae) for the Respondent.
The Judgment of the Court was delivered by SARKARIA, J.
These two appeals by the State of Maharashtra are directed against a common judgment, dated April 19, 1973, of the High Court of Bombay, Nagpur Bench, Nagpur.
Both will be disposed of by this judgment.
They arise out of these facts: 697 Three persons, namely, Shankar, Sk.
Bannu and Mohamad Nazir were tried for offences punishable under Sections 205, 419, 465, 467 and 471 of the Indian Penal Code, on the basis of a complaint made on August 12, 1978 by Shri R. K. Karandikar, Judicial Magistrate, First Class, Akola, under Section 476 read with Section 195 of the Code of Criminal Procedure.
Bannu, accused 2 was, at the relevant time, serving as a Clerk to an Advocate at Akola.
Mohamad Nazir, accused 3, is the son of Sk.
Bannu.
Accused 1, Shankar, was a milkman residing at Dabki Road, Akola.
On October 25, 1968, in respect of offences under Section 85(1)(2) and (3) of the Bombay Prohibition Act, one Deolal Kishan was arrested.
He was produced before Shri L. G. Deshpande, Judicial Magistrate (First Class), Akola, and was remanded to custody till November 2, 1968.
On November 1, 1968, an application was made before that Court for releasing Deolal Kishan.
Along with that application, an affidavit was filed which purported to have been sworn by one Gulabrao Rupchand Tikar as a surety.
This affidavit was sworn before the Senior Clerk (P.W. 2) and accused 2, Sk.
Bannu is alleged to have identified him as Gulabrao and attested that application for this purpose.
The Senior Clerk accordingly accepted what they stated and he made the necessary endorsement on the affidavit.
Thus, on the basis of that affidavit, Deolal Kishan was released on bail on November 1, 1968.
The Bail Application and the affidavit were scribed by accused 3.
The case against Deolal Kishan was transferred on April 20, 1969 to the Court of Mr. Karandikar, Judicial Magistrate (First Class), Akola, before whom it came up for hearing on May 12, 1969.
On that date, Deolal Kishan did not appear.
Consequently, the Court issued a non bailable warrant against him for his arrest and production.
Notice was also issued to the surety, Gulabrao Rupchand Tikar (P.W.3).
Gulabrao appeared before the Magistrate on.
June 2, 1969 in response to the notice and filed a reply in writing (exhibit 25/A) contending that he had never stood as surety for the accused Deolal Kishan; and that he did not make any affidavit, nor did he sign the application or the affidavit or the bail bond.
According to him, he was literate and could sign his name, while the application and the affidavit, in question, bore thumb impressions of the surety.
Gulabrao denied that he swore any affidavit for standing surety of Deolal Kishan.
Thereupon, the Magistrate recorded the statement of Gulabrao and initiated an inquiry.
He called Mohd. 698 Nazir, accused 3, the scribe of the bail application, and recorded his statement.
He also called accused 2, Sk.
Bannu, and directed him to produce the real surety on June 10, 1969 as the Magistrate was satisfied on the inquiry made by him that the person named in the bail application as the surety was not the real surety.
On November 9, accused 3, Mohd. Nazir, made an application to the Magistrate on behalf of his father, accused 2, that the real name of the surety was Shankar Kishan Kawitkar.
Thereupon, the Magistrate, on June 10, 1969, issued summons to accused 1, Shankar Kishan Kawitkar.
The latter appeared in response to the summons on June 17, 1969.
The Magistrate recorded his statement (exhibit 29), in which he admitted that the bail application and the affidavit had been thumb marked by him at the instance of accused 2, and that he had no knowledge about the contents of the application and the affidavit.
On the preceding facts, the Magistrate made a complaint to the Judicial Magistrate (First Class), Akola, for prosecution of the three accused persons in respect of the aforesaid offences.
The complaint came up before Shri P. N. Panchawadkar, Judicial Magistrate, who after holding an inquiry under Section 207A of the Code of Criminal Procedure, recorded the evidence of the material witnesses and finding that there was a prima facie case against all the accused.
Accordingly, he committed them for trial to the Court of Session.
The case came up for trial before the Additional Sessions Judge, who, after recording the prosecution evidence, came to the conclusion that there was no case against accused 3 and acquitted him.
He found that accused 1, Shankar was guilty of an offence under Section 205 of the Indian Penal Code and convicted him under that Section and sentenced him to suffer rigorous imprisonment for three years and a fine of Rs. 1,000, or, in default of payment of fine, to six months further rigorous imprisonment.
Accused 1 was further convicted in respect of offences under Sections 419,465 and 471, Penal Code, and was sentenced to two years ' rigorous imprisonment on each count, with a direction that the sentences on all the counts, would run concurrently.
Accused 2, Sk.
Bannu was convicted under Section 205 read with Section 109 of the Indian Penal Code and sentenced to three years ' rigorous imprisonment and a fine of Rs. 1,000, or, in default, to suffer six month 's further rigorous imprisonment.
He was further found guilty of the offences under Sections 419, 465 and 471 all read with Section 109, Penal Code, and sentenced to two years ' rigorous imprisonment on each count, with a direction that the sentences would run concurrently.
699 Against the judgment of the learned Additional Sessions Judge, Shankar and Sk.
Bannu preferred an appeal before the High Court.
The High Court held that the proceedings before Shri Karandikar are not the same proceedings or continuation of the same proceeding which was before Shri L. G. Deshpande, the previous court, in which or in relation to which the offence is said to have been committed within the meaning of Section 476 read with Section 195, Criminal Procedure Code; that the investigation stage is quite a distinct proceeding than the one which came to be transferred on the file of Shri Karandikar, it being a regular trial.
In this view of the matter, the High Court concluded: "We are of the view that such a complaint could have only been made by Mr. L. G. Deshpande who had released the accused on bail prior to the initiation of the case or his successor in office in that Court.
So far as these proceedings in which the accused were released on bail by Mr. L. G. Deshpande are concerned, Mr. Karandikar cannot be said to be the successor in office of Mr. L. G. Deshpande.
" On this reasoning, the High Court held that the complete proceedings before the Committing Magistrate were without jurisdiction, and by a writ quashed the same.
In the result, the appeals of Shankar and Sk.
Bannu were allowed and their convictions were set aside.
The High Court, however, granted a certificate under Article 134 of the Constitution that the case was fit for appeal to this Court.
The question that falls for consideration in this case is, whether Shri Karandikar, Judicial Magistrate who made the complaint for prosecution of the accused in respect of offences under Sections 205, 419, 465, 467 and 471, Penal Code, was competent to initiate the proceedings within the meaning of Section 195 read with Section 476 of the Code of Criminal Procedure, 1898.
The relevant provisions of that Code are as under: "section 195 (1) No Court shall take cognizance (a). . . . . . (b) of any offence punishable under any of the following sections of the same Code, namely, Ss. 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to any proceedings in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or 700 (c) of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
(2) In clauses (b) and (c) of sub section (1), the term "Court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub Registrar under the Indian Registration Act, 1877.
(3) For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate: Provided (a) where appeals lie to more than one Court, the appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; and (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
" The material part of Section 476 of the Code of 1898 is as follows: "section 476.
Procedure in cases mentioned in Section 195. (1) When any Civil, Revenue or Criminal Court, is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195, sub section (1), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the First Class having jurisdiction. . . " 701 Section 476A gives powers to the superior court to complain when the subordinate court has omitted to do so.
It may be noted that an offence under Section 205, Penal Code, as in the present case, will fall within the ambit of clause (b) and an offence under Section 471, Penal Code will fall under clause (c) of sub section (1) of Section 195.
The words "in or in relation to" which occur in clause (b) are not repeated in clause (c).
But these words occur in Section 476 both with reference to clause (b) and clause (c) of Section 195(1).
The interpretation of these words is not res integra.
There was a conflict of judicial opinion in regard to the meaning and ambit of these words.
One line of decisions took the view that the words "in relation to" are vide enough to cover a proceeding in contemplation though it may not have begun at the date of the commission of the offence, but was subsequently instituted in court.
This view is no longer good law in view of the pronouncement of this Court in M. L. Sethi vs R. P. Kapur.
That case related to the commission of an offence under Section 211, Indian Penal Code.
The question was whether the expression "in or in relation to", according to clause (b) of sub section (1) of Section 195 is applicable to cases where there can even in future be a proceeding in any court in relation to which the offence under Section 211, Indian Penal Code may be alleged to have been committed.
The Court answered this question in the negative, with these observations: "When examining the question whether there is any proceeding in any court there are three situations that can be envisaged.
One is that there may be no proceeding in any court at all.
The second is that a proceeding in a court may actually be pending at the point of time when cognizance is sought to be taken of the offence under section 211, I.P.C. The third is that, though there may be no proceeding pending in any court in which or in relation to which the offence under section 211, I.P.C. could have been committed, there may have been a proceeding which had already concluded and the offence under section 211 may be alleged to have been committed in, or in relation to, that proceeding.
It seems to us that in both the latter two circumstances envisaged above, the bar to taking cognizance under s.195(1) (b) would come into operation." Now, thus, the settled position is that the bar in Section 195(1)(b) does not apply if there is no proceeding in any court at all when the offence mentioned in the aforesaid clause (1) has been 702 committed.
In other words, the Section contemplates only the proceedings pending or concluded and not in contemplation.
In the instant case, it is common ground that the forged bail bond and the false affidavit were presented in the court of Shri Deshpande, Magistrate in bail proceedings.
Shri Deshpande, it is not disputed before us, had also the jurisdiction to try the case which was then under investigation with the police.
While considering a bail application of a person accused of an offence under investigation of the police, the Magistrate acts as a 'court ', the proceedings in the bail application being judicial proceedings.
This position has been clarified recently by this Court in Kamalapati Trivedi vs State of West Bengal.
It was held by this Court (per majority) that while deciding the question of bail, the Magistrate cannot but be regarded as a Court acting judicially, notwithstanding the fact that an offence of the accused is still under investigation by the police or has progressed to the stage of an inquiry or trial by the Magistrate.
It was added that the taking cognizance of any offence by a Magistrate under Section 190 is not a condition precedent for him to be regarded as a Court.
It was further explained that an order of bail passed by a Magistrate, also, decides the rights of the State and the accused and is made by the Magistrate after the application of his mind and therefore in the discharge of his judicial duties which factor constitutes it an act of a Court.
It was further observed: ". all orders passed by a Magistrate acting judicially (such as orders of bail and those passed under sub section (3) of section 183 of the Code discharging an accused or orders taking cognizance of the offence complained of) are parts of an integral whole which may end with a definitive judgment after an inquiry or a trial, or earlier according to the exigencies of the situation obtaining at a particular stage, and which involves, if need be, the adducing of evidence and the decision of the Magistrate on an appreciation thereof.
They cannot be viewed in isolation and given a character different from the entire judicial process of which they are intended to form a part." Considered in the light of the above enunciation in Kamalapati Trivedi 's case, the bail proceedings before the Court of the Magistrate, Shri Deshpande could not be viewed in isolation but had to be taken as a stage in and part of the entire judicial process the second stage of which commenced on presentation of the challan by the Police in the Court of the Magistrate for an enquiry or trial of the 703 accused person to whom the bail had been granted.
Indeed, the surety bond, which is alleged to have been forged in the name of Gulabrao Roopchand Tikar, in terms, was intended to be used for procuring the attendance of the accuses, by the Court before whom the chargesheet under Section 173, Cr.
P.C. might be presented by the Police for inquiry or trial.
The material part of the surety bond dated November 1, 1968, rendered into English, reads as under: "I undertake that the said Deolal Kishan, Maratha, shall be present before the Court of the Judicial Magistrate.
First Class, Akola, or,. before any other Magistrate conducting the preliminary inquiry . . .to answer the charges, and on his failure to do so, I do hereby bind myself to pay the sum of Rs. 500/ to the Government by way of fine.
" Under the terms of the Personal Bond, accompanying the surety bond, also, the executant had undertaken to appear before the Judicial Magistrate, First Class, Akola or before any other Magistrate who would hold an inquiry into or trial of charges framed against him.
In other words, the very terms of these bail bonds show that they were intended to be a preliminary part of the proceedings of inquiry or trial before the Magistrate commencing with the presentation of a charge sheet under Section 173, Cr.
P.C. against the accused.
This being the real position, the bail proceedings before Shri Deshpande, and the subsequent proceedings before Shri Karandikar commencing with the presentation of the challan by the Police for the prosecution of Deolal Kishan, could not be viewed as distinct and different proceedings but as stages in and parts of the same judicial process.
Neither the time lag between the order of bail and the challan, nor the fact that on presentation of the challan, the case was not marked to Shri Deshpande but was transferred under Section 192 of the Code, to Shri Karandikar, would make any difference to the earlier and subsequent proceedings being parts or stages of the same integral whole.
Indeed, the commission of the offences under Sections 205, 419, 465, 467 and 471, Penal Code, came to light only when Shri Karandikar, on the basis of the forged surety bond in question, attempted to procure the attendance of the accused.
If the earlier proceedings before Shri Deshpande and the subsequent proceedings before Shri Karandikar were stages in or parts of the one and the same process as we hold they were then it logically follows that the aforesaid offences could be said to have been committed "in or in relation to" the proceedings in the Court of Shri Karandikar, also, for the purpose of taking action under Section 476 of the Code.
704 In Behari Lal vs Sheikh Abdul Qadir Hamyari, it was held by the High Court of Lahore that if a case or proceeding in which the offence is committed has been before various courts, all the courts have the jurisdiction to complain, but normally, the court which finally tried the case would be the proper court to make a complaint.
The Calcutta High Court in Bhiku 's case, held that if a false complaint made to a Magistrate is transferred under Section 192 of the Code of Criminal Procedure to another Magistrate, the latter who had seisin of the case, can make a complaint.
In Maromma & Ors.
vs Emperor, it was held by the High Court of Madras that a false statement made during police investigation before a Magistrate and recorded by him under Section 164, Cr.
P.C. regarding an offence of murder, which is triable only by a Sessions Court, must be held to be "in relation to" the trial in that Court and a complaint can be made for the prosecution of the persons giving that false statement for an offence under Section 193, Penal Code, by the Sessions Court.
Similarly, in Athi Ambalayaran & Ors.
vs Emperor, a Division Bench (consisting of Waller & Pandalai JJ.) held that a statement made by a witness at the preliminary enquiry leading up to the trial in the Sessions Court is to be regarded as having been "in relation to" the subsequent proceedings in the Sessions Court.
Consequently, the Sessions Judge has jurisdiction to direct prosecution of the person making that false statement even if he finds that the statement made before the Committal Court of the Magistrate, was false.
The rationale behind these decisions is that if the two proceedings, one in which the offence is committed and the other, the final proceedings, in the same or a transferee court are, in substance, different stages of the same integrated judicial process, the offence can be said to have been committed "in relation to" the proceedings before the Court to whom the case was subsequently transferred or which finally tried the case.
By the same token, the offences under Sections 205 and 471, Penal Code, in the present case can be viewed as having been committed "in relation to" the proceedings before the Court of Shri Karandikar to whom the case was transferred for disposal.
Thus considered, Shri Karandikar was competent to make a complaint in respect of the aforesaid offences, after conducting a preliminary inquiry under Section 476, Cr.
P.C. 705 Before concluding, we think it necessary to notice and distinguish the decision of this Court in Nirmaljit Singh Hoon vs The State of West Bengal & Ors.
In that case, the complaint was filed before the Chief Presidency Magistrate in respect of a cognizable offence of criminal breach of trust and cheating.
The Magistrate without taking cognizance of the case, sent that complaint under Section 156(3) of the Code to the police for investigation.
During that investigation or inquiry by the police, the alleged forged receipt was produced by the accused.
It was held that it could not be argued that this forged document was produced in a proceeding before the Court of Chief Presidency Magistrate, although the forged document formed part of the record of the case which part of the record of the case which went to the Chief Presidency Magistrate together with the report of the police.
The reason for so holding was that investigation ordered by a Magistrate under Section 156(3) is an investigation made by a police officer in his statutory right under sub sections (1) and (2).
Moreover, the Magistrate sending such a complaint for investigation under Section 156(3) cannot be said to have taken cognizance of the offence, and no proceeding could be said to have been commenced before him, of which the inquiry by the police could be said to be part and parcel.
Further, it cannot be said that the police officer acting under Section 156(3) was a delegate of Chief Presidency Magistrate or that the investigation by him was an investigation by or on behalf of the Magistrate.
On these premises, the Court held that the production of the forged receipt in the course of such an investigation was not production in a proceeding before the Chief Presidency Magistrate, so as to attract the ban under Section 195(1)(c).
In the instant case, it cannot be disputed that the bail proceedings before Shri Deshpande were judicial proceedings before a court, although such proceedings took place at a stage when the offence against the accused, who was bailed out, was under police investigation.
Thus, the facts in Nirmaljit Singh 's case were materially different.
The ratio of that decision, therefore, has no application to the case before us.
For all the foregoing reasons, we are unable to agree with the High Court that the bail proceedings before Shri Deshpande were "distinct and different" from those which were initiated on police challan in the Court of Shri Karandikar and, therefore, the latter was not competent to hold a preliminary inquiry under Section 476, 706 Cr.
P.C. and/or to make a complaint for prosecution of the respondents, herein, in respect of the offences under Sections 205, 419, 465, 467 and 471, Penal Code.
We, therefore, allow this appeal set aside the impugned judgment and send the case back to the High Court with the direction that it should restore the appeals of Sk.
Bannu and Shankar to their original numbers and after hearing the parties, decide the same afresh on merits, according to law.
P.B.R. Appeals allowed.
| IN-Abs | Section 195(1)(b) of the Code of Criminal Procedure, 1898 provides that no Court shall take cognizance of any offence punishable under section 205 (among others) I.P.C. when such offence is alleged to have been committed in or in relation to any proceedings in any Court, except on the complaint in writing of such Court.
Clause (c) of this sub section provides that no Court shall take cognizance of any offence described in, among others, section 471 when such offence is alleged to have been committed by a party to any proceedings in any Court in respect of a document produced except on the complaint in writing of such Court.
Section 476 Cr.
P.C. provides that when any Criminal Court is, whether on application made to it or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195(1)(b) and (c) which appears to have been committed in or in relation to a proceeding in that court such court may make a complaint thereof and forward the same to a Magistrate First Class.
The prosecution alleged that in an application for release of a person arrested under the Bombay Prohibition Act on bail accused No. 2 identified the surety and that he attested the bail application.
Accused No. 3 was the scribe of the bail application and the affidavit accompanying it.
The Magistrate ordered his release on bail.
The case was transferred to another judicial magistrate who, when the accused failed to appear before him on the date of hearing, issued notice to the surety.
The person to whom the notice was issued (the purported surety) appeared before the Magistrate and stated that he had never stood surety in the case, nor had he ever made an affidavit nor signed any papers in this regard and being a literate person there was no question of putting his thumb impression on the affidavit and bail bond.
Accused No. 1 who was later named by accused No. 2 as the real surety admitted before the trial Magistrate that the bail application and the affidavit had been thumb marked by him at the instance of accused No. 2 and that he had no knowledge about the contents either of the application or of the affidavit.
The Magistrate made a complaint to the judicial Magistrate, First Class for prosecution of the three accused for the offences under sections 205, 419, 465, 467 and 471 IPC.
On finding that there was a prima facie case against all the accused the Magistrate committed them for trial.
695 The Additional Sessions Judge acquitted accused No. 3 but found accused No. 1 guilty of offence under sections 205, 419, 465 and 471 I.P.C. and accused No. 2 for offences under section 205 read with sections 109, 419, 465 and 471 read with section 109 I.P.C. and sentenced them variously.
On appeal by accused nos.
2 and 3 the High Court held that the proceedings before the transferee Magistrate were not the same proceedings or continuation of the same proceedings which were before the previous court in which or in relation to which the offence was committed within the meaning of section 476 read with section 195, Cr.
P.C. and that such a complaint could have been made only by the magistrate who released the accused on bail prior to the initiation of the case or his successor in office in that court but since the transferee Magistrate was not the successor in office of the Magistrate granting the bail, the proceedings before the committing Magistrate were without jurisdiction.
Allowing the appeals, ^ HELD : 1.
The High Court was not right in holding that the bail proceedings before the 'first ' Magistrate were "distinct and different" from those initiated on police challan before the transferee Court and that, therefore, the latter was not competent to hold a preliminary inquiry under section 476 Cr.
P.C. and/or to make a complaint for persecution of the respondents in respect of offences under sections 205, 419, 465, 467 and 471 IPC.
[706A C] 2.
An offence under section 205 I.P.C. will fall within the ambit of clause (b) and an offence under section 471 IPC, will fall under clause (c) of section 195(1).
The words "in or in relation to" occurring in clause (b) are not repeated in clause (c).
But these words occur in section 476 both with reference to clause (b) and clause (c) of section 195(1).
[701B].
The settled position on the interpretation of these provisions is that the bar in section 195(1)(b) does not apply if there is no proceeding in any court at all when the offence mentioned in section 195(1) had been committed.
In other words, the section contemplates only proceedings pending or concluded and not in contemplation.
[701H].
In the instant case, the forged bail bond and the false affidavit were presented in bail proceedings before the 'first ' Magistrate.
That Magistrate had jurisdiction to try the case which was then under investigation.
While considering a bail application of a person accused of an offence under investigation of the police, the Magistrate acts as a court, the proceedings in the bail application being judicial proceedings.
[702B].
Kamalapati Trivedi vs State of West Bengal ; relied on.
The bail proceedings before the 'first ' Court could not be viewed in isolation but had to be taken as a stage in and part of the entire judicial process, the second stage of which commenced on presentation of the challan by the police in the court of the magistrate for an enquiry or trial of the accused person to whom the bail had been granted.
[702G].
The very terms of the bail bond in the instant case show that they were intended to be a preliminary part of the proceedings of inquiry or trial before the magistrate commencing with the presentation of a charge sheet under section 173 Cr.
P.C. against the accused.
This being the real position, the bail proceedings before the 'first ' magistrate and the subsequent proceedings before 696 the transferee magistrate commencing with the presentation of the challan by the police for the prosecution of the accused in the prohibition case could not be viewed as distinct and different proceedings but as stages in and parts of the same judicial process.
Neither the time lag between the order of bail and the challan, nor the fact that on presentation of the challan, the case was not marked to the 'first ' Magistrate but was transferred under section 192 of the Code to the transferee magistrate, would make any difference to the earlier and subsequent proceedings being parts or stages of the same integral whole.
If the earlier proceedings before the 'first ' court and the subsequent proceedings before the transferee court were stages in or parts of the one and the same process, then it logically follows that the aforesaid offences could be said to have been committed "in or in relation to" the proceedings in the Court of the transferee Magistrate also, for the purpose of taking action under section 476 of the Code.
[703D H].
The rationale behind decided cases is that if the two proceedings, one in which the offence was committed and the other, the final proceedings in the same or a transferee court are, in substance, different stages of the same integrated judicial process, the offence can be said to have been committed "in relation to" the proceedings before the Court to which the case was subsequently transferred or which finally tried the case.
By the same token, the offences under sections 205 and 471 Penal Code in the present case can be viewed as having been committed "in relation to" the proceedings before the court of transferee magistrate to whom the case was transferred for disposal.
Therefore, the transferee magistrate was competent to make a complaint in respect of the offences, after conducting a preliminary inquiry under section 476, Cr.
P.C. [704F H].
In the instant case, it cannot be disputed that the bail proceedings before the 'first ' magistrate were judicial proceedings before a court, although such proceedings took place at a stage when the offence against the accused, who was bailed out, was under police investigation.
[705G].
Nirmaljit Singh Hoon vs The State of West Bengal & Ors., ; distinguished.
|
Civil Appeal No. 1831 of 1973.
Appeal by Special Leave from the Judgment and Order dated 4 5 1970 of the Allahabad High Court in Spl.
Appeal No. 453/69.
B. P. Maheshwari and Suresh Sethi for the Appellants.
Ex Parte for the Respondents.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal is directed against a judgment, dated May 4, 1970, of the High Court of Allahabad.
It arises in these circumstances: One Matadin, father of Ram Lochan, respondent 6 herein, was a fixed rate tenant of the plots in dispute measuring 2.11 acres.
One Ram Naresh Singh (deceased), brother of appellant 1 herein, 735 namely Mahadeo Prasad Singh, obtained a money decree against Matadin on February 18, 1953 from the Judge, Small Causes Court, Varanasi suit No. 847 of 1953.
Ram Naresh Singh sought to execute the decree.
As a consequence, the decree was transferred from the Court of the Judge of Small Causes to the Court of Munsif, Varanasi, for execution.
The plots in dispute were put to auction by the executing court, and were purchased by the decree holder on July 20, 1956.
The sale was confirmed on August 29, 1956 and the sale certificate was issued on September 8, 1956.
The decreeholder purchaser, Ram Naresh Singh, took delivery of possession over these plots on March 14, 1957.
Thereafter, he further sold the plots to appellant 2 and respondents 6 to 10.
Matadin, however, died sometime in 1960.
Thereafter his son Ram Lochan respondent 1, herein, instituted a suit on June 14, 1961 i.e. more than three years after the delivery of possession to the decree holder purchaser, Ram Naresh Singh, under section 229B read with Section 209 of the U. P. Zamindari Abolition and Land Reforms Act in the Revenue court against the present appellants, for a declaration that he is in possession of the suit land as Bhoomidar.
In the alternative, he claimed the relief of possession on the same basis.
He pleaded that his father, Ram Naresh Singh was the original Bhoomidar and remained in possession of the suit land till his death and thereafter, the plaintiff as the heir of the deceased continue in possession as Bhoomidar.
He further alleged that the sale in favour of Ram Naresh Singh was without jurisdiction and a nullity; as it had been made without the knowledge of or notice to his father.
The suit was resisted by the appellant, who is original defendant 1, and respondents 7 to 10, who are original defendants 2 to 5, inter alia on the ground that the suit was barred as res judicata and also under section 47 of the Code of Civil Procedure, and Article 181 of the Limitation Act.
Defendants 2 to 5 further pleaded that they were bona fide purchasers for value and, therefore, their rights in the suit land were protected under Section 41 of the Transfer of Property Act.
They also, alleged that they had made improvements on the suit land and were entitled to the benefit of Section 51 of the Transfer of Property Act.
The trial court, by its judgment, dated August 30, 1965.
dismissed the suit, holding, inter alia, that It was barred by the principle of constructive res judicata as also under Section 47 of the Code of Civil Procedure; that the Revenue Court had no jurisdiction to entertain and try the suit; that the appellants 6 to 736 10 were bona fide purchasers for value and, as such, were entitled to the benefit of Sections 41 and 51 of the Transfer of Property Act; that the suit was barred by Article 181 of the Limitation Act, 1908 as well as by Section 34(5) of the U.P. Land Reforms Act; and that Ram Naresh Singh had been in possession since March 14, 1967, i.e., the date on which he obtained delivery of possession in execution of his decree as auction purchaser.
Aggrieved, the plaintiff (respondent 1) preferred an appeal to the Court of the Additional Commissioner, Varanasi, who by his judgment dated December 28, 1965, allowed the appeal and held that the executing court had no jurisdiction to sell the suit land under Section 42 of the Code of Civil Procedure, as amended by the U.P. Civil Laws (Amendment) Act.
1954 and that the suit was not barred as res judicata or under Section 47 of the Code of Civil Procedure.
The Additional Commissioner further held that the possession of Ram Naresh Singh was unlawful as it was on the basis of the void sale, dated March 4, 1960, which could not confer any title on him; that the judgment debtor had no knowledge about the execution proceedings; that the suit property worth Rs. 6,000 was for a very meagre amount and the sale was vitiated by fraud in publishing and conducting the sale.
Ram Lochan and Ram Naresh Singh carried a second appeal against the decision to the Board of Revenue.
During the pendency of that second appeal, Ram Naresh Singh died and Mahadeo Prasad Singh, appellant 1, was substituted in his place.
The Board dismissed the appeal on the ground that the auction sale with regard to the suit land in pursuance of the decree of the Judge, Small Causes Court, was void and, as such, did not invest the decree holder purchaser with any title and consequently, the possession of the appellant was without any title.
The Board further held that the auction sale did not affect the suit under Section 209 of the U.P. Zamindari Abolition and the Land Reforms Act.
To impugn the judgment of the Board, Mahadeo Prasad Singh, appellant herein, as well as respondents 6 to 10 filed a writ petition under Article 226 of the Constitution in the High Court of Allahabad.
A learned Single Judge, who heard the writ petition, allowed it by his judgment, dated April 23, 1969, and quashed the judgments of the Board of Revenue as well as of the Additional Commissioner, who are respondents 2 and 3 herein.
Following an earlier judgment of a Division Bench of the same Court in Suraj Bux Singh vs Badri Prasad & Anr.
the learned Judge held 737 that the execution sale of the suit land was proper as per the provisions of Section 42 of the Code of Civil Procedure; that prior to its amendment in U.P. by the U.P. Civil Laws (Amendment) Act 1954, the executing court had the same powers in relation to execution as it would have had if the decree had been passed by itself; that the decree in the present suit was passed on February 18, 1953, i.e. prior to the coming into force of the Amendment Act of 1954 and, as such, the amended Section 42 did not apply to it; and that the decree having been passed prior to the date of the amendment, should be executed in accordance with the provisions of Section 42 as it stood prior to its amendment; and that as a result, the suit for declaration as well as for possession would have to fail.
The learned Single Judge did not go into the question as to whether the suit was barred by Section 47 of the Code of Civil Procedure.
Against the judgment of the learned Single Judge, respondent 1, herein, preferred a Special Appeal which was referred to a Full Bench of the High Court consisting of three learned Judges.
The two Judges, in majority, held that the Small Cause Court had no power to execute the decree by attachment and sale of immovable property; that the transferee court, namely, the court of the Munsif had the same powers as that of the Small Cause Court and, therefore, that court also had no jurisdiction to execute the decree by attachment and sale of the immovable property; that the right to execute a decree by attachment and sale of immovable property is a matter of procedure, while the right to realise the decretal amount by attachment and sale is a substantive right of the decree holder, that the date on which the decree was put into execution, the amendment of Section 42 had already come into force and the power of the transferee court had become co terminus with that of the transferor court; and that the amendment did not save the right of the appellant to execute the decree of the Small Causes Court by attachment and sale of immovable property.
Sinha, J. however, dissented.
He took the view that the Amendment Act did not apply to the present suit and that a substantive right had accrued to Ram Naresh Singh on the passing of the decree to execute it by attachment and sale of the immovable property and that right was clearly saved to him by virtue of Section 3 of the Amendment Act.
In accordance with the view of the majority, the appeal of respondent 1 was allowed and the Order of the learned Single Judge was set aside.
Hence this appeal by special leave by the appellants.
738 Thus, the principal question that falls to be considered in this appeal is whether the High Court was right in holding that the execution sale of the land in dispute was totally without jurisdiction and null and void.
Some relevant dates may be noted.
Ram Naresh obtained the decree from the Court of Small Causes on February 18, 1953.
On the decree holder 's application under Section 39 of the Code of Civil Procedure, the decree was transferred to the Court of the Munsif on January 24, 1955 and was put into execution after the U.P. (Amendment) Act XXIV of 1954 had come into force.
This sale in favour of the decree holder himself took place on July 20, 1956.
It was confirmed on August 29, 1956 and the sale certificate was issued to the purchaser on September 8, 1956.
The auction purchaser took delivery of possession as per Dakhalnama on March 24, 1957.
The decree holder purchaser further sold the plots in dispute to defendants 2 to 5.
Next, at this stage, the relevant provisions of the Code of Civil Procedure and the U.P. Civil Laws (Reforms and Amendment) Act (Act No. XXIV of 1954) may be noticed.
Section 38 of the Code of Civil Procedure provides that "a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution".
In the instant case, as already seen, the decree was passed by the Small Cause Court which was competent to execute it, but (in view of Order 21, Rule 82 of the Code) not by attachment and sale of the immovable property of the judgment debtor.
That is to say, that Court could execute it by attachment and sale of the movable property of the judgment debtor, if it was, of course, not exempt under Section 60 of the Code of Civil Procedure or under any other law.
Section 39 of the Code deals with transfer of decree.
Its material part reads thus: "39(1).The Court which passed a decree may, on the application of the decree holder, send it for execution to another Court of competent jurisdiction (a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or (b)if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property 739 within the local limits of the jurisdiction of such other Court, or (c)if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or (d)if the court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.
(2)The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.
(3) . . . . . " In the instant case, the decree was transferred under clause (d) of sub section (1) of Section 39.
Unlike the other clauses (a) to (c) of the sub section, it seems that under clause (d), the Court has a rational discretion to transfer or not to transfer the decree passed by it.
This is apparent from the word "may" used in the opening part of sub section (1), and the requirement of recording reasons for the transfer under clause (d).
It follows therefore, that under Section 39 (1) a decree holder has no indefeasible right to get his application for transfer of decree to another Court ipso facto accepted by the Court which passed it, particularly in a case which is not covered by clauses (a), (b) and (c) of that sub section.
Section 42 of the Code indicates the powers of the transferee court for executing a transferred decree.
The material part of this section, prior to its amendment by the U.P. Act (No. XXIV) of 1954, reads as under: "The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself.
All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree.
And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.".
(emphasis added) The provisions in sub sections (2), (3) and (4) of the Section are not relevant for our purpose.
The U.P. Act (No. XXIV of 1954) amended with effect from November 30, 1954, Section 42 of the Code, and after that amendment sub section (1) of the Section read as under: 740 "The Court executing the decree sent to it shall have the same power in executing such decree as if it had been passed by itself.
All persons disobeying or obstructing the execution of decree shall be punished by such Court in the same manner as if it had passed the decree and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself." (emphasis added) Thus, for the words "as if it had been passed by itself" occurring in the first sentence of sub section (1) of Section 42, the Amending Act 24 of 1954 substituted the words "as the Court which passed it".
The effect of such substitution was that the powers of the transferee Court in executing the transferred decree became coterminous with the powers of the Court which had passed it.
The result was that if the power of the transferor Court to execute its own decree were in any respect restricted, the same restriction would attach to the powers of the transferee Court in executing the transferred decree, notwithstanding the position that the powers of the transferee Court in executing its own decree were not so restricted.
Section 3 of the U.P. Civil Laws (Reforms and Amendment) Act, saves certain rights already acquired or accrued.
It is in these terms: "3(1)Any amendment made by this Act shall not affect the validity, invalidity, effect or consequence of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any release or discharge of or from any debt, decree, liability, or any jurisdiction already exercised, and any proceeding instituted or commenced in any Court prior to the commencement of this Act shall, notwithstanding any amendment herein made, continue to be heard and decided by such Court.
(2)Where by reason of any amendment herein made in the Indian Limitation Act, 1908, or any other enactment mentioned in column 2 of the schedule, the period of limitation prescribed for any suit or appeal has been modified or a different period of limitation will hereafter govern any such suit or appeal, then, notwithstanding any amendment so made or the fact that the suit or appeal would now lie in a different Court, the period of limitation applicable to a suit or appeal, as aforesaid, in which time has begun to run before the commencement of this Act, shall continue to be the period 741 which but for the amendment so made would have been available.
Before dealing with the contentions canvassed, we may remind ourselves of some well known principles of interpretation in regard to the retrospective operation of statutes.
As a general rule, a statute which takes away or impairs substantive rights acquired under the existing law is construed to have a prospective operation unless the language of that statute expressly or by inevitable intendment compels a contrary construction.
But this presumption as to prospective operation of a statute does not apply to an enactment affecting procedure or practice such as the Code of Civil Procedure.
The reason is that no person has a vested right in any course of procedure.
"The general principle indeed seems to be that alterations in the procedure are always retrospective, unless there be some good reason against it".
(See Mulla 's Code of Civil Procedure, 13th Edn.
I, page 6, and In the light of the above principles, the question posed for our decision, resolves itself into the two fold issue : whether the decree holder had acquired a substantive right (a) to get the decree passed by the Court of Small Causes, transferred to the Court of the Munsif and (b) thereafter to have is executed by the transferee Court in any of the modes provided in Section 51 of the Code of Civil Procedure, including the mode by attachment and sale of the immovable property of the judgment debtor.
As before the High Court, here also, it is contended on behalf of the decree holder that he had acquired this two fold substantive right before the coming into force of the U.P. (Amendment Act XXIV) of 1954, and, as such, it was saved by Section 3(1) of this Amendment Act.
It is maintained that the two fold right aforesaid is a substantive right and not merely a matter of procedure.
Support for this argument has been sought from a decision of this Court in Garikapati vs Subbiah Choudhry.
Reference has also been made to a Division Bench judgment of the Allahabad High Court in Suraj Bux Singh vs Badri Prasad.
In the alternative, it is submitted that assuming the sale was without jurisdiction, then also, that question would relate to the execution, discharge or satisfaction of the decree and, as such, the remedy of the judgment debtor was to proceed by an application 742 under Section 47 of the Code of Civil Procedure and not by a suit as has been done by the plaintiff in the instant case.
In short, the argument is that in any event, the present suit was barred by Section 47 of the Code.
It appears to us that none of these contentions stands a close examination.
It may be noted that the fasciculus of Sections 51 to 54 of the Code of Civil Procedure appear under the heading "PROCEDURE IN EXECUTION".
Section 51 is captioned "Powers of Court to enforce execution".
It reads thus : "Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree holder, order execution of the decree (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sales without attachment of any property; (c) . . . . . . . . (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require : Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied. . . ." This Section "merely enumerates the different modes of execution in general terms while the conditions and limitations under which alone the respective modes can be availed of are prescribed further on by different provisions".
I.R. Commentaries Vol.
I, 9th Edn.
p. 863).
The opening words of the Section "Subject to such conditions and limitations as may be prescribed" put it beyond doubt that there is no wide or unrestricted jurisdiction to order execution or to claim execution in every case in all the modes indicated therein. 'Prescribed ' has been defined in Section 2(16) of the Code to mean "prescribed by rules", and "rules", under Section 2(18) means "rules and forms" contained in the First Schedule of the Code or framed by the respective superior Courts in different States under Section 122 or Section 125.
743 We are one with the High Court (majority) that this phrase cannot be construed to mean that the powers of the executing Court under this Section are not subject to the other conditions and limitations enacted in the other sections of the Code.
For instance, the mode, (b), by attachment and sale of the property of the judgment debtor, may not be available in respect of property which falls within the exemption of section 60 of the Code.
Although ordinarily the decree holder has an option to choose any particular mode for execution of his money decree, it will not be correct to say that the Court has absolutely no discretion to place any limitation as to the mode in which the decree is to be executed.
The option of the judgment debtor, for instance, to apply under Order 21.
Rule 30, C.P.C. for execution of a decree simultaneously against both the person and the property of the judgment debtor is subject to exercise by the Court of a judicial discretion vested in it under Order 21, Rule 21, C.P.C. We have already noticed, that under Section 39(1) (d), the decree holder has no indefeasible, substantive right to get a decree of a Court of Small Causes passed in his favour transferred to another Court.
Cases are conceivable where the decree is of such a petty amount that the Court of Small Causes thinks that it can easily be executed by it by attachment and sale of the movable property of the judgment debtor.
In the instant case, also the decree was for a small amount of Rs. 300 and odd and we understand that the application for transfer was made under clause (d) of Section 39(1).
Thus, the decree holder 's right to make an application for transfer of his decree under section 39(1) (d) is a mere procedural right.
The Court of Small Causes could in its discretion, for reasons to be recorded, refuse to transfer it to the Court of the Munsif.
In other words, the decree holder had no vested or substantive right to get the decree transferred to the Court of the Munsif for execution.
The first limb of the issue is therefore answered against the appellant.
As regards the second limb of the issue, we find ourselves entirely in agreement with the High Court that the provisions of Section 51 are merely procedural in character.
A decree holder gets a right to execute the decree only in accordance with the 744 procedure provided by law in force at the time when the execution is sought.
If a mode of procedure different from the one which obtained at the date of the passing of the decree, has been provided by law, the decree holder is bound to proceed in execution according to the altered procedure.
The Amendment Act XXIV of 1954 had taken away the power of the transferee court to execute the transferred decree by attachment and sale of the immovable property by making it coterminous with that of the transferor Court which, in the instant case, was the Small Cause Court and in view of the prohibition contained in Order 21, Rule 82, Code of Civil Procedure, had no power to execute its decree by sale of immovable property.
That being the position, the Court of the Munsif to whom the decree had also been transferred for execution, had also no jurisdiction to order sale of the immovable property of the judgment debtor.
Thus considered, the sale of the immovable property ordered by the Munsif in execution of the decree of the Court of Small Causes transferred to him, was wholly without jurisdiction and a nullity.
Once we come to the conclusion that the sale in question was totally null and void, the alternative contention of the appellants with regard to the suit being barred by Section 47 of the Code of Civil Procedure, does not survive.
This is not a case of an irregular or voidable sale which continues to subsist so long as it is not set aside, but of a sale which was entirely without jurisdiction.
It was non est in the eye of law.
Such a nullity does not from its very nature, need setting aside.
As pointed out by this Court in Kiran Singh vs Chaman Paswan, ". it is a fundamental principle, well established that a decree passed by a Court without jurisdiction, is a nullity; and that its invalidity could be set up whenever it is sought to be enforced or relied upon, even at the stage of execution, and even in collateral proceedings".
Most of the rulings which have been cited in support of their alternative contention by the appellants, were also cited before 745 the High Court and have been rightly distinguished.
We need not go into the same.
Before we part with the judgment, we may, however, note that the amendment made by the U.P. (Act XXIV) of 1954 was deleted by another U.P. (Amendment) Act XIV of 1970, and the unamended sub section (1) of Section 42, as it existed before the amendment of 1954, was revived.
But, this Amendment Act (XIV of 1970) was not given retrospective operation.
It did not affect the previous operation of the Amendment Act XXIV of 1954 or anything suffered or done thereunder.
For the foregoing reasons, we uphold the impugned judgment and dismiss this appeal.
In view of the law point involved, we leave the parties to pay and bear their own costs.
P.B.R. Appeal dismissed.
| IN-Abs | A decree, according to section 38 of the Code of Civil Procedure, may be executed either by the Court which passed it or by the Court to which it is sent for execution.
Section 39(1)(d) provides that the Court which passed a decree may, on the application of the decree holder, send it for execution to another Court of competent jurisdiction, if the Court, which passed the decree, considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.
Section 42 of the Code, which indicates the powers of the transferee Court for executing the transferred decree, before its amendment in 1954, provided that the Court executing the decree sent to it, shall have the same powers in executing such decree "as if it had been passed by itself." After the amendment the words "as the Court which has passed it" were substituted for the words "as if it has been passed by itself".
Section 3 of the U.P. Civil Laws (Reform and Amendment) Act saved certain rights already acquired or accrued.
In February, 1953 the brother of appellant No. 1 obtained a decree from the Court of Small Causes which on his application under section 39 of the Code, was transferred to the Court of Munsif in January, 1955 and put into execution after the U.P. (Amendment) Act XXIV of 1954 had come into force.
In the sale the decree holder himself purchased the land in July, 1956 and took possession of the property.
He later sold the property to defendant nos.
2 to 5.
The suit of respondent No. 1 for a declaration that the sale in favour of appellant No. 1 was without jurisdiction and therefore a nullity was dismissed by the trial Court.
On appeal the Additional Commissioner held that the executing court had no jurisdiction to sell the suit land under section 42 of the C.P.C. as amended by the U. P. Civil Laws (Amendment) Act, 1954 Dismissing the appeal, the Board of Revenue held that the auction sale in pursuance of the decree of the Judge, Small Causes Court was void and did not invest the decree holder purchaser with any title.
733 On the appellant 's writ petition a single Judge of the High Court quashed the judgment of the Revenue Board as well as of the Additional Commissioner holding that the execution sale of the land was proper under section 42 of the Code, that prior to its amendment by the U. P. Civil Laws (Amendment) Act, 1954, the executing court had the same powers in relation to execution as it would have had if the decree had been passed by itself and the decree having been passed prior to the amendment of section 42 this section did not apply and the decree should have been executed in accordance with the provisions of section 42 prior to its amendment.
On appeal a Full Bench of the High Court (by majority) held that since the Small Causes Court had no power to execute the decree by attachment and sale of immovable property, the Munsif 's Court to which the decree was transferred for execution, possessing the same powers as the Small Causes Court, had no jurisdiction to execute the decree by attachment and sale of the immovable property.
It was contended before this Court on behalf of the decree holder that he had acquired a substantive right to get the decree of the Court of Small Causes transferred to the Court of Munsif for execution and thereafter to have it executed by the transferee court in any of the modes provided in section 51 C.P.C. and this two fold substantive right having accrued to him before the coming into force of the 1954 Amendment, it was saved by section 3 of this Amendment Act.
Dismissing the appeal, ^ HELD: 1 (a) Under section 39(1)(d) a decree holder has no indefeasible substantive right to get his application for transfer of a decree to another Court ipso facto accepted by the Court which passed it, particularly in a case which is not covered by clauses (a), (b) & (c) of that sub section.
The effect of substitution of the words "as the court which passed it" for the words "as if it had been passed by itself" was that powers of the transferee Court in executing the transferred decree became co terminus with the powers of the Court, which passed it.
Therefore, if the power of the transferor Court to execute its own decree were in any respect restricted, the same restriction would attach to the powers of the transferee Court in executing the transferred decree notwithstanding the position that the powers of the transferee Court in executing its own decree were not so restricted.
[739E; 740C D] (b) The opening words of section 51 (subject to such conditions and limitations as may be prescribed) put it beyond doubt that there is no wide or unrestricted jurisdiction to order execution or to claim execution in every case in all the modes indicated therein.
The High Court (per majority) was right in construing it to mean that the powers of the executing court under this section are not subject to the other conditions and limitations enacted in the other sections of the Code.
Although ordinarily a decree holder has an option to choose any particular mode for execution of his money decree it may not be correct to say that the Court has absolutely no discretion to place any limitation as to the mode in which the decree is to be executed.
[742G, 743A B] In the instant case, the decree holder 's right to make an application for transfer of his decree under section 39(1)(d) is a mere procedural right.
The Court of Small Causes could, in its discretion for reasons to be recorded, 734 refuse to transfer it to the Court of Munsif.
In other words the decree holder had no vested or substantive right to get the decree transferred to the Court of the Munsif for execution.
[743F G] (c) The well settled principle in regard to the retrospective operation of statutes is that as a general rule, a statute which takes away or impairs substantive rights acquired under the existing law is construed to have a prospective operation unless the language of that statute expressly or by inevitable intendment compels a contrary construction.
But this presumption as to prospective operation of a statute does not apply to an enactment affecting procedure or practice such as the Code of Civil Procedure because no person has a vested right in any course of procedure.
[741 B C] 2.(a) The High Court was right in holding that the provisions of section 51 are merely procedural in character.
A decree holder gets a right to execute the decree only in accordance with the procedure provided by the law in force at the time when execution is sought.
If a mode of procedure different from the one which obtained at the date of passing of the decree has been provided by law, the decree holder is bound to proceed in execution according to the altered procedure.
[744A B] (b) The Amendment Act XXIV of 1954 had taken away the power of transferee Court to execute the transferred decree by attachment and sale of the immovable property by making it co terminus with that of the transferor Court (the Small Cause Court) and in view of the prohibition contained in Order 21 Rule 82 C.P.C. it had no power to execute its decree by sale of immovable property.
That being the position, the Court of the Munsif to which the decree had been transferred for execution had no jurisdiction to order sale of the immovable property of the judgment debtor.
The sale ordered by the Munsif in execution of the decree of the Court of Small Causes transferred to him was, therefore, wholly without jurisdiction and a nullity.
[744 B D] Kiran Singh vs Chaman Paswan, ; referred to.
|
Civil Appeals Nos.
56 & 57 of 1954.
Appeal from the judgment and order dated the 25th day v of March 1951 of the Madras High Court in Case Referred Nos. 32 of 1948 and 31 of 1950.
K.S. Krishnaswami Iyengar, (K. R. Choudhry, with him) for the appellants.
G.N. Joshi and P. G. Gokhale, for, the respondent.
May 9.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The appellant is a firm which was constituted under a deed of partnership dated 10 2 1941, and consists of two partners, Subba Rao and Hariprasada Rao.
On 21 3 1942 it was registered under section 26 A of the Indian IncomeTax Act No. XI of 1922, hereinafter referred to as the Act, for the assessment year 1942.
Sometime thereafter, one of the partners, Subba Rao, is stated to have left on a long pilgrimage, and the affairs of the partnership were then managed by Hariprasada Rao as his agent under a general power of attorney dated 1 7 1940.
Hariprasada Rao then applied under rules 2 and 6 of the rules framed under section 59 of the Act, for renewal of the registration certificate for the year 1942 43, and the application was signed by him for himself and again as the attorney of Subba Rao.
Those rules provide that an application for registration of a firm under section '26 A and for renewal of registration certificate "shall be signed personally by all the partners" '.
The Income tax Officer rejected the application for renewal on the ground that it was not personally signed by one of the partners, Subba Rao, and that the signature of Hariprasada Rao as his agent was not valid The order was taken in appeal, and was ultimately the subject of a reference under section 66(1) of the Act to the High Court of Madras, which held that the word "personally" in rule 6 required that the partner 579 should himself sign the application, and that the principles of agency under the general law were exclude.
(Vide Commissioner of Income tax vs Subba Rao(1)).
While these proceedings were pending, Hariprasada Rao filed the two applications, out of which the present appeals arise, for renewal of the registration certificate for the assessment years 1943 44 and 1944 45.
Both of them were signed by him for himself and as attorney for Subba Rao.
At the hearing of these petitions the appellant, apart from maintaining that rules 2 and 6 did not, on their true construction, exclude signature by an agent on behalf of a partner, raised a further contention that the rules themselves were ultra vires the powers of the rulemaking authority.
The Income tax Officer overruled both these contentions, and rejected the applications, and his orders were confirmed on appeal by the Appellate Assistant commissioner and then by the Appellate Tribunal.
Thereafter, on the application of the appellant, the Tribunal referred the following questions for the decision of the High Court: "(1) Whether the word 'personally ' in the Income tax Rules, as framed under section 59 of the Income tax Act would exclude a duly authorised agent of a partner from signing an application on behalf of the partner under section 26 A of the Income tax Act? (2)If the answer to the above question is in the affirmative, whether rules 2 and 6 are ultra vires the rule making authority?" The reference was heard by Satyanarayana Rao and Viswanatha Sastry, JJ.
Following the decision in Commissioner of Income tax vs Subba Rao(1), they answered the first question in the affirmative.
On the second question, however, they differed.
Satyanarayana Rao, J. held that the rules were ultra vires, and that the applications were in order, and ought to have been granted.
Viswanatha Sastry, J. was of the contrary opinion, and held that the rules were intra vires, and that the applications were properly (1) I.L R. ; 580 rejected as not being in accordance with them.
The learned Judges, however, granted a certificate under section 66 A of the Act, and that is how the appeals come before us.
The first question whether the word "personally" would exclude signature by an authorised agent on behalf of the partner was answered in the affirmative by the Madras High Court in Commissioner of Incometax vs Subba Rao(1).
This was one of the decisions quoted with approval by this Court in Commissioner of Agricultural Income tax vs Keshab Chandra Mandal(2), where the question was whether a rule framed under the Bengal Agricultural Income tax Act that the declaration in the return should be signed by the individual himself required that he should sign it personally, and it was held that it did so require.
Sri K. section Krishnaswami Ayyangar, learned counsel for the appellant, did not urge any grounds for differing from the above conclusion, and we must therefore hold, in agreement with the views expressed in the above decisions, that the signature which is pres cribed by the rules is that of the partner himself, and that they are not complied with by the agent signing on his behalf.
Then we come to the second question and that is the substantial question that arises for our determination in this appeal whether rules 2 and 6 are ultra Vires the rule making authority.
The argument of the appellant in support of its contention that the rules are ultra Vires may thus be stated: Under the common law of England, a person has the right to do through an agent whatever he can do himself, and that right has also been conferred on him in this country by section 2 of the Powers of Attorney Act VII of 1882, which runs as follows: "The donee of a power of attorney may, if he thinks fit, execute or do any assurance, instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, (1) I.L.R. I.T.R. 232.
(2) ; 581 instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof "This section applies to powers of attorney created by instruments executed either before or after this Act comes into force".
Section 26 A of the Act confers on a partner the right to apply for registration of the firm, and that right could be 'exercised both under the common law and under section 2 of the Powers of Attorney Act through an authorised agent.
The sovereign legislature might, if it so chooses, abrogate the rule of common law, and repeal section 2 of the Powers of Attorney Act,.
and enact that the application to be presented under section 26 A should be signed by the partner himself and not by any other person; but it has not done so either expressly or by necessary implication, and, therefore, the application which was signed by Hariprasada Rao is as good as if it had been signed by Subba Rao.
The Rules no doubt require that the signature should be that of the partner and not that of ' his agent.
But in prohibiting what would be lawful under the section, the Rules go beyond the ambit of the authority conferred by section 26 A on the rule making authority, which is limited to framing Rules for giving effect to the principles laid down in the statute.
They are therefore ultra vires.
In the alternative, assuming that the mandate given to the rule Making authority under section 26 A is of sufficient amplitude to authorise the making of the Rules in question, even then, they must be held to be ultra vires, as they have the effect of abrogating the common law and of repealing section 2 of the Powers of Attorney Act, which confer on a person the right to act through an agent, and that being a legislative function cannot be delegated to a rule making authority.
and section 26 A, if it is to be construed as conferring such power on an outside authority, must be struck down as constituting an unconstitutional delegation by the legislature of its legislative function.
582 It is the correctness of these contentions, that now falls to be considered.
According to the law of England and that is also the law under the Indian Contract Act, 1872 "every person who is sui juris has a right to appoint an agent for any purpose whatever and that be can do so when he is exercising a statutory right no less than when he is exercising any other right".
Per Stirling, J. in Jackson and Co. vs Napper: In re Schmidts ' Trade Mark(1).
This rule is subject to certain well known exceptions as when the act to be performed is personal in character, or is annexed to a public office, or to an office involving fiduciary obligations.
But apart from such exceptions, the law is well settled that whatever a person can do himself, he can do through an agent.
It has accordingly been held that "at common law.
, when a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it".
Per Blackburn, J. in The Queen V. Justices Of Kent(").
The appellant is therefore right in his contention that unless the statute itself enacts otherwise, an application which a partner has to sign would be in order and.
valid, if it is signed by his authorised agent.
The question then is whether there is anything in the Act, which requires that an application under section 26 A should be signed by the party personally.
Section 26 A is as follows: "(I) Application may be made to the Incometax Officer on behalf of any firm, constituted under an instrument of partnership specifying the individual shares of the partners, for registration for the purposes of this Act and of any other enactment for the time being in force relating to income tax or super tax.
(2) The application shall be made by such person or persons, and at such times and shall contain such particulars and shall be in such form, and be verified in such manner, as may be prescribed; and it shall (1) , 172.
(2) , 307.
583 be dealt with by the Income tax Officer in such manner as may be prescribed".
The section does not, it should be noted, provide that the application for registration should be signed by the partner personally, and it is this that forms the foundation of the contention of the appellant that the right which a person has under the general law and under section 2 of the Powers of Attorney Act to act through an agent has not been taken away or abridged by the section.
He relies in support of his contention on the following rules of construction: (1) Statutes which encroach on the rights of a subject should be interpreted if possible so as to respect such rights.
[Vide Maxwell on Interpretation of Statutes, 10th Edition, page 285; Craies on Statute Law,, 5th Edition, pages Ill to 114).
The law is thus stated by Lord Justice Bowen in In re Cuno: Mansfield vs Mansfield(1): "In the construction of statutes, you must not construe the words so as to take away rights which already existed before the statute was passed, unless you have plain words which indicate that such was the intention of the legislature".
(2)In the absence of clear and unambiguous language, an intention to alter the existing law should not be imputed to the legislature.
(Vide Craies on Statute Law, 5th Edition, pages 114 and 115).
(3)The law does not favour repeal of a statute by implication, and therefore a later statute should not be construed as repealing an earlier one without express words or by necessary implication.
(Vide Maxwell on Interpretation of Statutes, 10th Edition, page 170;.
Craies on Statute Law, 5th Edition, page.
"If it is possible", observed Farwell, J., "it is my duty so to read the section as not to effect an implied repeal of the earlier Act": Be Chance(2).
"Unless two Acts are so plainly repugnant to each other, that effect cannot be given to both at the same time, a repeal will not be implied".
Per A. L. Smith, J. in Kutner vs Phillips(3).
(1) , 17.
(2) , 270.
(8) , 272.
584 In the light of these principles, it is contended that the true scope of section 26 A is that it confers a right on a partner to register the firm, and leaves the modus of the exercise thereof to be regulated by the existing law, and that, therefore, far from showing an intention either to alter the general law as to the right of a person to act through his agent or to repeal section 2 of the Powers of Attorney Act, the section depends on their continued operation for its implementation.
Now, the rules of construction on which the appellant relies are well established.
But then, it should not be overlooked that they are only aids to ascertain the true intention of the legislature as expressed in the statute., and the question ultimately is, what in the context do the words of the enactment mean? The following passage from Crawford on "The Construction of Statutes", 1940 Edition, page 454 cited by the appellant may be usefully referred to in this connection: "Why should a statute be subjected to a strict or a liberal construction, as the case may be? The only answer that can possibly be correct is because the type of construction utilized gives effect to the legislative intent.
Sometimes a liberal construction must be used in order to make the legislative intent effective.
, and sometimes such a construction will defeat the intent of the legislature.
If this is the proper conception concerning the rule of construction to be adhered to, then a strict or a liberal construction is simply a means by which the scope of a sta tute is extended or restricted in order to convey the legislative meaning.
If this is the proper position to be accorded strict and liberal constructions, it would make no difference whether the statute involved was penal, criminal, remedial or in derogation of common right, as a distinction based upon this classification would then mean nothing".
That being the correct position, the question is whether on its true interpretation, the statute intended that an application under section 26 A should be ' signed by the partner personally, or whether it could 585 be signed by his agent on his behalf To decide that, we must have regard not only to the language of section 26 A but also to the character of the legislation, the scheme of the Act and the nature of the right conferred by the section.
The Act is, as stated in the preamble, one to consolidate and amend the law relating to income tax.
The rule of construction to be applied to such a statute is thus stated by Lord Herschell in Bank of England v: Vagliano(1): "I think the proper course is in the first instance to examine the language of the statute, and to ask what is its , natural meaning, uninfluenced by any considerations derived from the previous state of the law and not to start with inquiring how the law previously stood, ' and then, assuming that it was probably "intended to leave it unaltered. . . . . " We must therefore construe the provisions of the Indian Income tax Act as forming a code complete in itself and exhaustive of the matters dealt with therein, and ascerta in what their true scope is.
Turning then to the provisions of the Act, considerable light is thrown on their true import by the decision of this Court in Commissioner of Agricultural Income tax vs Keshab Chandra Mandal(2).
There, the question was as to the meaning of Rule I 1 framed under the Bengal Agricultural Income tax Act, 1944 read with Form No. 5, which required that the declaration in the return should be signed "in the case of an individual, by the individual himself".
It was held by this Court on a review of the provisions of the statute that the intention of the legislature as expressed therein was to exclude the common law rule, qui facit per alium facit per se, and the declaration to be valid must be signed by the assessee personally.
It is argued for the appellant that Commissioner of Agricultural Income tax vs Keshab Chandra Mandal(2) was a decision only on the interpretation of Rule No. 11 and not on its validity, and that the question whether the rule was ultra vires or not was not in issue.
That is so, but the materiality of the (1) , 141.
(2) ; , 76 586 decision to the present controversy lies in this that the interpretation which was put on Rule 11 as requiring personal signature was based on the conclusion which this Court reached on a consideration of the relevant provisions of the Bengal Agricultural Income tax Act that the intention of the legislature was to exclude the rule of the common law on the subject.
Now, the provisions of the Bengal Act which were construed in Commissioner of Agricultural Income tax vs Keshab Chandra Mandal(1) as indicative of the above intention, are identical in terms with the corresponding provisions in the Indian Income tax Act, and are, in fact, based on them and it would therefore be logical to construe the latter as expressing an intention to discard the rule of common law on the subject.
The relevant provisions of the Bengal Agricultural Income tax Act may now be noticed.
Section 25(1) of the Bengal Act provides that if.
the Income tax Officer is not satisfied that the return made is correct and complete, he may require the assessee by notice either to attend at the Income tax office or to produce or cause to be produced any evidence on which he might rely.
This corresponds to section 23(2) of the 'Indian Income tax Act.
The point to be noted with reference to this section is that it contains an express provision for production of evidence by the assessee through his agent, a provision which would have been wholly unnecessary if the common law was intended to apply.
Sections 35 and 36 of the Bengal Act contain provisions as to who can represent the assessee and in what proceedings, and they follow section 61 of the Indian Income tax Act and form a code complete in themselves.
Then again, both the Bengal Act and the Indian Income tax Act provide that certain provisions of the Civil Procedure Code are applicable to the proceedings under the Act.
The provisions of Order 3 of the Civil Procedure Code enacting that parties may appear and act through recognised agents are not among them.
To cut the discussion short, the effect of the provisions of the (1) ; 587 Bengal Act is thus summarized in Commissioner of Agricultural Income tax vs Keshab Chandra Manda`(1): "The omission of a definition of the word 'sign ' as including a signature by an agent, the permission under section 25 for production of evidence by an agent and under sections 35 and 58 for attendance by an agent and the omission of any provision in the Act applying the provisions of the Code of Civil Procedure relating to the signing and verification of pleadings to the signing and verification of the return while expressly adopting the provisions of that Code relating to the attendance and examination of witnesses, production of documents and issuing of commission for examination and for service of notices under sections 41 and 60 respectively, cannot be regarded as wholly without significance".
This reasoning applies with equal force to the provisions of the Indian Income tax Act, and goes far to support the contention of the respondent that the common law is not intended to apply to proceedings under the Act.
Another factor material for the determination of this question is the nature of the right conferred by section 26 A. Under the common law of England, a firm is not a juristic person, the firm name being only a compendious expression to designate the various partners constituting it.
But, as pointed out by this Court in Dulichand Laxminarayan vs Commissioner of Income tax, Nagpur(2), inroads have been made by statute s into this conception, and firms have been regarded as distinct entities for the purpose of those statutes.
One of those statutes is the Indian IncomeTax Act, which treats the firm as a unit for purposes of taxation.
Thus, under section 3 of the Act the charge is imposed on the total income of a firm, the partners as such being out of the picture, and accordingly under section 23 of the Act, the assessment will be on the firm on its total profits.
Section 23(5) enacts an exception to this in the case of firms registered under the Act, and provides that, "(a). . the sum payable by the firm itseIf shall (1) ; (2) A.I.R. 1956 S.C. 354.
588 not be determined but the total income of each partner of the firm, including therein his share of its income, profits and gains of the previous year, shall be assessed and the sum payable by him on the basis of such assessment shall be determined".
Thus, if a firm is registered, it ceases to be a unit for purposes of taxation and the profits earned by it are taken, in accordance with the general law of partnership, to have been earned by the individual partners according to their shares, and they are taxed on their individual income including their share of profits.
The advantages of this provision are obvious.
The rate of tax chargeable will not be on the higher scale provided for incomes on the higher levels but on the lower one at which the income of the individual partner is chargeable.
Thus, registration confers on the partners a benefit to which they would not have been entitled but for section 26 A, and such a right being a creature of the statute, can 'be claimed only in accordance with the statute which confers it, and a person who seeks relief under section 26 A must bring himself strictly within its terms before he can claim the benefit of it.
In other words, the right is regulated solely by the terms of the statute, and it would be repugnant to the character of such a right to add to those terms by reference to other laws.
The statute must be construed as exhaustive in regard to the conditions under which it can be claimed.
Thus, considering the question with reference to the character of the legislation, the scheme of the statute and the nature of the right conferred by section 26 A, the conclusion is irresistible that rules of common law were not intended to be saved, and that the right to apply for registration.
under that section is to be determined exclusively by reference to the prescriptions laid down therein.
If that is the true construction, in authorising the rule making authority to frame rules as to who can apply for registration under section 26 A, and when and how, the statute has.
merely directed that authority to fill in details in the field of legislation occupied by it, and it is not denied that Rules a and 6 are within the mandate conferred 580 by the section.
In this view, section 59 (5) of the Act which enacts that "Rules made under this section shall be published in the official Gazette, and shall thereupon have effect as if enacted in this Act" directly applies, and the vires of the Rules is beyond question.
Vide the observations of Lord Herschell in Institute of Patent Agents vs Lockwood(1).
Then, there is the contention of the appellant that the Rules in question are repugnant to section 2 of the Powers of Attorney Act VII of 1882, and are therefore ultra wires.
In addition to the reasons given above in support of the conclusion that the rule of the common law was not intended to operate in the field occupied by section 26 A, there is a further and a more compelling reason why this contention should not be accepted.
It is that there is, in fact, no conflict between the two statutory provisions.
To un derstand the scope of section 2 of the Powers of Attorney.
Act, it is necessary to refer to the history of this legislation.
Under the common law of England, an agent having authority to execute an instrument must sign in the name of the principal if he is to be bound.
If the agent signs the deed in his name albeit as agent, he is the person who is regarded as party to the document and not the principal. , It is the agent alone that can enforce the deed, and it is be that will be liable on it.
Vide In re International Contract Company(2); Schack vs Antony(3), Halsbury 's Laws of England, 3rd Edition, Volume 1, page 217, and Bowstead on Agency, 10th Edition, page 93.
To remove the hardships resulting from this state of the law, the Conveyancing and Law of Property Act, 1881 (44 and 45, Vict, Chapter 41) enacted section 46, which is as follows: "(1) The donee of a power,of attorney may, if he thinks fit execute or do any assurance, instrument, or thing in and with his own name and signature and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, instrument, and thing so executed and done shall be (1) , 351.
(2) (3) I M. & section 573; ; 590 as effectual in law, to all intents, as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof (2) This section applies to powers of attorney created by instruments executed either before or after the commencement of this Act".
The Indian Legislature immediately followed suit, and enacted the Powers of Attorney Act VII of 1882 incorporating in section 2 therein word for word, section 46 of the English Act.
The object of this section is to effectuate instruments executed by an agent but not in accordance with the rule of the common law and the enactment is more procedural than substantive.
It does not confer on a person a right to act through agents.
It presupposes that the agent has the authority to act on behalf of the principal, and protects acts done by him in exercise of that authority but in his own name.
But where the question is as to the existence or the validity of authority, the section has no operation.
Thus., the fields occupied by the two enactments are wholly distinct.
Section 26 A says that a partner cannot delegate the exercise of his rights under that section to an agent.
Section 2 of the Powers of Attorney Act says that if there can be and, in fact there is, delegation, it can be exercised in the manner provided therein.
There is accordingly no conflict between the two sections, and no question of repeal arises.
To sum up, the Indian Income tax Act is a self contained code exhaustive of the matters dealt with therein, and its provisions show an intention to depart from the common rule, qui facit per alium facit per se.
Its intention again is that a firm should be given benefit of section 23(5) (a), only if it is registered under section 26 A in accordance with the conditions laid down in that section and the rules framed thereunder.
And as those rules require the application to be signed by the partner in person, the signature by an agent on his behalf is invalid.
In the view which we have taken, the further queson raised by the appellant that the power to repeal 591 a law being a legislative function, can be exercised only by the legislature duly constituted and not by any outside authority, and that the delegation of such a power to an outside authority is unconstitutional.
, does not arise for decision.
In the result., we agree with Viswanatha Sastry, J. that rules 2 and 6 are intravires the powers of the rule making authority, and dismiss the appeals with costs.
| IN-Abs | Rules 2 and 6 of the Rules framed under section 59 of the Indian Income Tax Act provide that an application for registration of a firm under section 26 A of the Act and for renewal of registration certificate "shall be signed personally by all the parties".
Held that the word 'personally ' in the Income Tax Rules, as framed under section 59 of the Income Tax Act would exclude a duly authorised agent of a partner of a firm signing an application on behalf of the partner under section 26 A of the Income Tax Act.
(2) That Rules 2 and 6 are not ultra vires the rule making authority.
To decide the question whether on its true interpretation the Indian Income Tax Act intended that an application under section 26 A should be signed by the partner personally, or whether it could be signed by his agent on his behalf the Court must have regard not only to the language of section 26 A but also Lo the character of the legislation, the scheme of the Act and the nature of the right conferred by the section.
The Indian Income Tax Act is a self contained code exhaustive of the matters dealt with therein, and its provisions show an intention to depart from the common rule, qui facit per alium tacit per se.
Its intention again is that a firm should be given benefit of section 23(5)(a), only if it is registered.
under section 26 A in accordance with the conditions laid down in that section and the rules framed thereunder.
And as those rules require the application to be signed by the partner in person, the signature by an agent on his behalf is invalid.
Commissioner of Agricultural Income tax vs Keshab Chandra Mandal, ([1950] S.C.R. 435), relied upon.
commissioner of Income tax vs Subba Rao, ([1947] I.L.R. Mad.
167) approved.
Other case law referred to.
75 578
|
Civil Appeal No. 3345/1979.
Appeal by Special Leave from the Judgment and Order dated 31 7 1979 of the Assistant Commissioner (Judicial) Sales Tax.
Meerut in Appeal No. 1502 of 1978.
V. M. Tarkunde, P. H. Parekh and section B. Singh for the Appellant.
section Markendaya for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The appellant is a firm carrying on business at Mandi Anandganj, Barut, District Meerut in the State of Uttar Pradesh and is a dealer as defined in the U.P. Sales Tax Act, 1948 (Act No. XV of 1948) (hereinafter referred to as 'the Act ').
It has filed this appeal by special leave under Article 136 of the Constitution against the order dated July 31, 1979 passed in Appeal No. 1502 of 1978 on the file of the Assistant Commissioner (Judicial) Sales Tax, Meerut Range, Meerut upholding the inclusion of the market fee and the commission (otherwise called 'dami ') payable to the commission agent operating within a market area established under the U.P. Krishi Utpadan Mandi Adhiniyam, 1964 (U.P. Act No. XXV of 1964) (hereinafter referred to as 'the Adhiniyam ') in the turnover of purchases of the appellant for purposes of levy of sales tax under section 3 D of the Act.
The assessment year in question is 1974 75.
The appellant was granted leave to appeal to file the above appeal directly against the order of the Assistant Commissioner (Judicial) since the question involved in this case had already been decided by the High Court of Allahabad in M/s. Durga Dass Narain Dass vs The State of Uttar Pradesh 710 Ors.
upholding the inclusion of the market fee and the Commission (dami) in the purchase turnover for purposes of levy of sales tax.
It is necessary at the out set to refer to some of the relevant provisions of law bearing on the questions involved in the case in order to appreciate the contentions urged on behalf of the appellant.
There is no dispute that the appellant is a dealer as defined in section 2(e) of the Act and is a purchaser of goods notified under section 3 D(1).
Section 3 D of the Act provides that except as provided in sub section (2) thereof, there shall be levied and paid for each assessment year or part thereof a tax on the turnover to be determined in the prescribed manner of purchases of such goods and with effect from such date as the State Government may be notification in the Gazette specify in relation to purchases made within Uttar Pradesh by a dealer (whether on his own account or on account of any one else) or through a dealer acting as a purchasing agent at the rate specified therein.
Sub section (4) of section 3 D of the Act provides that on the issue of a notification under sub section (1) thereof, no tax shall be levied under any other section in respect of the goods included in the notification.
The expression 'purchase price ' is defined in section 2(gg) of the Act as follows: "2(gg) 'purchase price ' means the amount of valuable consideration paid or payable by a person for the purchase of any goods, less any sum allowed by the seller as cash discount according to trade practice and shall include any sum charged for anything done by the seller in respect of the goods at the time of or before, delivery thereof, other than the cost of freight or delivery or the cost of installation when such cost is separately charged;" The expression 'turnover of purchases ' is defined in section 2(ii) of the Act thus: "2(ii) 'turnover of purchases ' with its cognate expressions means the aggregate of the amounts of purchase price paid of payable by a dealer in respect of purchase of goods made by or through him after deducting the amount, if any refunded to the dealer by the seller in respect of any goods returned to such seller within such period as may be prescribed;" 711 Section 3 F of the Act which provides for the levy of additional tax on certain dealers was introduced into the Act by U.P. Act No. 3 of 1971.
When it was so introduced it provided that every dealer liable to pay tax under section 3, section 3A, section 3 AA or section 3 D, whose total turnover of sales or of purchases, or of both in any assessment year exceeded rupees two lacs would, in addition to the said tax, be liable to pay for that assessment year an additional tax at the rates specified in respect of his turnover liable to tax subject to the other provisions contained in that section.
We shall hereafter refer to some of the provisions of the Adhiniyam and the Rules made thereunder.
Clauses (b) and (e) of section 2 of the Adhiniyam define the expressions 'broker ' or 'dalal ' and 'commission agent ' or 'arhatiya ' respectively. 'Broker ' or 'dalal ' means a person who, in the ordinary course of business, negotiates or arranges contracts for the purchase or sale of agricultural produce, on behalf of his principal on payment of commission or remuneration, whether in cash or kind, but does not include the servant of such principal whether engaged in negotiating or arranging such contracts. 'Commission agent ' or 'arhatiya ' means 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.
Section 10 of the Adhiniyam provides that as from the date to be notified by the State Government in the Gazette, no person shall, in a Principal Market Yard or Sub Market Yard, levy, charge or realise, any trade charges, other than those prescribed by rules or bye laws made under the Adhiniyam, in respect of any transaction of sale or purchase of the specified agricultural produce and no Court shall, in any suit or proceeding arising out of any such transaction, allow in any claim or counter claim, any trade charges not so prescribed, and that all trade charges shall be payable by the purchaser.
Sub clause (b) of clause (iii) of section 17 of the Adhiniyam empowers the market committee to levy market fees and to utilize such market fees and other fees collected by it under that section for purposes of the Adhiniyam.
Section 17(iii)(b) of the Adhiniyam, as it stood before its amendment in 1973, read as follows: "17.
A Committee shall, for the purposes of this Act, have the power to: . . . . (iii) levy and collect: 712 . . . . (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".
After clause (b) of section 17(iii) was substituted by a new clause by U.P. Act 13 of 1973 as re enacted by U.P. Act 20 of 1974, it read thus: "17. . . . (iii) . . . . (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.
" The above clause was substituted by a new clause by U.P. Act No. 7 of 1978 with retrospective effect from June 12, 1973 as follows: "17. . . . . . . . (iii) . . . . . . (b) market fee, which shall be payable on transactions of sale of 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; 713 (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; (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.
" Rule 79(1) of the Rules framed under the Adhiniyam for purposes of section 10 of the Adhiniyam provides that as from the date notified by the State Government under section 10, no person shall, in a Principal Market Yard or Sub Market Yards, levy, charge or realize, in respect of any transaction of sale or purchase of the specified agricultural produce, any trade charges, other than those specified by the Market Committee under sub rule (2) thereof.
Sub rule (2) of Rule 79 of the Rules provides that the Market Committee shall specify in its bye laws the trade charges that may be charged or realized by a trader or a commission agent or a broker or a weighman or a measurer or a palledar holding licence under the Rules, but not exceeding the limits prescribed by that sub Rule.
Sub rule (3) of Rule 79 of the Rules also provides that all trade charges including commission shall be payable by the purchaser.
Three contentions are urged before us in support of the above appeal (1) that it is not open the assessing authority to demand any additional tax under section 3 F of the Act in view of the provision contained in sub section (4) of section 3 D of the Act which expressly prohibits the levy of tax under any other section of the Act in respect of purchase turnover of the goods notified under section 3 D(1); (2) that the market fees payable under the Adhiniyam, being a sum which can be collected from the purchaser by virtue of the provision contained in section 17(iii) (b) of the Adhiniyam by the commission agent who is required to pay the same to the Market Committee, cannot be considered as forming part of the consideration paid or payable by the purchaser to the commission agent in respect of purchase of goods at an auction held within a market area established under the Adhiniyam and, therefore, it cannot be included in the turnover of purchases for purposes of levy of tax under section 3 D of the Act and (3) that the commission (dami) payable by a purchaser of goods to the commission agent 714 operating within the market area being a trade charge payable by the purchaser by virtue of section 10(2) of the Adhiniyam read with Rule 79(3) of the Rules framed thereunder cannot also be included in the turnover of purchases.
In so far as the first contention is concerned, the appellant depends upon sub section (4) of section 3 D of the Act which no doubt says that in respect of the turnover of purchases of the goods notified under section 3 D(1), no tax can be levied under any other provision of the Act.
But section 3 F of the Act which was introduced into the Act subsequently by U.P. Act No. 3 of 1971 provides that every dealer liable to pay tax under section 3, section 3 A, section 3 AA or section 3 D whose total turnover of sales or purchases or of both in any assessment year exceeds rupees two lacs shall, in addition to the said tax, pay for that assessment year an additional tax at the rate specified therein.
Since section 3 D of the Act is expressly mentioned in section 3 F, it has to be held that section 3 F, overrides sub section (4) of section 3 D and that additional tax can be collected even in respect of the turnover of purchases of goods notified under section 3 D(1) notwithstanding sub section (4) of Section 3 D of the Act.
It cannot be said that by enacting sub section (4) of section 3 D, the State Legislature forfeited its power to levy any other tax under the Act on the goods notified under section 3 D(1) for ever.
It is always open to the Legislature to modify the effect of sub section (4) of section 3 D by a subsequent legislation.
We do not, therefore, find any substance in the contention that additional tax levied under section 3 F cannot be levied in respect of the turnover of purchases of goods notified under section 3 D(1) of the Act.
The first contention, therefore, fails.
We shall now proceed to consider the question whether market fees paid on transactions of sale or purchases of specified agricultural produce in the market area established under the Adhiniyam can be included in the turnover of purchases for purposes of levy of tax under the Act.
Before the amendment of section 17(iii) (b) of the Adhiniyam by U.P. Act No. 7 of 1978, it specifically provided that market fee payable on transactions of sale or purchase of specified agricultural produce in the market area should be paid by the purchaser.
After the amendment which was brought into force with retrospective effect from June 12, 1973, market fees payable on transactions of sale or purchase of agricultural produce within the market area can be realized by the Market Committee 715 from the commission agent who is authorised to realize the same from the purchaser by virtue of section 17(iii)(b)(1) which reads: "17. . . . (iii) . . . . . (b). . (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.
" The argument urged on behalf of the appellant is that when a dealer who in this case happens to be a commission agent is permitted by law to collect the market fee which he is liable to pay to the Market Committee from the purchaser, such market fee cannot form part of the consideration for sale and, therefore, cannot be included in the turnover of purchases for purposes of levy of tax under the Act.
But on behalf of the State Government, it is urged that all sums paid by a purchaser to a seller or to a commission agent for the purchase of the goods including any tax or fee payable by him form the consideration for the purchase and, therefore, are liable to be included in the turnover of purchases.
Reliance is placed by the State Government on M/s George Oakes (P.) Ltd. vs State of Madras in which this Court while interpreting a similar provision in the Madras General Sales Tax Act, 1939 observed that the expression 'turnover ' meant the aggregate amount for which goods were bought or sold whether for cash or deferred payment or other valuable consideration and when a sale attracted purchase tax and the tax was passed on to the consumer what the buyer had to pay for the goods included the tax as well and the aggregate amount so paid would fall within the definition of turnover.
In the above case, the Court was construing the meaning of the expression 'turnover ' appearing in a statute in which there was no provision authorising the seller to recover the sales tax payable by him from the purchaser although the price of the goods realized by him included the sales tax payable by him and thus he had passed on his liability to the purchaser.
The next decision on which reliance was placed by the State Government is Delhi Cloth and 716 General Mills Co. Ltd. etc.
vs Commissioner of Sales Tax Indore.
In that case this Court held that the expression 'Sale price ' as defined in section 2(o) of the Madhya Pradesh General Sales Tax Act, 1958 included the sales tax collected by a dealer from his purchaser as there was no provision in that statute imposing any liability on the purchaser to pay the tax imposed by it on the dealer and there was no law empowering the dealer to collect the tax from his buyer.
In both the decisions referred to above, this Court relied upon Paprika Ltd. & Anr.
vs Board of Trade and Love vs Norman Wright (Builders) Ltd. in which it had been laid down that the price payable by a purchaser under a contract of goods for the purpose of certain penal provisions was the price fixed by the contract and a seller who wished to recover the amount of the purchase tax should, except where an adjustment was authorised by statute, include that amount in the price so fixed.
From the observations made in the decisions referred to above, it follows that where a dealer is authorised by law to pass on any tax payable by him on the transaction of sale to the purchaser, such tax does not form part of the consideration for purposes of levy of tax on sales or purchases but where there is no statutory provision authorising the dealer to pass on the tax to the purchaser, such tax does form part of the consideration when he includes it in the price and realizes the same from the purchaser.
The essential factor which distinguishes the former class of cases from the latter class is the existence of a statutory provision auhorising a dealer to recover the tax payable on the transaction of sale from the purchaser.
It is on account of the above distinction that this Court held in Joint Commercial Officer Division II.
Madras 2 etc.
vs Spencer & Co. etc.
that the sales tax which a seller of foreign liquor was liable to pay under section 21 A of the Madras Prohibition Act, 1937 did not form part of the turnover on which sales tax could be levied under the Madras General Sales Tax Act, 1959 because the seller was entitled to recover the sales tax payable by him from the purchaser.
The relevant part of section 21 A of the Madras Prohibition Act, 1937 referred to above read thus: "21 A.
Every person or institution which sells foreign liquor (a) X X X (b) X X X 717 shall collect from the purchaser and pay over to the Government at such intervals and in such manner as may be prescribed, a sales tax calculated at the rate of eight annas in the rupee, or at such other rate as may be notified by the Government from time to time, on the price of the liquor so sold.
" In the course of the decision in the case of Spencer & Co. this Court observed thus: "It is clear from sec.
21 A of the Madras Prohibition Act, 1937 that the sales tax which the section requires the seller of foreign liquor to collect from the purchaser is a tax on the purchaser and not on the seller.
This is what makes the authorities on which counsel for the appellants relied inapplicable to the cases before us.
Under sec.
21 A the tax payable is on the price of the liquor and that tax is to be paid by the purchaser, the seller is required to collect the tax from the purchaser which he has to pay over to the Government Sec.
21 A makes the seller a collector of tax for the Government and the amount collected by him as tax under this section cannot therefore be a part of his turnover.
Under the Madras General Sales Tax Act, 1959 the dealer has no statutory duty to collect the sales tax payable by him from his customer, and when the dealer passes on to the customer the amount of tax which the former is liable to pay, the said amount does not cease to be the price for the goods although "the price is expressed as X plus purchase tax" (Paprica Ltd. & Anr.
vs Board of Trade But the amounts collected by the assessees concerned in these appeals under a statutory obligation cannot be a part of their taxable turnover under the Madras General Sales Tax Act, 1959.
" We do not find any substantial difference between section 21 A of the Madras Prohibition Act, 1937 and section 17(iii) (b) (1) of the Adhiniyam.
Whereas the levy under section 21 A of the Madras Prohibition Act, 1937 was sales tax payable to the State Government, under section 17(iii) (b) of the Adhiniyam, the levy in question is market fees payable to the Market Committee and secondly whereas the former provision stated that "every person or institution which sells foreign liquor. . shall collect from the purchaser and pay over to the Government. .", the latter provision states that "If the produce is sold through a commission agent, the commission agent may realize the market fees from the purchaser and shall be liable to pay the same to the Committee".
718 The levies in both the cases are statutory although under the Madras Prohibition Act, 1937, it is a tax payable to the Government and under the Adhiniyam, it is a fee payable to a Market Committee which is a statutory body.
The only distinguishing feature between the two laws is that whereas the Madras Act provides that every person who sells foreign liquor shall collect sales tax from the purchaser, the Adhiniyam provides that the commission agent may realize the market fees from the purchaser.
The use of 'shall ' in the former case and of 'may ' in the latter case is not of much consequence in so far as the question involved in the present case is concerned because in both the cases the seller or the commission agent who is liable to pay the tax or the fee, as the case may be, is entitled statutorily to realize it from the purchaser and wherever a dealer is authorised by law to do so, the tax or fee realized by him from the purchaser cannot be treated as part of the turnover for purposes of levy of sales tax.
The contention of the appellant that market fees payable under the Adhiniyam cannot be included in the turnover of purchases has, therefore, to be upheld.
There is, however, no substance in the third contention of the appellant that the commission (dami) payable by a purchaser to a commission agent operating within a market area established under the Adhiniyam cannot be treated as forming part of the turnover of purchases for two reasons (i) the commission paid by the purchaser is not any tax or fee payable to a Government or statutory body which is not a party to the contract of sale and (ii) the commission is actually the profit of the dealer who in this case happens to be a commission agent and should, therefore, necessarily be considered as consideration for the sale of goods.
The provisions contained in section 10 of the Adhiniyam and the Rules framed thereunder do not in any way affect the above conclusion reached by us.
Section 10 of the Adhiniyam merely provides that as from the date to be notified by the State Government in the Gazette, no person shall, in a Principal Market Yard or Sub Market Yard, levy, charge or realize, any trade charges other than those prescribed by rules or bye laws made under the Adhiniyam, in respect of any transaction of sale or purchase of the specified agricultural produce and no Court shall, in any suit or proceeding arising out of any such transaction, allow in any claim or counter claim, any trade charges not so prescribed.
It also provides that such charges shall be collected from the purchasers thereby barring the collection of such charges from the producers of agricultural produce who are ordinarily the sellers in a market area.
Sub rule 719 (1) of Rule 79 of the Rules framed under the Adhiniyam provides that as from the date notified by the State Government no person shall, in a Principal Market Yard or Sub Market Yard, levy, charge or realise, in respect of any transaction of sale or purchase of the specified agricultural produce any trade charges, other than those specified by the Market Committee under sub rule (2) thereof, and sub rule (2) of Rule 79 authorises the Market Committee to make bye laws prescribing the maximum commission that may be charged by a commission agent or a broker.
Sub rule (3) of Rule 79 reiterates that all trade charges shall be payable by the purchaser.
A combined reading of section 10 of the Adhiniyam, Rule 79 of the Rules made under the Adhiniyam and the bye laws made by the Market Committee shows that a commission agent cannot realize any commission higher than what is prescribed by law.
The commission chargeable by the commission agent is not a sum which he has in his turn to pay to an authority either by way of tax or by way of fee but is only a reward for the services rendered by him.
We, therefore, reject the above submission made on behalf of the appellant.
For the foregoing reasons, the appeal is allowed in part.
The inclusion of the market fees in the turnover of purchases of the assessee for purposes of levy of tax under the Act is set aside.
The assessing authority is directed to modify the order of assessment in accordance with this decision.
In the circumstances of the case, the parties shall bear their own costs.
N.V.K. Appeal allowed in part.
| IN-Abs | Section 3D of the U. P. Sales Tax Act, 1948 provides for the levy of a tax on the turnover of purchase of goods by a dealer.
Sub section (4) provides that on the issue of a notification under sub section (1), no tax shall be levied under any other section in respect of the goods included in the notification.
In 1971 section 3F was included in the Act providing for the levy of additional tax on certain dealers.
The section provides that every dealer liable to pay tax under section 3D (among others) whose total turnover exceeds rupees two lakhs would in addition to the said tax be liable to pay for that assessment year an additional tax at the rates specified therein subject to the other provisions of the section.
Section 10 of the U. P. Krishi Utpadan Adhiniyam, 1964 provides no levy or realisation of any trade charges other than those prescribed by rules or byelaws made under the Adhiniyam in respect of transactions of sale or purchase of specified agricultural produce.
Section 17(iii)(b) empowers the market committee to levy market fees and to utilize such market fees collected by it under that section for purposes of the Adhiniyam.
Before the amendment of the provision by U. P. Act No. 7 of 1978, it specifically provided that market fee payable on transactions of sale or purchase of specified agricultural produce in the market area should be paid by the purchaser.
After the amendment which was brought into force with retrospective effect from June 12, 1973, market fees payable on transactions of sale or purchase of agricultural produce within the market area can be realized by the Market Committee from the Commission agent who is authorized to realize the same from the purchaser by virtue of section 17(iii)(b)(1).
The rules and bye laws made under the Act also provide that a commission agent shall not realise any commission higher than that prescribed by law.
The Sales Tax Officer included the market fee and commission (dami) payable to the commission agent operating within a market area established under the U. P. Krishi Utpadan Mandi Adhiniyam, 1964 in the turnover of purchases 708 of the appellant for the purposes of levy of sales tax under section 3D of the U. P. Sales Tax Act, 1948: On appeal by the appellant the Assistant Commissioner (Judicial) Sales Tax upheld the order of the Sales Tax Officer.
In an earlier case the High Court upheld the inclusion of the market fee and the commission (dami) in the purchases turnover for the purposes of levy of sales tax and therefore, the appellant was granted special leave to appeal to this Court directly from the order of the Assistant Commissioner.
Before this Court, it was contended that (i) it was not open to the Assessing Authority to demand any additional tax under section 3F in view of the provisions contained in section 3D(4)(ii).
The market fee paid on transactions of sale or purchase of specified agricultural produce in the market area could not under the Adhiniyam, be included in the turnover of purchases for the purposes of levy of tax under the Sales Tax Act.
(iii) The commission (dami) payable by a purchaser of goods to the commission agent, being a trade charge could not also be included in the turnover of purchases.
^ HELD: 1.
There is no substance in the contention that additional tax levied under section 3F could not be levied in respect of turnover of purchases of goods notified under section 3D(1) of the Sales Tax Act.
Although, section 3D(4) says that in respect of turnover of purchases of goods notified under section 3D(1), no tax can be levied under any other provisions, section 3F introduced in 1971 provides, that every dealer liable to pay tax under section 3D whose total turnover of sales or of purchases, or of both in any assessment year exceeds rupees two lakhs would, in addition to the said tax, pay for that assessment year an additional tax at the rate specified therein.
[714F, B C].
Since section 3D is expressly mentioned in section 3F, this section overrides section 3D(4), and that additional tax can be collected even in respect of turnover of purchases of goods notified under section 3D(1) notwithstanding section 3D(4).
[714D].
It cannot be said that by enacting sub section 4 of section 3D the legislature has forfeited its power to levy any other tax under the Act on the goods notified under section 3D(1) for ever.
It is always open to the legislature to modify the effect of section 3D(4) by subsequent legislation.
[714E].
The contention of the appellant that market fee payable under the Adhiniyam cannot be included in the turnover of purchases must be upheld.
Where a dealer is authorised by law to pass on any tax payable by him on transaction of sale to the purchaser, such tax does not form part of the consideration for the purposes of levy of tax on sale or purchases but where there is no statutory provision authorising the dealers to pass on tax to the purchaser, such tax does form part of the consideration when he includes it in the price and realises the same from the purchaser.
The distinguishing factor between the two is the existence of a statutory provision authorising a dealer to recover the tax payable on the transaction of sale from the purchaser.
[718D, 716D E].
The use of the word, "may" in section 17(iii)(6)(1) providing that the commission agent may realise the market fee from the purchaser is not of much consequence.
The seller or the commission agent who is liable to pay the tax or the fee is entitled statutorily to realise it from the purchaser and wherever a dealer is authorised by law to do so, the tax or fee realised by him from the purchaser cannot be treated as part of the turnover for the purpose of levy of sales tax.
[718B C].
709 M/s. George Oakes (P) Ltd. vs State of Madras ; , Delhi Cloth and General Mills Co. Ltd. etc.
vs Commissioner of Sales Tax, Indore, [1971] Supp.
S.C.R. 945, Paprika Ltd. & Anr.
vs Board of Trade , Love vs Norman Wright (Builders) Ltd. referred to.
Joint Commercial Officer, Division 11, Madras 2 etc.
vs Spencer & Co. etc.
[1975] Supp.
S.C.R. 439 applied.
There is no force in the appellant 's contention that the commission (dami) payable by the purchaser on goods to the commission agent operating within a market area established under the Adhiniyam cannot be treated as forming part of the turnover of purchases because a conspectus of the provision of the Adhiniyam and rules made thereunder and the bye laws of Market Committee shows that a commission agent cannot realise any commission higher than what is prescribed by law.
The commission chargeable by the commission agent is not a sum which he has in his turn to pay to an authority either by way of tax or by way of fee but is only a reward for the services rendered by him.
[718E, 719 C D]
|
Civil Appeal No. 2728 of 1972.
Appeal by Special Leave from the Judgment and Order dated 22 2 1971 of the Bombay High Court in I.T.R. No. 76/63.
H. G. Advani, Ashok Advani Bar at Law, Hiranandan, Mrs. Sheila Sethi and K. Balasubramaniam for the Appellant.
P. J. Francis and Miss A. Subhashini for the Respondent.
The Judgment of the Court was delivered by BHAGWATI J.
The short question which arises for determination in this appeal by special leave is whether there was any material evidence to justify the finding that a sum of Rs. 1,07,350 was remitted by the assessee from Madras to Bombay and that it represented the undisclosed income of the assessee.
The assessee before us is the firm of M/s. Kishinchand Chellaram and the assessment year with which we are concerned is 1947 48, the relevant accounting year being the year ending 6th April 1947.
The original assessment of the assessee for this assessment year was completed long back, but it seems that some information was received by the Income Tax Officer that a sum of Rs. 1,07,350 was remitted by the assessee from Madras by two telegraphic transfers through the Punjab National Bank Limited and the Income Tax Officer therefore addressed two letters dated 14th January 1955 and 10th February 1955 to the Manager of the Punjab National Bank Limited making inquiries about this remittance.
Neither these two letters nor their copies 723 appear to have been brought on record and it was common ground between the parties that they were at no time disclosed to the assessee and even now the copies of these two letters which ought to be in the record of the Income Tax Departments have not been produced before us.
The Manager of the Punjab National Bank Limited replied to the inquiries made by the Income Tax Officer by his letter dated 18th February 1955 in which he stated: "one telegraphic telegraphic transfer of Rs. 1,07,350 sent by M/s. Kishinchand Chellaram from Madras was received by us on 16 10 46.
T.T. receipt was issued by us on the same day in favour of one Mr. Nathirmal and paid in cash on the same day.
" Though this letter of the Manager of the Punjab National Bank Limited was on the record of the Income Tax Officer, he did not disclose it to the assessee nor did he make any reference to it in the letters dated 24th February 1955 and 4th March 1955 which he addressed to the assessee making inquiries about the remittance of Rs. 1,07,350 said to have been made by the assessee from Madras to Nathirmal in Bombay.
These two letters addressed by the Income Tax Officer also make inquiries in regard to various other matters besides the remittance of Rs. 1,07,350 and the assessee replied to these inquiries by its letter dated 24th March 1955 in which amongst other things it pointed out that it was not able to trace any entry in its Madras books in regard to this remittance of Rs. 1,07,350 indicating clearly that no such remittance was sent by it from Madras to Nathirmal in Bombay.
There was no further communication from the Income Tax Officer to the assessee until 2nd February 1955 when the Income Tax Officer once again addressed a letter to the assessee reiterating that one telegraphic transfer of Rs. 1,07,350 was sent by the assessee from Madras on 16th October, 1946 in favour of Punjab National Bank Limited, Kalba Devi Road, Bombay and this amount was paid to one Nathirmal in cash on the same day and requesting the assessee to explain the nature of this transaction and to produce the relevant proofs of having accounted for this amount in its books of account.
The assessee reiterated by its reply dated 9th February 1956 that it had once again looked into its books of account but did not find any entry in regard to the remittance of Rs. 1,07,350 and in the absence of such entry, it was not in a position to say anything further in the matter.
Then again there was a lull in the correspondence for a period of about one year and on 4th March 1957, the Income Tax Officer once again addressed a letter to the assessee repeating its request to explain the nature of the remittance of Rs. 1,07,350 and to produce relevant books of account and complaining that the assessee did not seem to have given any reply 724 to his earlier letter dated 2nd February 1956.
This complaint was, of course, unjustified because the assessee had replied to the earlier letter of the Income Tax Officer by its letter dated 9th February 1956.
But even so the assessee once again reiterated in its reply dated 13th March 1957 that no amount of Rs. 1,07,350 was remitted by the assessee from Madras and pointed out that Nathirmal was a common name in the Sindhi community and requested the Income Tax Officer to kindly give his father 's name to enable the assessee to look into the matter further and also to inform the assessee as to who on behalf of the assessee purported to have sent the telegraphic transfer from Madras.
The Income Tax Officer did not give any further information to the assessee and proceeded to make an order of reassessment under section 34 of the Indian Income Tax Act, 1922 bringing to tax the amount of Rs. 1,07,350 on the ground that it represented the concealed income of the assessee.
The Income Tax Officer observed in the order that the Punjab National Bank Limited had stated that one telegraphic transfer of Rs. 1,07,350 was sent by M/s. Kishinchand Chellaram from Madras and received by them on 16 10 1946, and "there was no reason to doubt the banker 's statement that the amount was remitted by M/s. Kishinchand Chellaram from Madras.
" It was also stated in the order that the telegraphic transfer was encashed by one Nathirmal who was identified by an officer of the bank and whose address was the same as that of the Bombay office of the assessee, and it was found from assessee records that this Nathirmal was an employee of the assessee in the relevant accounting year and, therefore, the conclusion was irresistible that the telegraphic transfer was sent by the assessee from its Madras office and encashed by the assessee 's employee on its behalf in Bombay and since it was not accounted for in the books of account it must be held to be the undisclosed income of the assessee.
The assessee being aggrieved by the order of the Income Tax Officer preferred an appeal to the Assistant Appellate Commissioner.
It was pointed out on behalf of the assessee at the hearing of the appeal that Nathirmal who was supposed to have received the amount of Rs. 1,07,350 sent by telegraphic transfer from Madras and to have signed the voucher in regard to the receipt of this amount as 'N.B. Bani ' had left the service of the assessee long back and a grievance was made that it was not known as to who was the person who was supposed to have made the remittance on behalf of the assessee, because in the absence of this information, it was not possible for the assessee to meet the case of the Revenue.
The Appellate Assistant Commissioner thereupon obtained from the 725 Madras office of the Punjab National Bank Limited a copy of the telegraphic transfer application by which the amount of Rs. 1,07,350 was remitted and this copy which was disclosed to the assessee showed that the application was signed by one Tilok Chand as follows: "Tilok Chand, C/o M/s. K. Chellaram, 181, Mount Road, Madras".
The assessee pointed out to the Appellate Assistant Commissioner that there were two Tilok Chand 's working in the assessee 's office at Madras at the material time, one was Tilok Chand Thadani and the other was Tilok Chand Chellaram and both these Tilok Chands had left the service of the assessee long back.
The assessee informed the Appellate Assistant Commissioner that the whereabouts of Tilok Chand Thadani were not known and so far as Tilok Chand Chellaram was concerned, he was then at Hong Kong.
It was also pointed out to the Appellate Assistant Commissioner that the business in Madras was carried on by the assessee in the name of M/s. K. Kishinchand Chellaram and not M/s. K. Chellaram and that the remittance of Rs. 1,07,350 said to have been made by Tilok Chand was not on behalf of the assessee nor was it sent to the assessee and that its inclusion as undisclosed income of the assessee was not at all justified.
The Appellate Assistant Commissioner however negatived these contentions of the assessee and held that the remittance of the amount of Rs. 1,07,350 was by an employee of the assessee from Madras to another employee in Bombay and the Bank had also reported that the remittance related to the assessee and hence the burden was on the assessee to explain and prove the nature and source of the remittance and since this burden was not discharged, the inclusion of the amount in the assessment of the assessee was liable to be sustained.
The Appellate Assistant Commissioner accordingly rejected the appeal and confirmed the assessment of the assessee.
The assessee thereupon preferred a further appeal to the Tribunal but this appeal was also unsuccessful.
The Tribunal relied on the letter of the Bank dated 18th February 1955 to which we have already referred earlier, and surprisingly enough, though this letter was strongly relied upon both by the Appellate Assistant Commissioner and the Tribunal, and an extract of it was given in the order of the Appellate Assistant Commissioner, it was not produced before the assessee nor was a copy of it given to the assessee.
The Tribunal also placed reliance on another letter dated 9th March 1957 addressed by the Bank to the assessee where it was stated by the manager of the Bank that they had received one telegraphic transfer from Madras office on 16th October 1946 favouring Nathirmal and this amount was remitted by the assessee 726 through their Madras office.
This letter was admittedly written by the manager of the Bank to the assessee in reply to the assessee 's letter dated 7th March 1957 but obviously it did not carry the matter any further since it was in the same terms as the letter dated 18th February 1955 addressed by the manager of the Bank to the Income Tax Officer.
The Tribunal then proceeded to observe that: "The assessee was not in a position to show that the respective employees in Madras and Bombay were carrying on any business and were in a position to send from one place to another such a large sum of Rs. 1,07,350.
The assessee merely informed the Income Tax Officer that it had nothing to do with this amount.
It would have been easy for the assessee to have the said persons examined so as to show that the sum of Rs. 1,07,350 cannot represent any amount belonging to the assessee.
But for the reasons best known to itself it did not choose to do so.
By remitting the amount as cash and by not bringing it into its books the assessee cannot escape the consequences of having to explain the source for this and especially when the bank through which the amount was remitted has in categorical terms stated that the remitter from Madras was the assessee.
It would have been open to the assessee to establish the contrary by showing that the bank 's statement that the assessee did remit the amount is not correct and thus displace the evidence on record, but it did not choose to examine the bank officers with reference to this aspect either.
Therefore, this is a case where a sum of Rs. 1,07,350 has been remitted by the assessee as shown by the bank 's letter from Madras to its employee in Bombay which has not been brought to books.
In the said circumstances, it is for the assessee to explain the source for the fund and it cannot escape the consequence by merely adopting an attitude of non co operation.
" The Tribunal accordingly held that the assessee had not satisfactorily explained the source of the amount of Rs. 1,07,350 and the Income Tax Officer was therefore justified in adding this amount as the undisclosed income of the assessee.
This order of the Tribunal led to the filing of an application for a reference by the assessee and on the application being rejected by the Tribunal, the assessee preferred an application to the High Court for directing the Tribunal to make a reference and on this application, the High Court directed the Tribunal to refer the following question for the opinion of the High Court: 727 "Whether there was any material evidence to justify the findings of the Tribunal that the amount remitted by an employee of the Madras Branch to an employee of the Bombay Branch was the income of the firm of M/s. Kishinchand Chellaram from undisclosed source ?" The Tribunal thereupon drew up a statement of the case and referred the above question to the High Court.
The entire evidence in the case was considered by the High Court and taking the view that there was material evidence to justify the finding that the amount of Rs. 1,07,350 remitted by Tilokchand to Nathirmal was the undisclosed income of the assessee, the High Court answered the question in favour of the Revenue and against the assessee.
The assessee thereupon preferred the present appeal with special leave obtained from this Court.
The sole question which arises for determination in the appeal is whether there was any material evidence to justify the findings of the Tribunal that the amount of Rs. 1,07,350 said to have been remitted by Tilokchand from Madras represented the undisclosed income of the assessee.
The only evidence on which the Tribunal could rely for the purpose of arriving at this finding was the letter dated 18th February 1955 said to have been addressed by the Manager of the Punjab National Bank Limited to the Income tax Officer.
Now it is difficult to see how this letter could at all be relied upon by the Tribunal as a material piece of evidence supportive of its finding.
In the first place, this letter was not disclosed to assessee by the Income Tax Officer and even though the Appellate Assistant Commissioner reproduced an extract from it in his order, he did not care to produce it before the assessee or give a copy of it to the assessee.
The same position also obtained before the Tribunal and the High Court and it was only when a supplemental statement of the case was called for by this Court by its order dated 16th August, 1979 that, according to the Income Tax Officer, this letter was traced by him and even then it was not shown by him to the assessee but it was forwarded to the Tribunal and it was for the first time at the hearing before the Tribunal in regard to the preparation of the supplemental statement of the case that this letter was shown to the assessee.
It will therefore be seen that, even if we assume that this letter was in fact addressed by the manager of the Punjab National Bank Limited to the Income Tax Officer, no reliance could be placed upon it, since it was not shown to the assessee until at the stage of preparation of the supplemental statement of the case and no opportunity to cross examine the 728 manager of the Bank could in the circumstances be sought or availed of by the assessee.
It is true that the proceedings under the Income Tax law are not governed by the strict rules of evidence and therefore it might be said that even without calling the Manager of the Bank in evidence to prove this letter, it could be taken into account as evidence.
But before the Income Tax Authorities could rely upon it, they were bound to produce it before the assessee so that the assessee could controvert the statements contained in it by asking for an opportunity to cross examine the Manager of the Bank with reference to the statements made by him.
Moreover, this letter was said to have been addressed by the Manager of the Bank to the Income Tax Officer on 18th February 1955 in relation to a remittance alleged to have been sent on 16th October, 1946 and it is impossible to believe in the absence of any evidence to that effect, that manager who wrote this letter on 18th February 1955 must have been in charge of the Madras Office on 16th October 1946 so as to have personal knowledge as to who remitted the amount of Rs. 1,07,350.
What the Manager of the Bank wrote in this letter could not possibly be based on his personal knowledge and it does not appear from the letter as to what were the original documents and papers from which he gathered the information conveyed by him to the Income Tax Officer.
The statements contained in this letter addressed by the Manager of the Bank to the Income Tax Officer were in the nature of hearsay evidence and could not be relied upon by the Revenue authorities.
The Revenue authorities could have very well called upon the manager of the Bank to produce the documents and papers on the basis of which he made the statements contained in his letter and confronted the assessee with those documents and papers but instead of doing so, the Revenue authorities chose to rely merely on the statements contained in the letter and that too.
without showing the letter to the assessee.
There is also one other important circumstance which deserves to be noted.
It appears that when the letter dated 9th March 1957 was addressed by the manager of the Bank to the assessee, a copy of it was forwarded by the manager to the Income Tax Officer and this copy contained the following endorsement: "Copy to Mr. T. K. Surendran, 2nd Income tax Officer, Income Tax Office, C IV Ward, Bombay for information with reference to his summons dated 5 3 1957.
One only T. T. for Rs. 1,07,350 was received with particulars as above.
Mr. Nathirmal was identified by Mr. B. N. Mallaya, the then Officer in our office.
" 729 This copy of the letter dated 9th March 1957 was obviously in the record of the Income Tax Officer but it was not disclosed to the assessee at any stage and according to the Income Tax Officer, it was not traceable until the case came back to him for evidence in connection with the preparation of the supplemental statement of the case.
He then seemed to trace it and forwarded it alongwith his report to the Tribunal and it was at the hearing before the Tribunal in connection with supplemental statement of the case that it was shown to the assessee for the first time.
It is difficult to understand how this copy of the letter dated 9th March 1957 as also the letter dated 18th February 1955 said to have been addressed by the Manager of the Bank to the Income Tax Officer were not traceable in the records of the Income Tax Officer all this time and they came to be traced only when the supplemental statement of the case was called for by this Court.
There is no explanation given by the Revenue as to why these two important documents were not traceable and they were not disclosed to the assessee.
The reason perhaps was, and this was the suggestion made by the learned counsel appearing on behalf of the assessee, that the Revenue authorities did not wish to give an opportunity to the assessee to call the manager of the Bank for cross examination, lest the edifice which they wanted to construct for taxing the assessee on the amount of Rs. 1,07,350 might be jeopardised.
It is interesting to note that the endorsement made at the foot of the copy of the letter dated 9th March 1957 sent to the Income Tax Officer clearly shows that the Manager of the Bank was served by the Income Tax Officer with a summons dated 5th March 1957 and one can reasonably presume that the Manager of the Bank must have appeared in answer to the summons before the Income Tax Officer and given his statement.
But no such statement has been produced by the Revenue authorities nor are we told as to what happened when the Manager of the Bank appeared in obedience to the summons.
It is impossible to believe that the Manager of the Bank should have failed to appear before the Income Tax Officer in answer to the summons and there is no doubt that his statement must have been recorded.
The question then is, why has this statement been kept back by the Revenue authorities ? Even if we assume that the Income Tax Officer did not record the statement of the Manager of the Bank, it is difficult to appreciate why he should not have done so and probed into the matter further with a view to finding out what was the basis on which the manager had made the statement that the remittance was sent by the assessee.
We are clearly of the view that the letters dated 18th February 1955 and 9th March 1957 did not constitute any material evidence which 730 the Tribunal could legitimately take into account for the purpose of arriving at the finding that the amount of Rs. 1,07,350 was remitted by the assessee from Madras, and if these two letters are eliminated from consideration, it is obvious that there was no material evidence at all before the Tribunal which could support this finding.
But even if these two letters dated 18th February 1955 and 9th March 1957 were to be taken into account, we do not think they supply any reasonable basis for reaching the finding that it was the assessee which sent the remittance of Rs. 1,07,350.
It is undoubtedly true that the Manager of the Bank stated in these two letters that the amount of Rs. 1,07,350 was remitted by the assessee through the Madras office of the Bank, but this statement which was obviously not based on the personal knowledge of the manager, which was not supported by any documents or papers produced by the manager and in regard to which it was not known as to what was the material on which it was based, was clearly belied by the original application for remittance which was signed by Tilokchand in his own name and not on behalf of the assessee.
The primary evidence before the Tribunal in regard to the remittance of the amount of Rs. 1,07,350 was the application signed by Tilokchand and this application clearly showed that it was Tilokchand and not the assessee which remitted the amount of Rs. 1,07,350 from Madras.
There can be no doubt that if the amount had been remitted by Tilokchand on behalf of the assessee, he would have signed the application on behalf of the assessee and not in his own name.
We fail to appreciate how, in the face of this primary evidence showing Tilokchand as the person who remitted the amount of Rs. 1,07,350 the Tribunal could possibly accept the unsupported statement of the Manager of the Bank, based on hearsay, that the amount was remitted by the assessee.
Unfortunately, the Revenue authorities did not produce copies of the letters dated 14th January 1955 and 10th February 1955 addressed by the Income Tax Officer to the Manager of the Bank.
Copies of these letters, if produced, would perhaps have shown that the suggestion that the amount of Rs. 1,07,350 was remitted by the assessee was made by the Income Tax Officer and taking the cue from this suggestion, the Manager of the Bank might have stated that the telegraphic transfer of Rs. 1,07,350 was sent by the assessee.
It is to our mind impossible to hold, in the face of the application for remittance signed in the name of Tilokchand, that this amount was sent by the assessee and the finding to that effect reached by the Tribunal must be held to be unreasonable and perverse.
What at the highest could be said to be established by the material evidence on record is that Tilokchand remitted the 731 amount of Rs. 1,07,350 from Madras and this amount was received by Nathirmal in Bombay.
Even if we accept that Tilokchand and Nathirmal were employees of the assessee as held by the Tribunal, the utmost that could be said is that an employee of the assessee in Madras remitted the amount of Rs. 1,07,350 to another employee in Bombay.
But from this premise it does not at all follow that the remittance was made by the employee in Madras on behalf of the assessee or that it was received by the employee in Bombay on behalf of the assessee.
The burden was on the Revenue to show that the amount of Rs. 1,07,350 said to have been remitted from Madras to Bombay belonged to the assessee and it was not enough for the Revenue to show that the amount was remitted by Tilokchand, an employee of the assessee, to Nathirmal, another employee of the assessee.
It is quite possible that Tilokchand had resources of his own from which he could remit the amount of Rs. 1,07,350 to Nathirmal.
It was for the Revenue to rule out this possibility by bringing proper evidence on record, for the burden of showing that the amount was remitted by the assessee was on the Revenue.
Unfortunately, for the Revenue, neither Tilokchand nor Nathirmal was in the service of the assessee at the time when the assessment was reopened and the assessee could not therefore be expected to call them in evidence for the purpose of helping the Revenue to discharge the burden which lay upon it.
We must therefore hold that there was no material evidence at all before the Tribunal on the basis of which the Tribunal could come to the finding that the amount of Rs. 1,07,350 was remitted by the assessee from Madras and that it represented the concealed income of the assessee.
We accordingly allow the appeal, set aside the judgment of the High Court and answer the question referred by the Tribunal in favour of the assessee and against the Revenue.
The Revenue will pay the costs of the assessee throughout.
S.R. Appeal allowed.
| IN-Abs | The appellant firm M/s. Kishinchand Chellaram was assessed to tax for the assessment year 1947 48, the relevant accounting year being the year ending 6th April, 1947.
The concerned Income Tax Officer on an information that a sum of Rs. 1,07,350 purported to have been sent by the assessee by a telegraphic transfer through the Punjab National Bank Ltd., Madras, to its Bombay Branch favouring one Nathirmal on 16 10 1946, has escaped assessment, called upon the assessee, through his letters dated 24th February, 1955 and 4th March, 1955 to explain the same.
The Income Tax Officer did not refer to the letters dated 14th January, 1955 and 10th February, 1955 addressed by him to the Bank Manager nor the reply of the Manager dated 18th February, 1955 in the said two letters addressed to the assessee.
Nor were the copies supplied to the assessee nor even made available on record before all authorities including the Supreme Court.
The assessee through its letter dated 24th March, 1955 replied that as per its records no such remittance was ever sent by it from Madras to Nathirmal in Bombay.
On 2nd February, 1956, the Income Tax Officer for the second time called the very same particulars to which the assessee by its letter dated 9th February, 1956 once again denied the remittance by it.
Despite this, by his letter dated 4th March, 1957 addressed to the assessee, the Income Tax Officer repeated his earlier request to it to explain about the remittance, complaining at the same time of silence by the assessee to his letter dated 2nd February, 1956.
The assessee in its reply dated 13th March, 1957 while inviting attention to its earlier replies dated 24th March, 1955 & 9th February, 1956 reiterated that no amount of Rs. 1,07,350 was remitted by it from Madras to Nathirmal.
Disbelieving it, the Income Tax Officer, by his order brought to tax the amount of Rs. 1,07,350 on the ground that it represented the concealed income of the assessee and observed that "there was no reason to doubt the banker 's statement that the amount was remitted by M/s. Kishinchand Chellaram from Madras".
The assessee preferred an appeal to the Assistant Appellate Commissioner.
At this stage, it came to light that the purported telegraphic transfer was applied for by one "Tilok Chand C/o M/s. K. Chellaram, 181, Mount Road, Madras" and it was received at Bombay by one "N.B. Bani".
In spite of the plea of the assessee that the transaction did not relate to its firm, the Assistant Appellate 721 Commissioner holding that the assessee has not discharged the burden of proof lying on it to explain the amount, rejected the appeal.
Further appeal to the Tribunal and a reference called for by the High Court at the instance of the assessee was also answered against it.
Hence the appeal after obtaining special leave of the Court.
Allowing the appeal, the Court, ^ HELD: (1) There was no material evidence at all on the basis of which the Tribunal could come to the finding that the amount of Rs. 1,07,350 was remitted by the assessee from Madras and that it represented the concealed income of the assessee.
[731E].
In the face of the application for remittance signed in the name of Tilok Chand, that this amount was sent by the assessee and the finding to that effect reached by the Tribunal is unreasonable and perverse.
What at the highest could be said to be established by the material evidence on record is that Tilok Chand remitted the amount of Rs. 1,07,350 from Madras and this amount was received by Nathirmal in Bombay.
Even if it is accepted that Tilok Chand and Nathirmal were employees of the assessee as held by the Tribunal, the utmost that could be said is that an employee of the assessee in Madras remitted the amount of Rs. 1,07,350 to another employee in Bombay.
But, from this premise it does not at all follow that the remittance was made by the employee in Madras on behalf of the assessee or that it was received by the employee in Bombay on behalf of the assessee.
The burden was on the Revenue to show that the amount of Rs. 1,07,350 said to have been remitted from Madras to Bombay belonged to the assessee and it was not enough for the Revenue to show that the amount was remitted by Tilok Chand, an employee of the assessee, to Nathirmal, another employee of the assessee.
It is quite possible that Tilok Chand had resources of his own from which he could remit the amount of Rs. 1,07,350 to Nathirmal.
It was for the Revenue to rule out this possibility by bringing proper evidence on record, for the burden of showing that the amount was remitted by the assessee was on the Revenue.
[730H 731D] The two documents viz. the letters dated 18th February, 1955 and 9th March, 1957 did not constitute any material evidence which the Tribunal could legitimately have taken into account for the purpose of arriving at the finding that the amount of Rs. 1,07,350 was remitted by the assessee from Madras to Bombay because while the former was not disclosed to the assessee by the Revenue Authorities till the hearing before the Tribunal in regard to the preparation of the supplemental statement of the case, giving the assessee an opportunity to cross examine the Manager of the Bank, the latter was not disclosed to the assessee at any stage.
Further, there is no explanation given by the Revenue as to how these two important documents were not traceable earlier.
Even if these two letters were to be taken into account, they did not supply any reasonable basis for reaching the finding that it was the assessee which sent the remittance of Rs. 1,07,350.
There can be no doubt that if the amount had been remitted by Tilok Chand on behalf of the assessee he would have signed the application for telegraphic transfer on behalf of the assessee and not in his own name.
This apart it is impossible to believe that the Manager of the Bank could have failed to appear before the Income Tax Officer in answer to the summons dated 5th March, 1957 and there is no doubt that this statement must have been recorded and the said statement also withheld.
[729H 730A; 729B, C; 730B, E; 729F G] 722 (2) It is true that the proceedings under the Income Tax law are not governed by the strict rules of evidence and therefore it might be said that even without calling the Manager of the Bank in evidence to prove this letter, it could be taken into account as evidence.
But before the Income Tax Authorities could rely upon it, they were bound to produce it before the assessee so that the assessee could controvert the statements contained in it by asking for an opportunity to cross examine the Manager of the Bank with reference to the statements made by him.
Moreover, this letter was said to have been addressed by the Manager of the Bank to the Income Tax Officer on 18th February, 1955 in relation to a remittance alleged to have been sent on 16th October, 1946 and it is impossible to believe in the absence of any evidence to that effect, that the Manager who wrote this letter on 18th February, 1955 must have been incharge of the Madras Office on 16th October, 1946 so as to have personal knowledge as to who remitted the amount of Rs. 1,07,350.
The Revenue authorities ought to have called upon the Manager of the Bank to produce the documents and papers on the basis of which he made the statements contained in his letter and confronted the assessee with those documents and papers but instead of doing so, the Revenue authorities chose to rely merely on the statements contained in the letter and that too, without showing the letter to the assessee.
[728A F]
|
N: Criminal Appeal No. 115 of 1975.
Appeal by Special Leave from the Judgment and order dated 10 1 1972 of the Madras High Court in Crl.
Appeal No. 64 No. 657/70.
A. V. Rangam for the Appellant.
A. T. M. Sampath for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
On November 1, 1969, a sample of gingelly oil was purchased by the Food Inspector, Madurai Municipality from the shop of the first respondent, who is now reported to be dead and against whom, this appeal, has, therefore, abated.
At that time respondent No. 2 was attending to the business.
After completing the necessary formalities the Food Inspector arranged to send one part of the sample to the Public Analyst at Madras for analysis.
The sample was analysed by the Public Analyst on November 11, 1969 and it was reported by him that it contained 5.1% of Free Fatty Acid as against the limit of 3.0% permissible under clause A.17.11 of Appendix B to the Prevention of Food Adulteration Rules, 1955.
In his report he also mentioned that the sample was properly sealed, it was air and moisture tight and packed in thick paper so as to be proof against light, and, the Free Fatty Acid content of the oil would, therefore, remain unchanged for several months.
On receipt of the Public Analyst 's report a complaint was filed against the two respondents for an offence under sec.
16(1) (a) and Sec.
7(i) read with sec.
2(i) (L) and Clause A.17.11 of Appendix 'B ' to the Prevention of Food Adulteration Rules.
Both the respondents denied the offence.
The 776 second respondent stated that he signed on the various documents produced by the prosecution as he was asked to do so by the Inspector.
He did not read the contents of those documents.
The brother of the second respondent was examined as a defence witness and he stated that he was in the shop when the Food Inspector came there and purchased the sample and that at the time of the sale the Food Inspector was told that the gingelly oil was not meant to be used as an article of food but was meant for "oil bath".
At the trial a request was made by the respondents that another part of the sample which had been produced by the Food Inspector in the Court might be sent to the Director, Central Food Laboratory, Calcutta, for analysis.
It was sent as desired.
The sample was analysed by the Director, Central Food Laboratory, Calcutta on February 6. 1970.
According to his report the gingelly oil contained 6.2% of Free Fatty Acid and was, therefore, adulterated.
The learned District Magistrate, Madurai acquitted both the respondents observing that the Free Fatty Acid had increased from 5.1% to 6.2% between November 11, 1969 and February 6, 1970 and it was, therefore, likely that the Free Fatty Acid content in the oil might have similarly increased between November 1, 1969 when the sample was taken and November 11, 1969, when the sample was analysed by the Public Analyst, Madras.
On that ground, the District Magistrate held that it was not possible to say that the prosecution had established that on the date when the sample was taken the Free Fatty Acid content of the oil exceeded 3%.
The State preferred an appeal to the Madras High Court against the order of acquittal.
The High Court confirmed the order of acquittal for the same reason as that given by the District Magistrate.
The State has filed this appeal after obtaining special leave of this Court under Art 136 of the Constitution.
Under Sec. 2(i)(L) (before it was amended in 1976) of the , an article of food is deemed to be adulterated "if the quality of purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability".
Paragraph A.17.11 of Appendix 'B ' to the Rules made under the prescribes the standard in the case of Til oil (Gingelly or seasame oil) and to the extent relevant it reads as follows: ["A.17.11.
Til oil (Gingelly or sesame oil) means the oil expressed from clean and sound seeds of Til (Sesamum indicum), black, brown, white, or mixed.
It shall be clear, free 777 from rancidity, suspended or other foreign matter, separated water, added colouring or flavouring substances, or mineral oil.
It shall conform to the following standards: (a) Butyro rafractometer reading at 40oC . 58.0 to 61 (b) Saponification value . 188 to 193 (c) Iodine value . 105 to 115 (d) Unsaponifiable matter .
Not more than 1.5 per cent.
(e) Free fatty acid as Oleic acid.
Not more than 3.0 per cent.
(f) Bellier test(Turbidity temperature Not more than Acetic acid method).
22oC).] .]" Now, a sample of food purchased by a Food Inspector has to be divided by him into 3 parts and each part has to be marked, sealed and fastened separately.
Before the Act was amended in 1976, one part was to be delivered to the person from whom the sample was taken, another part was to be sent for analysis to the Public Analyst and the third part was to be retained with the Food Inspector to be produced by him in case legal proceedings were taken or it became necessary to send it for analysis to the Director of the Central Food Laboratory.
The Public Analyst was required to deliver a report of the result of his analysis and this report was ordinarily the foundation of the prosecution by the Food Inspector.
After the institution of the prosecution, the accused was given the right to request the Court to send the third part of the sample retained by the Food Inspector to the Director, Central Food Laboratory for a certificate.
The Director, Central Food Laboratory was required to send to the Court a certificate specifying the result of his analysis and the certificate of the Director, Central Food Laboratory, thereupon, superseded the Public Analyst 's report.
The Public Analyst 's report, if not superseded by the Certificate of the Director.
Central Food Laboratory and the Certificate of the Director, Central Food Laboratory might be used as evidence of the facts stated therein in any proceeding under the Act with this difference that the certificate of the Director, Central Food Laboratory was to be final and conclusive evidence of the facts stated therein.
In the present case the certificate of the Director showed that the sample of gingelly oil contained 6.2% of Free Fatty Acid whereas the permissible limit was 3% only.
We are not concerned with the Public Analyst 's report since that has been superseded by the certificate of the Director, Central Food Laboratory, and the latter certificate has been made conclusive evidence of the facts mentioned in it.
The sample, it must therefore be found, was adulterated.
778 The sample, as we mentioned earlier, was taken on November 1, 1969, the analysis by the Public Analyst was on November 11, 1969 and the analysis by the Director, Central Food Laboratory was on February 6, 1970.
The learned District Magistrate and the High Court thought that although the Free Fatty Acid content in that part of the sample which was sent to the Director, Central Food Laboratory was 6.2% on the date when the Director analysed the oil it could not be said to have been established that on the date when the sample was taken by the Food Inspector the Free Fatty Acid content exceeded 3%.
According to them it could well be that the Free Fatty Acid content increased due to natural causes.
We are unable to agree with the lower Courts.
There is nothing in the evidence, nor has anything been shown to us from any scientific work which would suggest that the Free Fatty Acid content would so rapidly increase in the space of about three months that what was less than 3% on November 1, 1969, when the sample was taken increased to 6.2% by February 6, 1970, when the sample was analysed by the Central Food Laboratory.
On the other hand in the New Encyclopaedia Britannica Volume 13 (pages 526 527) it is said: "Fats can be heated to between 200o and 250oC without undergoing significant changes provided contact with air or oxygen is avoided.
On exposure to air, oils and fats gradually undergo certain changes.
The drying oils absorb oxygen (dry) and polymerize readily; thin layers form a skin or protective film.
The semidrying oils absorb oxygen more slowly and are less useful as paint oils.
Still, sufficient oxygen is absorbed in time to produce distinct thickening and some film formation.
Oxidation of the drying and semidrying oils is accelerated by spreading the oil over a large surface.
On greasy cloths, for example, oxygen absorption may proceed so rapidly that spontaneous combustion ensues.
The nondrying oils, of which olive oil is typical, do not oxidize readily on exposure to air, although changes do take place gradually, including slow hydroysis (splitting to fatty acids and glycerol) and subsequent oxidation.
This slow oxidation causes a disagreeable smell and taste described by the term rancidity.
779 The chemical reactions involved in oil oxidation have been studied widely, when oils and fats are exposed to air, little change takes place for a period of time that varies from oil to oil depending upon the amount and type of unsaturation and the content of natural antioxidants.
During this so called induction period, there is virtually no change in either odour or chemistry of the oil because of the protective effect of natural antioxidants, especially tocopherol.
Gradually, the effectiveness of the anti oxidant is overcome and there is an accelerating rate of oxidation of unsaturated acids, called autoxidation.
Chemically, the first identifiable oxidation products are hydroperoxides.
These break down into a large variety of low molecular weight aldehydes, esters, alcohols, ketones, acids, and hydrocarbons, some of which possess the pungent, disagreeable odours characteristic of rancid fats.
In soyabean oil exposed to air to the point of incipient rancidity, more than 100 different oxidation products have been identified.
Natural oils such as coconut oil, with very low levels of unsaturation, are very stable to flavour deterioration, but the more highly unsaturated oils such as soyabean oil or safflower oil lose their flavour more quickly.
Sesame oil is unique in its flavour stability because of the presence of several natural antioxidants (sesamin, sesamolin, sesamol).
Synthetic antioxidants such as propyl gallate, butylated hydroxyanisole (BHA), and butylated hydroxytoluene (BHT) have been used to retard the onset of rancidity and increase the storage life of edible fats".
Gingelly (Til or seasame) oil we may mention is a semi drying oil.
From the extract from the Encyclopaedia Britannica it is only after prolonged exposure to air and light that there may be some discernible chemical changes in gingelly (til or seasame) oil.
In fact it is mentioned in the Encyclopaedia Britannica that seasame oil is unique in its flavour stability because of the presence of several natural antioxidants.
There is nothing to indicate that the samples were not packed as required by the rules.
The report of the Public Analyst mentions "The sample has been received properly sealed, to be air and moisture tight and packed in thick paper to be proof against access to light.
Under these conditions the Free Fatty Acid content of oils 780 remains unchanged for several months".
The certificate of the Director, Central Food Laboratory mentions "The seals were intact".
We are, therefore, clearly of opinion that there was no justification for the conclusion of the District Magistrate and the High Court that the Free Fatty Acid content of the oil on the date when the sample was taken might have been less than 3% and therefore, not adulterated.
We set aside the judgments of the District Magistrate and the High Court and convict the second respondent under Sec.
16(1)(a)(i) read with sec.
7(i) and 2(i) (L) of the and sentence him to pay a fine of Rs. 100 in default to undergo simple imprisonment for a period of two weeks.
We are imposing a nominal sentence having regard to the circumstance that we are interfering with a concurrent order of acquittal more than ten years after the commission of the offence.
| IN-Abs | Under section 2(i)(L) (before it was amended in 1976) of the , an article of food is deemed to be adulterated "if the quality of purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability".
On November 1, 1969, sample of gingelly oil was purchased by the Municipal Food Inspector from the shop of the respondents.
After completing the necessary formalities, the Food Inspector arranged to send one part of the sample to the Public Analyst for analysis.
The Public Analyst analysed the sample on November 11, 1969 and reported that it contained 5.1% of Free Fatty Acid as against the permissible limit of 3%.
On receipt of the report, the respondents were prosecuted for offences under Section 16(1)(a)(i) read with Section 7(i) and 2(i)(L) of the .
At the trial, in pursuance of the respondents request, another sample was got analysed on February 6, 1970 by the Director, Central Food Laboratory.
According to his report, the gingelly oil contained 6.2% of the Free Fatty Acid and was therefore, adulterated.
The District Magistrate observing that the Free Fatty Acid had increased from 5.1% to 6.2% between November 11, 1969 and February 6, 1970 and it was therefore, likely that the Free Fatty Acid content in the oil might have similarly increased between November 1, 1969 when the sample was taken and November 11, 1969 when the sample was analysed by the Public Analyst, held that it was not possible to say that the prosecution had established that on the date when the sample was taken the Free Fatty Acid content of the oil exceed 3% and acquitted the respondents.
The order of acquittal was confirmed by the High Court.
In the appeal to this Court, it was, ^ HELD:1 (i) The judgments of the District Magistrate and the High Court are set aside.
The second respondent is convicted under Section 16(1)(a)(i) and sentenced to pay a fine.
[780C] (ii) There was no justification for the conclusion of the District Magistrate and the High Court that the Free Fatty Acid content of the oil on the date when the sample was taken might have been less than 3% and therefore not adulterated.
[780B] 775 In the instant case, the Public Analyst report had been superseded by the certificate of the Director, Central Food Laboratory, and the latter certificate had become conclusive evidence of the facts mentioned in it.
The sample, must therefore be held, to be adulterated.
There was nothing in the evidence, nor had anything been shown from any scientific work which would suggest that the Free Fatty Acid content would so rapidly increase in the space of about three months.
If it was less than 3% on November 1, 1969 when the sample was taken it could not have increased to 6.2% by February 6, 1970 when the sample was analysed by the Central Food Laboratory.
[777H, 778D] 2.
Gingelly (Til or Sesame) oil is a semi drying oil.
It is only after Prolonged exposure to air and light that there may be some discernible chemical changes in gingelly (Til or sesame) oil.
[779G] New Encyclopaedia Britannica, Vol.
13 pages 526 527 referred to.
|
Civil Appeal No. 785 of 1975.
Appeal by Special Leave from the Judgment and order dated 7 1 1973 of the Punjab and Haryana High Court in Civil Writ No. 6677/74.
A. K. Sen, section K. Gambhir, A. K. Panda and Miss Ramrakhiani for the Appellant.
Yogeshwar Prasad, A. K. Srivastava and Miss Rani Chhabra for the Respondent No. 2.
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 and Haryana summarily dismissing a writ petition filed by the appellant.
The appellant is a private limited company which manufactures machine tools as its factory in Faridabad.
It employs 250 workmen.
The second respondent, Sadhu Singh, is one of them.
Demands by the workmen for an improvement in the conditions of their service led to conciliation proceedings under the , ("the Act"), and on June 20, 1969, a settlement under section 12 of the 770 Act in satisfaction of those demands was recorded by the Conciliation officer.
The settlement included a provision that the workmen would not raise any demand involving further financial burden on the appellant for a period of two years.
Before the expiry of that period, however, a fresh demand was raised on August 17, 1970 by the General Labour Union asking for dearness allowance at 25 per cent.
The management demurred, and explained that having regard to the structure of wages and allowances now payable under the settlement, there was no justification for the demand.
On August 26, 1970 the workmen resorted to a "sit down" strike, which continued the next day.
According to the appellant, on August 27, 1970, Sadhu Singh instigated the workmen to "down" tools and go on a "sit down strike.
Successive notices by the management the same day failed to dissolve the strike.
Charges were framed against Sadhu Singh alleging serious misconduct and a domestic enquiry was ordered.
The workman, it is said, declined to accept the charge sheet and, although he was directed to appear before the Inquiry Officer, Sadhu Singh did not participate in the inquiry.
On September 13, 1970, the Inquiry officer submitted his report to the management.
According to him, the strike was illegal, and Sadhu Singh was guilty of instigating the workmen to go on strike, and besides he was guilty of loitering in the factory.
The findings being accepted by the management an order followed on September 14, 1970 dismissing Sadhu Singh from service with immediate effect.
The President of the General Labour Union then pressed the management to reinstate Sadhu Singh.
Meanwhile the management had taken action dismissing other workmen also.
The dismissal of all the workmen formed the subject of a settlement under s.12 of the Act on November 21, 1970, and it was agreed that the dismissed workmen, including Sadhu Singh, should be regarded as retrenched from service.
The remaining workmen agreed to resume work unconditionally.
The memorandum of settlement was signed by the management on the one hand and the individual workmen on the other.
A few days after, Sadhu Singh wrote to the Labour Commissioner claiming that he was not a signatory to the settlement and that he would settle his dispute himself with the management.
The State Government referred the dispute in regard to the termination of Sadhu Singh 's service for adjudication to the Labour Court, Rohtak.
While the management took its stand on the facts found in the domestic inquiry report and relied on the circumstance that the settlement dated November 21, 1970 was binding on Sadhu Singh, Sadhu Singh asserted that he was not guilty of any misconduct on August 27, 1970.
He also contended that the charge sheet had never been served on him and therefore the exparte domestic inquiry was vitiated.
The 771 Labour Court by its order dated September 20, 1972 found that Sadhu Singh was not a signatory to the settlement of November 21, 1970, and was, therefore, not bound by it.
The Labour Court made its award on September 30, 1972.
It found that the domestic inquiry was not proper inasmuch as notice of the inquiry had failed to reach Sadhu Singh because it had been sent to a wrong address, thereby preventing him from participating in the domestic inquiry.
On the merits of the dispute the Labour Court found that Sadhu Singh had been ill from August 24 to September 9, 1970, and that was established by a medical certificate which, on inquiry from the Employees State Insurance Department, was found to be in order, and consequently it could not be believed that the workman had instigated or participated in the "tool down" and "sit down" strike.
In support of its case that Sadhu Singh was present within the factory premises on August 27, 1970, the management placed reliance on a document purporting to have been signed by the workmen and setting forth the assurance that he would conduct himself properly and be of good behaviour.
The Labour Court said that if the document be accepted as genuine there was sufficient reason for accepting the assurance and refraining from taking any action against the workman.
The Labour Court held that the dismissal was not justified and that Sadhu Singh was entitled to reinstatement with continuity of previous service and full back wages.
The appellant filed a writ petition in the High Court against the award, but the writ petition was dismissed.
And now this appeal.
The appellant challenges the findings of the Labour Court.
It is contended that the settlement dated November 21, 1970 was binding on Sadhu Singh and it was not open to him resile from it.
Now Section 36 of the Act provides for representation of the parties to a dispute.
The workmen are entitled by virtue of sub section (1) to be represented in a proceeding under the Act by a member of the executive or other office bearer of a registered trade union of which they are members or of a federation of trade unions to which that trade union is affiliated, and where the workman is not a member of any trade union, he can be represented by a member of the executive or other office bearer of a trade union connected with, or by any other workman employed in, the industry in which the workman is employed.
It is not obligatory, however, that a workman who is a Party to dispute must be represented by another.
He may participate in the proceeding himself.
Where conciliation proceedings are taken and a settlement is reached, it is a valid settlement and binding on the parties even if the workmen who are party to the dispute participate in the 772 proceedings personally and are not represented by any of the persons mentioned in section 36(1).
That is what happened here.
The evidence shows that the individual workmen negotiated the settlement themselves and individually signed the memorandum off settlement.
By executing a memorandum they bound themselves by the terms of the settlement.
In the present case, however, while several workmen signed the memorandum of settlement on 21st November, 1970, Sadhu Singh did not.
It is also established that Sadhu Singh did not authorise any of the other workmen to sign the memorandum on his behalf.
And what is of importance is that, as found by the Labour Court, the demand that the dismissal of Sadhu Singh be set aside and that he should be reinstated was never included in the charter of demands of the workmen which led to the conciliation proceedings, and those proceedings did not involve the consideration of such a demand.
According to the Labour Court, that was the admitted position, Consequently, the settlement of 21st November, 1970 can on no account be understood as covering and concluding the demand for recalling the order dismissing Sadhu Singh.
In the circumstances, it was open to Sadhu Singh to assail his dismissal from service and to contend that the settlement of 21st November, 1970 did not bind him.
The Labour Court was right in adjudicating on the propriety of his dismissal and, having found that the dismissal was not justified, in granting relief.
It is submitted that notice of the domestic inquiry was duly effected on Sadhu Singh and the finding of the Labour Court to the contrary is erroneous.
Plainly, the question turns on the evidence on the record and we see no reason why the finding of the Labour Court should not be accepted.
Having reached the conclusion that the domestic inquiry, in the circumstances, was improper it was open to the Labour Court to enter into the dispute on its merits and pronounce its award.
The finding that Sadhu Singh was ill and could not be said to have instigated or participated in the strike on August 27, 1970 is a finding of fact which proceeds from the material on the record.
We are not satisfied that the finding should be disturbed.
Considerable reliance was placed by the appellant on the document said to have been executed by the workman containing the assurance that he would be of good behaviour and, it is submitted.
773 that after executing the document Sadhu Singh went back on the assurance and set the strike in motion.
We see no force in the submission.
The evidence led by the management attempts to show specifically that Sadhu Singh instigated the strike at 10 O 'clock in the morning on August 27, 1970.
It would not be unreasonable to hold that the declaration of assurance was executed subsequently.
It was an assurance accepted by the management, and, therefore, there is no reason why the management should have insisted on initiating disciplinary proceedings thereafter against the workman.
In the result, the appeal is dismissed with costs to the second respondent, which we assess at Rs. 2,000.
The appellant has deposited that sum pursuant to the order of this Court dated April 30, 1974, and it is open to the second respondent to withdraw the money.
V. D. K. Appeal dismissed.
| IN-Abs | The appellant company manufactures machine tools at its factory in Faridabad employing 250 workmen including the second respondent, Sadhu Singh.
Demands of the workmen for an improvement in the conditions of the service led to conciliation proceedings and a settlement under section 12 was recorded on June 20, 1969 by the Conciliation officer.
The settlement included a provision that the workmen would not raise any demand involving further financial burden on the appellant for a period of two years.
Before the expiry of that period, however, a fresh demand was raised on August 17, 1970 by the General Labour Union asking for dearness allowance at 25 per cent.
The management having refused this demand the workmen resorted to a "sit down" strike on August 26 and 27, 1970.
The second respondent Sadhu Singh was charged with alleging serious misconduct.
Sadhu Singh did not participate in the inquiry.
Accepting the report submitted by the Inquiry officer that Sadhu Singh was guilty of instigating the workmen to go on strike the services of Sadhu Singh were terminated by the management with immediate effect by an order dated September 14, 1970.
The management dismissed some other workmen also.
The dismissal of all workmen formed the subject of another settlement under section 12 of the Act dated November 21, 1970 and it was agreed that the dismissed workmen including Sadhu Singh should be regarded as retrenched from service.
The remaining workmen agreed to resume work unconditionally.
Sadhu Singh, took up the matter before the Labour Court stating that not being a signatory to the settlement of November 21, 1970 he was not bound by it.
The Labour court accepted his plea and made its ward on September 30, 1972.
It found that the domestic inquiry was not proper inasmuch as notice of the inquiry had failed to reach Sadhu Singh, thereby preventing him from participating in the domestic inquiry.
Further it held that since Sadhu Singh had been ill from August 24, to September 9, 1970 he could not be said to have instigated the strike.
The appellant having failed before the High Court has come in appeal after obtaining special leave from this Court.
Dismissing the appeal, the Court, ^ HELD: Section 36 of the provides for representation of the parties to a dispute.
The workmen are entitled by virtue of sub section (1) to be represented in a proceeding under the Act by a member of the executive or other office bearer of a registered trade union of which 769 they are members or of a federation of trade unions to which that trade union is affiliated, and where the workmen is not a member of any trade union, he can be represented by a member of the executive or other office bearer of a trade union connected with, or by any other workman employed in the industry in which the workmen is employed.
It is not obligatory, however, that a workman who is a party to a dispute must be represented by another.
He may participate in the proceeding himself.
Where conciliation proceedings are taken and a settlement is reached, it is a valid settlement and binding on the parties even if the workmen who are party to the dispute participate in the proceedings personally and are not represented by any of the persons mentioned in section 36(1) of the Act.
In the present case; (1) by executing a memorandum the several workmen who individually signed it on 21st August, 1970 bound themselves by the terms of the settlement, but as Sadhu Singh had not signed the memorandum nor had he authorised any of the workman to sign the memorandum on his behalf he was not bound by the settlement.
(2) The settlement of 21st November, 1970 can on no account be understood as covering and concluding the demand for recalling the order dismissing Sadhu Singh, as his reinstatement was never included in the charter of demands of the workmen which led to the conciliation proceedings and those proceedings did not involve the consideration of such a demand.
In the circumstances, it was open to Sadhu Singh to assail his dismissal from service and to contend that the settlement of 21st November 1970 did not bind him.
(3) The Labour Court was right in adjudicating on the propriety of his dismissal and, having found that the dismissal was not justified, in granting relief.
[771 F 772E]
|
Civil Appeal No. 1086 of 1973.
Appeal by Special Leave from the Judgment and Order dated 8 12 1971 of the Kerala High Court in T.I.T. Reference No. 91/69.
section C. Manchanda and Miss A. Subhashini for the Appellants.
K. T. Harindranath and T. T. Kunhikannan for the Respondent.
The Judgment of the Court was delivered by BHAGWATI J.
This appeal arises out of proceedings initiated by the Revenue authorities for levying penalty on the assessee.
The assessee is a lady and during the assessment year 1964 65 for which the relevant accounting year was the calender year ended 31st December, 1963, the assessee was a partner in two partnership firms, M/s. Malabar Tile Works and M/s. Malabar Plywood Works and alongwith her there were other partners including her husband and minor daughter.
The assessee filed a return of income for the assessment year 1964 65 showing Rs. 4754 as income from property and Rs. 4748 as income from other sources.
The assessee stated in the return under the column "Profits and Gains of Business and Profession" against item (b) which required share in the profits of a registered firm to be shown "Please ascertain from the firms ' files the Malabar Tile Works and Malabar Plywood Works.
" The assessee, however, did not show in the return the amounts representing the shares of her husband and minor daughter in the firms of M/s. Malabar Tile Works and M/s. Malabar Plywood Works though they were clearly includible in computing the total income of the assessee under section 64 sub section (1) clauses (i) and (iii) of the Income Tax Act, 1961.
The Income Tax Officer while making the assessment included the amounts representing the shares of the assessee 's husband and minor daughter in the profits of these two firms in the assessment of the assessee and taxed the assessee on a total income of Rs. 59,506 after including these amounts.
Since the assessee had not shown these amounts as forming part of her total income in the return submitted by her, though they were clearly includible in her total income under section 64, sub section (1) clauses (i) and (iii), the Income Tax Officer was of the view that the assessee had con 784 cealed the particulars of her income and rendered herself liable to penalty under section 271 sub section (1) clause (c), and since the minimum penalty leviable on the assessee was Rs. 1000, he referred the case to the Assistant Appellate Commissioner who issued notice under section 274 and after hearing the assessee, imposed a penalty of Rs. 1000.
The assessee appealed to the Tribunal against the order imposing penalty and one of the arguments urged on behalf of the assessee in support of the appeal was that there was no obligation of the assessee to show in her return the amounts representing the shares of her husband and minor daughter in the two firms and there was accordingly no concealment by her of the particulars of her income so as to attract the penalty under section 271 sub section (1) clause (c).
The Tribunal accepted this argument of the assessee and held that section 271 sub section (1) clause (c) could be invoked only if there was concealment of the "particulars of his income by the assessee" and the words "his income" referred only to be the income of the assessee himself and not to the income of any other person which might be liable to be included in the income of the assessee by reason of section 64 sub section (1) clauses (i) and (iii).
The Tribunal accordingly held that the omission or failure of the assessee to disclose in her return the amounts representing the shares of her husband and minor daughter in the two firms as forming part of her income could not be visited with penalty under section 271 sub section (1) clause (c) and in this view, the Tribunal allowed the appeal and set aside the order imposing penalty.
This led to the filing of an application for a reference by the Revenue and on the application, the Tribunal referred the following question of law for the opinion of the High Court: "Whether on the facts and in the circumstances of the case, the Tribunal is correct in law in cancelling the penalty levied under section 271(1)(c)?" The High Court took the view that the words used in section 271 sub section (1) clause (c) were "his income" and the amounts representing the shares of the assessee 's husband and minor daughter in the two firms could not be said to be the income of the assessee, though in computing her total income these amounts were liable to be included by reason of section 64 sub section (1) clauses (i) and (iii) and therefore, the assessee could not be said to have concealed her income when she did not disclose these amounts as forming part of her income in the return submitted by her.
The High Court accordingly answered the question referred to it in favour of the assessee and against the Revenue.
The Revenue thereupon preferred the present appeal with special leave obtained from this Court.
785 There is a decision of this court which is directly in point and it concludes the determination of the question arising in this appeal against the Revenue but before we refer to that decision, we might first examine the question on principle as a matter of pure interpretative exercise.
Section 271 sub section (1) clause (c) provides for imposition of penalty on an assessee if it is found inter alia that the assessee has concealed the particulars of "his income.
" The question is what is the scope and content of the words "his income" occurring in this penal provision.
Do they refer only to the income of the assessee himself or do they also take in the income of others which is liable to be included in the computation of the total income of the assessee by reason of the relevant provisions of the Act, such as section 64 sub section (1) clauses (i) and (iii)? The answer to this question obviously depends upon as to what is "his income" which the assessee is liable to disclose for the purpose of assessment for concealment can only be of that which one is bound to disclose and yet fails to do so.
Section 139 provides for filing of a return of income by an assessee and sub section (1) of this section lays down that every person whose total income during the previous year exceeds the maximum amount which is not chargeable to income tax, shall furnish a return of his income in the prescribed form and verified in the prescribed manner, and setting forth such other particulars as may be prescribed.
The return of income is required to be filed in order to enable the Revenue Authorities to make a proper assessment of tax on the assessee.
It must therefore follow a fortiorari that the assessee must disclose in the return every item of income which is liable to be taxed in his hands as part of his total income.
The charge of income tax is levied by section 4 on the total income of the assessee, and 'total income ' is defined in section 2 sub section (45) to mean "the total amount of income referred to in section 5 computed in the manner laid down" in the Act.
It is no doubt true that the definition of 'total income ' in Section 2 sub section (45) refers to section 5 and this latter provision lays down that all the income profits and gains accrued or arisen to the assessee or received by or on behalf of the assessee shall be liable to be included in his total income but this provision is subject to the other provisions of the Act and therefore if the income of any other person is declared by any provision of the Act to be includible in computing the total income of the assessee, such income would form part of the total income exigible to tax under section 4 of the Act.
Now, section 64 subsection (1) is one such provision which provides for inclusion of the income of certain other persons in computing the total income of an assessee.
Clauses (i) and (iii) of this sub section provide that in computing the total income of an assessee there shall be included all 786 such income as arises directly or indirectly to the spouse of such assessee from the partnership of the spouse in a firm carrying on a business in which such individual is a partner as also to a minor child of such assessee from the admission of the minor to the benefits of the partnership firm.
It is clear from this provision that though the share of the spouse or minor child in the profits of a partnership firm in which the assessee is a partner is not the income of the assessee but is the income of such spouse or minor child it is liable to be included in computing the total income of the assessee and it would be assessable to tax in the hands of the assessee.
The total income of the assessee chargeable to tax would include the amounts representing the shares of the spouse and minor child in the profits of the partnership firm.
If this be the correct legal position, there can be no doubt that the assessee must disclose in the return submitted by him, all amounts representing the shares of the spouse and minor child in the profits of the partnership firm in which he is a partner, since they form part of his total income chargeable to tax.
The words "his income" in section 139 sub section (1) must include every item of income which goes to make up his total income assessable under the Act.
The amounts representing the shares of the spouse and minor child in the profits of the partnership firm would be part of "his income" for the purpose of assessment to tax and would have to be shown in the return of income filed by him.
The assessee then contended that the return of income which was required to be filed by her under section 139 sub section (1) was a return in the prescribed form and the form of the return prescribed by rule 12 of the Income Tax Rules, 1962 did not contain any column for showing the income of the spouse and minor child which was liable to be included in the total income of the assessee under section 64 sub section (1) clauses (i) and (iii) and there was therefore no obligation on the assessee to disclose this income in the return filed by her.
This contention is also, in our opinion, fallacious and deserves to be rejected.
It is true that the form of the return prescribed by rule 12 which was in force during the relevant assessment year did not contain any separate column for showing the income of the spouse and minor child liable to be included in the total income of the assessee, but it did contain a Note stating that if the income of any other person is includible in the total income of the assessee under the provisions inter alia of section 64, such income should also bestow in the return under the appropriate head.
This Note clearly required the assessee to show in the return under the appropriate head of income, namely, "Profits and Gains of Business of Profession" the amounts representing the shares of the husband and minor 787 daughter of the assessee in the profits of the two partnership firms.
But even so, the assessee failed to disclose these amounts in the return submitted by her and there was therefore plainly and manifestly a breach of the obligation imposed by section 139 sub section (1) requiring the assessee to furnish a return of her income in the prescribed form.
It is difficult to see how the Note in the prescribed form of the return could be ignored by the assessee and she could contend that despite the Note, she was not liable to show in her return the amounts representing the shares of her husband and minor daughter in the two partnership firms.
The contention of the assessee, if accepted, would render the Note meaningless and futile and turn it into dead letter and that would be contrary to all recognised canons of construction.
There can be no doubt that the assessee was bound to show in her return the amounts representing the shares of her husband and minor daughter in the two partnership firms and in failing to do so, she was guilty of concealment of this item of income which plainly attracted the applicability of section 271 sub section (1) clause (c).
It is obvious that on this view the order imposing penalty on the assessee would have to be sustained but there is a decision of this Court in V.D.M.RM.M.RM.
Muthiah Chettiar vs Commissioner of Income Tax Madras which is binding upon us and where we find that a different view has been taken by a Bench of three Judges of this Court.
It was held in this case that even if there were any printed instructions in the form of the return requiring the assessee to disclose the income received by his wife and minor child from a firm of which the assessee was a partner, there was, in the absence in the return of any head under which the income of the wife or minor child could be shown, no obligation on the assessee to disclose this item of income, the assessee could not be deemed to have failed or omitted to disclose fully and truly all material facts necessary for his assessment within the meaning of section 34(1) (a) of the Indian Income Tax Act, 1922.
With the greatest respect to the learned Judges who decided this case, we do not think, for reasons already discussed, that this decision lays down the correct law on the subject, and had it not been for the fact that since 1st April 1972 the form of the return prescribed by rule 12 has been amended and since then, there is a separate column providing the "income arising to spouse/minor child or any other person as referred to in Chapter V of the Act" should be shown separately under that column and consequently there is no longer any scope for arguing that the assessee is not bound 788 to disclose such income in the return to be furnished by him, we would have referred the present case to a larger bench.
But we do not propose to do so since the question has now become academic in view of the amendment in the form of the return carried out with effect from 1st April 1972.
We would therefore follow this decision in Muthiah Chettiar 's case, which being a decision of a bench of three Judges of this Court is binding upon us, and following that decision, we hold that the assessee could not be said to have concealed her income by not disclosing in the return filed by her the amounts representing the shares of her husband and minor daughter in the two partnership firms.
We accordingly dismiss the appeal, but in the peculiar circumstances of the present case, we think that the fair order of costs would be that each party should bear and pay its own costs throughout.
S.R. Appeal dismissed.
| IN-Abs | The respondent assessee was a partner in the partnership firms of M/s. Malabar Tile Works and M/s. Malabar Plywood Works and alongwith her there were other partners including her husband and minor daughter.
In her returns for the assessment year 1964 65 for which the relevant accounting year was the calendar year ending 31st December, 1963, the assessee filed a return of income omitting the amounts representing the shares of her husband and minor daughter in the partnership firms from her income.
The Income Tax Officer, however, brought the amounts, namely, Rs. 59,506 to tax and referred the case for taking action under section 271(1)(c) of the Act to the Assistant Appellate Commissioner who imposed a penalty of namely, Rs. 7,000 on the assessee for having concealed her income.
In appeal the Tribunal set aside the order and the High Court on reference affirmed the Tribunal 's order.
Hence the appeal by Revenue to this Court after obtaining special leave.
Dismissing the appeal, the Court ^ HELD: (1) The assessee, in view of the fact that the prescribed form for filing of returns under section 139 of the Act, prior to 31st March, 1972, did not contain separate column to show "income arising to spouse/minor child or any other person referred to in Chapter V of the Act", and in view of the decision of three Judges Bench reported in SC could not be said to have concealed her income by not disclosing in the return filed by her the amounts representing the shares of her husband and minor daughter in the two partnership firms.
[788B] (2) The term "his income" for the purpose of section 271(1)(c) of the Act, is "his income" which the assessee is liable to disclose for the purposes of assessment and yet fails to do so.
The return of income under section 139(1) of the Act is required to be filed in order to enable the Revenue Authorities to make a proper assessment of tax on the assessee.
A fortiorari, it follows that the assessee must disclose in the return every item of income which is liable to be taxed in his hands under sections 4 & 5 of the Act.
[785B; F H] 782 (3) The definition of "total income" in section 2(45), no doubt refers to section 5 which lays down that all the income profits and gains accrued or arisen to the assessee or received by or on behalf of the assessee shall be liable to be included in his total income but this provision is subject to the other provisions of the Act and therefore if the income of any other person is declared by any provision of the Act to be includible in computing the total income of the assessee, such income would form part of the total income exigible to tax under section 4 of the Act.
section 64(1) is one such provision which provides for inclusion of the income of certain other persons in computing the total income of the assessee.
[785F H] Section 64(1) makes it clear that though the share of the spouse or minor child in the profits of a partnership firm in which the assessee is a partner is not the income of the assessee but is the income of such spouse or minor child it is liable to be included in computing the total income of the assessee and it would be assessable to tax in the hands of the assessee.
The total income of the assessee chargeable to tax would include the amounts representing the shares of the spouse and minor child in the profits of the partnership firm.
Obviously the words "his income" in section 139 sub section
(1) must include every item of income which goes to make up his total income assessable under the Act.
The amounts representing the shares of the spouse and minor child in the profits of the partnership firm would be part of "his income" for the purpose of assessment to tax and would have to be shown in the return of income filed by him.
[786B D] (4) It is true that the form of the return prescribed by Rule 12 of the Income Tax Rules, 1962 which was in force during the relevant assessment year did not contain any separate column for showing the income of the spouse and minor child liable to be included in the total income of the assessee, but it did contain a Note stating that if the income of any other person is includible in the total income of the assessee under the provisions, inter alia, of section 64, such income should also be shown in the return under the appropriate head.
This Note clearly required the assessee to show in the return under the appropriate head of income, namely, "profits and gains of business or profession" the amounts representing the shares of the husband and minor daughter of the assessee in the profits of the two partnership firms.
The assessee however failed to disclose these amounts in the return submitted by her and there was plainly and manifestly a breach of the obligation imposed by section 139 sub section
(1) requiring the assessee to furnish a return of her income in the prescribed form.
To accept the contention that despite the Note the assessee was still not liable to show in the return the amounts representing the shares of her husband and minor daughter in the two partnership firms would render the Note meaningless and futile and turn it into a dead letter 783 and that would be contrary to all recognised canons of construction.
The assessee was guilty of concealment of this item of income which plainly attracted the applicability of section 271 sub section
(1) clause (c).
[786G 787D] V.D.M.RM.M.RM.
Muthiah Chettiar vs Commissioner of Income Tax, , doubted
|
ivil Appeal Nos.
632 635 of 1980.
Appeals by Special Leave from the Award dated 1 3 1979 of the Central Government Industrial Tribunal cum Labour Court in I.D. No. 77 of 1977 and 67, 68 and 72 of 1977 respectively published in the Gazette of India dated 28 4 1979.
R. K. Garg, N. C. Sikri and A. K. Sikri for the Appellants.
G. B. Pai, O. C. Mathur and K. J. John for the Respondent No. 2.
The Judgment of V. R. Krishna Iyer and O. Chinnappa Reddy.
JJ. was delivered by Chinnappa Reddy, J. R. section Pathak, J. gave a separate opinion.
792 CHINNAPPA REDDY, J.
The facts of the four appeals before us (except the cases of Usha Kumari and Madhu Bala, two out of the seven appellants in Civil Appeal No. 633 of 1980) are almost identical with the facts in Santosh Gupta vs State Bank of Patiala decided by this Court on April 29, 1980.
Not unnaturally the appellants claim that they should be given the same reliefs as were given to the workman in that case, but which have been denied to them by the Labour Court in the instant cases.
The Labour Court found, as a fact, that except in the cases of three workmen, section C. Goyal, Usha Kumari and Madhu Bala, the termination of the services of the remaining appellants workmen was in violation of the provisions of section 25F of the and therefore invalid and inoperative.
But, as the termination of their services was a consequence of their failure to pass the tests prescribed for permanent absorption into the service of the Bank and as it was thought their reinstatement would have the effect of equating them with workmen who had qualified for permanent absorption by passing the test, the Labour Court refused to give the workmen the relief of reinstatement in service with full back wages, but, instead, directed payment of compensation of six months ' salary to each of the workmen, in addition to the retrenchment compensation.
The appellants claim that they should be awarded the relief of reinstatement with full back wages as was done in the case of Santosh Gupta vs State Bank of Patiala (supra) and other earlier cases decided by this Court.
On the other hand the learned counsel for the employer contended that non compliance with the requirements of section 25F of the did not render the termination of the service of a workman ab initio void but only made it invalid and inoperative and that the Court, when setting aside the termination of the services of a workman on the ground of failure to comply with the provisions of section 25F, had full discretion not to direct reinstatement with full back wages, but, instead, to direct the payment of suitable compensation.
The learned counsel invited our attention to cases where such discretion had been exercised and to other cases arising under sections 33 and 33A of the where it was held that discharge of workmen during the pendency of proceedings, without the previous permission in writing of the authority before which the proceeding was pending was not ab initio void and that the Labour Court or the Tribunal was not bound to direct reinstatement merely because it was found that there was a violation of section 33.
793 In Santosh Gupta vs State Bank of Patiala, (supra) the facts of which case were identical with the facts of the cases before us, this Court found "that the discharge of the workman on the ground that she did not pass the test, which would have enabled her to be confirmed, was retrenchment within the meaning of section 2(oo) and, therefore, the requirements of section 25F had to be complied with".
On that finding, the relief which was awarded was: "the order of the Presiding Officer Central Government Industrial Tribunal cum Labour Court, New Delhi, is set aside and the appellant is directed to be reinstated with full back wages".
Earlier, in Hindustan Steel Ltd. vs The Presiding Officer Labour Court, Orissa and Ors., a Division Bench of this Court consisting of Chandrachud, Goswami and Gupta JJ, on a finding that there was a contravention of the provisions of section 25F of the , affirmed the award of the Lower Court directing reinstatement with full back wages.
In another case M/s. Avon Services Production Agencies (P) Ltd. vs Industrial Tribunal, Haryana and Ors., Krishna Iyer and Desai JJ found that there was retrenchment without compliance with the prescribed conditions precedent.
Therefore, they said "the retrenchment was invalid and the relief of reinstatement with full back wages was amply deserved".
In M/s. Swadesamitran Limited, Madras vs Their Workmen dealing with an argument that even if the impugned retrenchment was justified, reinstatement should not have been ordered, Gajendragadkar, Subba Rao and Das Gupta JJ observed: "Once it is found that retrenchment is unjustified and improper it is for the tribunals below to consider to what relief the retrenched workmen are entitled.
Ordinarily, if a workman has been improperly and illegally retrenched he is entitled to claim reinstatement.
The fact that in the meanwhile the employer has engaged other workmen would not necessarily defeat the claim for reinstatement of the retrenched workmen; nor can the fact that protracted litigation in regard to the dispute has inevitably meant delay, defeat such a claim for reinstatement.
This Court has consistently held that in the case of wrongful dismissal, discharge or retrenchment, a claim for reinstatement cannot be defeated merely because time has lapsed or that the employer has engaged fresh hands (Vide :The Punjab National Bank Ltd. vs The All India Punjab National Bank Employees ' 794 Federation ; and National Transport and General Co. Ltd. V. The Workmen (Civil Appeal No. 312 of 1956 decided on January 22, 1957).
" In State Bank of India vs Shri N. Sundara Money, a Division Bench of this Court consisting of Chandrachud, Krishna Iyer and Gupta JJ held that a certain order of retrenchment was in violation of the provisions of section 25F and was, therefore, invalid and inoperative.
After so holding, they proceeded to consider the question of the relief to be awarded.
They observed: "What follows ? Had the State Bank known the law and acted on it, half a month 's pay would have concluded the story.
But that did not happen.
And now, some years have passed and the Bank has to pay, for no service rendered.
Even so, hard cases cannot make bad law.
Reinstatement is the necessary relief that follows.
At what point ? In the particular facts and circumstances of this case, the respondent shall be put back where he left off, but his new salary will be what he would draw were he to be appointed in the same post today de novo.
As for benefits if any, flowing from service he will be ranked below all permanent employees in that cadre and will be deemed to be a temporary hand upto now.
He will not be allowed to claim any advantages in the matter of seniority or other priority inter se among temporary employees on the ground that his retrenchment is being declared invalid by this Court.
Not that we are laying down any general proposition of law, but make this direction in the special circumstances of the case.
As for the respondent 's emoluments, he will have to pursue other remedies, if any".
We do not propose to refer to the cases arising under section 33 and 33A of the or to cases arising out of references under sections 10 and 10A of the .
Nor do we propose to engage ourselves in the unfruitful task of answering the question whether the termination of the services of a workman in violation of the provisions of section 25F is void ab initio or merely invalid and inoperative, even if it is possible to discover some razor 's edge distinction between the Latin 'Void ab initio ' and the Anglo Saxon 'invalid and inoperative '.
Semantic luxuries are misplaced in the interpretation of 'bread and butter ' statutes.
Welfare statutes must, of necessity, receive a broad interpretation.
Where legislation is designed to give relief against certain kinds of 795 mischief, the Court is not to make inroads by making etymological excursions. 'Void ab initio '. 'invalid and inoperative ' or call it what you will, the workmen and the employer are primarily concerned with the consequence of striking down the order of termination of the services of the workmen.
Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen.
It is as if the order has never been and so it must ordinarily lead to back wages too.
But there may be exceptional circumstances which make it impossible or wholly inequitable vis a vis the employer and workmen to direct reinstatement with full back wages.
For instance, the industry might have closed down or might be in severe financial doldrums: the workmen concerned might have secured better or other employment elsewhere and so on.
In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders.
The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down.
The Court may deny the relief of award of full back wages where that would place an impossible burden on the employer.
In such and other exceptional cases the Court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages.
That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown.
True, occasional hardship may be caused to an employer but we must remember that, more often than not.
comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.
In the cases before us we are unable to see any special impediment in the way of awarding the relief.
The Labour Court appears to have thought that the award of the relief of reinstatement with full back wages would put these workmen on a par with who had qualified for permanent absorption by passing the prescribed test and that would create dissatisfaction amongst the latter.
First, they can never be on par since reinstatement would not qualify them for permanent absorption.
They would continue to be temporary, liable to be retrenched.
Second, there is not a shred of evidence to suggest that their reinstatement would be a cause for dissatisfaction to anyone.
There is no hint in the record that any undue burden would be placed on the employer if the same relief is granted as was done in Santosh Gupta vs State Bank of Patiala (supra).
The cases of Usha Kumari and Madhu Bala were treated by the Labour Court as distinct from the cases of all the other appellants 796 on the ground that, though they had worked for more than two hundred and forty days in the preceding twelve months, they had not been in employment for one year.
It appears that Usha Kumari and Madhu Bala were in the employment of the Bank from May 4, 1974 to January 29, 1975 and had worked for 258 and 266 days respectively during that period.
As the period from May 4, 1974 to January 29, 1975 was not one year, it was conceded before the Labour Court that there was no violation of the provisions of section 25F of the .
Before us, the concession was questioned and it was argued that there was non compliance with the requirements of section 25F of the Act.
Since the facts were not disputed, we entertained the argument and heard the counsel on the question.
The concession was apparently based on the decision of this Court in Sur Enamel and Stamping Works (P) Ltd. vs Their Workmen.
That decision was rendered before section 25B, which defines continuous service for the purposes of Chapter VA of the was recast by Act 36 of 1954.
The learned counsel for the employer submitted that the amendment made no substantial difference.
Let us take a look at the statutory provisions.
section 25 F, then and now, provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until certain conditions are fulfilled.
section 25 B 's marginal title is 'Definition of continuous Service '.
To the extent that it is relevant section 25 B(2) as it now reads is as follows: "Where a workman is not in continuous service. . for a period of one year or six months, he shall be deemed to be in continuous service under an employer. . . . (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than. . (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days in any other case; (b). . . Explanation. . .
The provision appears to be plain enough.
Section 25 F requires that a workman should be in continuous service for not less than one year 797 under an employer before that provision applies.
While so, present section 25 B(2) steps in and says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a period of one year, if he has actually worked under the employer for 240 days in the preceding period of twelve months.
There is no stipulation that he should have been in employment or service under the employer for a whole period of twelve months.
In fact, the thrust of the provision is that he need not be.
That appears to be the plain meaning without gloss from any source.
Now, section 25 B was not always so worded.
Prior to Act 36 of 1964, it read as follows : "For the purposes of Section 25 F and 25 F, a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year 's continuous service in the industry.
Explanation. . . " The difference between old 25 B and present 25 B is patent.
The clause "where a workman is not in continuous service . for a period of one year" with which present section 25 B(2) so significantly begins, was equally significantly absent from old section 25 B.
Of the same degree of significance was the circumstance that prior to Act 36 of 1964 the expression "Continuous Service" was separately defined by section 2(eee) as follows: "(eee) 'continuous service ' means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal, or lock out or a cessation of work which is not due to any fault on the part of the workman;" section 2(eee) was omitted by the same Act 36 of 1964 which recast section 25 B. section 25 B as it read prior to Act 36 of 1964, in the light of the then existing section 2(eee), certainly lent itself to the construction that a workman had to be in the service of the employer for a period of one year and should have worked for not less than 240 days before he could claim to have completed one year 's completed service so as to attract the provisions of section 25 F.
That precisely was what was decided by this Court in Sur Enamel and Stamping Works Ltd. vs Their Workmen (supra).
The Court said: "On the plain terms of the section (section 25 F) only a workman who has been in continuous service for not less than 798 one year under an employer is entitled to its benefit. 'Continuous Service ' is defined in section 2(eee) as meaning uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock out or a cessation of work which is not due to any fault on the part of the workman.
What is meant by "one year of continuous service ' has been defined in section 25B.
Under this section a workman who during a period of twelve calendar months has actually worked in an industry for not less 240 days shall be deemed to have completed service in the industry. . .
The position (therefore) is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days.
In our opinion that would not satisfy the requirement of section 25B. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days.
Where, as in the present case, the workmen have not at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more".
Act 36 of 1964 has drastically changed the position.
section 2(eee) has been repealed and section 25 B(2) now begins with the clause "where a workman is not in continuous service. for a period of one year".
These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year.
It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year.
So we hold that Usha Kumari and Madhu Bala are in the same position as the other appellants.
In the result all the appeals are allowed and the workmen appellants are directed to be reinstated with full back wages.
We, however, super impose the condition that the salary on reinstatement of the workmen will be the salary which they were drawing when they were retrenched (subject of course to any revision of scales that might have been made in the meanwhile) and the period from the date of retrenchment to the date of reinstatement will not be taken 799 into account for the purpose of reckoning seniority of the workmen among temporary employees.
The respondent is free to deal with its employees, who are temporary, according to the law.
There will be no order regarding costs.
PATHAK, J. I entirely agree with may learned brother Chinnappa Reddy in the order proposed by him.
The appeals raise strictly limited questions.
The appeals by Usha Kumari and Madhubala involve the question whether they can be regarded as being in continuous service for a period of one year within the meaning of section 25B(2), and if so, to what relief would they be entitled.
The remaining appeals require the court to examine whether the appellants should have been awarded reinstatement with back wages instead of the curtailed relief granted by the Industrial Tribunal cum Labour Court.
That is the entire scope of these appeals.
No question arises before us whether the termination of the services of the appellants amounts to "retrenchment" within the meaning of section 2(oo) of the Act.
The respondent Bank of India has apparently accepted the finding of the Industrial Tribunal cum Labour Court that the termination amounts to retrenchment.
It has not preferred any appeal.
I mention this only because I should not be taken to have agreed with the interpretation of section 2(oo) rendered in Santosh Gupta vs State Bank of Patiala.
Proceeding on the footing mentioned above, my learned brother Chinnappa Reddy has, I say with respect, rightly concluded that on the facts and circumstances before us the appellants should be reinstated with full back wages subject to the proviso that the salary on reinstatement will be the salary drawn by the respective appellants on the date of their retrenchment, qualified by the impact of any revisional scale meanwhile, and subject to the further proviso that the period intervening between the date of retrenchment and the date of reinstatement will be omitted from account in the determination of the seniority of these appellants among temporary employees.
Ordinarily, a workman who has been retrenched in contravention of the law is entitled to reinstatement with full back wages and that principle yields only where the justice of the case in the light of the particular facts indicates the desirability of a different relief.
It has not been shown to us on behalf of the respondent why the ordinary rule should not be applied.
800 On the other question decided by my learned brother I have no hesitation in agreeing that having regard to the simultaneous amendments introduced in the by Act No. 36 of 1964 the deletion of section 2(eee) and the substitution of the present section 25B for the original section it is no longer necessary for a workman to show that he has been in employment during a preceding period of twelve calendar months in order to qualify within the terms of section 25B.
It is sufficient for the purposes of section 25B(2) (a) (ii) that he has actually worked for not less than 240 days during the preceding period of 12 calendar months.
The law declared by this Court in Sur Enamel and Stamping Works (P) Ltd. vs Their Workmen does not apply to situations governed by the subsequently substituted section 25B of the Act.
With these observations, J concur with the order proposed by my learned brother.
P.B.R. Appeals allowed.
| IN-Abs | The respondent Bank terminated the services of the appellants on the ground that they could not pass the prescribed tests for their permanent absorption in its service.
On reference the Labour Court held that the Bank 's action in terminating their services (except in the case of two workmen) was in violation of section 25F of the and, therefore, was invalid and inoperative.
The Labour Court, however, refused to order their reinstatement with full back wages on the ground that reinstatement would have the effect of equating them with workmen who had qualified for permanent absorption by passing the test; instead it directed payment of compensation of six months ' salary in addition to retrenchment compensation.
In Santosh Gupta vs State Bank of Patiala it was held by this Court that the discharge of the workman for the reason that she did not pass the test which would have enabled her to be confirmed was retrenchment within the meaning of section 2(oo) and therefore the requirement of section 25F had to be complied with.
The workman in that case was directed to be reinstated with full back wages.
The workmen claimed that their case being identical with this case, they should be reinstated with full back wages.
The Bank on the other hand contended that non compliance with the requirements of section 25F did not render the termination of their service void ab initio but made it invalid and inoperative and that the Court had full discretion to direct payment of suitable compensation instead of ordering reinstatement with full back wages.
In respect of two of the seven appellants, however, it was conceded before the Labour Court that these two employees worked in the Bank for a few days more than 240 days during the preceding 12 months and since they had 790 not been in the Bank 's employment for one year, there was no violation of section 25F.
But this concession was questioned before this Court in appeal and it was contended that there was non compliance with the requirements of section 25F.
Allowing the appeals, ^ HELD: [per Krishna Iyer and Chinnappa Reddy, JJ.
Pathak, J. concurring] The five retrenched workmen should be reinstated with full back wages.
When an order terminating the services of a workman is struck down it is as if that order had never been passed and it must ordinarily lead to reinstatement of the workman with full backwages.
In cases where it is impossible or wholly inequitable vis a vis the employer and the worker to direct reinstatement with full back wages, as for instance, where the industry has closed down or where the industry is in severe financial straits, for to order reinstatement in such a case would place an impossible burden on the employer or where the workman had secured better or an alternative employment elsewhere and so on, there is a vestige of discretion left in the court to make appropriate orders.
Occasional hardship may be caused to the employer; but more often than not, far greater hardship is certain to be caused to the workman if the relief is denied than to the employer if the relief is granted.
[795B E] In the instant case there is no special impediment in the way of awarding the relief of reinstatement with back wages.
The apprehension of the Labour Court that reinstatement with full back wages would put these workmen on a par with those who were qualified for permanent absorption by passing the prescribed test and that would create dissatisfaction amongst the latter is unfounded because firstly these workmen can never be on par with the others since reinstatement would not qualify them for permanent absorption but they would continue to be temporary liable to be retrenched.
Secondly there is nothing to show that their reinstatement would cause dissatisfaction to anyone nor even that it would place an undue burden on the employer.
[795F G] Santosh Gupta vs State Bank of Patiala (1980) Vol.
II LLJ 72, applied, Hindustan Steel Ltd. vs The Presiding Officer, Labour Court, Orissa & Ors.
; , M/s. Avon Services Production Agencies (P) Ltd. vs Industrial Tribunal, Haryana and Ors. ; , M/s. Swadesamitran Limited, Madras vs Their Workmen ; 156 and State Bank of India vs Shri N. Sundara Money ; @ 166 referred to.
To attempt to discern a distinction between "void ab initio" and "invalid and inoperative", even if it be possible to discover some razor 's edge distinction would be an unfruitful task because semantic luxuries are misplaced in the interpretation of 'bread and butter ' statutes.
Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions.
Whatever expression is used the workman and the employer primarily are concerned with the consequence of striking down the order of termination of the services of the workman.
[794H] The two other appellants were in much the same position as the five others.
The concession made before the Labour Court was apparently based on the decision of this Court in Sur Enamel & Stamping Works (P) Ltd. vs Their 791 Workmen ; which was a case before section 25B was recast by Act 36 of 1964.
The amendment Act 36 of 1964 has brought about a change in the law by repealing section 2(eee) (defining continuous service) and adding section 25B(2) which now begins with "where a workman is not in continuous service. . for a period of one year".
These changes are designed to provide that a workman who had actually worked under the employer for not less than 240 days during a period of 12 months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year.
It is enough that he has worked for 240 days in a period of 12 months.
[798F G] Pathak, J. concurring: The limited question for examination is whether the appellants should have been awarded reinstatement with back wages instead of the curtailed relief granted by the Labour Court.
The respondent bank having accepted that the termination of the services of the workmen amounted to retrenchment within the meaning of section 2(oo) it is not necessary to invoke the rule laid down by this Court in Santosh Gupta vs State Bank of Patiala for the interpretation of section 2(oo).
[799G E] Ordinarily a workman who has been retrenched in contravention of the law is entitled to reinstatement with full back wages and that principle yields only where the justice of the case in the light of the particular facts indicates the desirability of a different relief.
It has not been shown in this case why the ordinary rule should not be applied.
[799 G H] Having regard to the simultaneous amendments introduced in the by Act 36 of 1964 it is no longer necessary for a workman to show that he has been in employment during a preceding period of twelve calendar months in order to qualify within the terms of section 25B.
It is sufficient for the purpose of section 25B(2)(a)(ii) that he has actually worked for not less than 240 days during the preceding period of 12 calendar months.
[800A C] Sur Enamel and Stamping Works (P) Ltd. vs Their Workmen ; , 622 3, held inapplicable.
|
Civil Appeal No. 1145 of 1970.
From the Judgment and Order dated 8 4 1969 of the Allahabad High Court in First Appeal No. 45/55.
Mrs. Rani Chhabra for the Appellant.
B. N. Dikshit, O. P. Rana and Mrs. Shobha Dikshit for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by certificate is directed against a judgment dated January 6, 1969 of the Allahabad High Court and arises in the following circumstances.
The land in dispute originally belonged to Smt.
Jawahar Devi who had inherited the same from her father Shankar Das who died sometime in or before the year 1905.
Jawahar Devi had a daughter Putli Bibi who had three sons, namely, Basantlal, Shankarlal and Girdharilal.
Jawahar Devi died in the year 1934.
On the 25th February 1905, Jawahar Devi let out the land to the late Lala Lachman Das for the construction of a mill which was known as 'Narain Das Lachman Das Oil Mill '.
The lease was to continue for 50 years and contained a clause for renewal.
In the year 1936 37, the lessee Lachman Das transferred his rights in the 817 lease to Northern India Oil Industries Limited (hereinafter referred to as the 'Company ').
Thereafter, the three sons of Putli Bibi sent a notice on the 15th of December 1937 to M/s. Narain Dass Lachman Dass claiming damages.
At that stage Girdharilal sold his rights in the land to his brother Basant Lal.
In the year 1938, a suit was filed by Basantlal and Shankarlal against M/s. Narain Dass Lachman Dass as well as the Company.
This suit was, however, compromised on the 2nd of June 1941 and on the same date a fresh lease was executed by the two plaintiffs therein in favour of the company.
The terms of the lease were incorporated in the compromise (Exhibit 31) but both the lease and the compromise were contained in unregistered documents.
Disputes again arose between the parties and led to the institution of a suit by the company against Basantlal and Shankarlal for specific performance of the compromise above mentioned (Exhibit 31).
This suit also ended on the 26th of May 1943 in a compromise according to which a fresh lease embodying the terms of the lease dated the 2nd June 1941 was to be executed by Basantlal and Shankarlal in favour of the Company and at its cost within a week provided the company complied with the covenants contained in that lease to the satisfaction of Rai Bahadur Lala Ram Narain, Treasurer, Imperial Bank of India, Kanpur.
Despite the second compromise disputes again cropped up between the parties and ultimately Basantlal and Shankarlal, who are the appellants before us, sent to the company a notice dated 26th of February 1944 (Exhibit 36 A) terminating the lease dated the 2nd June 1941 on the ground of breach by the company of covenants 2, 4 and 5 contained therein.
Time was allowed to the company till the 30th June 1944 for the removal of machinery, stores, buildings and other constructions.
The Company, however, secured an order from a civil court forbidding the appellants from ejecting it.
On the 7th June 1946, the Company applied to the State Government for compulsory acquisition of the land.
Its request was accepted and the land covered by the lease was acquired by the Government for the purpose of the company.
In proceedings before the Collector the appellants claimed compensation not only for the land but also for the buildings and other structures standing thereon.
Compensation for the land was awarded to them but the rest of their claim was turned down.
The matter was re agitated before the District Judge to whom it was referred and then in appeal before the High Court.
The District Judge and the High Court raised the quantum of compensation for the land but rejected the claim of the appellants for compensation in respect of buildings and structures.
818 In the appeal before us no dispute subsists about the compensation for the land and the controversy is limited to the compensation for the buildings, etc., which were constructed on the premises by the lessee and to which the appellants claim title on the ground that the company did not remove the same despite a period of more than 4 months granted to it for the purpose in the notice dated the 26th of February 1944 and that the title thereto had consequently vested in the appellants with effect from 1st July 1944.
Before proceeding further we may recapitulate the manner in which the present dispute was dealt with by the two Courts below.
It was argued before the District Judge on behalf of the State that the lease dated the 2nd June 1941 being unregistered it was inadmissible in evidence and that the Company, therefore, was not bound to vacate the premises.
The District Judge overruled the argument (and in our opinion rightly) on the ground that the terms of the lease formed part of the decree based on compromise Exhibit 31, that the compromise related to the property which was the subject matter of the suit and that, therefore, the compromise did not require registration.
The argument was repeated before the High Court and was rejected for the same reason for which it was repelled by the District Judge.
Another point taken before the District Judge was that as the appellants had accepted the rent after having given the notice dated February 26, 1944, their conduct in doing so amounted to waiver of the notice as a result of which the tenancy continued to subsist.
The District Judge accepted this point and non suited the appellants mainly on this ground.
The High Court, however, did not agree with the conclusion of the District Judge and held that, in the first place, there was no evidence to show that the rent was accepted at any time after the notice was given to the company, and, secondly, as the rent was accepted by the appellants under protest, it could not amount to waiver because there was no intention on the part of the lessor to treat the lease as subsisting.
In this connection, the High Court observed as follows: "We have been taken through the deposition of Basant Lal, but we have failed to find anything in that statement which may go to show that rent for the period beginning after the termination of the lease was accepted by him.
All that he said was as follows: "Rent was sent to me and I accepted some rent under protest.
" 819 "From that statement, it cannot be said that the rent so accepted was for the period after termination of the lease.
There is another sentence in the statement of Basant Lal, which reads as follows: " 'I treated the defendant as trespasser from 26th February 1944 and accepted payment for use and occupation of the land. '" "The learned District Judge, therefore, was not right in taking the view that the notice was waived.
" We find ourselves in complete agreement with the view taken by the High Court.
There is no reliable evidence at all to show the exact date when the rent was accepted or, at any rate, the fact that the rent was accepted between the 26th February 1944, when the notice was sent, and the 30th June 1944, when the Company was asked to vacate the premises.
Furthermore, the High Court has pointed out from the evidence of the appellants that the Company was treated as a trespasser ever since 26th February 1944, namely, the date when the notice was given and has held that any rent which the appellants accepted was really not rent but mere compensation for wrongful use and occupation of the land.
In these circumstances, we fully endorse the finding of the High Court that there was no waiver of the notice such as was spelt by the District Judge.
The High Court, however, upheld the order of the District Judge for a different reason which was that there could not be any forfeiture of the tenancy under section 111(g) of the Transfer of Property Act unless a notice was given to the lessee by the lessor expressing his intention to terminate the lease and in addition a notice under s.114 A of that Act also affording an opportunity to the lessee to comply with the terms, the non compliance of which would result in forfeiture.
According to the High Court, as the second condition was not complied with, there was no forfeiture and hence the title to the structures, etc., continued to vest in the lessee and therefore after the Government acquired the land under the Land Acquisition Act, the appellants were not entitled to any compensation for the structures and the materials as claimed by them.
We are, however, unable to agree with the view taken by the High Court for the reasons that we shall give hereafter.
It is no doubt true that section 114 A of the Transfer of Property Act requires two conditions to be fulfilled before a suit for ejectment could lie (1) that a notice should be given to the lessee specifying the particular breach complained of, and (2) that the lessee should be called upon to remedy the breach.
If these conditions are fulfilled, then alone the lessor would be entitled to bring a suit for ejectment 820 of the lessee.
In the instant case, it is no doubt common ground that in the notice dated February 26, 1944 the appellants did not at all mention that the lessee should remedy the breach within a reasonable period to be fixed by the lessor, but that does not advance the case of the lessee because s.114 A merely bars a suit for ejectment of the lessee.
In the instant case, as the land had been acquired for the purpose of the lessee, viz., the Company, the question of filing a suit for ejectment did not arise at all.
In fact, the lessees themselves filed a suit and obtained an injunction restraining the appellants from ejecting them before the land acquisition proceedings were taken in respect of the land in dispute.
Thus, the non compliance of sub section (b) of s.114 A is of no consequence so far as this particular case is concerned.
In the lease dated 2nd June, 1941, clause (6) clearly lays down that within four months after the expiry of the period of the lease the lessee would be entitled to remove the stocks and machinery.
The last part of that clause also empowers the lessor to re enter possession and acquire title to the buildings, etc., that may be constructed by the lessee.
Mr. Dixit, appearing for the State of U.P., relied on s.108(h) of the Transfer of Property Act which runs thus: "108(h).
The lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased, but not afterwards, all things which he has attached to the earth, provided he leaves the property in the State in which he received it." He contended that even if the lease was determined, the title to the construction, etc., would vest in the lessor only if the lessee does not remove the materials at any time whilst he is in possession of the property leased.
It was argued that in the instant case, as the leased land was acquired by the Government while the lessee was still in possession and continued to be in possession, by virtue of the land having been acquired, the lessor could not claim any title to the constructions or the materials.
There could be no doubt that this is the real effect of clause (h) of section 108 but section 108 opens with a sort of a non obstante clause which is as follows: "In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased.
" 821 A construction of this clause clearly reveals that where there is a contract to the contrary the provisions of s.108(h) would not apply.
In the lease dated June 2, 1941, there is not only an express clause under which the lessee was entitled to remove the stocks and materials within four months after the termination of the lease but thereafter there was another stipulation that in case the lessee failed to do so, all the buildings, etc., would become the property of the lessor.
In this connection, the relevant part of the lease may be extracted thus: "6.
That within four months after the expiry of the period of lease, the lessees, their successors or assigns will be entitled to remove their stocks and machinery etc.
pipelines, electric installation, fixtures, fittings, including stocks and materials of their constructions and fittings which stand on the plot of land shown by the letters A F H G in the accompanying map and will, on the expiry at the period of lease have over to the lessors the said plot of land (shown by letters A F H G in the accompanying map) duly levelled but the lessees would not be entitled to remove the boundary walls or any constructions or buildings which at present are created, which may be created during the period of lease on the plot of land shown by letters A B E F in the accompanying map and which is outside the compound of the lessees Oil Mills on the eastern side and on which at present stand twenty three quarters facing Hamirpur Road, as their quarters or any other buildings that may be created in their place or on their site as well as boundary walls would become the property of the lessors on the expiry of the period of lease, without any compensation being paid for the same by the lessors to the lessees." (Emphasis ours) Thus, although the lessee continued to remain in the premises after the expiry of the notice terminating the lease, yet by force of the express recitals in clause(6) extracted above, the buildings, etc., became the property of the lessors.
Unfortunately, this aspect of the matter does not appear to have been considered by the High Court.
In these circumstances, therefore, the conclusion is inescapable that 822 after the Government acquired the property it was bound to pay compensation to the appellants not only for the land but also for the buildings and structures thereon.
As, however, neither of the Courts below have assessed the compensation for the buildings, etc., as they stood in the year 1946 when the land was acquired, the matter will have to be determined by the District Judge afresh in so far as such compensation is concerned.
We would, therefore, allow this appeal with costs, set aside the Judgments of the High Court and the District Judge in so far as no compensation has been awarded in respect of the buildings, structures, etc., and remand the case to the District Judge for determining such compensation according to the rates prevailing in 1946 and also to determine the interest and solatium to be paid on such compensation from 1946 upto the date of payment.
S.R. Appeal allowed.
| IN-Abs | The appellants terminated the lease of the suit lands by a notice dated 26th February, 1944 and allowed the lessee company "Narain Das Lachman Das Oil Mill" time till 30th June, 1944 for the removal of machinery, stores, buildings and other constructions in terms of clause (6) of the lease deed dated 2nd June, 1941.
The company not only secured an order from a Civil Court forbidding the appellants from ejecting it, but applied to the State Government for compulsory acquisition of the suit land.
In the land acquisition proceedings, the claim of the appellants "for the machinery, stores, buildings and other constructions made by the lessee" by virtue of automatic vesting in the appellants in terms of clause (6) of the lease deed dated 2nd June, 1941 and also, pursuant to notice of termination, was negatived.
Having failed before the District Court and the High Court to obtain the relief, the appellants obtained special leave of the Supreme Court.
Allowing the appeal, the Court ^ HELD: (1) Although the lessee continued to remain in the premises after the expiry of the notice terminating the lease, yet by force of the express recitals in clause (6) of the lease deed dated 2nd June, 1941, the buildings, etc., became the property of the lessors.
Therefore, after the Government acquired the property it was bound to pay compensation to the appellants not only for the land but also for the buildings and structures thereon.
[821H; 822A] (2) There was no waiver of the notice by the appellants.
There is no reliable evidence at all in the instant case to show the exact date when the rent was accepted or, at any rate, the fact that the rent was accepted between the 26th February, 1944, when the notice was sent, and the 30th June, 1944, when the Company was asked to vacate the premises.
Besides there is a finding of fact that the Company was treated as a trespasser ever since 26th February, 1944, namely, the date when the notice was given and that any rent which the appellants accepted was really not rent but mere compensation for wrongful use and occupation of the land.
[819C E] (3) It is no doubt true that section 114A of the Transfer of Property Act requires two conditions to be fulfilled before a suit for ejectment could lie (i) that a notice should be given to the lessee specifying the particular breach complained of, and (ii) that the lessee should be called upon to remedy the 816 breach.
If these conditions are fulfilled, then alone the lessor would be entitled to bring a suit for ejectment of the lessee.
Section 114A merely bars a suit for ejectment of the lessee in the instant case as the land had been acquired for the purpose of the lessee, namely, the Company, the question of filing a suit for ejectment did not arise at all.
In fact, the lessees themselves filed a suit and obtained injunction restraining the appellants from ejecting them before the land acquisition proceedings were taken in respect of the land in dispute.
Thus, the non compliance of sub section
(b) of section 114A is of no consequence so far as this particular case is concerned.
In the lease dated 2nd June, 1941, clause (6) clearly lays down that within four months after the expiry of the period of the lease the lessee would be entitled to remove the stocks and machinery.
The last part of that clause also empowers the lessor to re enter possession and acquire title to the buildings etc., that may be constructed by the lessee.
[819H; 820B D] (4) A construction of clause (h) of section 108 of the Transfer of Property Act clearly reveals that where there is a contract contrary to the provisions of that section would not apply.
In the lease dated June 2, 1941, there is not only an express clause under which the lessee was entitled to remove the stocks and materials within four months after the termination of the lease but thereafter there was another stipulation that in case the lessee failed to do so, all the buildings etc.
would become the property of the lessor.
[821A B]
|
tition Nos. 833 835 of 1979.
(Under article 32 of the Constitution) P. Parmeswara Rao, G. D. Gupta and Ashwani Kumar for the Petitioners.
U. R. Lalit and Miss A. Subshashini for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
In these three petitions under Article 32 of the Constitution, the petitioners separately pray for a restoration of the quota originally granted to them in their respective licences for the manufacture of fire arms.
Writ Petition No. 833 of 1979 has been filed by Ranjit Singh who alleges that his father Pritam Singh commenced the business of manufacturing guns in 1950 under a licence issued by the Government of Jammu and Kashmir.
The licence permitted him to manufacture 849 30 guns per month.
The guns were manufactured by hand and were not proof tested.
The licence was renewed annually and the quota was maintained throughout.
Later, with the enactment of the , the licence was issued under that statute.
The Government insisted that the guns manufactured by Pritam Singh should undergo proof testing, and for that purpose it became necessary for the manufacturer to purchase and install the necessary machinery and plant.
The machinery was installed shortly after 1960 on a substantial investment of funds raised with great difficulty and, it is said, in the result the factory is now capable of manufacturing 50 guns per month.
Until the year 1963, the licence in favour of Pritam Singh was renewed by the Government of Jammu & Kashmir for the full quota of 30 guns.
But with effect from the year 1964 the Government of India began to issue the licences.
The quota was reduced from 30 guns to 10 guns per month, and it is alleged that this has resulted in considerable hardship in view of the financial liability and the establishment expenses suffered pursuant to the installation of the machinery.
On the death of Pritam Singh in 1969, the business was carried on by the petitioner and his mother, and the licence now stands in their names.
Several representations were made to the authorities for the restoration of the original quota but there was no satisfactory response.
The petitioner claims that his plea for the restoration of his original quota has been supported by the State Government.
The petitioner cites a number of cases where the quota reduced in the case of other manufacturers has been restored and relies on other material to show that the determination of his quota has been arbitrary.
Writ Petition No. 834 of 1979 has been filed by Bachan Singh.
The facts incorporated in the petition run a materially similar course, except that the original quota granted to the petitioner consisted of 50 guns per month and has now been reduced to 5 guns per month.
The petitioner in the third Writ Petition, No. 835 of 1979, is Uttam Singh.
In his case, the original quota of 50 guns a month has been reduced to 15 guns a month.
Here again, the pattern of facts is substantially similar to that traced in the other two writ petitions.
In opposition to the writ petitions, the Union of India which is the sole respondent, relies on an Industrial Policy Resolution of 1956 which envisions an exclusive monopoly in the Central Government in the matter of manufacturing arms and ammunition while permitting existing manufacturers in the private sector to continue to carry on their business on a limited scale.
It is asserted that in fixing a quota the manufacturing capacity of a concern is not a determining factor, 850 and it is denied that the Government has acted arbitrarily.
It is also urged that the petitioners should be denied relief on the ground of laches.
The Union of India rests its case on the Industrial Policy Resolution of 1956.
Under that Resolution, however, it was decided that no objection would be taken to the continuance of the manufacture of arms and ammunition by existing units in the private sector already licensed for such manufacture provided the operation of those units was strictly restricted to the items already manufactured by them and that no expansion of their production or increasing the capacity of the items already produced was undertaken without the prior sanction of the Government of India.
Plainly, what was envisaged was a prohibition against an increase in the quota, not its curtailment.
Purporting to implement the Industrial Policy Resolution, the Government issued instructions that the quota fixed should be such that the market was not flooded with arms and ammunition.
No objection can be raised to that.
It is as it should be, but with that primary consideration defining the outer limits, there are other factors which govern the fixation of the actual quota.
There is the production capacity of the factory, the quality of guns produced and the economic viability of the unit.
The Government is bound to keep these in mind while deciding on the manufacturing quota.
There is need to remember that the manufacture of arms has been the business of some of these units for several years and the Industrial Policy Resolution contains a specific commitment to permit the continuance of those factories.
On the other side, the Government is entitled to take into consideration the requirements of current administrative policy pertinent to the maintenance of law and order and internal security.
Any curtailment of the quota must necessarily proceed on the basis of reason and relevance.
If all relevant factors are not considered, or irrelevant considerations allowed to find place, the decision is vitiated by arbitrary judgment.
On the material placed before us, we are not satisfied that the Government of India has taken into careful consideration the several elements necessary for forming a decision on the quota permissible to each of these petitioners.
We are of opinion that it should do so now.
And, for that purpose, the petitioners should be entitled to place before the Government a fresh and complete statement of their case, with supporting written material, to enable the Government to reach a just decision in each case.
We need not, in the circumstances, consider the other grounds on which the petitioners claim relief.
851 On behalf of the Government it is urged that there is no fundamental right under Article 19(1)(g) of the Constitution to carry on the manufacture of arms.
That contention is disposed of shortly.
The , expressly contemplates the grant of licences for manufacturing arms.
An applicant for a licence is entitled to have it considered in accordance with the terms of the statute and to have for its grant on the basis of the criteria set forth in it.
The other contention on behalf of the Government is that the petitioners are guilty of laches.
We are not impressed by the contention for the reason that the licences are granted for specific periods with a right to apply for renewal on the expiry of each period.
Each renewal constitutes a further grant of rights and it is open to the applicant to show on each occasion that the quota governing the preceding period should now be revised in the light of present circumstances.
Besides, the petitioners have been continuously agitating for the restoration of their quota.
Having regard to the peculiar circumstances of these cases, we are not inclined to deny them relief.
Accordingly, we allow the writ petitions and direct the respondent Union of India to reconsider the manufacturing quota fixed in the case of each petitioner after allowing a reasonable period to the respective petitioners to set forth their case on the merits, with such supporting written material as they may choose to place before it.
N.V.K. Petitions allowed.
| IN-Abs | In 1950, the State Government issued a manufacturing licence renewable every year to the petitioners for the manufacture by hand of a specified number of guns per month.
The guns were however not proof tested.
After the , came into force, the government insisted that the guns manufactured should undergo proof testing.
Pursuant to that condition in 1960, the petitioners installed machinery and plant, by making substantial investment of funds.
From 1964, the Government of India, reduced the monthly quota of guns.
The petitioners in their writ petitions under Article 32 alleged that this reduction had resulted in considerable hardship to them because of the fixed overhead costs which could not be avoided.
They also alleged that though in the case of a number of other such manufacturers quotas were restored, in their cases, the Government refused to restore the quotas.
The Union of India, however, denied the allegation of arbitrariness, and stated that: (a) what was done was pursuant to the Industrial Policy Resolution of 1956 which envisioned an exclusive monopoly in the Central Government in the matter of manufacturing arms and ammunition and that in fixing the quota the manufacturing capacity of a concern was not a determining factor; (b) there is no fundamental right under Article 19(1)(g) of the Constitution to carry on the manufacture of arms; and (c) there was laches on the part of the petitioners.
Allowing the writ petitions, ^ HELD: (a)(i) Any curtailment of the quota must proceed on the basis of reason and relevance.
The Government is entitled to take into consideration the requirements of current administrative policy pertinent to the maintenance of law and order and internal security.
If all relevant factors are not considered, or irrelevant considerations allowed to find place, the decision is vitiated by arbitrary judgment.
[850F; E] In the instant case the Government of India had not taken into careful consideration the several elements necessary for forming a decision on the 848 quota permissible to each of the petitioners.
That should be done and for that purpose the petitioners would be entitled to place before the Government a fresh and complete statement of their case, with supporting material, to enable the Government to reach a just decision.
[850G H] (ii) The Industrial Policy Resolution envisaged a prohibition against an increase in the quota of guns, not its curtailment.
No objection could be taken to the government 's instructions on the subject.
The other factors governing the fixation of the actual quota are the production capacity of the factory, the quality of the guns produced and the economic viability of the unit.
The Industrial Policy Resolution contains a specific commitment to permit the continuance of the factories which were functioning for several years earlier.
[850C; D E] (b) The , expressly contemplates the grant of licences for manufacturing arms and an applicant for a licence is entitled to have it considered in accordance with the terms of the statute and to press for its grant on the basis of the criteria set forth in it.
[851A B] (c) The licences are granted for specific periods with a right to apply for renewal on the expiry of each period.
Each renewal constitutes a further grant of rights and it is open to the applicant to show on each occasion that the quota governing the preceding period should be revised in the light of present circumstances.
[851C] In the instant case the petitioners had been continuously agitating for the restoration of their quota.
They are, therefore, not guilty of laches and are entitled to relief.
[851D]
|
tition Nos.
711, 138, 1152 & 1546 of 1979.
(Under Article 32 of the Constitution) K. K. Venugopal and A. Subha Rao for the Petitioners in WP Nos. 138, 711 of 79. M. M. Abdul Khader, M. A. Feroze, M.R.K. Pillai and K. R. Rajasekharan Pillai for the Petitioner in WP No. 1152/79.
B. Kanta Rao, P. Ram Reddy and G. Narayana Rao for the Petitioner in WP No. 1546/79.
K. Parasaram, Solicitor Genl and Miss A. Subhashini for the Respondent (Union of India).
P. Ram Reddy and G. N. Rao for the Respondents in WP No. 1546/79.
K. R. Nambiar for Respondent No. 3 in WP No. 1152/79.
P. H. Parekh, C. B. Singh & Rajian Karanjawala for the Intervener in WP No. 711/79.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Section 2(e) of the (Act 43 of 1978) (for short, the Act) defines a 'Prize chit ' inclusively: 2.
In this Act, unless the context otherwise requires, *** *** *** (e) "prize chit" includes any transaction or arrangement by whatever name called under which a person collects whether as a promoter, foreman, agent or in any other capacity, monies in one lump sum or in instalments by way of contributions or subscriptions or by sale of 804 units, certificates or other instruments or in any other manner or as membership fees or admission fees or service charges to or in respect of any savings, mutual benefit, thrift, or any other scheme or arrangement by whatever name called, and utilises the monies so collected or any part thereof or the income accruing from investment or other use of such monies for all or any of the following purposes, namely: (i) giving or awarding periodically or otherwise to a specified number of subscribers as determined by lot, draw or in any other manner, prizes or gifts in cash or in kind whether or not the recipient of the prize or gift is under a liability to make any further payment in respect of such scheme or arrangement; (ii) refunding to the subscribers or such of them as have not won any prize or gift, the whole or part of the subscriptions, contributions or other monies collected, with or without any bonus, premium, interest or other advantage by whatever name called, on the termination of the scheme or arrangement, or on or after the expiry of the period stipulated therein, but does not include a conventional chit; The quintessential aspects of a prize chit are that the organizer collects moneys in lump sum or instalments, pursuant to a scheme or arrangement, and he utilises such moneys as he fancies primarily for his private appetite and for (1) awarding periodically or otherwise to a specified number of subscribers, prizes in cash or kind and (2) refunding to the subscribers the whole or part of the money collected on the termination of the scheme or otherwise.
The apparent tenor may not fully bring out the exploitative import lurking beneath the surface of the words which describe the scheme.
Small sums are collected from vast numbers of persons, ordinarily of slender means, in urban and rural areas.
They are reduced to believe by the blare of glittering publicity and the dangling of astronomical amounts that they stand a chance in practice, negligible of getting a huge fortune by making petty periodical payments.
The indigent agrestics and the proletarian urbanites, pressured by dire poverty and doped by the hazy hope of a lucky draw, subscribe to the scheme although they can ill afford to spare any money.
This is not promotion of thrift or wholesome small savings because the poor who pay, are bound to continue to pay for a whole period of 805 a few years over peril of losing what has been paid and, at the end of it, the fragile prospects of their getting prizes are next to nil and even the hard earned money which they have invested hardly carries any interest.
They are eligible to get back the money they have paid in driblets, virtually without interest, the expression 'bonus ' in section 2(a) being an euphemism for a nominal sum.
What is more, the repayable amount being small and the subscribers being scattered all over the country, they find it difficult even to recover the money by expensive, dilatory litigative process.
Since there are a large number of prize chits all over the country which have almost become a pan Indian epidemic and since the total number of people victimised by these projects are considerable the injury to the community is substantial, so that a welfare state dedicated to the Directive Principles of has to awake and protect the vulnerable sector.
Another weighty factor which has alerted the State into action is that the flood of funds flowing through prize chits benefit the organisers of such schemes who have no social responsibility for national productivity and in their hands is easy money with little developmental benefits or attractive returns for the poor investors.
The noxious net cast by the prize chit promoters was large and the State moved to stop this menace.
Many a little makes a mickle, and those small sums collected from a substantial number of subscribers accumulated into huge resources which otherwise would ordinarily have been available for national development.
The grim picture of the luckless many who were losing their money, appetized by gambling prospects, and the sterilization of people 's resources which were siphoned off by private adventurists through prize chits to the detriment of national development ignited the impugned legislation.
Such is the case of the State as justification for enacting what is contended for as unconstitutional for three reasons which we will presently examine.
The Union of India has furnished socio economic data to help the court appreciate how expert opinion had been collected before launching on the prohibitory legislation.
A study group headed by Dr. J. section Raj made a report to the Central Government wherein pointed reference was made to prize chits and allied schemes.
The report devoted a whole chapter to prize chits, savings schemes, and others of their ilk and exposed the modus operandi of such schemes and their anti social impact upon the community and recommended to the State to intervene and interdict.
806 We may quote briefly to bring home tersely the trauma inflicted by lucky draw schemes on the host of luckless illiterates succumbing (perhaps astrologically) to the prize mania: .
It was observed that several companies conducting prize chits, benefits or savings schemes or lucky draws claimed themselves to be either mutual benefit financial companies (by enrolling subscribers as 'associate ' members under the directions as they stood prior to January 1, 1973) or as chit fund companies and thus contended that the subscriptions collected by them were not 'deposits ' as defined in the directions and hence not subject to any ceiling restrictions. .
Modus Operandi of Prize Chits/Benefit or Savings Schemes or Lucky Draws 6.3.
Companies conducting the above types of Schemes are comparatively of a recent origin and of late, there has been a mushroom growth of such companies which are doing brisk business in several parts of the country, especially in big cities like Ahmedabad, Bangalore, Bombay, Calcutta and Delhi.
They have also established branches in various States.
These companies float schemes for collecting money from the public and the modus operandi of such schemes is generally as described below: The company acts as the foreman or promoter and collects subscriptions in one lump sum or by monthly instalments spread over a specified period from the subscribers to the schemes.
Periodically, the numbers allotted to members holding the tickets or units are put to a draw and the member holding the lucky ticket gets the prize either in cash or in the form of an article of utility, such as a motor car, scooter etc.
Once a person gets the prize, he is very often not required to pay further instalments and his name is deleted from further draws.
The schemes usually provide for the return of subscriptions paid by the members with or without an additional sum by way of bonus or premium at the end of the stipulated period in case they do not get any prize.
The principal items of income of these companies are interest earned on loans given to the subscribers against the security of the subscriptions paid or on an unsecured basis as also loans 807 to other parties, service charges and membership fees collected from the subscribers at the time of admission to the membership of the schemes.
The major heads of expenditure are prizes given in accordance with the rules and regulations of the schemes, advertisements and publicity expenses and remuneration and other perquisites to the directors.
The financial fall outs of these schemes were also examined by the Study Group to demonstrate how the promoter companies were gargantuan and were swallowing up huge surpluses from the public who lost interest on their subscriptions, and, sometimes, even the principal amounts paid : .
Even if the company offers some amount by way of bonus or premium to the subscribers at the time of refund of their subscriptions and allowing for reasonable expenditure on publicity, commission to agents, etc., a sizeable balance will still be left with the company.
This is exclusive of the amounts which the company might be collecting by way of membership fees and service charges from the subscribers and also of the amounts which it might be appropriating in respect of the subscriptions on forfeited tickets on which there will be no future liability for refund to the members at the end of the scheme.
It will thus be obvious from the foregoing that such schemes confer monetary benefit only on a few members and on the promoter companies.
There is reference in the Study Group report to other studies conducted by the Reserve Bank which also demonstrated the many sinister effects upon the community on account of proliferous prize chits benefits schemes.
(a) the companies had advanced sizeable amounts to the directors or their relatives or firms in which they were interested as partners, directors or as commission agents and there were practically no repayments of the loans; (b) the books of account had not been maintained satisfactorily; (c) close relatives of the directors had been employed in the companies as members of the staff or as agents on high salaries; 808 (d) In one case, it was observed that a scheme announced by a company in which collections had been made was withdrawn subsequently without notice to the subscribers and no refunds of the subscriptions already received had been made to the subscribers.
Prize moneys had not been paid to all the subscribers who had won the prizes; and (e) subscriptions were shown to have been refunded in the books of account of a company but doubts have been expressed by the Inspecting Officer about the genuineness of the payments in view of certain attendant circumstances.
There have also been allegations that some companies had resorted to certain malpractices in drawing the names of prize winners.
** ** ** . . in the absence of any authoritative judicial pronouncement on the subject, we are not sure whether the activities of companies conducting price chits, etc., are clearly prohibited by the existing legislations.
It has been reported that resources of prize chits are used for wasteful spending and hoarding commodities and that these schemes "enable certain persons to convert tax evaded income into accounted money.
The persons concerned pay a premium to the promoters in return for the facility.
" It has also been stated that "there are a number of agents who go about contacting persons who are likely to face the problem of saving their income from the tax authorities.
The prize chit pass books issued to them under different names become their passports for travelling from black money territory to the white money area the easiest and surest way of using ill gotten wealth.
Besides, by their misleading names and companies the prize chit companies divert private savings into their personal drains, thus disrupting the national economy.
From the foregoing discussion, it would be obvious that prize chits or benefit schemes benefit primarily the promoters and do not serve any social purpose.
On the contrary, they are prejudicial to the public interest and also adversely affect the efficacy of fiscal and monetary policy.
There has also been a public clamour for banning of such schemes; this stems largely from the malpractices indulged in by the promoters and also the possible exploitation of such schemes by unscrupulous elements to their own advantage.
We 809 are, therefore, of the view that the conduct of prize chits or benefit schemes by whatever name called should be totally banned in the larger interests of the public and that suitable legislative measures should be taken for the purpose if the provisions of the existing enactments are considered inadequate.
Companies conducting prize chits, benefit schemes, etc., may be allowed a period of three years which may be extended by one more year to wind up their business in respect of such schemes and/or switch over to any other type of business permissible under the law.
(emphasis added) The learned Solicitor General drew our attention to cases where the notorious abuses by prize promoters had attracted judicial notice.
In particular, he cited a decision of the Gujarat High Court in Navjivan Trading Financing Pvt.
Ltd. Thakkar, J. while dealing with the social anguish at the exploitative spectacle, said : The facts speak for themselves so eloquently that no further discussion is called for and it is unnecessary to demonstrate any further that the company is in such a precarious condition and the financial condition is so very ugly that there is no possibility whatsoever of the company ever being in a position to pay its debts.
It is not in a position to day and, even in future, it is not likely to be in a position to discharge the debt burden.
In fact, the deficit will go on increasing and for aught we know, more innocent persons would be trapped meanwhile.
The contributors from whom collections are made are persons with extremely limited financial means and are petty subscribers who cannot possibly afford to take recourse to legal proceedings.
It would be cheaper for them to abandon their claims than to make recourse to legal proceedings and incur expenses for court fees and advocates ' fees, apart from the inconvenience involved therein.
With special reference to malpractices of prize chits promoters the learned Judge drove home the point; Where the company is not producing or manufacturing any goods and is not rendering any service useful to the society, where the whole purpose of its existence appears to be to provide the directors with an opportunity to enrich themselves at the cost of petty subscribers who in the hope of getting some prizes or rewards and better returns on their hard earned 810 savings (sometimes they may even resort to borrowing in the hope of getting rich quickly) become contributories to various schemes floated by the company, the matter stands on a different footing.
In a case like the present where the main activity of the company consists in tempting and roping in innocent persons in the scheme by publishing tantalizing advertisements, greater harm would ensue by refusing to pass an order of winding up than by passing an order of winding up.
In fact, to wind up such company would be an act of social service, for, thereby, several innocent persons would be saved from being trapped by a company of this nature.
Alas, as discussed earlier, the time taken in affording reasonable opportunity to the company in obeisance to the principles of natural justice has been utilised by the company to collect lakhs of rupees from the innocent subscribers merely in order to enrich the directors in an unjust fashion.
Under the circumstances, there is no scope for hesitation or reluctance in winding up the company which the court ordinarily feels when dealing with some manufacturing unit.
(emphasis added) There is sufficient justification for undertaking legislation restricting the freedom to fleece through prize chits.
Indeed, Shri Venugopal did not seriously contest this position.
The thrust of his argument was that his client was a well behaved prize chit organizer, above board in all respects, and so, a package of proper safeguards would adequately protect the community and a total ban was recklessly excessive, unintelligently over broad and, therefore, unconstitutional.
Surely, article 19(6) permits reasonable restrictions in the interest of the general public on the exercise of the right conferred by article 19(1)(g).
It is a constitutional truism restrictions, in extreme cases, may be pushed to the point of prohibition if any lesser strategy will not achieve the purpose.
Fundamental rights are fundamental, and so, no ban can be glibly imposed unless effective alternatives are unavailable.
Counsel on both sides cited rulings for the two sides of the proposition but it is an act of supererogation to load judgments with or profusion precedential erudition to make out what is plain, profound.
The twin requirements of article 19(6) are (a) the reasonableness of the restriction upon the fundamental right to trade, and (b) the measure of the reasonableness being the compelling need to promote the interest of the general public.
Public interest, of course, there is.
811 But the controversy rages round the compulsive necessity to extinguish the prize chit enterprises altogether as distinguished from hand cuffing them with severe conditions geared to protection of public interest.
We have already indicated that the Raj Report does recommend a total ban on prize chits.
In matters of economics, sociology and other specialised subjects, courts should not embark upon views of halflit infallibility and reject what economists or social scientists have, after detailed studies, commended as the correct course of action.
True, the final word is with the court in constitutional matters but judges hesitate to 'rush in ' where even specialists 'fear to tread '.
If experts fall out, court, perforce, must guide itself and pronounce upon the matter from the constitutional angle, since the final verdict, where constitutional contraventions are complained of, belongs to the judicial arm.
The alternative proposals to save the public from prize chit rackets attractively presented by Shri Venugopal do not impress us.
In many situations, the poor and unwary have to be saved from the seducing processes resorted by unscrupulous racketeers who glamourize and prey upon the gambling instinct to get rich quick through prizes.
So long as there is the resistless spell of a chance though small, of securing a prize, though on paper, people chase the prospect by subscribing to the speculative scheme only to lose what they had.
Can you save moths from the fire except by putting out the fatal glow ? Once this prize facet of the chit scheme is given up, it becomes substantially a 'conventional chit ' and the ban of the law ceases to operate.
We are unable to persuade ourselves that the State is wrong in its assertion, based upon expert opinions that a complete ban of prize chits is an over kill or excessive blow.
Therefore, we decline to strike down the legislation on the score of article 19(1)(f) and (g) of the Constitution.
We may not be taken to mean that every prize chit promoter is a blood sucker.
Indeed, Shri Venugopal persuasively presented the case of his client to make us feel that responsible business was being done by the petitioner.
May be.
But when a general evil is sought to be suppressed some martyrs may have to suffer for the legislature cannot easily make meticulous exceptions and has to proceed on broad categorisations, not singular individualisations.
We give short shrift to the next contention based upon article 14.
Broadly presented, the argument is that conventional chits and prize chits are substantially similar and, therefore, permission to continue 'conventional chits ' and prohibition of prize chits altogether may be discriminatory.
We do not agree.
Not only do the definitions show the differentiation between the two schemes, but the Raj Report 812 also brings out the fact that 'conventional chits ' and 'prize chits ' are different categories with different financial features and different damaging effects.
We see no force in the plea of violation of article 14.
Equally untenable is the contention that there is a discriminatory exemption from the operation of the prohibition in regard to those categories of prize chits which fall within section 11.
It runs thus: 11.
Nothing contained in this Act shall apply to any prize chit or money circulation scheme promoted by (a) a State Government or any officer or authority on its behalf; or (b) a company wholly owned by a State Government which does not carry on any business other than the conducting of a prize chit or money circulation scheme whether it is in the nature of a conventional chit or otherwise; or (c) a banking company as defined in clause (c) of section 5 of the Banking Regulation Act, 1949, or a banking institution notified by the Central Government under section 51 of that Act or the State Bank of India constituted under section 3 of the , or a subsidiary bank constituted under section 3 of the , or a corresponding new bank constituted under Section 3 of the , or a Regional Rural Bank established under section 3 of the or a co operative bank as defined in clause (bii) of section 2 of the ; or (d) any charitable or educational institution notified in this behalf by the State Government, in consultation with the Reserve Bank.
A bare reading of that provision makes it clear that the exempted categories do not possess the vices of private prize chits.
For one thing, what are exempted are prize chits and money circulation schemes promoted by or controlled by the State Governments, the Central Government or the State Bank of India or the Reserve Bank.
Even Rural Banks and Co operatives covered by section 11, are subject to public control.
Likewise, charitable and educational institutions are exempted only if they are notified by the State Government in consultation with the Reserve Bank.
There are enough arguments to justify the different classification of these items 813 and their exemption cannot be called in question on the ground of violation of article 14.
Reasonable classification wins absolution from the charge of discrimination if the differentia has a nexus with the statutory object.
The final submission of Shri Venugopal was regarding legislative competency.
He urged that legislation regarding lottery falls within the State List (Entry 34, List II) and Parliament cannot enact such a law under Entry 7 of List III.
Relying upon State of Bombay vs R.M.D. Chamarbugwala counsel contended that the present legislation was aimed at prize chits and intended to ban lotteries.
Such an anti lottery law could not be sustained under Entry 7 of the List III.
We are not persuaded that in pith and substance the present legislation is one against lotteries.
It deals with a special species of contracts with sinister features, although one such feature is the award of prizes to subscribers.
While motives cannot validate or invalidate a legislation the core of the subject matter must govern competency.
So viewed, it is easy to accept the submission of the Union of India that Parliament wanted to restrict and prohibit certain types of contracts because of the noxious element of gambling and lottery implicit therein and apt to entice the credulous and uncautious.
We do not think it necessary to expand on the subject and the incidental impact on lotteries does not affect the vires of the Act.
Judicial validation of a social legislation only keeps the path clear for enforcement.
Spraying legislative socio moral pesticides cannot serve any purpose unless the target area is relentlessly hit.
We hope that this legislation enacted in response to expert recommendation and popular clamour will be implemented by dynamic State action.
We wish to make it clear that the possible hardship that bona fide prize chit promoters may suffer on account of the total prohibition clamped down by this legislation can be relieved against by the Central Government acting under section 12.
The learned Solicitor General assured the court that the Union of India would take ameliorative measure to avoid unjust hardship, especially because it had power to do so under section 12.
Mr. M. M. Abdul Khader appearing in Writ Petition No. 1152 of 1979 argued that in his case ornaments and vessels were given as prizes and if strictly construed, his client 's scheme did not fall within the scope of the Act.
He wanted the court to declare so but we decline to do so, since under article 32 this Court 's function 814 is not to give advisory opinion to petitioners but to pronounce upon transgression of fundamental rights by State action.
While there is no merit in his submission of procedural unreasonableness in the provisions of the Act, it is perfectly open to the writ petitioner to urge his plea that the Act does not apply to his scheme if he were prosecuted.
We leave the matter at that.
Shri Parekh, as intervener, Shri Kanta Rao, appearing in Writ Petition No. 1546/79, Shri Subba Rao pressing Writ Petition No. 138/79 and Shri K.R.R. Pillai in W.P. No. 1152/79 have adopted the leading arguments of Shri Venugopal which we have rejected.
All of them must share the same fate.
State lotteries escalating year after year and enticing proletarian sections of the people across the States are dubious in morality and ruinous in impact.
Moreover, a detailed study may disclose the diminishing returns and increasing establishment expenses, menace to peaceful life and a traffic and dubious consequences.
So much so, a second look at the propriety of these State run schemes and reversion to the old stance of the State setting an anti lottery example, is worthwhile from many angles.
For the reasons given above, we dismiss all the Writ Petitions, leaving the parties to bear their own costs.
N.V.K. Petitions dismissed.
| IN-Abs | Prize Chits are one type of saving schemes.
In Prize Chits the organiser collects subscription in one lump sum or by monthly instalments spread over a specified period from the subscribers to the schemes.
Periodically, the numbers allotted to the members holding the tickets or units are put to a draw and the member holding the lucky ticket gets the prize either in cash or in the form of an article of utility, such as a motor car, scooter etc.
Once a person gets the prize, he is very often not required to pay further instalments and his name is deleted from further draws.
In case members do not get any prize, the schemes usually provide for the return of subscription paid by the members with or without an additional sum by way of bonus or premium at the end of the stipulated period.
As the flood of funds flowing through these prize chits benefited only the organisers of such schemes, and the total number of people victimised by these projects were considerable and injury to the community substantial, the Central Government set up a Study Group which went into the operation of these schemes.
The Report of the Study Group demonstrated the many sinister effects and also exposed the anti social impact upon the community by the operation of such schemes, and recommended to the State to intervene and interdict.
The Central Government thereupon undertook legislation for curbing the effect of the operation of these schemes by enacting the .
The petitioners in their writ petitions under Article 32 of the Constitution assailed the aforesaid statute: (1) contending that a package of proper safeguards would adequately protect the community, a total ban being recklessly excessive, unintelligently over broad and, therefore, unconstitutional, under Article 19(1)(g), (2) conventional chits and prize chits are substantially similar and, therefore, permission to continue 'conventional chits ' and prohibition of prize chits was discriminatory under Article 14, (3) there is a discriminatory exemp 802 tion from the operation of the prohibition in regard to those categories of prize chits which fall within section 11, and (4) the legislation being aimed at prize chits and intended to ban lotteries, would fall within the State List, Entry 34 List II and Parliament cannot enact such a law under Entry 7 of List III.
Dismissing the writ petitions, ^ HELD: (1) (i) There is a sufficient justification for undertaking legislation restricting the freedom to fleece through prize chits.
[810E].
(ii) The legislation cannot be struck down on the score of article 19(1)(g) of the Constitution.
[811F] (iii) The requirements of article 19(6) are, the reasonableness of the restriction upon the fundamental right to trade, the measure of reasonableness being the compelling need to promote the interest of the general public.
[810H] 2.
Conventional chits and prize chits are different categories with different financial features and different damaging effects.
There is, therefore, no force in the plea of violation of Article 14.
[812A] 3.
A bare reading of section 11 makes it clear that the exempted categories do not possess the vices of private prize chits.
What are exempted are prize chits and money circulation schemes promoted by or controlled by the State Governments, the Central Government, or the State Bank of India or the Reserve Bank.
Even Rural Banks and Cooperatives covered by section 11, are subject to public control.
Charitable and educational institutions are exempted only if they are notified by the State Government in consultation with the Reserve Bank.
There is, therefore, sufficient justification to justify the different classification of these items and their exemption cannot be called in question on the ground of violation of article 14.
[812G H; 813A] 4.
In pith and substance the present legislation is not one against lotteries.
It deals with a special species of contracts with sinister features, although one such feature is the award of prizes to subscribers.
While motives cannot validate or invalidate a legislation the core of the subject matter must govern competency.
[813 C D] 5.
In matters of economics, sociology and other specialised subjects, courts should not embark upon views of half lit infallibility and reject what economists or social scientists have, after detailed studies, commanded as the correct course of action.
The final word is with the Court in constitutional matters but judges hesitate to 'rush in ' where even specialists 'fear to tread '.
If experts fall out, court, perforce, must guide itself and pronounce upon the matter from the constitutional angle, since the final verdict, where constitutional contraventions are complained of, belongs to the judicial arm.
[811B C] 6.
When a general evil is sought to be suppressed some martyrs may have to suffer for the legislature cannot easily make meticulous exceptions and has to proceed on broad categorisations, not singular individualisations.
[811G] 7.
Judicial validation of a social legislation only keeps the path clear for enforcement.
Spraying legislative socio moral pesticides cannot serve any purpose unless the target area is relentlessly hit.
This legislation enacted in 803 response to expert recommendation and popular clamour is to be implemented by dynamic State Action.
[813E F] 8.
The possible hardship that bona fide prize chit promoters may suffer on account of the total prohibition clamped down by this legislation can be relieved against by the Central Government acting under Section 12.
[813F] 9.
Under Article 32 the Court 's function is not to give advisory opinion but to pronounce upon transgression of fundamental rights by State action.
[813H 814A]
|
tition (Crl.) No. 724 of 1980.
Under Article 32 of the Constitution Ram Jethmalani and Miss Rani Jethmalani for the petitioner.
M. N. Phadke and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by SEN J.
This petition for the grant of writ of Habeas Corpus is for the release of one Bhalabhai Motiram Patel, who has been detained by an order of the State Government of Maharashtra dated February 12, 1980 under sub section
(1) of section 3 of the (hereinafter referred to as 'the Act ') on being satisfied that it was necessary to detain him 'with a view to preventing him from abetting the smuggling of goods and engaging in transport of smuggled goods '.
At the conclusion of the hearing on July 30, 1980 we made an order for the release of the detenu since we were of the view that his 'continued detention ' was invalid.
We now proceed to give reasons therefor.
The facts emerging from the grounds of detention are that the detenu was acting as a 'courier ' between Messrs S.K. Malhotra Imports & Exports, Brussels having a widespread network abroad and Messrs Apex Distributors, Bombay who were engaged in a criminal conspiracy to smuggle contraband goods on a wide scale.
It was conceded at the Bar that the grounds for detention set out the facts with sufficient degree of particularity and they did furnish sufficient nexus for forming subjective satisfaction of the detaining authority.
The order of detention was, therefore, not challenged on the ground that the grounds furnished were not adequate or sufficient for the satisfaction of the detaining authority, or for making of an effective representation. 854 In support of the petition, two points are raised challenging the validity of the 'continued detention ' of the detenu both on procedural grounds, namely (1) there was undue delay in furnishing the documents, statements and writings referred to and relied upon in the order of detention to enable the detenu to prepare or cause to be prepared his representation against the said order of detention and (2) there was a failure on the part of the Central Government within a reasonable time to consider and deal with his application for revocation of the detention order under sub s.(1) of s.11 of the Act.
On February 12, 1980 the State Government of Maharashtra served the detenu with an order of detention issued under sub s.(1) of s.3 of the Act and directed that he shall be detained in the Central Jail, Nagpur.
Along with the order of detention, he was served with the grounds for detention.
The detenu through his solicitors ' letter dated March 8, 1980, addressed to the Under Secretary to the Government of Maharashtra, Home Department, Bombay made a request that 'all the documents, statements, and writings ' referred to and relied upon in the detention order, be furnished to him, to enable him to prepare or cause to be prepared his representation against such detention.
It was received in the Home Department, Mantralaya, Bombay on March 10, 1980.
On March 13, 1980, the Under Secretary to the Home Department forwarded the letter to the Collector of Customs (Preventive), Bombay 'for his comments '.
On the basis of the request of the Home Department the Assistant Collector of Customs addressed a letter to the Deputy Director of Directorate of Revenue Intelligence, Bombay on March 15, 1980 for his comments.
On March 18, 1980 the Assistant Director, Revenue Intelligence wrote a letter to the Assistant Collector of Customs conveying the decision of the Directorate of Revenue Intelligence to supply the detenu with copies of the documents on which the order of detention was based, and the documents were forwarded for onward transmission to the Home Department 'for doing the needful '.
The letter was received by the Assistant Collector of Customs on March 19, 1980.
On the same day i.e. March 19, 1980, the Assistant Collector of Customs sent a letter to the Joint Secretary, Home Department (Special) conveying the decision of the Directorate of Revenue Intelligence to supply copies and also forwarded a set of documents for being supplied to the detenu.
The case was put up before the Secretary to the Government, Home Department (Transport) on March 25, 1980.
On March 26, 1980 the Secretary directed that the detenu be furnished with the documents on which his order of detention was based.
Eventually, the documents were sent to the detenu 's solicitors on March 27, 1980 by registered post and were received by them on April 1, 1980.
But 855 the detenu 's solicitors in the meanwhile, had already submitted an incomplete representation against the order of detention on March 31, 1980.
The Courts have always viewed with disfavour the detention without trial whatever be the nature of offence.
The detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our Government.
This has always been the view consistently taken by this Court in a series of decisions.
It is not necessary to burden this judgment with citations of these decisions.
We say and we think it is necessary to repeat, that the gravity of the evil to the community resulting from anti social activities can never furnish an adequate reason for invading the personal liberty of a citizen except in accordance with the procedure established by law.
This Court has forged certain procedural safeguards in the case of preventive detention of citizens.
The constitutional imperatives indicated in article 22(5) are two fold: (1) 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 of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention.
The right to make a representation implies what it means 'the right of making an effective representation '.
Where certain documents are relied upon in the grounds of detention the grounds would be incomplete without such documents.
The detenu, therefore, has the right to be furnished with the grounds of detention along with the documents relied upon.
The power of preventive detention by the Government under the is necessarily subject to the limitation enjoined on the exercise of such power by article 22(5) of the Constitution, as construed by this Court.
The case raises the fundamental issue: Who is to be arbiter of what the Constitution says ? In matters relating to preventive detention, the Executive is subject to the Court 's authority.
The Court, not the Executive, has the 'ultimate authority ' to interpret the law.
Although the Executive has large potential powers, limitations and restraints on that power are built into the Constitution.
In a series of decisions, this Court has, on a construction of article 22(5) of the Constitution, read with sub s.(3) of s.3 of the Act, held that 'the right of making an effective representation ' carries with it the right to have the documents relied upon in the grounds of 856 detention: Ramchandra A. Kamat vs Union of India, Frances Coralie Mullin vs W. C. Khambra, Smt.
Icchu Devi Choraria vs Union of India and Pritam Nath Hoon vs Union of India.
In Kamat 's case it is laid down that if there is undue delay in furnishing the statements and documents relied upon in the grounds of detention, the right to make an effective representation is denied, and the detention becomes illegal.
It was observed: "The right to make a representation is a fundamental right.
The representation thus made should be considered expeditiously by the government.
In order to make an effective representation, the detenu is entitled to obtain information relating to the grounds of detention.
When the grounds of detention are served on the detenu, he is entitled to ask for copies of the statements and documents referred to in the grounds of detention to enable him to make an effective representation.
When the detenu makes a request for such documents, they should be supplied to him expeditiously.
The detaining authority in preparing the grounds would have referred to the statements and documents relied on in the grounds of detention and would be ordinarily available with him when copies of such documents are asked for by the detenu the detaining authority should be in a position to supply them with reasonable expedition.
What is reasonable expedition will depend on the facts of each case.
It is the duty of the detaining authority to satisfactorily explain the delay, if any, in furnishing of these documents.
If there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make effective representation is denied.
The detention cannot be said to be according to the procedure prescribed by law.
When the Act contemplates the furnishing of grounds of detention ordinarily within five days of the order of detention, the intention is clear that the statements and documents which are referred to in the grounds of detention and which are required by the detenu and are expected to be in possession of the detaining authority should be furnished with reasonable expedition.
" 857 The rationale of the decision is that the right to be supplied with copies of the documents, statements and other materials relied upon in the grounds of detention without any undue delay flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available the latter cannot be meaningfully exercised.
In Frances Coralie Mullin 's case the Court, however, added a note of caution: ". the time imperative can never be absolute or obsessive.
The Court 's observations are not to be so understood.
" The nature of the constitutional obligation to furnish the statements and documents relied upon in the grounds of detention to enable the detenu to make an effective representation against his detention under article 22(5) read with sub section
(3) of section 3 of the Act has been reiterated in Smt.
Icchu Devi Choraria 's case and Pritam Nath Hoon 's case.
In Smt.
Choraria 's case one of us, Bhagwati J., has dealt with the question at some length, and he observes: "It will be seen that one of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must, as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and under sub section (3) of section 3 of the COFEPOSA Act, the words "as soon as may be" have been translated to mean "ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention." The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention." Having pointed out the two outside time limits provided by sub section
(3) of section 3 of the Act, he further says: "Now it is obvious that when clause (5) of Article 22 and sub section (3) of section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be 858 furnished to the detenu.
If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them.
* * * * * There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with section 3, sub section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.
If this requirement of clause (5) of Article 22 read with section 3, sub section (3) is not satisfied, the continued detention of the detenu would be illegal and void.
" Alternatively, he observes: "It may be pointed out that even if our interpretation of the words "the grounds on which the order has been made" in clause (5) of Article 22 and section 3 sub section (3) of the COFEPOSA Act be wrong and these words do not include the documents, statements, and other materials relied upon in the grounds of detention, it is unquestionable that copies of such documents, statements and other materials must be supplied to the detenu without any unreasonable delay, because otherwise the detenu would not be able to make an effective representation and the fundamental right conferred on him to be afforded the earliest opportunity of making a representation against his detention would be denied to him.
" We refrain from expressing any final opinion on the construction placed in Smt.
Choraria 's case on sub section
(3) of section 3 of the Act.
In spite of this Court 's decision in Ramchandra A. Kamat case (supra) holding that a detenu is entitled under article 22(5) of the Constitution read with sub section
(3) of section 3 of the Act, to be served with copies of all the relevant documents relied upon in the grounds of detention, it is somewhat strange that the State Government acted in a cavalier fashion in dealing with the detenu 's application to be 859 supplied with copies of such documents.
What makes it worse is that in utter defiance of this Court 's decision in Kamat 's case.
P. V. Nayak, Secretary to the Government of Maharashtra, Home Department (Transport) to whom the powers of making an order of detention under sub section
(3) of section 3 have been delegated under the Rules of Business and is, therefore, the detaining authority, should have come forward with a counter affidavit dated June 13, 1980 stating: "I deny that I was under constitutional obligation to supply the documents and statements relied upon in the grounds of detention.
I say that the grounds of detention were elaborate, precise and clear and the copies of the documents and statements were not necessary for making an effective representation." This shows lack of awareness of his constitutional obligation.
What followed is not difficult to understand.
Though the detenu 's letter dated March 8, 1980 making a request for being furnished with copies of 'all documents, statements and writings ', upon which the detention order was based, was admittedly received in the Mantralaya on March 10, 1980 the Under Secretary, Home Department instead of acting upon that request within a reasonable time, forwarded the application to the Collector of Customs (Preventive), Bombay 'for his comments ' on March 13, 1980.
On the basis of the request of the Home Department, the Assistant Collector of Customs addressed a letter to the Deputy Director of the Directorate of Revenue Intelligence, Bombay, on March 15, 1980 'for his comments '.
It, therefore, appears that the Secretary to the Government of Maharashtra, Home Department (Transport), who was the detaining authority, failed to apply his mind and abdicated his functions of supplying the copies of documents on which the order of detention was based, to the Collector of Customs, who in his turn referred the matter to the Directorate of Revenue Intelligence.
The decision of the Directorate of Revenue Intelligence to supply the copies was conveyed to the Home Department on March 19, 1980; and on the same day, the Assistant Collector of Customs forwarded a set of the relevant documents to the Home Department.
The documents were admittedly lying in the Mantralaya from March 19, 1980 to March 27, 1980, i.e., for nine days.
The application of the detenu for grant of copies was, however, not placed before the Secretary, Home Department till March 25, 1980 and he was not furnished with copies till April 1, 1980 leaving him with no other alternative but to make his representation without having an opportunity to peruse the documents and make his submissions with reference to them.
860 From the narration of facts, it is quite obvious that no one really wanted to take a decision in the matter of grant of copies.
The Secretary to the Government, Home Department (Transport) left the decision to the Collector of Customs (Preventive), who left it to the Directorate of Revenue Intelligence.
We could understand if the Collector of Customs had sworn an affidavit explaining the reason why he could not attend to the matter between March 13, 1980 and March 19, 1980 i.e., for seven days.
Further, there is no explanation whatever forthcoming for the delay between March 19, 1980 when the documents were received in the Home Department and March 25,1980 when the application of the detenu was put up before the Secretary to the Government, Home Department for orders.
When the matter came up for hearing before one of us, Venkatramiah J., as the Vacation Judge, on June 17, 1980, the State Government was directed to file an affidavit explaining the time spent between March 10, 1980 and March 27, 1980 since there was no explanation forthcoming in the affidavit dated June 13, 1980 sworn by C. L. Mulherkar, Deputy Secretary to the Government of Maharashtra, Home Department (Special).
In furtherance of that direction, B. section Shetye, Desk Officer, Home Department (Special) has sworn an affidavit dated June 18, 1980 to the effect: "On 18th March 1980 a letter was addressed by the Assistant Director, D.R.I. to the Assistant Collector of Customs informing him about the decision to give copies and the copies of the statements, etc.
were forwarded to the Customs for onward transmission to the Home Department of Maharashtra Govt.
for doing the needful.
The said letter dated 18th March, 1980 was received by the Assistant Collector of Customs on 19th March, 1980.
On the same day i.e. 19th March, 1980 the Assistant Collector of Customs addressed a letter to the Joint Secretary, Home Department (Special), Mantralaya, Bombay to communicate the decision of the D.R.I. to supply copies and also forwarded a set of relevant documents for being supplied to M/s. Mahimtura and Company.
I say that the Home Department received the said letter and the copies of the documents on 19th March 1980.
On 21st March, 1980, after scrutiny the case was submitted to the Secretary, Home Department (Transport), Mantralaya, Bombay by the Assistant through concerned officers.
I say that 22nd March, 1980 and 23rd March, 1980 were holidays in Maharashtra as 22nd March, 1980 was 4th Saturday and 23rd March was Sunday.
24th March, 1980 was an optional holiday on 861 account of Chaitra Sud 15.
The case was, therefore, put up to the Secretary on 25th March, 1980 by the Deputy Secretary.
A formal decision to supply the copies was necessary and there fore the case was put up before the Secretary on 25th March, 1980.
On 26th March, 1980 the Secretary, Home Department (Transport) accepted the request of the detenu 's advocate for supply of copies.
" He goes on to explain that it is not the practice of the Home Department to retain the documents or copies thereof, after an order of detention is passed.
According to him, the documents were taken away by the officers of the Directorate of Revenue Intelligence and no copies were made or retained by the Home Department.
This reflects a sad state of affairs in the Home Department.
When the law enjoins the detaining authority by sub section
(3) of section 3 of the Act to serve the detenu with the grounds of detention within five days of the making of the order of detention, it is reasonable to expect that the Home Department would retain the documents or have copies made thereof for being supplied to the detenu, if asked for, for the purpose of making his representation.
The Government must evolve some process by which the requirements of article 22(5) of the Constitution read with sub section
(3) of section 3 of the Act can be complied with as expeditiously as possible.
The is enacted to serve a laudable object.
It is a measure to prevent smuggling of goods into or out of India and to check diversion of foreign exchange by immobilising the persons engaged in smuggling, foreign exchange racketeering and related activities by preventive detention of such persons.
Violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State.
Such economic offences disrupt the economic life of the community as a whole.
It is necessary to protect the basic economic order of the nation.
Nevertheless, the Act is a law relating to preventive detention.
That being so, the power of detention exercisable under sub section
(1) of section 3 of the Act is subject to the limitations imposed by the Constitution.
As observed by this Court in Narendra Purshotam Umrao vs B. B. Gujral & Ors.
when the liberty of the subject is involved, whether it is under the Preventive Detention Act or the Maintenance of Internal Security Act or the or any other law providing for preventive detention: 862 "It is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law.
" The community has a vital interest in the proper enforcement of its laws, particularly in an area such as conservation of foreign exchange and prevention of smuggling activities in dealing effectively with persons engaged in such smuggling and foreign exchange racketeering by ordering their preventive detention and at the same time, in assuring that the law is not used arbitrarily to suppress the citizen of his right to life and liberty.
The Government must, therefore, ensure that the constitutional safeguards of article 22(5) read with sub section
(3) of section 3 of the Act are fully complied with.
In the view we take of this case, the question whether there was such unreasonable delay in disposal of the detenu 's application for revocation made under sub section
(1) of section 11 of the Act as to render his continued detention invalid is, in any event, basically irrelevant.
For these reasons, the order of detention passed by the State Government of Maharashtra dated February 12, 1980 detaining Bhalabhai Motiram Patel under sub section
(1) of section 3 of the is set aside.
There shall be no order as to costs.
P.B.R. Petition allowed.
| IN-Abs | The constitutional imperatives indicated in article 22(5) are: firstly, the detaining authority must, as soon as practicable, after the detention, communicate to the detenu the grounds on which the order of detention has been made and secondly, the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention.
[855D] 2.
The right to make a representation implies what it means 'the right of making an effective representation '.
Where certain documents are relied upon in the grounds of detention the grounds would be incomplete without such documents.
The detenu has the right to be furnished with the grounds of detention alongwith the documents relied upon.
[855E] 3.
By a long line of decisions, this Court has on a construction of article 22(5) of the Constitution read with section 3(3) of the held that the right of making an effective representation carries with it the right to have the documents relied upon in the grounds of detention furnished without unreasonable delay.
Failure to supply the documents within a reasonable time is tantamount to denial of the right of making representation and renders the continued detention invalid.
[855H] Ramchandra A. Kamat vs Union of India ; , Frances Coralie Mullin vs W. C. Khambra ; , Smt.
Icchu Devi Choraria vs Union of India, Pritam Nath Hoon vs Union of India W.P. referred to. 4.
The detaining authority must keep ready all the documents relevant to the grounds of detention and expeditiously furnish copies thereof to the detenu on demand for making a representation.
In the instant case, the State Government acted in a cavalier fashion in dealing with the detenu 's application for copies of all the relevant documents.
The detaining authority failed to apply his mind and abdicated his functions of supplying the copies of documents on which the order of detention was based.
He passed on the papers to the Collector of Customs, who in his turn referred the matter to the Directorate of Revenue Intelligence.
Even after the replies were received the documents were lying in the Mantralaya for 9 days without being placed before 853 the detaining authority.
No reasonable explanation is furnished for this delay.
There was unexplained delay of 43 days in supplying copies of such documents.
The continued detention was thus bad.
[858H 859F] 5.
When the liberty of the subject is involved whether under the Preventive Detention Act or the Maintenance of Internal Security Act or the or any other law providing for preventive detention, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law.
[861H] Narendra Purshotam Umrao vs B. B. Gujral & Ors. ; referred to.
|
Appeals by special leave against an Award dated 31st July, 1950, 383 of the All India Industrial Tribunal (Bank Disputes): Civil Appeals Nos.
35 to 50 of 1951.
The facts of the case and the arguments of Counsel appear in the judgment.
C.K. Daphtary (R. J. Kolah, with him)for the appellants in Civil Appeals Nos. 35, 36 and 37.
Jamshedji Kanga (R. J. Kolah with him) for the appel lant in Civil Appeal No. 38.
section Chaudhuri (G. C. Mathur, with him) for the appellants in Civil Appeals Nos. 41, 43, 44, 45, 46 and 49.
section Chaudhuri (S.N. Mukherjee, with him) for the appel lants in Civil Appeals Nos. 48 and 50.
R.J. Kolah, for the appellants in Civil Appeals Nos. 39, 40 and 42.
Ram Lal Anand (Charan Das Puri, with him) for the appel lant in Civil Appeal No. 47.
A.C. Gupta (M.M. Sen and R.K. Banerji, with him) for the respondents in Civil Appeals Nos. 35, 36, 40, 41, 42, 43 and 44, M.M. Sen for the respondents in Civil Appeals Nos. 37, 39, 45 and 46.
Niren De (B.K. Chaudhary with him) for the respondents in Civil Appeals Nos. 38 and 50.
T.R. Bhasin for the respondents in Civil Appeals Nos. 48 and 49.
M.C. Setalvad, Attorney General for India.
Sikri, with him) for the Intervener (Union of India) in Civil Appeal No. as.
April 9.
The judgment of Kania C.J, Mehr Chand Mahajan, S.R. Das and Vivian Bose JJ.
was delivered by Kania C.J., Fazl Ali, Patanjali Sastri and Mukherjea JJ.
delivered separate judgment s, KANIA C.J.
In these appeals the question whether the Industrial Tribunal (Bank Disputes) had jurisdiction to make the awards has been directed by the Court to be tried as a preliminary issue. 'the decision depends on the true con struction of sections 7, 8, 15 and 16 of the .
On 384 this question, the agreed statement of facts shows that by a notification of the Government of India dated the 13th June, 1949, the Central Government constituted an Industrial Tribunal 'for the adjudication of industrial disputes in banking companies consisting of Mr. K.C. Sen, chairman, Mr. S.P. Varma and Mr. J.N. Mazumdar.
A second notification dated the 24th August, 1949, was thereafter issued as follows :"In exercise of the powers conferred by sub section (1) of section 8 of the , the Central Government was pleased to appoint Mr. N. Chandrasekhara Aiyar as a member of the Industrial Tribunal constituted by the notifications of the Government of India in the Ministry of Labour dated the lath June, 1949, in the place of Mr. S.P. Varma whose services have ceased to be available.
" The Tribunal commenced its regular sittings at Bombay from the 12th to the 16th of September, 1949.
It thereafter sat at Delhi and Patna between the 19th September, 1949, and 3rd April, 1950.
Further sittings were held, at some of which Mr. Mazumdar was absent on various dates and Mr. Chandrasek hara Aiyar was absent from the 23rd November, 1949, to the 20th of February, 1950, as his services were placed at the disposal of the Ministry of External Affairs as a member of the Indo Pakistan Boundary Disputes Tribunal.
Between the 23rd November, 1949, and 20th February 1950, Mr. Sen and Mr. Mazumdar together sat at several places and made certain awards.
Those awards have been accepted by the Government under section 15 of the Act and published in the Gazette as the awards of the Tribunal.
The Tribunal held its sittings in Bombay to hear general issues from the 16th January, 1950, and concluded them on the 3rd April, 1950.
In the agreed statement of facts, it is stated that the services of Mr. Chandrasekhara Aiyar were not available to the Tribunal from the afternoon of 23rd November, 1949, to the forenoon of 20th February, 1950.
From the 16th January, 1950, up to 20th February, 1950, several matters, particularly including 15 items covering, inter alia, Issues 1, 2, 3, 4, 15, 23, 27, 28, 33, 34, 37 385 and dealing with the question of the jurisdiction of the Tribunal in respect of officers regarding banks having branches in more than one Province and banks in liquidation, question of retrospective effect to be given to the award, question relating to provident and guarantee fund and allow ances to special categories of workmen, were dealt with by the Tribunal.
From the notes of the proceedings of the Tribunal it appears that as numerous banks and workmen were parties to the proceedings, some workmen who had not found it convenient to attend throughout appeared and put forth their views in respect of the aforesaid issues and questions after Mr. Chandrasekhara Aiyar started his work from the afternoon of the 20th February, 1950, again by sitting with Mr. Sen and Mr. Mazumdar.
The jurisdiction of the Tribunal of the aforesaid three persons to make the award is disputed on two grounds: (1) That when Mr. Chandrasekhara Aiyar 's services ceased to be available, as mentioned in the agreed statement of facts, the remaining two members had to be re appointed to consti tute a Tribunal.
(2) That when Mr. Chandrasekhara Aiyar began to sit again with Mr. Sen and Mr. Mazumdar from the forenoon of 20th February, 1950, it was imperative to issue a notification constituting a Tribunal under section 7 of the .
The argument is that in the absence of Mr. Chandrasekhara Aiyar the two members had no jurisdiction to hear anything at all without the appropriate notification and that Mr. Chandrasekhara Aiyar 's services having ceased to be available on the 23rd of November, 1949.
he cannot sit again with the other two members to form the Tribunal in the absence of a notification under section 7.
In order to appreciate the correct position, it is necessary to consider the scheme of the .
It envisages the establishment of a Conciliation Board, a Court of Inquiry and a Tribunal for adjudication.
Rele vant portions of sections 5, 6, 7, 8, 15 and 16 of the Act which only are material for the present discussion run as follows: 50 386 5.
(1) "The appropriate Government may as occasion arises by notification in the official Gazette constitute a Board of Conciliation for promoting the settlement of an industrial dispute.
(2) A Board shall consist of a chairman and two or four other members, as the appropriate Government thinks fit.
(3) The chairman shall be an independent person and the other members shall be persons appointed in equal numbers to represent the parties to the dispute and any person appoint ed to represent a party shall be appointed on the recommen dation of that party: * * * (4) A Board, having the prescribed quorum, may act notwithstanding the absence of the chairman or any of its members or any vacancy in ifs number.
Provided that if the appropriate Government notifies the Board that the services of the chairman or any other member have ceased to be available, the Board shall not act until a new chairman or member, as the case may be, has been ap pointed.
(1) "The appropriate Government may as occasion arises by notification in the official Gazette constitute a Court of Inquiry for inquiring into any matter appearing to be connected with or relevant to an industrial dispute.
(2) A Court may consist of one independent person or of such number of independent persons as the appropriate Government may think fit and where a Court consists of two or more members, one of them shall be appointed as the chairman.
(3) A Court, having the prescribed quorum, may act notwithstanding the absence of the chairman or any of its members or any vacancy in its number.
Provided that, if the appropriate Government noti fies the Court that the services of the chairman have ceased to be available, the Court shall not act until a new chair man has been appointed.
(1) "The appropriate Government may constitute one or more Industrial Tribunals for the 387 adjudication of industrial disputes in accordance with the provisions of this Act.
(2) A Tribunal shall consist of such number of members as the appropriate Government thinks fit.
Where the Tribunal consists of two or more members, one of them shall be ap pointed as the chairman.
(3) Every member of the Tribunal shall be an independent person, (a) who is or has been a Judge of a High Court or a District Judge, or (b) is qualified for appointment as a Judge of a High Court: Provided that the appointment to a Tribunal of any person not qualified under part (a) shall be made in consul tation with the High Court of the Province in which the Tribunal has, or is intended to have, its usual place of sitting.
(1) "If the services of the chairman of a Board or the chairman or other member of a Court or Tribunal cease to be available at any time, the appropriate Government shall in the case of a chairman, and may in the case of any other member, appoint another independent person to fill the vacancy, and the proceedings shall be continued before the Board, Court or Tribunal so reconstituted.
(2) Where a Court or Tribunal consists of one person only and his services cease to be available the appropriate Government shall appoint another independent person in his place, and the proceedings shall be continued before the person so appointed.
(3) Where the services of any member of a Board other than the chairman have ceased to be available, the appropri ate Government shall appoint in the manner specified in sub section (3) of section 5 another person to take his place, and the proceedings shall be continued before the Board so reconstituted.
(1) "Where an industrial dispute has been referred to a Tribunal for adjudication, it shall hold its proceed ings expeditiously and shall, as soon as 388 practicable on the conclusion thereof, submit its award to the appropriate Government.
(2) On receipt of such award, the appropriate Government shall by order in writing declare the award to be binding: * * * (4) Save as provided in the proviso to sub section (3) of section 19, an award declared to be binding under this section shah not be called in question in any manner.
"The report of a Board or Court and the award of a Tribunal shall be in writing and shall be signed by all the members of the Board, Court or Tribunal, as the case may be: Provided that nothing in this section shall be deemed to prevent any member of the Board, Court or Tribunal from recording a minute of dissent from a report or award from any recommendation made therein.
" Confining our attention to the aspect of absence of members at the sittings of the different bodies and what results follow therefrom, it is clear that under section 5 (4) when a member of a Board of Conciliation is absent or there is a vacancy, the Board is permitted to act, notwith standing such absence, provided there is the prescribed quorum.
Such quorum is fixed by the rules framed under the Act.
According to the proviso to this sub section however, if the appropriate Government notifies the Board that the services of the chairman or any other member have ceased to be available, the Board shall not act until a new chairman or a member, as the case may be, has been appointed.
Read ing these two parts together, it is therefore clear that a distinction is drawn between the situation arising from the absence of the chairman or any of its members and a vacancy in the Board, and the position when the Government has intimated that the services of a chairman or member have ceased to be available.
The words "having the prescribed quorum" put a further limitation on the right of the 389 remaining members of the Board to act, when all of them are not acting together.
The proviso thus makes it clear that when the services of a chairman or member have ceased to be available and that fact has been notified to the Board by the appropriate Government, the remaining members have no jurisdiction to act in the name of the Board.
Thus all the contingencies of temporary or casual absence, as well as permanent vacancy, and the contingency of the chairman or a member 's services having ceased to be available are con templated and provided for.
In the same way and in the same terms, provision is made in respect of the Court of In quiry in section 6 (3).
The provisions as regards the Tribunal are found in section 7.
No other section deals with the establishment of the Tribunal.
The first clause empowers the appropriate Government to constitute one or more industrial tribunals having the functions allotted to it under the Act.
Sub clause (2) provides that a Tribunal shall consist of such number of members as the appropriate Government thinks fit.
This clause therefore authorizes the appropriate Government to fix the number of members which will constitute the Tribunal.
Sub clause (3) and the proviso deal with the qualifications of individuals to be members with which we are not concerned.
Although in this section there is no provision like sections 5 (1) and 6 (1) requiring a notification of the constitution of the Tribunal in the official Gazette, the deficiency is made up by rule 5 of the Industrial Disputes Rules; 1949, framed by the Gov ernment under section 38 of the Act.
The rule provides that the appointment of a Board, Court or Tribunal "together with the names of the persons constituting the Board, Court or Tribunal ' shall be notified in the official Gazette.
It is therefore obligatory on the appropriate Government to notify the composition of the Tribunal and also the names of the persons constituting the same.
In respect of a Tribunal which is entrusted with the work of adjudicating upon dis putes between employers and employees which have not been settled otherwise, this provision 390 s absolutely essential.
It cannot be left in doubt to the employers or the employees as to who are the persons authorized to adjudicate upon their disputes.
This is also in accordance with notifications of appointments of public servants discharging judicial or quasijudicial functions.
The important thing therefore to note is that the number forming the Tribunal and the hames of the members have both to be notified in the official Gazette for the proper and valid constitution of the Tribunal.
It is significant that there is no provision correspond ing to section 5 (4) or 6 (3) in section 7.
Section 15 of the Act provides that when an industrial dispute has been referred to a Tribunal for adjudication, it shall hold its proceedings expeditiously and as soon as practicable and at the conclusion thereof submit its award to the appropriate Government.
It is thus clear and indeed it is not disputed that the tribunal as body should sit together and the award has to be he result of the joint deliberations of all mem bers of he Tribunal acting in a joint capacity.
Section 16 requires that all members of the Tribunal shall sign he award.
This again emphasizes that the function of the Tribunal is joint and it is not open to any member to re frain from signing the award.
If the award is not signed by all members it will be invalid is it will not be the award of the Tribunal.
In the light of the provisions of section 7 the question arising for consideration is, what was the duty of the Government when the services of Mr. Chandrashekhara Aiyar ceased to be available.
The two telegrams exchanged between Mr. Sen and the Government show that the Government took the view that a vacancy had occurred and they did not think of filling it up at the time.
In the first place, on the true construction of the Act, was it not obligatory on the Gov ernment to notify to the contesting parties that it had decided not to fill up the vacancy ? Is it open to them to leave the parties in doubt in respect of a Tribunal entrust ed with the work of adjudicating upon very important dis putes between parties ? In our opinion, the whole 391 scheme of the Act leads to the conclusion that the Govern ment must notify its decision as to what it desired to do, i.e., whether it intended to fill up the vacancy or not and thereupon notify what members were going to constitute the Tribunal.
We are led to that conclusion because a Tribunal of three consisting of Mr. Sen, Mr. Mazumdar and Mr. Chan drasekhara Aiyar is a different tribunal from one consisting of two, viz., of Mr. Sen and Mr. Mazumdar only.
In this setting, it is next necessary to consider the words of section 8 on which strong reliance is placed on behalf of the respondents.
The marginal note of that sec tion is "filling of vacancies ".
The section deals with the Board, the Court and the Tribunal in its clauses.
Under sub section (1), the Legislature clearly contemplates that when the services of a member cease to be available at any time there will arise a vacancy.
This sub section deals with the situation in three stages.
The first question is, have the services of a member (and this includes, for the present discussion,.
a chairman)ceased to be available ? If so, the vacancy having thus arisen, the next question is, what can be done by the appropriate Government ? If the vacancy is filled up by making the appointment, the final question is, how the proceedings shall go on before the Board, Court or Tribunal so reconstituted ? It was argued on behalf of the respondents that it was for the appropriate Government alone to pronounce whether the services of a member had ceased to be available at any time and that was not a matter for the decision of the Court.
In our opinion, what is left to the option of the Government is, in case of the services of a member ceasing to be available, to appoint or not to appoint.
Those stages having passed, the appro priate Government, under the section, is obliged to appoint another person to fill the vacancy, if the vacancy is creat ed in respect of a chairman.
In respect of the vacancy of a member 's post, the Government is given the option to appoint or not to appoint another person.
The concluding words of the sub section "so reconstituted" clearly relate only to the contingency of 392 the Government making the appointment of another independent person in the vacancy.
The concluding part of that sub section provides for the continuance of the proceedings before the body so reconstituted.
Subsection (2) also pro vides that where a court or tribunal consists only of one person and his services have ceased to be available, on the appointment of another independent person the proceedings shall be continued before the person so appointed and it will not be necessary to start the proceedings from the beginning before that person.
Section 8 (3) provides for the contingency of the services of a member of a Board not being available.
It requires the appropriate Government to make the appointment as provided in section 5 (3) and fur ther provides that notwithstanding the inclusion of a total ly new man in that vacancy, the proceedings shall be contin ued before the Board so reconstituted.
Reading the three clauses together, therefore, it is quite clear that the object of section 8 is to make specific provisions in re spect of situations when the Government must or does fill up vacancies in the event of the services of a member or chair man not being available and the consequences of a totally new man filling up the vacancy.
As we read the Act, that is the total object and intention of this section.
It does not contemplate the consequences of the Government not making an appointment where it has the option not to do so.
The emphasis on the words "so reconstituted ' ' in sub sections (1) and (3) and the concluding words of each of those clauses clearly bear out this intention of the legislature.
It was argued that although no provision is made in section 8 (1) about what is to happen if the Government did not fill up the vacancy, it is implied that in that event the remaining members can continue the work.
We are unable to accept that argument.
In the first place, as pointed out above, the object of section 8 is to provide in what cases vacancies must be filled up and how the proceedings should continue on the vacancy being filled up.
It does not deal at all with the situation arising from the not filling up of the 393 vacancy by the Government.
In this connection the provi sions of sections 5 (4) and 6 (a) have been already noted.
When the legislature wanted to provide that in spite of the temporary absence or permanent vacancy the remaining members should be authorised to proceed with the work they have made express provision to that effect.
If in the case of a Board or Court of Inquiry, neither of which is adjudicating any disputes, such a provision was considered necessary to enable the remaining members to act as a body, we think that the absence of such provision in respect of the Tribunal, which adjudicates on the disputes and whose quasi judicial work is admittedly of a joint character and responsibility leads to the irresistible conclusion that in the absence of one or more members the rest are not competent to act as a Tribunal at all.
Again the provisos to sections 5 (4) and 6 (3) are important.
Under those provisos when the Government intimates to the remaining members that the services of one "have ceased to be available" the rest have no right to act as the Board or Court.
It appears under the circumstances proper to hold that in respect of a Tribunal when the serv ices of a member have ceased to be available, the rest by themselves have no right to act as the Tribunal.
The question which we have got to consider can be divid ed in two stages.
On the appointment of Mr. Chandrasekhara Aiyar as a member of the Boundary Tribunal, did his services cease to be available within the meaning of section 8, and thereby was a vacancy created? The parties have put before us only two telegrams exchanged between the chairman and Mr. Mazumdar on the one hand and the Central Government on the other, to reach our conclusion about the situation arising from Mr. Chandrasekhara Aiyar joining the Boundary Tribunal.
Certain Government notifications published 'in May and June, 1950, i.e., over three or four months after Mr. Chandrasek hara Aiyar finished his work on the Boundary Tribunal, have been put before us, but in our opinion these 394 ex post facto notifications cannot help us in deciding the important question under section 8.
It is obvious that, on the date the appointment of Mr. Chandrasekhara Aiyar as a member of the Boundary Tribunal was made, it could not have been known how long that Tribunal would take to complete its work.
In any event, the evidence put before us as of that date does not show that the appointment was for a short time.
The Boundary Tribunal 's work may have lasted for a month or a year.
Having regard to the urgency and the necessity of quick disposal of industrial disputes recog nised in section 15, the deputation of a member of such a Tribunal to another Tribunal, whose work may be of an indef inite duration, obviously makes the services of the member cease to be available to the Industrial Tribunal within the meaning of section 8 so as to bring about a vacancy.
The later statement in the Government notification of May, 1950, that Mr. Chandrasekhara Aiyar 's services were lent to the External Affairs Ministry "from the 23rd of November, 1949, to the 20th of February, 1950, " appears to be more a noti fication for the purpose of the Accountant General and the Audit departments of the Government than a disclosure of the mind of the Government when the appointment was made on the 23rd of November.
When Mr. Sen, as chairman, and Mr. Mazum dar held their first sitting in the absence of Mr. Chandra sekhara Aiyar, an objection was raised about the constitu tion of the Tribunal.
Thereupon Mr. Sen and Mr. Mazumdar conveyed to the Government what had happened at the meeting.
The Government was therefore clearly faced with the problem as to what it wanted to do.
The reply telegram from the Government asked Mr. Sen and Mr. Mazumdar to go on with the proceedings.
It further stated that the Government might fill up the vacancy later on.
The question for considera tion is, what is the effect of this telegram of the Govern ment ? In the light of the provisions of section 8 that telegram can only mean that the Government had decided not to fill up the vacancy.
If a vacancy had occurred they had to make the appointment or state that they will 395 not do so.
They cannot defer their decision on the question of filling up the vacancy and in the interval direct the remaining members to go on with the reference.
That seems to us to be the correct position because the fundamental basis on which the Tribunal has to do its work is that all members must sit and take part in its proceedings jointly.
If a member was casually or temporarily absent owing to illness, the remaining members cannot have the power to proceed with the reference in the name of the Tribunal, having regard to the absence of any provision like section 5 (4) or 6 (3) in respect of the tribunal.
The Government had notified the constitution of this Tribunal by the two notifications summarized in the earlier part of the judg ment and thereby had constituted the Tribunal to consist of three members and those three were Mr. Sen, Chairman, Mr. Mazumdar and Mr. Chandrasekhara Aiyar.
Proceeding with the adjudication in the absence of one, undermines the basic principle of the joint work and responsibility of the Tribu nal and of all its members to make the award.
Moreover, in their telegram the Government had not suggested that no vacancy had occurred.
Indeed, they recognised the fact of a vacancy having occurred but stated that they might make the appointment later on.
If those words are properly construed, without any outside considerations, it is clear that the Government intended that the remaining two members of the Tribunal should proceed with the adjudication as a Tribunal.
This direction in fact was accepted and the two members proceeded with the reference and made certain awards.
Those awards were sent to the Government under section 15 (2) and the Government by its order declared the awards to be bind ing, and published them in the official Gazette.
Those awards are signed only by Mr. Sen and Mr. Mazumdar.
Reading those awards with the notifications and the provisions of sections 15 and 16 it is therefore clear that between 23rd November, 1949, and 20th February, 1950, the Government ' 'intended" the tribunal to consist only of Mr. Sen and Mr. Mazumdar.
It was not and 396 cannot be seriously disputed that in the event of the Gov ernment deciding to fill up the vacancy, a notification had to be issued.
The question is, why and under what rule ? The answer clearly is that they had to do it because of rule 5.
The reason why intimation of a new man forming a member of the Tribunal has to be publicly given, in our opinion, applies with equal force when a tribunal initially consti tuted of three persons, viz., Mr. Sen, Mr. Mazumdar and Mr. Chandrasekhara Aiyar, is, by the Government decision, as from a certain date, to be a tribunal of Mr. Sen and Mr. Mazumdar only.
The word "reconstituted" is properly used in section 8 because when a new member is introduced in the panel so far performing its duties, it is a reconstitution, but the words of section 8 do not exclude the obligation on the Government to issue a notification under rule 5 when there is not a reconstitution, but a new constitution of the Tribunal.
The Government, however, did not give effect to its intention by issuing a fresh notification under section 7.
Therefore, when the services of Mr. Chandrasekhara Aiyar ceased to be available and they decided that another inde pendent person was not to be appointed to fill the vacancy, there arose the situation when only two members constituted the Tribunal and for the constitution of such Tribunal no notification under section 7 of the Act was issued.
To enable such a Tribunal of two persons to function, under the provisions of the Act, a notification under section 7 of the Act, in our opinion, was absolutely essential.
The work of the two members in the absence of such a notification cannot be treated as the work of a Tribunal established under the Act and all their actions are without jurisdiction.
It was argued on behalf of the respondents that when Mr. Chandrasekhara Aiyar left for the Boundary Tribunal, there arose a temporary absence which it w, as not necessary to fill up and the remaining two members had jurisdiction under the Act to proceed with the adjudication.
In our opinion, this contention cannot be accepted.
In the first place, in the agreed statement of facts, it is not stated that there was any temporary 397 absence.
Again, as we have pointed out the Government by its telegram of the 29th of November accepted the position that a vacancy had occurred and no question of temporary absence therefore arises for our consideration.
An analogy sought to be drawn between the temporary absence on leave or on depu tation of a Judge is misleading having regard to the fact that under section 7 the Government has to decide at the initial stage how many members and who will constitute the Tribunal and have to notify the same.
That step having been taken, it is not within the power or competence of the Government to direct a few members only of such Tribunal to proceed with the adjudication for however short or long time it be.
In our opinion, section 8 has no application to that situation.
In this connection, it may be useful to notice that under rule 12 it was provided that "when a Tribunal consists of two or more members, the tribunal may, with the consent of the parties, act notwithstanding any casual vacancy in its number . "This rule clearly shows that even when there was a casual vacancy and the remaining members desired to proceed with the work they could do so only with the consent of the parties.
This rule framed under section 38 of the Act strongly supports the contention that if the Act impliedly gave power under section 8 to the remaining two members of the Tribunal to act, as contended on behalf of the respondents, there was no necessity at all for making this rule.
Although this rule was repealed on the 3rd of December, it was in operation when the services of Mr. Chandrasekhara Aiyar ceased to be available to the Tribunal as from the 23rd of November.
If in the case of temporary absence, the consent of the parties was essential to enable the remaining members to act, it certainly follows that the objection to their working as a 'tribunal when there is no consent and the absence is not casual, but is due to the services of one of the members having ceased to be available, is fatal.
It follows therefore that all awards made by Mr. Sen and Mr. Mazumdar, after the services of Mr. Chandrasekhara Aiyar ceased to be available, were 398 not made by a tribunal duly constituted under section 7 and those awards are therefore void.
It was contended that by directing Mr. Chandrasekhara Aiyar to work again as a member of the Banks Tribunal in February, 1950, the Government had filled up the vacancy under section 8.
In our opinion this position cannot be supported on the admitted facts.
As regards filling up of a vacancy under section 8, we have already noticed that by directing the remaining two members to proceed with the work and by notifying their awards as the awards of the Tribunal the Government must be considered to have intended not to fill up the vacancy.
Again, the later notification pub lished in June, 1950, does not even state that Mr. Chandra sekhara Aiyar was appointed a member of the Tribunal "in any vacancy.
" The word used there is "resumed" suggesting there by that he had gone out for the time being but had started the work again.
Under the circumstances and in the absence of any other evidence, we are unable to consider the fact of Mr. Chandrasekhara Aiyar sitting along with the two members from and after the 20th February, 1950, as an appointment by the Government in the vacancy created by his appointment to the Boundary Tribunal in November, 1949.
At one stage it was suggested that the members of the Tribunal could delegate their work to a few members only and the award can be supported in that way.
Apart from the question what work could be so delegated, it was ascertained that the Rule permitting delegation was first published on 3rd December, 1949, and as Mr. Chandrasekhara Aiyar had gone to his work on the Boundary Tribunal on 23rd November, no delegation in that manner was possible.
Moreover, the state ment of facts nor the award of the three persons suggests that there was any delegation of work by the Tribunal in the matter of the general issues to some members only.
Nor was any report made to or considered by the full Tribunal as required by the rule.
The next question to be considered is the effect of Mr. Chandrasekhara Aiyar sitting with the two 399 members of the Tribunal after 20th February, 1950.
The record shows that the two members considered most of the general issues raised in respect of the banks at many meet ings.
The nature and volume of the work done by them during this interval has been summarized in the earlier part of the judgment.
It is not contended that on Mr. Chandrasekhara Aiyar commencing to sit again with the other two members on and from the 20th February what had happened in his absence was re done or re heard.
Mr. Chandrasekhara Aiyar along with the other two members continued to work from the point work had proceeded up to 19th February, 1950, and the award which is put before us is signed by all the three of them, i.e., on the footing that all the three of them were members of the Tribunal.
It was suggested that Mr. Chandrasekhara Aiyar should be treated as having remained throughout a member of the Tribunal of three and that he resumed work after a temporary absence between November, 1949, and Febru ary, 1950.
In our opinion, this position is quite unsupport able.
When the services of Mr. Chandrasekhara Aiyar ceased to be available to the Tribunal in November, 1949, and the Government accepted the position that a vacancy had oc curred, Mr. Chandrasekhara Aiyar ceased to be a member of the Tribunal of three as constituted under the Government notification of June, 1949.
Thereafter Mr. Chandrasekhara Aiyar never became a member of the Tribunal as he was never appointed a member before he signed the award.
No notifica tion making such an appointment under section 7 read ' with section 8 of the Act has been even suggested to exist.
In the circumstances, the position in law was that Mr. Chandra sekhara Aiyar ceased to be a member of the Tribunal of three as originally constituted, that no new Tribunal of two was legally constituted and that, having ceased to be a member of the tribunal of three, Mr. Chandrasekhara Aiyar could not resume duties as a member of the Tribunal of three without a fresh constitution of a Tribunal of three.
The result is that all the interim awards purported to be made by Mr. Sen and Mr. Mazurndar as 400 well as the final awards made by the three must all be held to have been made without jurisdiction.
It seems to us that the only way in which the Government could have put matters right was by a notification issued in February, 1950, con stituting the tribunal as a fresh Tribunal of three members (and not by proceeding as if a vacancy had been filled up on 20th February, 1980, under section 8) and the three members proceeding with the adjudication de novo.
Even if the con tention of the respondents that Mr. Chandrasekhara Aiyar continued throughout a member of the tribunal were accepted, in our opinion, the appellants ' objection to the jurisdic tion of the three persons to sign the award must be upheld.
Section 16 which authorizes them to sign is preceded by section 15.
Unless they have complied with the provisions of section 15, i.e., unless all the three have heard the matter together, they have no jurisdiction to make the award in terms of section 18 and have therefore also no jurisdic tion to sign the award under section 16.
In any view of the matter the awards are therefore without jurisdiction.
It was suggested that his signature on the award could be treated as surplus.
In our opinion, this argument re quires only to be stated to be rejected.
It is not and cannot be disputed that Mr. Chandrasekhara Aiyar took active part in the deliberations and in the proceedings after 20th February, 1950, and naturally discussed and influenced the decision of the other two members of the Tribunal by such discussions.
This is not a case where an outsider was con sulted by the members of a Tribunal and thereafter the members came to their own independent decision.
It is obvious that for making the award all the three persons worked together and were jointly responsible for the result ant award.
The argument of surplusage therefore must fail.
In this view of the matter, the final award put before the Court is clearly without jurisdiction and the appellants ' contention must be upheld.
The final contention that the sittings in the interval constituted only an irregularity in the proceedings 401 cannot again be accepted because, in the first place, an objection was raised about the sitting of the two members as the Tribunal.
That objection, whether it was raised by the appellants or the other party, is immaterial.
The objection having been overruled, no question of acquiescence or estop pel arises, Nor can consent give a court jurisdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled.
No acquiescence or consent can give a jurisdiction to a court of limited jurisdiction which it does not possess.
In our opinion, the position here clearly is that the responsibility to work and decide being the joint responsibility of all the three members, if pro ceedings are conducted and discussions on several general issues took place in the presence of only two, followed by an award made by three, the question goes to the root of the jurisdiction of the Tribunal and is not a matter of irregu larity in the conduct of those proceedings.
The absence of a condition necessary to found the jurisdiction to make the award or give a decision deprives the award or decision of any conclusive effect.
The distinction clearly is between the jurisdiction to decide matters and the ambit of the matters to be heard by a Tribunal having jurisdiction to deal with the same.
In the second case, the question of acquiescence or irregularity may be considered and over looked.
When however the question is of the jurisdiction of the Tribunal to make the award under the circumstances summarized above, no question of acquiescence or consent can affect the decision.
It was contended that under section 8 the contingency of the Government not filling up a vacancy is clearly visual ized.
It is also provided in the section that in the event of a vacancy the Government may fill it up by appointing a new man and in such a case the proceedings need not start afresh.
It was argued that nothing more had happened in the present case and therefore no question of invalidity of the awards arises.
We are unable to accept these contentions.
In the first place, when Government decides not to fill up 402 a vacancy its decision has to be notified.
It is not a matter of the Government 's internal administration where the officers can work under departmental orders.
Moreover it should be noticed that when the services of a member cease to be available and that fact is conveyed to the rest of the members under sections 5 (4) and 6 (3), the rest have no right to act as a Body at all.
The wording of section 7 or 8, in our opinion, does not permit the remaining members of a Tribunal to have a higher right in the absence of a proper new notification issued under section ? of the Act.
As regards the second Contention, it should be noticed that the Government is given the option to make an appointment when a vacancy occurs, and section 8 provides that if a new man is appointed in the vacancy the proceedings need not start de novo.
That however does not mean that the Government must appoint a man in every case of vacancy and the proceedings must go on without commencing the same afresh.
It appears that the option is left to Government having regard to the stage to which the proceedings may have reached.
Suppose only after some preliminary work of a data finding nature is done a vacancy occurs, the Government may well think of appointing a new man as it may not be considered necessary to start the proceedings afresh.
On the other hand, if the work has progressed considerably the Government may not think it just and proper to fill up a vacancy by bringing in a new man, as by doing so they will in effect permit the work of the Body being done in two parts, viz., the first with two men and the second with three men.
These considerations emphasize the importance of the Government making up its mind to fill up or not to fill up a vacancy when it occurs.
It cannot keep its decision in abeyance and at one stage intend to proceed on the, footing that the vacancy is not filled up and later on after considerable work is done by the remaining members change its mind and proceed to act on the footing that a vacancy has continued and fill up the same after some months.
403 On the admitted principle that the work of the Tribunal, which is of a quasi judicial nature, is one of joint respon sibility of all its members, section 8 provides exceptions.
The Legislature having thus fixed in that section the limits of the exceptions, the limits have to be strictly observed and it is not within the competence either of the Tribunal or the Government to extend the limits of those exceptions.
In our opinion, the incidents in respect of the sittings and work of this Banking Tribunal, as mentioned above, do not fall within the limits of the exceptions and therefore the awards must be considered as made without jurisdiction.
In our opinion, therefore, the awards made and signed by Messrs. Sen and Mazumdar and by all the three persons are without jurisdiction and the contention of the appellants on this issue must be accepted.
FAZL ALI J.
The questions which this Bench is called upon to decide arise upon the following facts.
By a Notification dated the 13th June, 1949, the Govern ment of India constituted a Tribunal for the adjudication of industrial disputes in Banking Companies, consisting of Mr. K.C. Sen (Chairman), Mr. S.P. Varma and Mr. Majumdar (Mem bers).
Subsequently, Mr. Chandrasekhara Aiyar was appointed a member of the Tribunal in the place of Mr. Varma, whose services had ceased to be available.
On the 13th June, 1949, the Government referred to the Tribunal the disputes between a number of Banking Companies and their employees, and the Tribunal consisting of the chairman and 2 members commenced hearing them on the 12th September, 1949.
In November, 1949, the services of Mr. Aiyar were placed at the disposal of the Department of External Affairs of the Government of India, and he was appointed a member of the Indo Pakistan Boundary Disputes Tribunal, with the result that during his absence which covered ' a period of nearly 3 months beginning from the 23rd 404 November, 1949, and ending on the 20th February, 1950, the proceedings were continued before the chairman and the remaining member, and certain interim awards were also made during this period.
Mr. Aiyar rejoined the Tribunal on the 20th February, 1950, and ultimately all the 3 members made and signed an award on the 31st July, 1950, which was pub lished in the Gazette of India on the 12th August, 1950.
The main point raised in these appeals is that this award is without jurisdiction.
In some of the appeals, it is also contended that some of the interim awards, namely those given by the chairman of the Tribunal and Mr. Majumdar on the 5th January, 25th January, 20th February and 22nd Febru ary, 1950, in the case of the Imperial Bank of India, the Lloyds Bank and the Punjab National Bank, were also without jurisdiction.
Briefly, the argument advanced on behalf of the appellants is that the , did not permit either of the following courses, firstly, that 2 members of the Tribunal, which originally consisted of 3 members, should deal with any of the controversies between the parties in connection with the disputes referred to the Tribunal, and secondly, that a member who had left the Tribunal in the midst of the hearing should rejoin and influence the decision of the other members in regard to the matters which he had not heard.
These contentions, however plausible they may appear at the first sight, especially when we consider them in the light of our notions of judicial procedure to be followed in courts of law, will, in my opinion, be found to be without much substance, on close examination, once we realize that the Industrial Tribunal, though it has all the trappings of a court of law, is not such a court and has to follow its own procedure which has to be determined by the provisions of the industrial Disputes Act and the rules framed by the Government thereunder.
The determination of the questions raised before us will depend mainly upon the proper con struction of section 8 (1)of the Act, which runs as follows : 405 "8 (1) If the services of the chairman of a Board or of the chairman or other member of a Court or Tribunal cease to be available at any time, the appropriate Government shall, in the case of a chairman, and may in the case of any other member, appoint another independent person to fill the vacancy, and the proceedings shall be continued before the Board, Court or Tribunal so reconstituted .
" One of the questions to be decided in construing this section is, as to the exact meaning of the words "services cease to be available.
" Ordinarily, the word "cease" con veys a sense of permanency, and therefore the expression would certainly cover cases where the services of a person have ceased to be available permanently or for all time.
But that word is also sometimes applied to "intermission of a state or condition of being, doing or suffering" (see Oxford Dictionary), and, among several instances of its being used in this narrower sense, we were referred to The Queen vs Evans(1) which is a case dealing with an English statute in which the expression "cease to reside" was used so as to include a case where the person concerned was away from England for a period and then returned there.
It seems to me that the words "services cease to be available" include cases where the services are not available for a defined or undefined period, provided that during that period they are completely unavailable.
These words should, I think, be read with the marginal note of section 8, which indicates that they were intended to cover every situation necessitat ing the filling of a vacancy.
As we are aware, a vacancy may be permanent or temporary, and therefore if the services of a member of a Tribunal are temporarily placed at the disposal of another department of the Government for performing special work, such a case will be covered by the section.
This must necessarily be so, if the nature of the duties which the member is called upon to discharge is such as to necessitate that particular member severing himself completely from the Tribunal during the (1) 406 period in which he holds his new office.
I find it diffi cult to hold that the section was meant to apply only to a permanent vacancy, and that no provision whatsoever was made for a temporary vacancy, which is by no means a matter of uncommon occurrence.
It should be noted that in sections 5 and 6 of the Act, the Legislature has been careful to use the words "vacancy in number" which are wide enough to include cases where, though there is a vacancy, the member ship does not cease.
It is common ground that in the present case, the services of Mr. Aiyar were not available to the Tribunal, while he was employed as a member of the Indo Pakistan Boundary Disputes Tribunal.
It is also not disputed that at the time his services were transferred, it was not known for what period his new duties would keep him away from the work of the Industrial Tribunal.
There can be no doubt therefore that there was a vacancy, which provided an occasion for the Government to exercise the discretion vested in it under section 8 of the Act.
At this stage it will be relevant to quote certain correspondence which passed between the chairman of the Tribunal and the Government soon after Mr. Aiyar ' left the Tribunal.
We find that on the 28th November, 1949, the chairman sent an express telegram to the Labour Ministry stating that in the absence of Mr. Aiyar objections had been raised to the remaining two members of the Tribunal continu ing the proceedings and urging the Ministry either to ap point a substitute or to intimate that the Tribunal could proceed with two members during Mr. Aiyar 's absence.
To this, the Government sent the following reply: "Reference your telegram twenty eighth stop Govern ment advised that rule twelve is inconsistent with section eight stop rule twelve being deleted through notification stop Government advised Tribunal can continue proceedings with remaining two members stop no formal order or notifica tion necessary stop Government may fill vacancy later date.
" 407 These two telegrams indicate that both the chairman of the Tribunal and the Government took the view that in the circumstances of the case, there was a vacancy within the terms of section 8, that under that section it was open to the Government either to make an appointment to fill the vacancy or not to make an appointment, and that the proceed ings before the Tribunal could continue even if the vacancy was not filled.
This is quite clear from the concluding words (which I have underlined) of the telegram sent by the Government to the chairman of the Tribunal.
In my judgment, the view taken by the chairman of the Tribunal and the Government was perfectly correct.
The question involved here is twofold, namely, (1) whether section 8 applies to a temporary vacancy; and (2) whether, in case the Government decides not to fill such a vacancy, the proceedings can continue before the chairman and the remaining member.
I have already dealt with the first point, and the second point may also be now dealt with briefly.
In substance, what section 8 provides is that if the chairman goes out, the vacancy must be filled, but, if a member goes out, the Government may or may not fill the vacancy.
It seems to me to follow from this by necessary implication, that if there is a member 's vacancy and the Government decide not to fill it, the Tribunal will not become an imperfectly constituted Tribunal.
In other words, the proceedings can be continued before the Tribunal in spite of the vacancy.
The argument put forward before us on behalf on the appellants was that in the event of a member 's vacancy, either the Government should make an appointment at once or the work of the Tribu nal should be suspended until an appointment is made.
These inferences however do not appear to me to be war ranted by the words of the section, firstly because 'if the section says that the Government may or may not appoint a new member, how can we say that the Government must appoint him, and secondly because there is nothing in the section to show that the work of the Tribunal should remain suspended indefinitely in the situation with 408 which we have to deal.
A reference to the corresponding Acts in England and America will show that suspension of work is generally ruled out in cases of industrial disputes since they need expeditious settlement.
(See section 3 (b) of the National Labour Relations Act of America and section 3 of the Industrial Courts Act, 1919, of England).
The scheme of our appears to me to be the same, and I think that it will be entirely foreign to that scheme to suggest that the proceedings of the Tribunal should remain suspended indefinitely.
The principle that the pro ceedings may continue in spite of there being a vacancy in number, is expressly laid down in sections 5 and 6 of the Act which govern Boards of Conciliation and Courts of En quiry, and is in my opinion recognized by necessary implica tion in section 8 with reference to proceedings before an Industrial Tribunal.
It was strenuously argued before us that if the intention of the Legislature had been that the proceedings before the Tribunal should continue in spite of a vacancy, an express provision would have been made in section 8 in the same terms as it has been made in sections 5 and 6.
This argument however will not bear close examina tion.
Sections 5 and 6 have been reproduced from the Trade Disputes Act, 1929, without any verbal change whatsoever, and it is quite understandable that a provision dealing with the subject of a prescribed quorum should expressly state what would be the effect of the absence of the chairman or a member when the quorum is complete.
Section 8, on the other hand, has not been borrowed from the old Act, but is a completely new section in which its draftsman has used his own language and proceeded on the footing that if it was possible to convey the meaning intended to be conveyed in fewer words, there was no necessity for reproducing the entire phraseology used in sections 5 and 6.
Besides, in the context in which the provision occurs, there is no room for surmising that the intention of the framer of the section might have been to suspend the work of the Tribunal.
The words "the proceedings shall be continued 409 before the Board, Court or Tribunal so reconstituted", obviously refer to a situation which arises when anew chair man or a new member is appointed, but they also show that the framer of the section must have assumed that the pro ceedings before the Tribunal shall continue when there is a vacancy in number and the Government decides not to fill it.
The position we have now arrived at is this.
There was a vacancy of an indefinite duration and the Government decid ed, as it was competent for it to decide, not to fill it for the time being but to let the Tribunal continue the work.
In my judgment, in such circumstances, the proceedings before the chairman and the remaining member cannot be said to have been without jurisdiction.
The further question which now arises is, "what would be the legal effect of Mr. Aiyar rejoining the Tribunal on the 20th February, 1950?" It is contended on behalf of the appellants that the whole award is vitiated by Mr. Aiyar being brought into the Tribunal at a late stage, and the argument is put in the following way.
" The Government had originally appointed a Tribunal consisting of a members.
Granting that a Tribunal of a members can, under section 8 of the Act, become a Tribunal of 2, how can it again become a Tribunal of 3, without the Government acting in strict compliance with the procedure laid down in the section and without making a fresh appointment.
" The same argument was put a little more rhetorically by likening the proceedings before the Tribunal to a running train and enquiring whether it was permissible for one to "jump into and jump off" the train as one chose.
I must confess that though I have very carefully considered this argument I have not been able to appreciate its force.
In answering the argument, we have to bear in mind that the Legislature has conferred very large powers on the Government, and the entire constitution of the Tribunal as well as the appointment of its members have been left to its discretion.
Section 7 (2) provides that the Tribunal shall consist of such 410 number of members as the appropriate Government thinks fit.
Again, section 8 (1) provides that the Government may or may not appoint a member to fill a vacancy.
Under section 9, no order of the appropriate Government appointing any person as a member of a Tribunal shall be called in question in any manner.
Under section 38, for the purpose of giving effect to the provisions of the Act, the Government may make rules, and, as far as I can see, there is nothing to prevent the Government from making a rule fixing the minimum strength of the Tribunal for hearing any of the matters before it.
Thus, in a way, the Government is empowered to constitute as well as reconstitute the Tribunal, and though it is not expected to use the power arbitrarily, or unfairly the power is there.
Therefore looking at the substance of the matter, as opposed to mere technicalities and legal refinements, it appears to me to be a sufficient answer to the question posed on behalf of the appellants to say that, if the going out and coming in of Mr. Aiyar was under the orders of the Government, the proceedings cannot be held to be invalid.
Apart from this general answer, I shall now try to deal with the question a little more closely.
As I have already pointed out, under section 8, the Government is empowered not to fill a member 's vacancy at all.
Now, there appear to me at least two obvious reasons, which may induce the Gov ernment not to fill the vacancy, namely, (1) because it considers that the chairman and the remaining member or members are sufficient to carry on the work of the Tribunal, and (2) because the vacancy being a temporary one, it con siders it unnecessary to introduce a new member and prefers to await the return of the old member.
It seems to me that it was the latter alternative that commended itself to the Government in the present case.
Here, the vacancy being a temporary one, Mr. Aiyar had not ceased to be a member of the Tribunal, and could therefore rejoin it as soon as he was free from the duties of his new office.
In such an event, it was not necessary for the Government to 411 make any order reappointing him to the Tribunal.
He was still a member of the Tribunal and resumed his duties as such under the orders of the Government.
It will, therefore, be entirely wrong to describe him as an intermeddler and to argue that the proceeding was vitiated by his return to the Tribunal.
There is indeed no difficulty in the present case in holding that Mr. Aiyar joined the Tribunal under the orders of the Government, and we find that the Government ultimately declared the award, to which he was a party, to be binding under section 15 of the Act.
He was allowed to resume his duties as member of the Tribunal, and drew his salary as such from the 20th February, 1950, till the termination of the proceedings.
Such being the facts, it would be far too abrupt a conclusion to hold that the entire proceedings are void and the award is bad.
One of the arguments which has been advanced before us against the validity of the award is that Mr. Aiyar, though he did not participate in the proceedings which took place in his absence, was at least theoretically able to influence the decision of the remaining members who had participated in them.
But I do not see any basis for this argument in law, unless we allow our minds to be influenced by any precon ceived notions of strict judicial procedure followed in a regular court of law.
A perusal of section 8 (2) will show that the Act does not contemplate a ale novo hearing in those cases where a new member is appointed by the Govern ment in the place of a member whose services had ceased to be available.
The new member may join at any stage of the proceedings, and no party will be heard to say that a member who has not taken part in the earlier proceedings is able to influence the views of those who had participated in them.
How then can such an objection be raised in the case of Mr. Aiyar, who was familiar with the proceedings and had taken part in them in the earlier stages.
When we therefore examine the facts closely, we find that in substance nothing has happened in this case which could not have legitimately happened 412 under section 8 of the Act.
Even if we assume that it was necessary for the Government to make an appointment under sub section (1) of section 8, the requirements of the provi sion appear to me to have been substantially fulfilled in this case, because Mr. Aiyar could not have joined the Tribunal without giving notice to the Government and without obtaining its orders.
There can be no doubt that the Gov ernment permitted Mr. Aiyar to join the Tribunal, and I do not find any substantial difference between its directing a person to participate in the work of ?the Tribunal and appointing him as a member of that Tribunal.
Once therefore it is clearly understood that under the Act, the Government has been empowered not only to consti tute the Tribunal but also to reconstitute it under certain circumstances, the problem which is supposed to arise from the numerical changes in the composition of the Tribunal in question should not present any difficulty.
I think that the answer to that problem is to be found within the four corners of section 8.
If there is a vacancy within the terms of that section and the Government does not fill it the Tribunal of 3 members will evidently become a Tribunal of 2 members.
But the power of filling the vacancy being vested in the Government, the Tribunal may again become a Tribunal of a members, as soon as the vacancy is filled.
I think that the Government can take its own time in filling the vacancy and may allow the work of the Tribunal to go on in the meantime.
Sometimes, the filling of the vacancy may be delayed, because a suitable person is not at once available, and it may also be delayed for other conceivable reasons.
I do not see anything in the Act or in section 8 to restrict the powers of the Government in such a manner as to compel it either to fill the vacancy, at once or to let the vacancy remain unfilled for ever.
To import such a condition would be placing an undue restriction on the power of the Govern ment, which neither the provisions nor the scheme of the Act justify.
The section, as it stands, will also in my opinion cover 413 a case where the vacancy being a temporary one, the Govern ment chooses not to fill it but awaits the return of the old incumbent.
It was contended that there was no formal notification made at the proper time to furnish evidence of the decision arrived at by the Government.
In fact, however, a Notifica tion was issued by the Government on the 20th May, 1950, to the following effect: "After relinquishing charge of membership of the Indo Pakistan Boundary Dispute Tribunal, Sri N. Chandrasekhara Aiyar resumed charge of his duties as Member of the All India Industrial Tribunal (Bank Disputes) on the 20th Febru ary 1950 (forenoon).
" It is argued that this ex post facto notification cannot legalize an illegality which had already been committed.
I do not however appreciate this argument.
In the first place, there was no illegality committed; secondly, the section does not require any notification; and thirdly, it is not correct to say that the Notification was issued ex post facto, as the proceedings had not terminated but were still going on.
The Government can take its own time for issuing a Notification, and I am unable to hold that the Government did not act bona fide in making the Notification to which I have referred.
As I have already stated, the fact that Mr. Aiyar joined the Tribunal with the concurrence of the Government and the Government wanted him to continue to participate in the work of the Tribunal and paid him his salary on that basis, is sufficient compliance with the requirements of the Act.
How the absence of a formal order or delay in the Notification can have such a far reaching effect on the proceedings before the Tribunal as to make the whole award void as having been made without jurisdiction, is a matter which I find considerable difficulty in appreci ating.
It seems to me that the objections raised on behalf of the appellants are of the most unsubstantial character, and in the absence of any cogent if not compelling reason to do so, I cannot pursuade myself to hold that the work which has been 414 accomplished by the Tribunal after nearly a year 's delibera tions and peregrinations all over the country at considera ble cost to the public exchequer is so much money and labour thrown away.
In the course of the arguments, we were asked to read section 8 with sections 7 and 16.
I do not find anything in either of these sections which militates against the view which I have ventured to express, and I do not think that the provision contained in section 16 that the report of the Tribunal shall be signed by all the members of the Tribunal, means that it should be signed even by those members who had not taken part in the proceedings.
It really means that the award shall be signed by such members as have taken part in the proceedings and could have taken part in them under the Act.
It should be remembered that the provision is general and applies to the awards made by the Tribunals as well as the Boards and Courts, and it should be read with the provi sions contained in sections 5 and 6 which state that a Board or Court having the prescribed quorum may act notwithstand ing the absence of the chairman or any of its members or any vacancy in its number.
It may be that the Tribunal and the Government could have acted in this case with more care so as to avoid the criticisms directed against the proceedings of the Tribunal, but I find no sufficient ground for holding that the proceedings were without jurisdiction.
Reference was made in the course of the arguments to rules Nos. 5 and 12 framed by the Government under section 38 of the Act, which run as follows : "5.
The appointment of a Board, Court or Tribunal together with the names of persons constituting the Board, Court or Tribunal shall be notified in the official Gazette.
Where a Tribunal consists of two or more members, the Tribunal may, with the consent of the parties, act notwithstanding any casual vacancy in its number and no act, proceeding or determination of the Tribunal shall be called in question or invalidated by reason of any such vacancy.
" 415 These rules however have in my opinion no bearing on the point in dispute.
Rule 5, dealing as it does with the appointment of a Board, Court or Tribunal together with the names of persons constituting them, refers to a Notification which the Government has to make when a Board, Court or Tribunal is initially constituted under the Act.
This was done in this case, as will appear from the award itself.
The rule has no reference to the appointments made under section 8 of the Act to fill vacancies.
I take it that the Government will, as a matter of practice, issue a notifica tion in regard to the appointments made under section 8, but the notification will not be under rule 5, and section 8 itself does not expressly provide for issuing any notifica tion.
Nor is a notification necessary under section8 in cases where the Government decides not to fill a vacancy.
The mere fact that the word 'reconstituted ' occurs in sec tion 8, is not in my opinion enough to attract rule 5.
Rule 12 which was in force till the 5th December, 1950, dealt with a casual vacancy, and provided that on the occurrence of such a vacancy, the Tribunal may act with the consent of the parties.
This rule had nothing to do with the vacancy caused by the services of a chairman or a member ceasing to be available, which is dealt with in section 8.
At the first sight, it may appear that if the consent of parties was necessary in the case of a casual vacancy for continu ing the proceedings, it may also be necessary for continuing the proceedings under section 8 of the Act when no appoint ment is made.
In my opinion, however, no such inference can be drawn from rule 12.
Under that rule, the proceedings could go on without the Government being informed, but as to vacancies which occur under section 8, the matter passes into the hands of the Government and its action alone, one way or the other, legalizes the proceedings, and no question of consent of parties arises.
On the other hand, rule 12 lends support to the respondents ' contentions in two ways.
Firstly, it shows that a "vacancy" for the purposes of the proceedings before the Tribunal can be casual and 416 need not always be a permanent one, as suggested on behalf of the appellants; and secondly, what is more important, that a "vacancy" does not affect the jurisdiction of the remaining members to continue the proceedings, for it is settled law that consent cannot give jurisdiction in respect of a subject matter though it might cure a mere irregulari ty.
It was said that rule 12 was ultra vires, but it appears to me to be unnecessary to inquire into this side issue.
For the reasons I have set out, I respectfully differ from the conclusion arrived at by my Lord the Chief Justice and the majority of my colleagues, and hold that the objec tions raised on behalf of the appellants should be over ruled.
PATANJALI SASTRI J.
I agree with the reasoning and conclusion of my learned brother Fazl Ali whose judgment I have had the advantage of reading.
He has said all I wished to say and has said it so well that I have nothing to add.
MUKHERJEA, J. I concur in the decision of my learned brother Fazl Ali, J. that the award of the All India Indus trial Tribunal (Bank Disputes) dated the 31st July, 1950, could not be held to be illegal and inoperative by reason of any lack of jurisdiction in the Tribunal which made it.
However, as the line of reasoning by which I have reached my conclusion is not the same as that adopted by my learned brother and as I have not been able to agree with him as regards the validity of certain earlier awards which the Tribunal purported to make in the months of January and February 1950, I deem it necessary and proper to express my own views on the subject matter of controversy in these appeals as succinctly as possible in a separate judgment.
The only point that has been canvassed before us at this stage of the hearing of the appeals relates to the question of jurisdiction, and the substantial ground upon which the legality of the awards has been assailed by the learned Counsel appearing for the several 417 Banks is that the awards were not made by a Tribunal proper ly constituted and competent to adjudicate upon industrial disputes under the terms of the .
To appreciate the arguments that have been raised by the re spective parties on this point, it would be necessary to state a few facts.
By a notification dated the 13th of June, 1949, the Central Government in exercise of the powers conferred upon it by section 7 of the , con stituted an Industrial Tribunal consisting of three members to wit: (1) Mr. K.C. Sen, (who was appointed chairman of the Tribunal), (2) Mr. S.P. Verma and (3)
J.N. Mazumdar.
By a further Notification dated August 24, 1949, Mr. N. Chan drasekhara Aiyar was appointed a member of the Tribunal in place of Mr. S.P. Verma whose services ceased to be avail able and the Tribunal so reconstituted was designated "The All India Industrial Tribunal (Bank Disputes) .
" The Tribu nal consisting of the chairman and the two members mentioned aforesaid commenced their sittings at Bombay on September 12, 1949, and continued to sit as so constituted at Bombay and various other places since then.
From the afternoon of 23rd September, 1949, the services of Mr. N. Chandrasekhara Aiyar were placed temporarily at the disposal of the Minis try of External Affairs, he being appointed a member of the Indo Pakistan Boundary Tribunal.
Mr. Aiyar 's work in connec tion with the Indo Pakistan Boundary Tribunal ended on 27th or January, 1950, and a Government Notification shows that he was absent on leave from 28th January, 1950, until the 19th of February following and it is on the 20th February, 1950, that he actually resumed his duties as a member of the Industrial Tribunal.
During the entire period of his ab sence there were various sittings of the Industrial Tribunal in which the two remaining members took part and a number of awards were also made and signed by these two members adjudicating upon several items of dispute concerning cer tain Banks.
It may be mentioned here that in exercise of the powers 418 conferred by section 38 of the , certain rules were framed by the Central Government which came into force on 3rd December, 1949, and under which the Tribunal, as constituted by the Notification of 13th June, 1949, was authorised to entrust such cases or matters re ferred to it, as it deemed fit, to one or more members for enquiry and report.
In case of such entrustment, the report of the enquiring member was to be placed before the chairman of the Tribunal and the Tribunal after considering the report and making such further enquiry as it deemed proper could deliver the award.
Purporting to act in pursuance of these rules a large number of matters pending before the Tribunal were divided amongst the members for enquiry and report and the members of the Tribunal did sit separately at different places from the 3rd of December, 1949.
After Mr. Aiyar joined the Tribunal, the proceedings continued as before.
The hearing of the general issues, which began at Bombay, was concluded on 3rd April, 1950.
The Tribunal made and signed the main, award on gist July, 1950, which was published in the Gazette of India (Extraordinary) on August 12, 1950.
The point that has been pressed for our consideration on behalf of the appellants Banks is that on the services of Mr. Aiyar having ceased to be available by reason of his being appointed a member of the Indo Pakistan Boundary Tribunal, the remaining two members could not, in law, constitute an Industrial Tribunal without its being reconstituted as such in, the manner contemplated by the provisions of the .
The proceedings after the 23rd of November, 1949, became, therefore, void and inoperative and the subsequent rejoining of the Tribunal by Mr. Aiyar was of no avail, as a vacancy having once occurred, a fresh appointment of a member and a fresh con stitution of the Tribunal were imperative in law.
We have been asked to declare the award made on 31st of July, 1950, as well as the earlier awards void and inoperative on these grounds.
419 These contentions have been sought to be repelled on behalf of the respondents employees as well as by the learned Attorney General who appeared for the Central Gov ernment as intervener, on a variety of grounds and though the grounds are not quite uniform or consistent, they have all been invoked in support of the position that even in the absence of Mr. Aiyar it was quite competent to the two other members to continue to function legally as a Tribunal under the provisions and the general scheme of the Industri al Disputes Act, 1947.
There was nothing irregular, it is said, in Mr. Aiyar 's subsequently taking part in the Tribu nal and signing the award on 31st July, 1949.
I will notice these arguments in detail as I proceed with my judgment.
It will be convenient first of all to advert to such of the provisions of the , as have a bearing on the questions raised in this case.
The object of the , as set out in the preamble is "to make provisions for investigation and settlement of industrial disputes and for certain other purposes hereinafter appearing.
" There are three classes of authorities provided for by the Act ' which are entrusted with the powers and duties of investigation and settlement of industrial disputes.
First of all, there are Conciliation Officers or Boards of Conciliation, whose duties mainly are to induce the parties to come to a fair and amicable settle ment of the disputes amongst themselves.
Secondly, there are Courts of Enquiry and though they are described as courts, their duties end with investigation into the matters referred to them and submitting reports thereon to the appropriate Government.
Lastly, there are Industrial Tribu nals composed of independent persons who either are or had been Judges of the High Court or District Judges, or are qualified for appointment as High Court Judges.
Sub section (2) of section 5 provides for the constitu tion of a Board of Conciliation.
A Board of Conciliation shall consist of a chairman and two or four other members as the appropriate Government thinks 420 fit, and sub section (8) provides that the chairman shall be an independent person, while the members shall be persons appointed in equal numbers by the parties to the dispute.
Sub section (4) makes an important provision, namely, that a Board can function despite the absence of the chairman or any of the members if it has the prescribed quorum as laid down in the rules, provided however that if the Government notifies the Board that the services of the chairman or of any other member have ceased to be available, the Board shall not act unless a new chairman or member, as the case may be, has been appointed.
Section 6 of the Act relates to Courts of Enquiry and such court may consist of one independent person or such number of independent persons as the appropriate Government may think fit.
Where a Court of Enquiry consists of two or more members, one of them has got to be appointed as a chairman.
The Court like the Board of Conciliation can function in the absence of the chairman or any of its mem bers or in the case of any vacancy in its number, provided it has the prescribed quorum; but it cannot function if the appropriate Government notifies it that the services of the chairman have ceased to be available, so long as a new chairman is not appointed.
There is no provision in section 6 relating to notification by Government in case the serv ices of a member of a Court cease to be available as there is in the case of a member of the Conciliation Board under section 5.
Section 7 deals with Industrial Tribunals.
Sub section (1) lays down that the appropriate Government may constitute one or more Industrial Tribunals for the adjudication of industrial disputes in accordance with the provisions of this Act.
Sub section (2) provides that a Tribunal shall consist of such number of members as the appropriate Govern ment thinks fit.
Where the Tribunal consists of two or more members, one of them shall be appointed a chairman.
There is no provision in section 7 similar to that appearing in sections 5 and 6 empowering a Tribunal to continue its proceedings in the absence of the chairman 421 or any of its members, provided there is a requisite quorum; in fact, no quorum has been prescribed in the rules in regard to an Industrial Tribunal at all.
It is clear, there fore, from the provisions of section 7 of the referred to above and this position has not been disputed by Mr. De who appeared for the employees of some of the Barks that if a Tribunal has been constituted as consisting of three members as in the present case, then subject to any exception that may be created by any other provision of the Act all the three members of the Tribunal must act together.
On behalf of the respondents very great stress has been laid upon section 8 of the , and it is contended that in the circumstances which have happened in the present case, the provision of section 8 would fur nish a clear authority to the two remaining members to continue as a legally constituted Tribunal during the period that the services of Mr. Aiyar ceased to be available, even though there was neither a fresh appointment in his place nor a fresh constitution of the Tribunal.
Section 8 is in the following terms: "(1) If the services of the chairman of a Board or of the chairman or other member of a Court or Tribunal cease to be available at any time, the appropriate Government shall, in the case of a chairman, and may in the case of any other member, appoint another independent person to fill the vacancy, and the proceedings shall be continued before the Board, Court or Tribunal so reconstituted.
(2) Where a Court or Tribunal consists of one person only and his services cease to be available, the appropriate Government shall appoint another independent person in his place, and the proceedings shall be continued before the person so appointed.
(3) Where the services of any member of a Board other than the chairman have ceased to be available, the appropri ate Government shall appoint in the manner specified in sub section (3) of section 5 another 422 person to take his place, and the proceedings shall be continued before the Board so reconstituted.
" The section purports to provide for filling up vacan cies.
Sub section (2) is not material for our present purpose.
Taking sub sections (1) and (3) together we find that if the services of the chairman of a Board, a Court or a Tribunal cease to be available at any time, it is incum bent upon the appropriate Government in each case to fill the vacancy by the appointment of another independent person as chairman and the proceedings shall be continued before the authorities so reconstituted and they would not have to be commenced de novo.
In case the services of a member of either a Court or a Tribunal cease to be available, it is discretionary with the appropriate Government to fill the vacancy or not as it chooses.
If it chooses to appoint a new member in place of the old, the same provision will apply as in the case of appointment of a new chairman.
The section does not say, at least in express terms, as to what would happen if the Government does not think it proper to appoint a new member.
So far as a Board of Conciliation is con cerned, a different provision is made even when the services of a member cease to be available.
In such a case, re ap pointment has got to be made as provided for in subsection (a) of section 5 and the reasons are obvious; because the essential thing in a Board of Conciliation is the equal representation of both parties to the dispute and the par ties would be unequally represented if the vacancy of a member is not filled up.
In the present case one of the members of the Tribunal namely, Mr. Aiyar, was admittedly absent for a period of above three months and as he was appointed to do duties in another capacity, his services could not possibly be avail able during the period that he was engaged elsewhere.
This fact, it appears, was brought to the notice of the appropri ate Government by the other two members, but the Government decided not to make any new appointment in his place.
The question is, what exactly became the legal position of the other two members ? Could they function 423 as a Tribunal in the absence of the third member and without the Government reconstituting the Tribunal as a Tribunal of two ? The contention of the respondents is that as section 8 of the gives an option to the appropriate Government to fill the vacancy or not, as it chooses, when the services of a member cease to be available and as it provides for reconstitution only when a new member is appointed by the Government, it is implicit in the provi sion of the section itself that in case the Government does not decide to appoint a new member, the remaining members would automatically constitute the Tribunal and would proceed as such.
It is said that the Industrial Tribunals are really administrative bodies and as the very object of establishing such Tribunals is to settle industrial disputes as quickly and as expeditiously as possible with a view to secure industrial peace, certain amount of laxity in the procedure cannot but be allowed to these Tribunals as ap pears from the various provisions of the Act and it would defeat the very object of the enactment if the normal rules of law and procedure are made applicable to them.
It is suggested further that what section 7 (1) contemplates is the constitution of a Tribunal irrespective of its members for adjudication of industrial disputes.
What number of persons the Tribunal shall consist of can be determined by the Government at different times and in different manner and no question of fresh constitution of a Tribunal would arise in case the number is subsequently altered.
So far as an Industrial Tribunal is concerned, section 8 (1) of the comes into operation when the services of the chairman of the Tribunal or of any member thereof cease to be available at any time.
This non availability of services may be permanent or temporary and may be occasioned by any cause or circumstance.
When the services of a member cease to be available, the appropriate Government has got to make up its mind whether it would fill the vacancy or not; and in case it chooses to appoint a new member, the Tribunal must be deemed 424 to be reconstituted within the meaning of section 8, the primary object of which is to provide that the proceedings shall be continued before such reconstituted Tribunal from the stage at which they were left and they would not have to be started afresh.
Thus it follows from the language of section 8 that the reconstitution spoken of or contemplated by the section is reconstitution by reason of the appoint ment of a new member in place of the old.
There is no question so far as section 8 is concerned of reconstitution of the Tribunal when the Government chooses not to fill the vacancy.
The point that is stressed on behalf of the respondents is that as section 8 does not provide for reconstitution of the Tribunal when no new appointment of a member is made, the implication must necessarily be that the remaining members would continue to act as a Tribunal and no further order or notification by the Government is necessary.
The argument seems plausible at first sight but an examination of the material provisions of the Act reveals the difficul ties, and those of a formidable character, in the way of accepting this contention as sound.
As has been pointed out already, there is a marked distinction between the provisions of sections 5 and 6 of the on the one hand and those of section 7 on the other.
Sections 5 and 6 expressly empower a Board of Conciliation and a Court of Enquiry to exercise their functions in the absence of any of the members, pro vided the prescribed quorum is present; but such provision has been deliberately omitted from section 7 and nothing has been prescribed either in the Act or in the rules in regard to any quorum for the members of the Tribunal.
It cannot be argued that no quorum has been laid down in the case of a Tribunal, as it can consist of one member only.
The position of a Court of Enquiry, it seems, is precisely the same so far as this point is concerned and yet there is a rule prescribing a quorum for members of a Court.
Having regard to the language of section 7 which admittedly contemplates that the members of 425 a Tribunal must act all together, it would, in my opinion, be a perfectly legitimate view to take that if the legisla ture did intend to make an exception to this rule, it would have done so in clear terms instead of leaving it to be gathered inferentially from the provision of another section which itself is not couched ' in unambiguous lan guage.
An Industrial Tribunal can be constituted only in ac cordance with the provisions of section 7 of the and unless a Tribunal is properly constituted, it cannot be invested with jurisdiction to adjudicate on industrial disputes.
Under sub section (2) of section 7, the number of members constituting the Tribunal has got to be determined by appropriate Government and that is an integral part of the Tribunal itself.
A change in the number of members of a Tribunal could be made therefore only in pursu ance of the provision contained in sub section (2) of sec tion 7.
As section 8 does not lay down that in case the services of a member of the Tribunal cease to be available and the Government does not choose to make a new appointment in his place, the remaining members should continue to form the Tribunal, the constitution or 'reconstitution of the remaining members as a Tribunal should, in my opinion, be made only under section 7 of the Act.
I am not impressed by the argument of Mr. De that a Tribunal is to be conceived of as an entity different from the members of which it is composed and whatever changes might occur in the composition of the Tribunal, the identity of the Tribunal remains intact.
A distinction undoubtedly exists between the court and the judge who presides over it but if the constitution of the court requires that it is to be composed of a certain number of judges, obviously a lesser number could not perform the functions of the court.
Mr. De also argued that the very object of the Industri al Disputes Act is to ensure a speedy and quick determina tion of industrial disputes and section 426 15 of the Act expressly lays down that the Tribunal shall hold its proceedings expeditiously and shall, as soon as practicable, on the conclusion thereof, submit its award to the appropriate Government.
This object, it is said, would be frustrated if the strict rules of ordinary law are ex tended to the proceedings of an Industrial Tribunal.
It is quite true that a quasi judicial tribunal enjoys greater flexibility and freedom from the strict rules of law and procedure than an ordinary court of law, but however much informality and celerity might be considered to be desirable in regard to the proceedings of an Industrial Tribunal, it is absolutely necessary that the Tribunal must be properly constituted in accordance with requirements of law before it is allowed to function at all.
I fail to see further how the issuing of a formal notification under section 7 of the Act could delay the proceedings of the Tribunal or hamper expeditious settlement of the disputes.
Section 16 of the makes the impera tive provision that the award of a Tribunal shall be in writing and shall be signed by all the members.
So long as there is no change or alteration in the original notifica tion which constituted the Tribunal, the expression "all the members" must mean and refer to all the members whose names appear in this notification and, unless all of them sign the award, it would not be a valid or operative award in law.
Our attention was drawn in course of the arguments to rule 12 of the rules framed by the Central Government in exercise of its powers under section 38 of the .
This rule, it is to be noted, was deleted with effect from 6th of December 1949.
As it stood originally, it was worded as follows : "Where a Tribunal consists of two or more members the Tribunal may with the consent of the parties act notwith standing any casual vacancy in its number and no act, proceeding or determination of the Tribunal shall be called in question or invalidated by reason of any such vacancy.
" 427 It has been contended on behalf of the appellants that this rule was ultra vires of the authority which passed it.
It is not necessary for us for purposes of the present case to discuss this matter.
Assuming the rule to be valid, it certainly does not assist the respondents in any way, as there is no suggestion in this case that during the absence of Mr. Chandrasekhara Aiyar the proceedings continued before the remaining two members with the consent of both parties.
On the other hand, the provision in the rule certainly goes against the broad contention that the respondents wanted to raise upon the language of section 8.
In my opinion, as there was no notification by the appropriate Government under section 7 of the constituting the two members a Tribunal under the Act during the absence of Mr. Chandrasekhara Aiyar, the proceedings before these two members were void and inoperative and the award made and signed by them only during this period must be held to be void.
I do not think however that it should be held that the Tribunal was not a properly constituted authority or lacked jurisdiction to exercise its function when Mr. Aiyar re sumed his duties on 20th of February, 1950.
As I have said already, what is necessary for due constitution of an Indus trial Tribunal is a notification or order by the appropriate Government under section 7 of the and the number and names of the members as given in the notification form an essential or integral part of the Tribunal thus constituted.
If the services of one of the members cease to be available at any time as is contemplated by section 8 and the appropriate Government does not choose to appoint another member in his place, one or other of two consequences may follow.
The Government may, by afresh notification under section 7, constitute a Tribunal with the remaining members or in any other way it likes or it may not take any steps at all and allow the original notification to remain.
It can certainly be assumed that the Government will choose the latter alternative only 428 when it thinks that the vacancy is only for a short period and is not likely to continue long.
In such circumstances, as I have already indicated, the true position is that the remaining members cannot function as a Tribunal and all the proceedings must be held to remain in abeyance till the absent member rejoins his duties.
But I do not see any reason why there should be a fresh notification and a fresh constitution of the Tribunal when the absent member returns.
The original notification is still there unaltered and unamended and not affected in any way by any subsequent notification; and by virtue of this notification alone, the three members would be competent to sit as a Tribunal and discharge its duties.
The fact that the services of one of them were not available at a time would not make the origi nal notification null and void.
The only effect of the absence of a member would be that the remaining members would not be competent to continue the proceedings;but this disability would cease as soon as the services of the absent member become available and a Tribunal as constituted by the notification is ready and able to function.
The appellant 's contention seems to be that once a vacancy has occurred, the Tribunal becomes imperfectly constituted and a fresh constitution is necessary.
I do not think that this position is sound.
As I have said already, the non availability of the services of a member may be permanent or purely temporary and may be due to various causes.
The word "vacancy" has no technical meaning.
As will appear from a reference to the Oxford Dictionary, the word "vacancy" is ordinarily used in the sense of a "temporary freedom or cessation from a business or occupation" If the absence of a member was merely tempo rary, the vacancy would mean nothing else but an interval or period during which a particular office remained unoccu pied.
The question of a fresh appointment might arise if the vacancy was actually filled up; but, as has happened in the present case, if the vacancy is not filled up but is allowed to remain, it would automatically come to an end 429 as soon as the member whose absence caused the vacancy comes back and rejoins the office.
It may be desirable in the interests of the public to issue a notice or make some announcement in regard to the resumption of duties by the absent member, but in my opinion no reconstitution of the Tribunal with the self same members is called for or neces sary under the provisions of the .
It is pointed out that cases may be conceived of where the non availability of the services of a member is due to death, lunacy or some such circumstance; but in such cases there could be no question of the man 's coming back and joining his office, and as I have said already under section 16 of the no award would be valid unless all the members whose names appeared in the notifica tion signed it.
This would be impossible in the case of death, lunacy or some other disablement of that character.
It will be seen that in the Government Notification No. LR 60 (47) dated 20th March, 1950, it was expressly stated that the services of Shri N. Chandrasekhara Aiyar, Member of the All India Industrial Tribunal (Bank Disputes), were temporarily placed at the disposal of the Ministry of Exter nal Affairs with effect from 23rd November, 1949, (after noon).
Mr. Aiyar 's new duties continued till 27th January, 1950.
As soon as this work was over, he was regarded as coming back to his office as a member of the All India Industrial Tribunal and he was allowed leave in that capaci ty by the Ministry of Labour from 28th January, 1950.
to 19th February, 1950, (vide Notification No. LR 60 (73) dated 16th September, 1950.) By another Government notification (being Notification No. LR 60 (47) dated 29th May, 1950), it was declared that Shri Chandrasekhara Aiyar resumed charge of his duties as member of the All India Industrial Tribunal on the 20th, February, 1950, (forenoon).
It is true that these notifications were issued much after the time when Mr. Aiyar actually resumed his duties, but as they are not notifications under section 7 of the , and cannot constitute 480 a condition precedent to investing the Tribunal with juris diction under the law, the delay in the actual publication of the notices is really immaterial.
They are relevant only for the purpose of showing what the state of affairs really was.
In my opinion, therefore, the Tribunal was a properly constituted authority on and from the 20th February, 1950, and as the award dated 31st July, 1950, was signed by all the three members appointed under the notification dated 24th August, 1949, no objection is legally sustainable that the award was made without any jurisdiction.
A question may be raised that as the hearing of the general issues before the Tribunal commenced at a time when Mr. Aiyar was absent and he had not the opportunity of being present all through the proceedings when arguments of both sides were advanced, there has been an irregularity or illegality in the procedure which vitiates the whole award.
A decision on this point would require investigation of various matters which have not been placed before us at the present stage by the learned Counsel appearing for the appellants Banks; and I would refrain from expressing any opinion upon it.
My conclusion is that the award dated the 31st of July is not void by reason of any lack of jurisdic tion in the Tribunal which made it.
I am, however, of the opinion that the other awards which were made during the absence of Mr. Chandrasekhara Aiyar or which were not signed by him must be held to be without jurisdiction.
Awards declared void.
Agent for the appellants in Civil Appeals Nos, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 & 49: Rajender Na rain.
Agent for the appellants in Civil Appeals Nos. 48 and 50; Ranbir Sawhney.
Agent for the appellant in Civil Appeal No. 47: Ganpat Rai.
Agent for the Inter vener P.A. Mehta.
| IN-Abs | The Central Government constituted an Industrial Tribu nal under the , consisting of A, B, and C 381 for deciding certain disputes and the Tribunal commenced its sittings in September, 1949.
On the 23rd November, 1949, the services of C were placed at the disposal of the Minis try of External Affairs as a member of the Indo Pakistan Boundary Disputes Tribunal, and the two remaining members, after an objection raised by one side, continued to sit and hear the disputes.
On the 20th February, 1950, C returned from the Boundary Disputes Tribunal and began to sit again with the other two members and hear the further proceedings in the case of disputes which were part heard and not finally decided on that date.
On the 20th May, 1950, the Government issued a notification that C had" resumed charge of his duties as a member of the All India Industrial Tribu nal".
Some awards were made by A and B before the 20th February, 1950, and some awards were made after that date by A, B and C together.
Held, per KANIA, C.J., MEHR CHAND MAHAJAN, DAS and Bose JJ.
(FAZL ALI and PATANJALI SASTRI JJ.
dissenting) : (i) when C was appointed as a member of the Boundary Disputes Tribunal, his services "ceased to be available" and there arose "a vacancy" within the meaning of Sec. 8 of the ; (ii) under the said section read with Rule 5 of the Industrial Disputes Rules, when a vacancy occurred it was obligatory on the Government to notify its decision as to whether it intended to fill up the vacancy or not, and if the Government decided not to fill up the vacancy, a notifi cation under Sec. 7 of the Act was essential to constitute the remaining members a Tribunal inasmuch as a Tribunal of three members is a different Tribunal altogether from a Tribunal consisting of two of them only; (iii) neither the fact that C began to sit again along with the two other members from the 20th.
February, 1950, nor the notification of the 20th May, 1950, stating that C had "resumed charge of his duties as a member" of that Tribunal could be treated as an appointment to the vacancy created on C 's appointment as a member of the Boundary Disputes Tribunal; (iv) awards made by A and B after the services of C ceased to be available, and awards made after the 20th February, 1950, by A, B and C were not made by a Tribunal duly constituted under the Act and were void; (v) since the two remaining members were not a duly constituted Tribunal and the duty to work and decide was the joint responsibility of all the three members who originally constituted the Tribunal, the matter was one 01 absence of jurisdiction and not a mere irregularity in the conduct of proceedings, and the defect could not be cured by acquies cence or estoppel.
382 Per FAZL ALI and PATANJALI SASTRI JJ.
(contra) There was a 'vacancy ' within the meaning of Sec. 8 of the Act when the services of C were placed at the disposal of the Bound ary Disputes Tribunal, which provided an occasion for the Government to exercise the discretion vested in it under Sec. 8 of the Act to fill up the vacancy or not.
The fact that the Government decided not to fill up the vacancy, could not render the Tribunal an imperfectly constituted Tribunal, and the proceedings could validly be continued before the Tribunal in spite of the vacancy.
Further, since the vacancy was a temporary one and was not filled up, C did not cease to be a member of the Tribunal and could therefore rejoin it as soon as he was free from the duties of his new office.
Even if it be assumed that it was necessary for the Government to make an appointment under Sec. 8 (1), the requirements of that section were complied with, when C joined under the orders of the Government and that fact was also notified by the Government on the 20th May, 1950.
Rule 5 of the Industrial Disputes Rules applies only when a Tribunal is initially constituted.
It does not apply to appointments to fill vacancies.
Per MUKHERJEA J. An Industrial Tribunal can be consti tuted only in accordance with the provisions of Sec. 7 of the and unless a Tribunal is proper ly constituted, it cannot be invested with jurisdiction to adjudicate on industrial disputes.
Under sub sec.
(2) of Sec. 7, the number of members constituting the Tribunal has to be determined by the appropriate Government and a change in the number of members could be made therefore only in pursuance of the provision contained in that sub section.
As Sec. 8 does not lay down that, in case the services of a. member of the Tribunal cease to be available and the Govern ment does not choose to make a new appointment in his place, the remaining members should continue to form the 'tribunal, the constitution or reconstitution of the remaining members as a Tribunal could be made only under Sec. 7 of the Act and as there was n9 notification by the appropriate Government under Sec. 7 constituting the two remaining members a Tribu nal under the Act during the absence of C, the proceedings before these two members and the awards made and signed by them only during C 's absence were void.
But, there was no necessity for a fresh notification and a fresh constitution of the Tribunal when the absent member returned as the original notification was still there unaltered and unamend ed, and by virtue of this notification alone, the three members would be competent to sit as a Tribunal and dis charge its duties.
The Tribunal was thefore, properly constituted from the 20th February, 1950, and the awards made by all the three members after that date were not void for want of jurisdiction in the Tribunal.
|
Appeal No. 250 of 1953, Appeal from the judgment and decree dated July 14, 1948 of the Chief Court of Audh, Lucknow in Second Appeal No. 365 of 1945 arising out of the decree dated May 30, 1945 of the Court of District Judge, Sitapur in Appeal No. 4 of 1945 against the decree dated November 25, 1944 of the Court of Additional Civil Judge, Sitapur in Regular Civil Suit No. 14 of 1944.
A. D. Mathur, for the appellant.
Jagdish, Chandra, for respondent No. 1. 758 1956.
October 4.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The point for decision in this appeal is whether a Thakurdwara of Sri Radhakrishnaji in the village of Bhadesia in the District of Sitapur is a private temple or a public one in which all the Hindus are entitled to worship.
One Sheo Ghulam, a pious Hindu and a resident of the said village, had the Thakurdwara constructed during the years 1914 1916, and the idol of Shri Radhakrishnaji ceremoniously installed therein.
He was himself in management of the temple and its affairs till 1928 when he died without any issue.
On March 6, 1919, he had executed a will whereby he bequeathed all his lands to the Thakur.
The provisions of the will, in so far as they are material, will presently be referred to.
The testator had two wives one of whom Ram Kuar, had predeceased him and the surviving widow, Raj Kuar, succeeded him as Mutawalli in terms of the will and was in management.
till her death in 1933.
Then the first defendant who is the nephew of Sheo Ghulam, got into posses sion of the properties as manager of the endowment in accordance with the provisions of the will.
The appellant is a distant agnate of Sheo Ghulam, and on the allegation that the first defendant bad been mismanaging the temple and denyinng the rightg of the public therein, he moved the District Court of Sitapur for relief under the Religious and Charitable Endowments Act XIV of 1920, but the court declined to interfere on the ground that the endowment was private.
An application to the Advocate General for sanction to institute a suit under section '92 of the Code of Civil Procedure was also refused for the same reason.
The appellant then filed the suit, out of which the present appeal arises, for a declaration that the Thakurdwara is a public temple in which all the Hindus have a right to worship.
The first defendant contested the suit, and claimed that "the Thakurdwara an d the idols were private", and that "the general public had no right to make any interference".
759 The Additional Civil Judge, Sitapur, who tried the suit was of the opinion that the Thakurdwara had been built by Sheo Ghulam "for worship by his family", and that it was a private temple.
He accordingly dismissed the suit.
This judgment was affirmed on appeal by the District Judge, Sitapur, whose decision again was affirmed by the Chief Court of Oudh in second appeal.
The learned Judges, however, granted a ' certificate under section 109(c) of the Code of Civil Procedure that the question involved was one of great importance, and that is how the appeal comes before Us.
The question that arises for decision in this appeal whether the Thakurdwara of Sri Radhakrishnaji at Bhadesia is a public endowment or a private one is one of mixed law and fact.
In Lakshmidhar Misra vs Rang alal(1), in which the question was whether certain lands had been dedicated as cremation ground, it was observed by the Privy Council that it was "essentially a mixed question of law and fact", and that while the findings of fact of the lower appellate court must be accepted as binding, its "actual conclusion that there has been a dedication or lost grant is more properly regarded as a proposition of law derived from those facts than as a finding of fact itself".
In the present case, it was admitted that there was a formal dedication; and the controversy is only as to the scope of the dedication, and that is also a mixed question of law and fact, the decision of which must depend on the application of legal concepts of a public and a private endowment to the facts found, and that is open to consideration in this appeal.
It will be convenient first to consider the principles of law applicable to a determination of the question whether an endowment is public or private, and then to examine, in the light of those principles, the facts found or established.
The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof.
While in the former the beneficiaries are persons who are (1) [1949] L.R. 76 I.A. 271.
761 laid down in the Sanskrit Texts.
Thus, in his Bhashya on the Purva Mimamsa, Adhyaya 9, Pada 1, Sahara Swami has the following: "Words such as 'village of the Gods 'land of the Gods ' are used in a figurative sense.
That is property which can be said to belong to a person, which he can make use of as he desires.
God however does not make use of the village or lands, according to its desires.
Therefore nobody makes a gift (to Gods).
Whatever property is abandoned for Gods, brings prosperity to those who serve Gods".
Likewise, Medhathithi in commenting on the expression "Devaswam" in Manu, Chapter XI, Verse 26 writes: "Property of the Gods, Devaswam, means whatever is abandoned for Gods, for purposes of sacrifice and the like, because ownership in the primary sense, as showing the relationship between the owner and the property owned, is impossible of application to Gods.
For the Gods do not make use of the property according to their desire nor are they seen ' to act for protecting the same".
Thus, according to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gainartha), and the true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship.
762 In Bhupati Nath Smritititha vs Ram Lal Maitra(1), it was held on a consideration of these and other texts that a gift to an idol was not to be judged by the rules applicable to a transfer to a 'sentient being ', and that dedication of properties to an idol consisted in the abandonment by the owner of his dominion over them for the purpose of their being appropriated for the purposes which he intends.
Thus, it was observed by Sir Lawrence Jenkins C. J. at p. 138 that "the pious purpose is still the legate, the establishment of the image is merely the mode in which the pious purpose is to be effected" and that "the dedication to a deity" may be "a compendious expression of the pious purposes for which the dedication is designed".
Vide also the observations of Sir Ashutosh Mookerjee at p. 155.
In Hindu Religious Endowments Board vs Yeeraraghavachariar(2), Varadachariar J. dealing with this question, referred to the decision in Bhupati Nath Smrititirtha vs Ram Lal Maitra (supra) and observed: "As explained in that case, the purpose of making a gift to a temple is not to confer a benefit on God but to confer a benefit on those who worship in that temple, by making it possible for them to have the worship conducted in a proper and impressive manner.
This is the sense in which a temple and its endowments are regarded as a public trust".
When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty.
The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof.
In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, (1) Cal.
(2) A.I.R. 1937 Macl.
763 and that is an ascertained group of individuals.
But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.
In the light of these principles, we must examine the facts of this case.
The materials bearing on the question whether the Thakurdwara is a public temple or a private one may be considered under four heads:(1) the will of Sheo Ghulam, Exhibit A 1, (2) user of the temple by the public, (3) ceremonies relating to the dedication of the Thakurdwara and the installation of the idol with special reference to Sankalpa and Uthsarga, and (4) other facts relating to the character of the temple.
(1) The will, Exhibit A 1, is the most important evidence on record as to the intention of the testator and the scope of the dedication.
Its provisions, so far as they are material, may now be noticed.
The will begins with the recital that the testator has two wives and no male issue, that he has constructed a Thakurdwara and installed the idol of Sri Radhakrishnaji therein, and that he is making a disposition of the properties with a view to avoid disputes.
Clause I of Exhibit A 1 provides that after the death of the testator "in the absence of male issue, the entire immovable property given below existing at present or which may come into being hereafter shall stand endowed in the name of Sri Radhakrisbnan, and mutation of names shall be effected in favour of Sri Radhakrishnan in the Government papers and my wives Mst.
Raj Kuer and Mst.
Ram kuer shall be the Muta wallis of the waqf".
Half the income from the properties is to be taken by the two wives for their maintenance during their lifetime, and the remaining half was to "continue to be spent for the expenses of the Thakurdwara".
It is implicit in this provision that after the lifetime of the wives, the whole of the income is to be utilised for the purpose of the Thakurdwara.
Clause 4 provides that if a son is born to the testator, then the properties are to be divided between the son and the Thakurdwara in a specified 764 proportion; but as no son was born, this clause never came into operation.
Clause 5 provides that the Mutawallis are to have no power to sell or mortgage the property, that they are to maintain accounts, that the surplus money after meeting the expenses should be deposited in a safe bank and when funds permit, property should be purchased in the name of Sri Radhakrishnaji.
Clause 2 appoints a committee of four persons to look after the , management of the temple and its properties, and of these, two are not relations of the testator and belong to a different caste.
It is further provided in that clause that after the death of the two wives the committee "may appoint my nephew Murlidhar as Mutawalli by their unanimous opinion".
This Murlidhar is a divided nephew of the testator and he is the first defendant in this action.
Clause 3 provides for filling up of vacancies in the committee.
Then finally there is cl. 6, which runs as follows: "If any person alleging himself to be my near or remote heir files a claim in respect of whole or part of the waqf property his suit shall be improper on the face of this deed".
The question is whether the provisions of the will disclose an intention on the part of the testator that the Thakurdwara should be a private endowment, or that it should be public.
The learned Judges of the Chief Court in affirming the decisions of the courts below that the temple was built for the benefit of the members of the family, observed that there was nothing in the will pointing "to a conclusion that the trust was a public one", and that its provisions were not "inconsistent with the property being a private endowment".
We are unable to endorse this opinion.
We think that the will read as a whole indubitably reveals an intention on the part of the testator to dedicate the Thakurdwara to the public and not merely to the members of his family.
The testator begins by stating that he had no male issue.
In Nabi Shirazi vs Province of Bengal (supra), the question was whether a wakf created by a deed of the year 1806 was a public or a private 765 endowment.
Referring to a recital in the deed that the settlor had no children, Khundkar J. observed at p. 217: "The deed recites that the founder has neither children nor grandchildren, a circumstance which in itself suggests that the imambara was not to remain a private or family institution".
Vide also the observations of Mitter J. at p. 228.
The reasoning on which the above view is based is, obviously, that the word 'family ' in its popular sense means children, and when the settlor recites that he has no children, that is an indication that the dedication is not for the benefit of the family but for the public.
Then we have clause 2, under which the testator constitutes a committee of management consisting of four persons, two of whom were wholly unrelated to him.
Clause 3 confers on the committee power to fill up vacancies; but there is no restriction therein on the persons who could be appointed under that clause, and conceivably, even all the four members might be strangers to the family.
It is difficult to believe that if Sheo Ghulam intended to restrict the right of worship in the temple to his relations, he would have entrusted the management thereof to a body consisting of strangers.
Lastly, there is clause 6, which shows that the relationship between Sheo Ghulam and his kinsmen was not particularly cordial, and it is noteworthy that under clause 2, even the appointment of the first defendant as manager of the endowment is left to the option of the committee.
It is inconceivable that with such scant solicitude for his relations, Sheo Ghulam would have endowed a temple for their benefit.
And if he did not intend them to be beneficiaries under the endowment, who are the members of the, family who could take the benefit thereunder after the lifetime of his two wives? If we are to hold that the endowment was in favour of the members of the family, then the result will be that on the death of the two wives, it must fail for want of objects.
But it is clear from the provisions of the will that the testator contemplated the continuance 766 of the endowment beyond the lifetime of his wives.
He directed that the properties should be endowed in the name of the deity, and that lands are to be purchased in future in the name of the deity.
He also provides for the management of the trust after the lifetime of his wives.
And to effectuate this intention, it is necessary to hold that the Thakurdwara was dedicated for worship by members of the public, and not merely of his family.
In deciding that the endowment was a private one, the learned Judges of the Chief Court failed to advert to these aspects, and we are unable to accept their decision as correct.
In the absence of a deed of endowment constituting the Thakurdwara, the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public.
The witnesses examined on his behalf deposed that the villagers were worshipping in the temple freely and without any interference, and indeed, it was even stated that the Thakurdwara was built by Sheo Ghulam at the instance of the villagers, as there was no temple in the village.
The trial Judge did not discard this evidence as unworthy of credence, but he held that the proper inference to be drawn from the evidence of P.W. 2 was that the public were admitted into the temple not as a matter of right but as a matter of grace.
P.W. 2 was a pujari in the temple, and be deposed that while Sheo Ghulam 's wife was doing puja within the temple, he stopped outsiders in whose presence she used to observe purdah, from going inside.
We are of opinion that this fact does not afford sufficient ground for the conclusion that the villagers did not worship at the temple as a matter of right.
It is nothing unusual even in well known public temples for the puja hall being cleared of the public when a high dignitary comes for worship, and the act of the pujari in stopping the public is expression of the regard which the entire villagers must have had for the wife of the founder, who was a pardanashin lady, when she came in for worship, and cannot be construed as a denial of their rights.
The learned Judges of the Chief Court also relied on the decision 767 of the Privy Council in Babu Bhagwan Din vs Gir Har Saroon(1) as an authority for the position that "the mere fact that the public is allowed to visit a temple or thakurdwara cannot necessarily indicate that the trust is public as opposed to private".
In that case, certain properties were granted not in favour of an idol or temple but in favour of one Daryao Gir, who was maintaining a temple and to his heirs in perpetuity.
The contention of the public was that subsequent to the grant, the family of Daryao Gir must be held to have dedicated the temple to the public for purpose of worship, and the circumstance that members of the public were allowed to worship at the temple and make offerings was relied on in proof of such dedication.
In repelling this contention, the Privy Council observed that as the grant was initially to an individual, a plea that it was subsequently dedicated by the family to the public required to be clearly made out, and it was not made out merely by showing that the public was allowed to worship at the temple "since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away".
But, in the present case, the endowment was in favour of the idol itself, and the point for decision is whether it was a private or public endowment.
And in such circumstances, proof of user by the public without interference would be cogent evidence that the dedication was in favour of the public.
In Mundancheri Koman vs Achuthan(2), which was referred to and followed in Babu Bhagwan Din v Gir Har Saroon(1), the distinction between user in respect of an institution which is initially proved to have been private and one which is not, is thus expressed: "Had there been any sufficient reason for holding that these temples and their endowment were originally dedicated for the tarwad, and so were private trusts, their Lordships would have been slow to hold that the admission of the public in later times possibly owing to altered conditions, would affect the private character of the trusts.
As it is, they are of (1) [1939] L.R. 67 I.A. 1.
(2) [1984] L.R. 61 I.A. 405.
768 opinion that the learned Judges of the High Court were justified in presuming from the evidence as to public user which is all one way that the temples and their endowment were public religious trusts".
We are accordingly of opinion that the user of the temple such as is established by the evidence is more consistent with its being a public endowment.
It is settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settlor has clearly and unambiguously expressed his intention in that behalf.
Where it is proved that ceremonies were performed, that would be valuable evidence of endowment, but absence of such proof would not be conclusive against it.
In the present case, it is common ground that the consecration of the temple and the installation of the idol of Sri Radhakrishnaji were made with great solemnity and in accordance with the Sastras.
P. W. 10, who officiated as Acharya at the function has deposed that it lasted for seven days, and that all the ceremonies commencing with Kalasa Puja and ending with Sthapana or Prathista were duly performed and the idols of Sri Radhakrishnaji, Sri Shivji and Sri Hanumanji were installed as ordained in the Prathista Mayukha.
Not much turns on this evidence, as the defendants admit both the dedication and the ceremonies, but dispute only that the dedication was to the public.
In the court below, the appellant raised the contention that the performance of Uthsarga ceremony at the time of the consecration was conclusive to show that the dedication was to the public, and that as P. W. 10 stated that Prasadothsarga was performed, the endowment must be held to be public.
The learned Judges considered that this was a substantial question calling for an authoritative decision, and for that reason granted a certificate under section, 109(c) of the Code of Civil Procedure.
We have ourselves read the Sanskrit texts bearing on this question, and we are of opinion that the contention of the appellant proceeds on a misapprehension.
The ceremonies relating to dedication are Sankalpa, Uthsarga and Pra 769 thista.
Sankalpa means determination, and is really formal declaration by the settlor of his intention to dedicate the property.
Uthsarga is the formal renunciation by the founder of his ownership in the property, the result whereof being that it becomes impressed with the trust for which he dedicates it.
Vide The Hindu Law of Religious and Charitable Trust by B. K. Mukherea, 1952 Edition, p. 36.
The formulae to be adopted in Sankalpa and Uthsarga are set out in Kane 's History of Dharmasastras, Volume 11, p. 892.
It will be seen therefrom that while the Sankalpa states the objects for the realisation of which the dedication is made, it is the Uthsarga that in terms dedicates the properties to the public (Sarvabhutebyah).
It would therefore follow that if Uthsarga is proved to have been performed, the dedication must be held to have been to the public.
But the difficulty in the way of the appellant is that the formula which according to P. W. IO was recited on the occasion of the foundation was not Uthsarga but Prasadoasarga, which is something totally different.
Prasada ' is the 'mandira ', wherein the deity is placed before the final installation or Prathista takes placer ' and the Prathista Mayukha prescribes the ceremonies that have to be performed when the idol is installed in the Prasada.
Prasadothsarga is the formula to be used on that occasion, and the text relating to it as given in the Mayukha runs as follows: It will be seen that this is merely the Sankalpa without the Uthsarga, and there are no words therein showing that the dedication is to the public.
Indeed, according to the texts, Uthsarga is to be performed only for charitable endowments, like construction of tanks, rearing of gardens and the like, and not for religious foundations.
It is observed by Mr. Mandlik in the Vyavahara Mayukha, Part 11, Appendix II, II,p.
339 770 that "there is no utsarga of a temple except in the case of repair of old temples".
In the, History of Dharmasastras, Volume II, Part II, p. 893, it is pointed out by Mr. Kane that in the case of temples the proper word to use is Prathista and not Uthsarga.
Therefore, the question of inferring a dedication to the public by reason of the performance of the Uthsarga ceremony cannot arise in the case of temples.
The appellant is correct in his contention that if Uthsarga is performed the dedication is to the public, but the fallacy in his argument lies in equating Prasadothsarga with Uthsarga.
But it is also clear from the texts that Prathista takes the place of Uthsarga in dedication of temples, and that there was Prathista of Sri Radhakrishnaji as spoken to by P.W. 10, is not in dispute.
In our opinion, this establishes that the dedication was to the public.
(4)We may now refer to certain facts admitted or established in the evidence, which indicate that the endowment is to the public.
Firstly, there is the fact that the idol was installed not within the precincts of residential quarters but in.
a separate building constructed for that very purpose on a vacant site.
And as pointed out in Delroos Banoo Begum vs Nawab Syud Ashgur Ally Khan(1), it is a factor to be taken into account in deciding whether an endowment is private or public, whether the place of worship is located inside a private house or a public building.
Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts.
That is more consistent with the endowment being public rather than private.
Thirdly, the puja in the 'temple is performed by an archaka appointed from time to time.
And lastly, there is the fact that there was no temple in the village, and there is evidence on the side of the plaintiff that the Thakurdwara was built at the instance of the villagers for providing a place of worship for them.
This evidence has not been considered by the courts below, and if it is true, that will be decisive to prove that the endowment is public.
(1) [1875] 16 Ben.
L.R. 167,186.
771 It should be observed in this connection that though the plaintiff expressly pleaded that the temple was dedicated "for the worship of the general public", the first defendant in his written statement merely pleaded that the Thakurdwara and the idols were 'private.
He did not aver that the temple was founded for the benefit of the members of the family.
At the trial, while the witnesses for the plaintiff deposed that the temple was built with the object of providing a place of worship for all the Hindus, the witnesses examined by the defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use and "for his puja only".
The view of the lower court that the temple must be taken to have been dedicated to the members of the family goes beyond the pleading, and is not supported by the evidence in the case.
Having considered all the aspects, we are of opinion that the Thakurdwara of Sri Radhakrishnaji in Bhadesia is a public temple.
In the result, the appeal is allowed, the decrees of the courts below are set aside, and a declaration granted in terms of para 17 (a) of the plaint.
The costs of the appellant in all the courts will come out of the trust properties.
The first defendant will himself bear his own costs throughout.
Appeal allowed.
| IN-Abs | The issue whether a religious endowment is a public or a private one is a mixed question of law and fact the decision of which must depend on the application of legal concepts of a public and a private endowment to the facts found and is open to consideration by the Supreme Court.
Lakshmidhar Misra vs Bangalal ([1949] L.R. 76 I.A. 271), re ferred to.
The distinction between a private and a public endowment is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof.
757 Though under Hindu law an idol is a juristic person capable of holding property, and the properties endowed for the temple vest in it, it can have no beneficial interest in the endowment, and the true beneficiaries are the worshippers, as the real purpose of a gift of properties to an idol is not to confer any benefit on God, but the acquisition of spiritual benefit by providing opportunities and facilities for those who desire to worship.
Prosunno Kumari Debya vs Golab Chand Baboo ([1875] L.R. 2 I A. 145), Maharaja Jagadindra Nath Boy Bahadur vs Bani Hemanta Kumari Debi ([1904] L.R. 31 I.A. 203), Pramatha Nath Mullik vs Pradhyumna Kumar Mullik ([1924] L.R. 52 I.A. 245) and Bhupati Nath Smrititirtha vs Bam Lal Maitra ([1910] I.L.R. , referred to.
A pious Hindu who was childless constructed a temple and was in management of it till his death.
He executed a will whereby he bequeathed all his lands to the temple and made provision for its proper management.
The question was whether the provisions of the will disclosed an intention on the part of the testator to dedicate the temple to the public or merely to the members of the family.
Hold that the recital in the will that the testator had no sons coupled with provisions for the management of the trust by strangers was an indication that the dedication was to the public.
Nabi Shirazi vs Province of Bengal (I.L.R. [1942] 1 Cal. 211), referred to.
Held further, that the performance of ceremonies at the con secration of the temple (Prathista), the user of the temple and other evidence in the case showed that the dedication was for worship by the general public.
|
Civil Appeal No. 3094 of 1979.
Appeal by Special Leave from the Judgment and Order dated 24 8 1979 of the Karnataka High Court in W.P. No. 7039/79.
L. N. Sinha, Attorney General of India and N. Nettar for the Appellant.
section T. Desai, N. Srinivasan, M. Mudgal and Vineet Kumar for the Respondent.
The Judgment of the Court was delivered by Desai, J.
Constitutional validity of Karnataka Tax on Entry of Goods Into Local Areas for Consumption, Use or Sale Therein Act, 1979 ( 'Act ' for short), and the Notification No. FD 66 826 CSL 79 dated May 31, 1979, issued by the State Government in exercise of the powers conferred by section 3 of the Act is involved in this appeal by special leave at the instance of the State of Karnataka and one other.
Karnataka State enacted the Act to provide for the levy of tax on entry of goods into local areas for consumption, use or sale therein, being Karnataka Act No. 27 of 1979.
Section 3 empowers the State Government to levy and collect tax on entry of scheduled goods into a local area for consumption, use or sale therein at such rate not exceeding 2% ad valorem, as may be specified by the State Government.
Armed with the power conferred by section 3, the State Government issued notification 1 No. FD 66 CSL 79 dated May 31, 1979, specifying the local areas and the rates of tax at which the tax shall be levied and collected under the Act on the entry of scheduled goods mentioned in col. 2 of the table appended to the notification into local areas specified in the corresponding entries.
Goods liable to levy of tax under the Act on entry in the specified local areas at the specified rates are those set out in the schedule annexed to the Act.
They are (i) all varieties of textiles, viz., cotton, woollen, silk or artificial silk including rayon or nylon whether manufactured in mills, powerlooms or handlooms and hosiery cloth in lengths; (ii) tobacco and all its products; (iii) sugar other than sugar candy confectionery and the like.
In all 27 local areas were specified for the purpose of levy of tax on entry of scheduled goods in the respective local areas at varying rates specified in the notification.
The Act received the assent of the President on May 17, 1979, and it was published in the State Government Gazette on June 1, 1979, and came into force from that very day.
Numerous petitions were filed under Article 226 of the Constitution in the High Court of Karnataka contending that the Act and the Notification issued thereunder were unconstitutional on diverse grounds.
As many as 24 different contentions were canvassed before the High Court.
Of them two, viz., contention nos.
13 and 19 found favour with the High Court with the result that the Act and the Notification issued thereunder were declared unconstitutional and a mandamus was issued directing the State Government and its officers to forebear from enforcing the provisions of the Act against the petitioners before the High Court.
The contentions which found favour with the High Court, are: (i) section 3 of the Act does not empower the State Government to apply the provisions of the Act to certain local areas only and to exclude other local areas; (ii) as the Act imposes the tax on dealers 827 irrespective of the value of scheduled goods brought by them into a local area and does not exempt petty dealers, the Act imposes unreasonable restrictions on petty dealers.
The remaining 22 contentions were rejected some of which were canvassed before us on behalf of the respondents to sustain the decision of the High Court.
It is necessary at this stage to notice the broad features of the Act.
The long title and the preamble of the Act demonstrate the purpose for which the Act was enacted, it being to empower the State Government to levy tax on entry of goods specified in the schedule ( 'scheduled goods ' for short) in local areas to be specified by the State Government in this behalf.
Section 2, the dictionary clause of the Act, defines 'dealer ' in the Act to have the same meaning assigned to it in clause (k) of section 2 of the Karnataka Sales Tax Act, 1957.
Section 2, sub section (5) defines 'local area ' as under: "2(5). 'Local area ' means the area within the limits of a City under the Karnataka Municipal Corporations Act, 1976 (Karnataka Act 14 of 1977), or a municipality under the Karnataka Municipalities Act, 1964 (Karnataka Act 22 of 1964)".
Section 2, sub section
(7) defines 'scheduled goods ' to mean goods specified in the schedule to the Act.
Section 3 is the charging section.
It reads as under: "3.
Levy of tax There shall be levied and collected a tax on entry of the scheduled goods into a local area for consumption, use or sale therein at such rate not exceeding two percent ad valorem as may be specified by the State Government and different rates may be specified for different local areas".
Section 4 provides for registration of dealers and makes it obligatory upon every dealer in scheduled goods to get himself registered under the Act in the prescribed manner.
Rule 4, sub rule (3) of the Karnataka Tax on Entry of Goods into Local Areas for consumption, Use or Sale therein Rules, 1979 ( 'Rules ' for short), enacted under the Act has prescribed a fee of Rs. 25/ for registration as a dealer.
Chapter III of the Act contains provisions for return, assessment, payment, recovery and collection of tax.
Chapter IV prescribes taxing authorities.
Chapter V deals with appeals and revisions and Chapter VI contains miscellaneous provisions.
Schedule annexed to the Act sets out the goods on the entry of which in the specified local areas tax can be levied.
Entry 52 in State List read with Article 246 of the Constitution confers power on the State legislature to enact a law to levy tax 828 on the entry of goods into a local area for consumption, use or sale therein.
This tax in common parlance is known as 'octroi '.
Octroi was leviable by the municipality under the power delegated to it under various laws providing for setting up of and administration of municipal corporations and municipalities.
Octroi thus understood was being levied by various municipalities and municipal corporations in Karnataka State.
Since some time a feeling had grown that octroi was obnoxious in character and impeded the development of trade and commerce and there was a clamour for its abolition.
Taking note of the resentment of the business community, Karnataka State abolished octroi with effect from April 1, 1979.
However, no one was in doubt that octroi was a major source of revenue to municipalities and its abolition would cause such a dent on municipal finances that compensation for the loss would be inevitable.
Accordingly, the State Government undertook a policy of compensating the municipalities year by year.
For generating funds for this compensation, rates of sales tax were raised and in some cases a surcharge was levied.
The amount so collected was not sufficient to bridge the gap in municipal budget.
To further augment the finances for compensating the municipalities, additional fund was sought to be generated by levy of tax under the impugned legislation.
No doubt, the tax levied was one on entry of scheduled goods in local areas meaning thereby it had all the broad features of octroi, yet the manner of levy, the method of collection and the persons liable to pay the same were so devised by the impugned Act as to remove the obnoxious features of octroi.
As the charging section shows, the tax was to be levied on entry of scheduled goods in a local area at a rate to be specified by the Government not exceeding 2% ad valorem.
The taxing event would be the entry of scheduled goods in a local area.
In fact, octroi was being levied on almost all conceivable goods entering into a local area for consumption, use or sale therein.
There appears to be a discernible policy in selecting the goods set out in the schedule, the entry of which in a local area would provide the taxing event.
The goods selected for levy are textiles, tobacco and sugar.
Way back in 1957 there was a demand for abolition of sales tax on the scheduled goods and at the instance of the Union Government the State Governments agreed to forego their right to levy sales tax on the aforementioned scheduled goods on the condition that the Union Government would levy additional excise duty on them and distribute the net proceeds of such duty amongst the consenting States.
Parliament accordingly has enacted the Additional Duties on Goods (Goods of Special Importance) Act, 1957.
Therefore, while raising rates of sales tax 829 and levying surcharge in respect of some other items the State Government could not have levied sales tax on the scheduled goods.
They were, therefore, selected for the levy of the tax under the impugned Act on their entry into a local area.
Having noticed the historical background leading to the enactment of the impugned legislation we may now examine the two contentions which found favour with the High Court and as a result of which the Act and the notification issued thereunder were struck down by the High Court.
The respondents contend that upon a true construction section 3 permits the State Government only to specify different rates of tax not exceeding the maximum prescribed in the section to be levied on entry of scheduled goods into a local area but the State Government has no power to pick and choose local area.
In other words, the respondents say that the tax has to be levied on entry of scheduled goods in each and every local area as the word is understood in the Act.
The submission is that the expression 'as may be specified by the State Government ' qualifies the expression 'such rates ' and not "local area" and this was sought to be reinforced by saying that Article 'a ' precedes local area which would mean every local area and not any local area.
It was further stated that if what is contended on behalf of the State is correct, one will have to read the word 'and ' between the words 'therein ' and 'at such rate ' which might imply on a grammatical construction that discretion was conferred upon the State Government not only to specify rate but also the local area.
Legislative drafting will reach its peak of glory when perfection is attained in demonstrably manifesting the legislative intent by unequivocal language.
But it is equally undeniable that language at its best is a very imperfect vehicle of conveying the intent of the speaker.
Legislature speaks through legislation and tries its utmost to convey what it intends to do by the legislation but even best of draftsmen cannot claim to attain perfection.
On a very superficial view one may be tempted to accept the construction canvassed for on behalf of the respondents but when the section is read more minutely with necessary pause and emphasis and the policy enacting the legislation is kept in view and also the inconceivable situation that may arise if the construction canvassed for or behalf of the respondents is kept in focus, the contention will have to be repelled.
There is a two fold answer to the contention that upon a literal grammatical construction of section 3 the State has no choice in the matter of selecting local areas and that choice is limited to specifying rates 830 but after choosing rates all local areas will have to be covered for the levy of tax.
It is easy to read the section with a pause and punctuation after the word 'ad valorem ' so that the expression 'as may be specified by the State Government ' would qualify both the expressions 'local area ' and 'such rate '.
This would be clear from the fact that the last expression in the section 'different rates may be specified for different local areas ' would be an adjectival clause to the word 'rate ' so that the power to choose and specify different rates is not implicit in the words 'such rate ' but in the expression 'different rates may be specified for different local areas '.
Thus an express power of choosing and specifying different rates subject to maximum for different local areas is conferred on the State Government not by the expression 'such rate ' but by the expression 'rates ' with the adjectival clause 'different rates may be specified for different local areas '.
It was, therefore, not necessary to qualify the expression 'such rate ' again by the expression 'as may be specified by the State Government ' because that is covered by the express power conferred by the expression 'different rates may be specified for different local areas '.
In approaching the matter from this angle the expression 'as may be specified by the State Government ' would qualify the expression 'local area ' and this construction would be further reinforced by use of Article 'a ' prefixing 'local area ' meaning thereby not every local area but any local area.
In this connection reference may be made with advantage to In re.
Sankers; ex parte Sergeant, wherein the expression 'under the hand of the Judge of a county court ' came up for construction.
The construction canvassed for was that a county court would not mean any county court but the country court having jurisdiction in the matter.
Repelling this construction the Court, after ascertaining the object of the legislation, held that a county court would mean any county court, an approach dictated by strict grammatical construction.
Similarly, in The Queen vs Justices of Durham, the expression 'a Court ' was interpreted to mean any court and in accepting this construction the Court was guided by the bare letter of the statute which would be a proper guide unless there would be something in it to modify the ordinary meaning of the words used.
The Privy Council in Coast Brick & Tile Works Ltd. & Ors.
vs Premchand Raichand & Anr., observed that the expression 'the security ' should be read as 'a security ', a variation which in a poorly drawn section does not do great violence to the language used.
Even if, therefore, a literal grammatical 831 construction were to be adopted, on a proper reading of the section power is conferred on the State Government by section 3 not only to specify different rates for different areas but also to specify local areas entry into which of scheduled goods would provide the taxing event.
There is thus a power to choose and specify local areas as well as choose and specify rate of taxation subject to maximum prescribed in the section.
Assuming our reading of the section is not correct, there is another way of approaching the matter.
It cannot be gainsaid that the State Government is empowered to specify the different rates of tax not exceeding the maximum in respect of different scheduled goods for different local areas.
This implies that even though the taking event is entry of scheduled goods in a local area, nonetheless different rates may be prescribed for different local areas and express power in that behalf is conferred on the Government by providing in section 3 that different rates may be specified for different local areas.
If at this stage the definition of local area is recalled which means an area in a city governed by the Karnataka Municipalities Act or a municipal corporation governed by the Karnataka Municipal Corporations Act it would immediately appear that local areas vary immensely both in dimension, population, industrial growth, economic development and scale and kind of municipal service rendered.
One has to keep in view a local area like Bangalore City, a highly industrially advanced capital city of Karnataka and a small municipality having a population of 10,000.
Now, if the expression 'a local area ' in section 3 is interpreted to mean 'every local area ' as contended on behalf of the respondents, before any tax can be levied under section 3 it would be obligatory on State Government to levy tax on entry of scheduled goods in every local area in Karnataka State for consumption, use or sale therein.
The contention thus is that coverage of all local areas for levy of tax would provide outside maximum limit of power under section 3.
The question is: Is it a minimum condition for exercise of power ? If it is, the rates of tax will have to vary considerably in direct relation to the local area for which the rate is being prescribed.
It would be unjust and inequitable to levy tax on entry of goods at the same rate for such local area as Bangalore Municipal Corporation and a small municipal area, the two local areas being uncomparable with regard to area, population, industrial growth and consumption of such scheduled goods in the area.
Now, if the impact of the tax is to be equitable keeping in view cost of its collection, a tax levied at such a small rate as one paise for goods worth Rs. 100 ad valorem for a small local area and 2% ad valorem for such industrially developed local area like Bangalore Corporation, 832 it would make nonsense of the levy apart from the uneconomic outcome keeping in view the administrative cost of collection.
If the Government is obliged on the construction canvassed on behalf of the respondents to encompass all local areas for the purpose of levying tax under the statute, the rates would have to be varied so much to avoid the evil of making the impost unjust and if the rates have to be varied from area to area the administrative cost in smaller areas with lower rates and negligible entry of scheduled goods in such area would make the tax wholly uneconomic.
It must, therefore, logically follow that choice to select local area is a necessary concomitant of a choice to select rates, which power is admittedly conferred on the State Government.
Purpose underlying the statute, namely, to provide financial assistance to the municipalities would be better effectuated if the tax realised considerably outweighs the administrative cost involved in collecting the tax.
And it is a well known canon of construction that the purpose underlying the statute would provide a reliable external aid for proper construction because the Court would adopt that construction which would effectuate the purpose.
The High Court unfortunately approached the matter from the standpoint of literal grammatical construction of the section overlooking the object underlying the Act, the historical background which the High Court itself had noticed, and holding that unless the section is re written as understood by the High Court, the State Government had no power to pick and choose local areas.
Mr. section T. Desai, learned counsel for the respondents, after drawing our attention to the reasoning that appealed to the High Court for holding that section 3 does not permit choice of local areas, urged that if the section is so read as to enable the State Government to pick and choose or select local areas the section would be violative of article 14 of the Constitution because while all municipalities need additional finances to recoup the loss suffered by them on abolition of octroi, only some local areas are selected for the purpose of levy of tax leaving others out and there being no reasonable basis to sustain the classification, section 3 would be unconstitutional.
There is always a presumption of constitutionality of a statute.
If the language is rather not clear and precise as it ought to be, attempt of the Court is to ascertain the intention of the legislature and put that construction which would lean in favour of the constitutionality unless such construction is wholly untenable.
However, where one has to look at a section not very well drafted but the object behind the legislation and the purpose of enacting the same is clearly discernible, the Court cannot hold its hand and blame the draftsman 833 and chart an easy course of striking down the statute.
In such a situation the Court should be guided by a creative approach to ascertain what was intended to be done by the legislature in enacting the legislation and so construe it as to give force and life to the intention of the legislature.
This is not charting any hazardous course but is amply borne out by an observation worth reproducing in extenso in Seaford Court Estates Ltd. vs Asher.
It reads as under: "Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity.
The English language is not an instrument of mathematical precision.
Our literature would be much the poorer if it were.
This is where the draftsmen of Acts of Parliament have often been unfairly criticised.
A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity.
It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity.
In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman.
He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the legislature.
That was clearly laid down ; by the resolution of the judges (SIR ROGER MANWOOD, C.B., and the other barons of the Exchequer) in Heydon 's case (1584) 3 Co. Rep. 7a, and it is the safest guide today.
Good practical advice on the subject was given about the same time by PLOWDEN in his note to Eyston vs Studd (1574), 2 Plowd.
Put into homely metaphor it is this: A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done.
A judge must not alter the material of which the Act is woven, but he can and should iron out the creases".
834 This view was re affirmed in Norman vs Norman.
Let it be remembered that the impugned measure is a taxing statute and in the matter of taxing statute the legislature enjoys a larger discretion in the matter of classification so long as it adheres to the fundamental principle underlying the doctrine of classification.
The power of the legislature to classify is of wide range and flexibility so that it can adjust its taxation in all proper and reasonable ways.
In Khyerbari Tea Co. Ltd., & Anr.
vs The State of Assam this Court observed as under: "It is, of course, true that the validity of tax laws can be questioned in the light of the provisions of articles 14, 19; and article 301 if the said tax directly and immediately imposes a restriction on the freedom of trade; but the power conferred on this Court to strike down a taxing statute if it contravenes the provisions of articles 14, 19 or 301 has to be exercised with circumspection, bearing in mind that the power of the State to levy taxes for the purpose of governance and for carrying out its welfare activities is a necessary attribute of sovereignty and in that sense it is a power of paramount character".
It was also observed that legislature which is competent to levy a tax must inevitably be given full freedom to determine which articles should be taxed, in what manner and at what rate.
It would, therefore, be idle to contend that a State must tax everything in order to tax something.
In tax matters, "the State is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonably" (see Willis on 'Constitutional Law ', p. 587).
This statement of law has been approved by this Court in the case of East India Tobacco Co. vs State of Andhra Pradesh.
The question, therefore, is, whether a tax of a certain kind can be levied on entry of goods in certain local areas, the classification of local areas, if found to be reasonable, the levy of tax would not be invalid on the ground that choosing certain areas only excluding some others would violate Article 14.
Whether in this case the classification is reasonable would be presently examined but the contention that if the State Government is granted a choice in the matter of selection of local area, ipso facto, the statute would be unconstitutional as being violative of article 14, must be negatived.
835 In order to ascertain whether the classification of local areas for the purposes of levy of tax is reasonable or not, a reference may be made to the impugned notification.
Table annexed to the notification shows in all 27 local areas selected for levy of tax.
They are again divided into three groups, A, B and C for selecting rates to be levied on different scheduled goods.
A mere glance at the local areas selected and those according to the petitioner excluded, viz., areas within the jurisdiction of various Gram Panchayats would bring in bold relief that population criterion appears to have been adopted in selecting local areas for levy of tax.
Does population criterion provide a reasonable basis for classification vis a vis a tax levied on entry of goods in the area ? It would be undeniable that population basis would provide a reasonable criterion for selecting local areas for the purpose of levy tax simultaneously excluding those which do not answer the population criterion.
One unquestionable element scientifically established about a taxing statute is that the yield from the tax must be sufficiently in excess of cost of collection so that the tax which is levied for augmenting public finances to be utilised for public good would be productive.
Where the cost of administrative machinery required to be set up for collecting tax is either marginally lower or equal or marginally higher than the yield from the tax, the measure would be uneconomic if not counterproductive.
Now, if the tax in this case is levied on the entry of scheduled goods in local areas, the yield would be directly proportionate to the consumption of the goods in local areas and the consumption of goods is directly related to the population within the local area.
Viewed from this angle, population criterion would provide a reasonable basis for classification for selectively levying the tax by choosing local area and by specifying different rates so as to make the tax productive.
Therefore, there is no substance in the contention that the classification in this case was unreasonable.
The High Court was accordingly in error in holding that section 3 did not permit the State Government to pick and choose local areas for the levy of tax and that levy of tax under section 3 in all local areas within Karnataka State was a minimum condition for exercise of the power under section 3.
The contention must, accordingly be negatived.
Another contention that found favour with the High Court was contention No. 13 before the High Court which in the opinion of the High Court was a formidable one.
The contention was that the Act in its application has not excluded petty dealers from its purview.
Developing the contention it was said that the abolished octroi would have been less oppressive in its application than the tax under the impugned legislation falling on petty dealers.
What appealed to the 836 High Court was that if a petty dealer brought within the local area scheduled goods of the value of Rs. 5 for consumption, use or sale therein, he is to get himself registered after paying the registration fee, maintain accounts for his dealings in such goods and submit monthly and annual returns and to appear before the assessing authority when called upon to do so.
The High Court thereafter contrasted the position of a dealer under the Karnataka Sales Tax Act, 1957, and observed that a dealer whose total turnover is less than Rs. 25,000 was not liable to pay sales tax and one whose turnover was less than Rs. 10,000 was not required to get registered, to maintain accounts or to submit returns.
The High Court also found the registration fee of Rs. 25 prescribed under the rules, the liability to maintain accounts in the manner prescribed and to submit monthly and yearly returns as constituting unreasonable restrictions on the fundamental right of the petty dealers to carry on their trade or business.
Learned Attorney General urged that this contention was no where to be found in the petition filed by the petitioners in the High Court and, therefore, the High Court was in error in entertaining the contention.
Unfortunately, the judgment does not show that learned Advocate General who appeared for the State raised such an objection to the entertaining of the contention on behalf of the petitioners by the High Court.
Not only has the High Court permitted the contention to be raised but accepted the same.
In fairness to the petitioners it would be unjust to shut out the contention on this technical ground, though we must note that Mr. section T. Desai learned counsel who appeared for the respondents found it difficult to pursue the contention.
We, however, propose to deal with the contention on merits.
The taxing event under the statute is entry of scheduled goods in a local area for consumption, use or sale therein at the instance of a dealer.
The expression 'dealer ' has the same meaning as assigned to it in clause (k) of section 2 of Karnataka Sales Tax Act, 1957, which defines dealer to mean any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash or for deferred payment, or for commission, remuneration or other valuable consideration and includes amongst others, a casual trader.
Section 10(1) makes it obligatory upon every dealer whose total turnover in any year is not less than the specified sum to get himself registered under the Act.
Sub section
(2) carves out an exception to sub section
(1) that notwithstanding anything contained in sub section
(1) every casual trader dealing in goods mentioned in the 837 Third Schedule or the Fourth Schedule irrespective of the quantum of his total turnover in such goods shall get himself registered.
And in passing it may be mentioned that Schedule Three includes 12 items and Schedule Four includes seven items.
In other words, casual trader who is included in the expression 'dealer ' in respect of the goods mentioned in the Third or Fourth Schedule, irrespective of his turnover, has to get himself registered.
Therefore, it cannot be said that all petty dealers are excluded from the application of Karnataka Sales Tax Act.
That apart, the taxing event under the impugned Act being entry of scheduled goods in a local area at the instance of a dealer, the volume or quantum of business of the dealer is not at all relevant.
The situation now obtaining may be contrasted with the situation when octroi was levied.
Octroi was payable by anyone irrespective of the fact whether he was a dealer in the goods or not, on goods which were liable to octroi when they were brought within the octroi limits.
It was payable at the octroi limits where there used to be an office called 'octroi naka '.
This was found to be cumbersome and the present Act seeks to replace to some extent that infamous octroi.
The noteworthy departure made by the Act is that now unlike every importer only a dealer dealing in the scheduled goods will have to pay the tax and that too not at the octroi limit but afterwards while submitting returns.
It would be a case of wild imagination that a dealer in scheduled goods would bring within the local area scheduled goods in such a small quantity as to make maintenance of accounts a very difficult task as also a registration fee of Rs. 25 so heavy as to dub it an unreasonable restriction on his right to carry on trade or commerce.
Only three items are included in scheduled goods and it is legitimate to believe that a dealer not dealing in either of the scheduled goods would not be required to get himself registered.
And if he is going to deal in the goods his turnover would not be so small in scheduled goods as to make maintenance of accounts and payment of registration fee of Rs. 25 so disproportionately heavy as to render it as an unreasonable restriction on his right to carry on trade.
Looking at the matter from a slightly different angle it must be confessed that if the contention of the respondents were to be upheld it would provide a fruitful source for evasion of tax.
If petty dealers are to be excluded some criterion will have to be provided relatable to his turnover in scheduled goods for classifying who are petty dealers.
That turnover will have to be kept reasonably high to make it rational but in that event the big registered dealer can always conveniently defeat the tax by bringing into the local area scheduled goods in the name of such petty dealer.
It would be an incentive to 838 a big registered dealer to set up a number of petty dealers and import scheduled goods into local area in the name of those petty dealers.
To avoid any such contingency, if the tax is levied on the entry of scheduled goods in the local area at the hands of a dealer irrespective of his turnover a potential source of evasion can be checkmated.
Viewed from either angle, non exemption of petty dealers from the operation of the Act does not lead to the conclusion that the impugned legislation constitutes unreasonable restrictions on the fundamental right of the petty dealers to carry on their trade or business.
The High Court was, therefore, in our opinion, in error in striking down the impugned legislation on the ground that the Act imposes unreasonable restrictions on the fundamental right of the petty dealers to carry on their trade.
The two contentions which found favour with the High Court for striking down the impugned Act and the notification issued thereunder, in our opinion, are not sustainable and, therefore, the Act and the notification issued thereunder would have to be upheld.
Mr. section T. Desai, learned counsel for the respondents, however, wanted us to affirm the judgment of the High Court on some of the contentions which the High Court negatived.
It would, therefore, be necessary to examine some of those contentions which were repeated before us.
The contention which was put into forefront was that the impugned Act violates the constitutional guarantee of freedom of trade, commerce and intercourse throughout India as enshrined in Part XIII of the Constitution and is not saved by article 304.
At one stage there was some controversy whether a tax law was within the inhibition of Part XIII of the Constitution, but this controversy is no more res integra and it has been set at rest by the majority view in Atiabari Tea Co. Ltd. vs The State of Assam & Ors.
, Gajendragadkar, J. speaking for the majority, observed that the intrinsic evidence furnished by some of the Articles of Part XIII shows that taxing laws are not excluded from the operation of article 301 which means that tax laws can and do amount to restrictions freedom from which is guaranteed to trade under the said Part.
He then posed a question whether all tax laws attract the provisions of Part XIII irrespective of the fact whether their impact on trade or its movement is direct and immediate or indirect and remote, and proceeded to answer it observing that if any Act imposes any direct restrictions on the very movement of such goods it attracts the provisions of article 301 and 839 its validity can be sustained only if it satisfies the requirements of article 302 or article 304 of Part XIII.
Accordingly, the contention that all taxes should be governed by article 301 whether or not their impact on trade is immediate or mediate, direct or remote, was negatived.
The majority view in Atiabari Tea Co. Ltd. case (Supra) was re examined and affirmed in The Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan & Ors.
Das, J. speaking for the majority in this context observed as under: "After carefully considering the arguments advanced before us we have come to the conclusion that the narrow interpretation canvassed for on behalf of the majority of the State cannot be accepted, namely, that the relevant articles in Part XIII apply only to legislation in respect of the entries relating to trade and commerce in any of the lists of the Seventh Schedule.
But we must advert here to one exception which we have already indicated in an earlier part of this judgment.
Such regulatory measures as do not impede the freedom of trade, commerce and intercourse and compensatory taxes for the use of trading facilities are not hit by the freedom declared by article 301.
They are excluded from the purview of the provisions of Part XIII of the Constitution for the simple reason that they do not hamper trade, commerce and intercourse but rather facilitate them".
The law was thus further clarified by pointing out that all taxes should and could not be prohibited by article 301 and must of necessity for their sustenance seek the coverage of article 304.
If a measure is shown to be regulatory or the tax imposed is compensatory in character meaning the tax instead of hampering trade or commerce would facilitate the same, it would be immune from a challenge under Art, 301.
In other words, if the tax is shown to be compensatory in character irrespective of the fact whether it is saved by article 304 or not it does not come within the inhibition of article 301.
Accordingly, if validity of a tax law is challenged on the ground that it violates freedom of inter State commerce, trade and intercourse, guaranteed by article 301, the contention may be repelled by showing (i) that the tax is compensatory in character as explained in The Automobile Transport (Rajasthan) Ltd. case (Supra); or (ii) that it satisfies the requirements of article 304.
This very question came up for further examination in Khyerbari Tea Co. Ltd. case (Supra) wherein constitutional validity 840 of Assam Taxation (On Goods carried by Road or on Inland Water ways) Act, 1961, was challenged on the ground that it was violative of article 301 and was not saved by article 304.
This Court analysed the majority view in Atiabari Tea Co. Ltd. case (Supra) and The Automobile Transport (Rajasthan) Ltd., case (Supra) and observed as under: "It would immediately be noticed that though the majority view in the Automobile Transport (Rajasthan) case substantially agreed with the majority decision in the case of Atiabari Tea Co., there would be a clear difference between the said two views in relation to the scope and effect of the provisions of article 304(b).
According to the majority view in the case of Atiabari Tea Co., if an Act is passed under article 304(b) and its validity is impeached, then the State may seek to justify the Act on the ground that the restrictions imposed by it are reasonable and in the public interest, and in doing so, it may, for instance, rely on the fact that the taxes levied by the impugned Act are compensatory in character.
On the other hand, according to the majority decision in the Automobile Transport Rajasthan case, compensatory taxation would be outside article 301 and cannot, therefore, fall under article 304(b)" On a conspectus of these decisions it appears well settled that if a tax is compensatory in character it would be immune from the challenge under article 301.
If on the other hand the tax is not shown to be compensatory in character it would be necessary for the party seeking to sustain the validity of the tax law to show that the requirements of article 304 have been satisfied.
The State did not attempt in the High Court to sustain the validity of the impugned tax law on the submission that it was compensatory in character.
No attempt was made to establish that the dealers in scheduled goods in a local area would be availing of municipal services and municipal services can be efficiently rendered if the municipality charged with a duty to render services has enough and adequate funds and that the impugned tax was a measure for compensating the municipalities for the loss of revenue or for augmenting its finances.
As such a stand was not taken, it is not necessary for us to examine whether the tax is compensatory in character.
It was, however, strenuously contended that the tax was not discriminatory in character inasmuch as the impugned tax was levied both on scheduled goods manufactured within the State of Karnataka and similar goods brought into Karnataka State from outside and accordingly article 304(a) has been complied with.
It was further urged 841 that the requirements of article 304(b) are fully satisfied.
The High Court was of the opinion that the impugned tax was non discriminatory in character inasmuch as scheduled goods imported from other States and scheduled goods produced or manufactured within the State but outside the local area were treated alike by the impugned Act.
In the opinion of the High Court the discrimination, if at all, was between goods produced or manufactured within a local area and those brought from outside the local area into it, but article 304(a) has no relevance to such differential treatment.
Article 304 lifts the embargo placed on the legislative power of State to enact law which may infringe the freedom of inter State trade and commerce if its requirements are fulfilled.
Article 304(a) imposes a restriction on the power of legislature of a State to levy tax which may be discriminatory in character by according discriminatory treatment to goods manufactured in the State and identical goods imported from outside the State.
The effect of article 304(a) is to treat imported goods on the same basis as goods manufactured or produced in a State.
This article further enables the State to levy tax on such imported goods in the same manner and to the same extent as may be levied on the goods manufactured or produced inside the State.
If a State tax law accords identical treatment in the matter of levy and collection of tax on the goods manufactured within the State and identical goods imported from outside the State, article 304(a) would be complied with.
There is an underlying assumption in article 304(a) that such a tax when levied within the constraints of article 304(a) would not be violative of article 301 and State legislature has the power to levy such tax.
Tax under the impugned legislation would be levied on scheduled goods either manufactured or produced within Karnataka State or imported from outside on their entry in a local area.
Thus, this tax is non discriminatory in that it does not discriminate between scheduled goods manufactured or produced within Karnataka State or those imported from outside.
And the microscopic discrimination relied upon by the respondents that there is differential treatment accorded to goods produced within a local area and those imported from outside the local area is hardly relevant for the purpose of article 304(a).
The High Court was accordingly right in concluding that the impugned tax satisfies the requirements of article 304(a).
The next limb of the contention is that the impugned tax being leviable on the entry of goods into a local area will have a direct and immediate impact on the movement of goods and consequently would infringe freedom of inter State trade guaranteed by article 301.
It must for its validity also satisfy the requirements of article 304(b).
In order 842 to satisfy the requirements of article 304(b) it must be shown that the restrictions imposed by the tax law on inter State freedom of trade and commerce are reasonable and are in public interest as also the bill for the purpose of levy of such tax has been introduced or moved in the State legislature with the previous sanction of the President.
To the extent the impugned tax is levied on the entry of goods in a local area it cannot be gainsaid that its immediate impact would be on movement of goods and the measure would fall within the inhibition of article 301.
Can it, however, be said that this tax imposes restrictions which in the facts and circumstances of the case could not be said to be reasonable? It was contended on behalf of the respondents that the tax not being single point tax it would impose a heavy burden and a very burden of tax would certainly constitute unreasonable restriction on the freedom of trade and commerce.
To substantiate the contention that the Act places unreasonable restrictions on the freedom of trade it was submitted that it is a multi point tax and in final analysis the burden would be disproportionately heavy.
It was said that whenever goods are taken from one local area to another local area to third local area at every point of entry the tax would be levied and, therefore, in ultimate result the burden would be very heavy so as to make it thoroughly unreasonable.
Undoubtedly, the tax would have to be paid every time when scheduled goods enter a local area.
In other words, it is not a single point tax and, therefore, if some scheduled goods successively enter different local areas for consumption, use or sale therein, there would be multiple levy.
But no attempt was made to substantiate this charge by showing as to how goods are taken from one local area to another local area to third local area for successive sales because if they are taken for consumption or use, there is no question of taking the scheduled goods from one local area to another local area.
It is, therefore, difficult to conceive a situation realistically that the impost would be very heavy so as to make it unreasonable.
The High Court negatived the contention and in our opinion rightly observing that the petitioners have not been able to show that the burden of the tax was so heavy as to constitute unreasonable restriction on the freedom of trade and commerce.
In this connection, however, reliance was placed on the decision of this Court in Kalyani Stores vs State of Orissa & Ors.
In that case the State enhanced the duty in respect of foreign liquors from Rs. 40 to Rs. 70 per L.P. gallon and this levy was challenged on the ground that it infringed the guarantee of article 301.
The State attempted to save the levy by contending that it was saved by article 304(b).
843 The Court struck down the levy as being violative of article 301 observing as under: "Article 301 has declared freedom of trade, commerce and intercourse throughout the territory of India, and restriction on that freedom may only be justified if it falls within article 304.
Reasonableness of the restriction would have to be adjudged in the light of the purpose for which the restriction is imposed, that is "as may be required in the public interest".
Without entering upon an exhaustive categorization of what may be deemed "required in the public interest" it may be said that restrictions which may validly be imposed under article 304(b) are those which seek to protect public health, safety, morals and property within the territory".
The later decision has shown that the observation in Kalyani Stores case is confined to the facts of that case.
This would be evident from the decision of this Court in State of Kerala vs A.B. Abdul Khadir & Ors.
wherein it is observed that in Kalyani Stores case (Supra) the Court did not intend to lay down a proposition of universal applicability that the imposition of a duty or tax in every case would tantamount per se to an infringement of article 301 and that only such restrictions or impediments which directly or immediately impede free flow of trade, commerce and intercourse would fall within the prohibition contained in article 301.
Even apart from this, a levy which appears to be quite reasonable in its impact on the movement of goods and is imposed for the purpose of augmenting municipal finances which suffered a dent on account of abolition of octroi cannot be said to impose an unreasonable restriction on the freedom of inter State trade, commerce and intercourse.
In this connection it would be useful to recall the observations of this Court in Khyerbari Tea Co. Ltd. case that the power conferred on this Court to strike down a taxing statute if it contravenes the provisions of articles 14, 19 or 301 has to be exercised with circumspection, bearing in mind that the power of the State to levy taxes for the purpose of governance and for carrying out its welfare activities is a necessary attribute of sovereignty and in that sense it is a power of paramount character.
It is, therefore, idle to contend that the levy imposed an unreasonable restriction on the freedom of trade and commerce.
The next question is whether this levy is in public interest.
As has been pointed out earlier, the levy was to compensate the loss suffered by abolition of octroi.
844 without a demur.
After removing the obnoxious features of octroi a very modest impost is levied on entry of goods in a local area and that too not for further augmenting finances of the municipalities but for compensating the loss suffered by the abolition of octroi is certainly a levy in public interest.
As has been repeatedly observed by this Court, the taxes generally are imposed for raising public revenue for better governance of the country and for carrying out welfare activities of our welfare State envisaged in the constitution and, therefore, even if a tax to some extent imposes an economic impediment to the activity taxed, that by itself is not sufficient either to stigmatise the levy as unreasonable or not in public interest.
The last limb of the argument is whether the proviso to article 304(b) is satisfied or not.
The proviso imposes an obligation to obtain the Presidential sanction before introducing the bill or amendment for the purpose of clause (b) of article 304 in the legislature of a State.
It cannot be gainsaid that Presidential sanction was not obtained before introducing the bill which was ultimately enacted into the impugned Act but after the bill was enacted into an Act the same was submitted to the President for his assent and it is common ground that the President has accorded his assent.
If prior presidential sanction is a sine qua non, the requirement of the proviso is not satisfied but in this context it would be advantageous to refer to article 255 which provides that no Act of Parliament or of the Legislature of a State and no provision in any such Act shall be invalid by reason only that some recommendation or previous sanction required by the Constitution was not given if assent to that Act was given by the President.
Now, in this case it is common ground that the President did accord his sanction to the impugned Act.
Therefore, the requirement of the proviso is satisfied.
To sum up, the impugned tax is not discriminatory in character as envisaged by article 304(a) and it does impose restrictions but the restrictions imposed are reasonable and in public interest and the Act subsequently having received the assent of the President, the proviso to article 304(b) is complied with and, therefore, the impugned Act is saved by article 304 and could not be struck down on the ground that it was violative of article 301.
The contention must accordingly be negatived.
Two minor subsidiary points were sought to be made en passant by Mr. section T. Desai and a brief mention of them would be in order.
It was urged that there is a certain amount of vagueness in section 3 inasmuch as no light is thrown by the words of the section or the other provisions of the Act on the question as to computation of tax to be 845 made at specified percentage ad valorem without specifying which price is to be taken into consideration for levy of tax, namely, the sale price or the purchase price of the concerned scheduled goods.
It was said that sale price and purchase price of a dealer would be different and in the absence of any guideline in the charging section or any other provision in the Act it would lead to arbitrary determination or computation of tax by taking "in one case sale price of the scheduled goods and in another case purchase price".
The contention overlooks the specific guideline to be found in the charging section itself.
The taxing event is the entry of scheduled goods into a local area.
The tax becomes payable on the entry of scheduled goods in a local area.
Therefore, the price of the scheduled goods at the time of entry paid by the dealer who is the importer of goods within the scheduled area would be the ad valorem price on the basis of which tax would be computed.
No subsequent rise or fall in price has any relevance to the computation of the tax.
The charging section says that the tax shall be levied and collected on the entry of scheduled goods in a local area at specified percentage not exceeding two per cent ad valorem.
Therefore, the price of the scheduled goods at the time when the tax becomes chargeable irrespective of the fact that it would be computed at a later date when the dealer submits his return as required by the other provisions of the Act, would be the price for computation of tax.
And there is no ambiguity or any vagueness in this behalf.
There is thus specific guideline in the charging section itself for taking into account the price according to which tax would be computed.
The Hight Court negatived this contention by observing that it would be open to the dealer to choose either the sale price or the purchase price whichever is favourable to him for computation of his liability to tax.
This approach overlooks the specific language of section 3 which clearly indicates what price is to be taken into account for computing the tax.
When the goods are brought within the local area they have a certain price.
The price may be the price which the importer of goods has paid before bringing the goods within the local area.
Even if the dealer is the manufacturer of goods at a place outside the local area and brings the goods within the local area he must have determined the price of the goods.
Therefore, the dealer has some specific price of the scheduled goods which are being brought within the local area at the time of entry in the local area and the entry being the taxing event that would be the price which alone can be taken into account for computing the tax ad valorem.
Therefore, we find it difficult to agree with the reasoning adopted by the High Court in rejecting the contention but for the reasons hereinabove mentioned the contention is devoid of merits and accordingly it must be negatived.
846 As we are not able to uphold the contentions which found favour with the High Court in striking down the impugned Act and the notification issued thereunder and as we find no merit in other contentions canvassed on behalf of the respondents for sustaining the judgment of the High Court, this appeal must succeed.
Accordingly this appeal is allowed and the judgment of the High Court is quashed and set aside and the petition filed by the Respondent in the High Court is dismissed with costs throughout.
P.B.R. Appeal allowed.
| IN-Abs | The Karnataka Tax on Entry of Goods Into Local Areas for Consumption, Use or Sale therein Act 1979 was enacted by the State Legislature to levy tax on certain select goods at the time of their entry into a local area.
This tax was devised to off set the short fall in the funds of municipal and other local bodies by reason of the abolition of octroi which by experience was found to impede the development of trade and commerce.
Section 3 of the impugned Act provides that the tax shall be levied on entry of the scheduled goods into a local area for consumption, use or sale therein at such rate as may be specified by the State Government and different rates may be specified for different local areas.
By a notification issued under section 3 of the Act the State Government specified 27 local areas in the State which could levy the tax on scheduled goods and specified the rate of tax for each such local area therein.
The Scheduled goods are all varieties of textile; tobacco, sugar and the like.
Upholding the two principal contentions, among others, raised by the appellants in their writ petitions before the High Court that (i) section 3 does not empower the State Government to apply the provisions of the Act to such local areas only and to exclude other local areas and (ii) the levy of tax on all dealers irrespective of the value of scheduled goods brought by them into a local area without exempting petty dealers imposes an unreasonable restriction on the right to carry articles, the High Court struck down the Act as invalid.
Allowing the appeal ^ HELD: The express power of choosing and specifying different rates subject to maximum for different local areas is conferred on the State Government not by the expression 'such rate ' but by the expression 'rates ' with the adjectival clause 'different rates may be specified for different local areas '.
It was, therefore, not necessary to qualify the expression 'such rate ' again by the expression 'as may be specified by the State Government ' because that 824 is covered by the express power conferred by the expression 'different rates may be specified for different local areas '.
The use of article 'a ' before 'local area ' signifies not every local area but any local area.
[831C D] In re.
Sanders; ex parte Serqueant, Law Journal , The Queen vs Justices of Durham, [1895] 1 Q.B. 801, Coast Brick & Tile Works Ltd. & Ors.
vs Prem Chand Raichand & Anr.
[1967] 1 Appeal Cases 192 referred to.
Although, the taxing event is entry of scheduled goods in a local area, section 3 empowers the State Government to specify different rates of tax in respect of different scheduled goods for different local areas.
A local area means an area in a city governed by the Karnataka Municipalities Act or a municipal corporation governed by the Karnataka Municipal Corporation Act.
The local areas vary immensely both in dimension, population, industrial growth, and the scale and kind of municipal services rendered by them.
If the argument that 'a local area ' should be interpreted to mean 'every local area ' is accepted it would be obligatory on the State Government to levy tax on entry of scheduled goods in every local area.
It would be unjust and inequitable to levy tax on entry of goods at the same rates for a big municipal corporation and a small municipal area, each of which does not stand comparison with the other.
The choice to select local areas is a necessary concomitant of a choice to select the rates which is a power conferred on the State Government.
The purpose underlying the statute, namely, to provide financial assistance to the municipalities would be better effectuated if the tax realised considerably outweighs the administrative cost in collection.
The High Court fell into an error because it adopted a literal, grammatical construction and overlooked the underlying object of the Act and the historical background in levying the tax.
[831C G; 832C E] There is no force in the contention that if the State Government is granted a choice in the matter of selection of local areas ipso facto the statute would be unconstitutional as being violative of Article 14.
It is a well accepted principle of constitutional law that there is always a presumption of constitutionality of a statute.
In the matter of taxing statutes the legislature which is competent to levy a tax, has full freedom to determine the articles, the manner and the rate of tax.
[832G H; 834E] Khyerbari Tea Co. Ltd. & Anr.
vs The State of Assam ; and East India Tobacco Co. vs State of Andhra Pradesh ; , 409 referred to.
The High Court was wrong in its view that section 3 did not permit the State Government to pick and choose the local areas for the levy of tax.
In selecting the local areas and the rates of tax to be levied on different scheduled goods the State has adopted the criterion of population of a local area which undeniably is a reasonable criterion because the yield of the tax would be directly proportionate to the consumption of the goods in the local areas and the consumption of goods is directly related to the population within the local area.
[835F G] Non exemption of petty dealers from the operation of the Act does not lead to the conclusion that the impugned legislation constituted an unreasonable restriction on the fundamental right of the petty dealers to carry on their trade or business.
If petty dealers were to be exempt, the criterion of turnover in the scheduled goods for classifying the petty dealers will have to be kept high in which event the big registered dealers could conveniently bring the scheduled goods into local areas in the name of petty dealers.
The taxing 825 event being entry of scheduled goods in a local area at the instance of a dealer, the volume or quantum of business of the dealer is not at all relevant.
Unlike under the old system of octroi where every importer was taxed, under the Act only a dealer, dealing in scheduled goods is required to pay the tax.
[838B C] If a State tax law accords identical treatment in the matter of levy and collection of taxes on the goods manufactured within the State and identical goods imported from outside the State, article 304(a) would be complied with.
There is an underlying assumption in Article 304(a) that such a tax when levied within the constraints of Article 304(a) would not be violative of Article 301 and the State Legislature has the power to levy such tax.
[841E] In the instant case the tax is non discriminatory in that it does not discriminate between scheduled goods manufactured within the State and those imported from outside the State.
A minor discrimination between two types of goods if any is hardly relevant for the purposes of Article 304(a).
Therefore, the impugned tax satisfies the requirements of Article 304(a).
[841F G] There is no evidence to show that the burden of tax would be so heavy as to constitute an unreasonable restriction on the freedom of trade and commerce.
Although, in theory the tax leviable is not a single point tax and becomes leviable at every point whenever the goods are taken from one local area to another and then on to yet another no attempt was made to substantiate how the goods are so successively moved because if they are taken for consumption or use in one place, there is no question of taking them from that local area to another local area and so on.
[842D G] Even if the tax, to some extent, imposes an economic impediment to the activity taxed that by itself is not sufficient to stigmatise the levy as unreasonable or not in public interest.
What is sought to be done is to impose a modest levy on certain goods at the time of their entry into a local area by removing the obnoxious features of octroi.
The tax is not intended to augment the finance of the local bodies but to compensate them for loss suffered by the abolition of the octroi.
[844A B] The requirements of the proviso to Article 304(b) are satisfied because the President accorded sanction to the impugned Act.
[844F]
|
Civil Appeal No. 631 of 1973.
Appeal by Special Leave from the Judgment and Order dated 14/16th November, 1970 of the Gujarat High Court in Sales Tax Reference No. 9/69.
R. P. Bhatt and section P. Nayar for the Appellant.
Appeal Set down ex Parte against respondent.
The following Judgments were delivered.
BHAGWATI, J. I have had the advantage of reading the judgment prepared by my learned brother Sen and I entirely agree with the conclusion reached by him, but I would like to state briefly my 873 own reasons for arriving at that conclusion.
The facts giving rise to this appeal have been stated with admirable succinctness by my learned brother Sen and I need not repeat them.
The facts in deed are not material, because only one single question of law arises for determination in this appeal and it does not depend on any particular facts.
The question is a very simple one, namely, whether the expression 'Registered dealer ' in sec.8(ii) of the Bombay Sales Tax Act, 1959 as applicable to the State of Gujarat (hereinafter referred to as the Bombay Act) means only a dealer registered under section 22 of that Act or it also comprises a dealer registered under the (hereinafter referred to as the Central Act).
Since the decision of this question turns on the true interpretation of the expression 'Registered dealer '.
in sec.8(ii) of the Bombay Act, we may reproduce that section as follows: "Sec.8: There shall be levied a sales tax on the turn over of sales of goods specified in Schedule C at the rate set out against each of them in column 3 thereof, but after deducting from such turnover (i) * * * * (ii) resales of goods purchased by him on or after the appointed day from a Registered dealer if the goods at the time of their purchase were goods specified in Schedule C".
This section has obviously been enacted to prevent multiple point taxation on goods specified in Schedule C.
Where goods specified in Schedule 'C ' are sold by a dealer and obviously he must be a dealer registered under section 22 of the Bombay Act, if he is liable to pay tax under that Act the turnover of these sales is liable to be taxed at the rate specified against each category of goods in that Schedule, but if the sales in question are re sales of goods purchased by the dealer on or after the appointed day from a 'Registered dealer ', they would be liable to be excluded from the turnover, because the 'Registered dealer ' from whom they are purchased would have paid tax under the main part of section 8 and the goods having already borne tax in the hands of the selling 'Registered dealer ', the legislative intent is that they should not suffer tax again.
Now the expression 'Registered dealer ' is defined in section 2(15) of the Bombay Act to mean "a dealer registered under section 22" and therefore, ordinarily, the expression 'Registered dealer ' as used in section 8(ii) must carry the same meaning, namely, a dealer registered under section 22 of the Bombay Act.
But, as the opening part of section 2 shows, the definitional meaning is subject to anything repugnant in the subject or 874 context.
The context in which the defined word occurs may clearly indicate that it is used in a sense different from that given in the definition clause.
We must therefore see whether there is anything in section 8(ii) or in the context in which it occurs which should compel us to place on the expression 'Registered dealer ' as used in that section a meaning different from that given to it in section 2(15).
We are afraid we do not find anything in the subject or context of sec.8(ii) which would persuade us to depart from the definitional meaning of the expression 'Registered dealer '.
The subject and context in fact re enforce the view that the expression 'Registered dealer ' in sec.8(ii) is used to mean a dealer registered under sec.22 of the Bombay Act, and does not include a dealer registered only under the Central Act.
If a dealer is registered only under the Central Act and not under the Bombay Act, it would mean that he is not liable to pay tax under the Bombay Act and in that event, even if he has sold goods specified in Schedule 'C ', to a registered dealer under an intra State sale, no tax would be payable by him on such sale and if the purchasing dealer is also to be exempt from tax in respect of re sale effected by him, the result would be that the goods would escape tax altogether and not suffer even single point tax.
That surely could not have been the intendment of the legislature in enacting section 8(ii).
It would indeed frustrate the object of section 8(ii) which is to provide for imposition of single point tax on the goods specified in Schedule 'C '.
The situation would be the same even where the sale effected by the dealer registered under the Central Act is an inter State sale.
That sale would undoubtedly be taxable under the Central Act, but it is difficult to see why the Gujarat State should give exemption to re sale of goods in respect of which, at the time of the first sale, tax has been levied under the Central Act of which the benefit has gone to another State.
Moreover, in such a case, the first sale being an inter State sale, would be taxable at a fixed concessional rate under section 8(1)(a) or at the rate of 7% or at a rate equal to or twice the rate applicable to the sale of such goods in the State of the selling dealer, under clause (a) or (b) of sub section (2) of sec.
8 of the Central Act and if that be so, it is impossible to understand why the Legislature should have insisted, for attracting the applicability of section 8(ii), that the goods resold by the dealer should at the time of their first sale be goods specified in Schedule 'C '.
The requirement that the goods at the time of their first sale by the 'Registered dealer ' should be of one of the categories specified in Schedule 'C ', is a clear pointer that the 'Registered dealer ' contemplated in this provision is a dealer registered under section 22 of the Bombay Act, because it is only with reference to such a dealer liable to pay tax under the Bombay Act that this 875 requirement of the goods sold by him being goods specified in Schedule 'C ' can have any meaning and significance.
We are, therefore, clearly of the view that the expression 'Registered dealer ' is used in section 8(ii) in its definitional sense to mean a dealer registered under section 22 of the Bombay Act and it does not include a dealer registered under the Central Act.
The Revenue, however, relied on section 4 of the Bombay Act and tried to project it in the interpretation of the expression 'Registered dealer ' in section 8(ii).
We fail to see how section 4 can at all help in throwing light on the true interpretation of the expression 'Registered dealer '.
That section provides: "Sec. 4(1): Notwithstanding anything in section 3, a dealer who is registered under the , but who is not liable to pay tax under the said section 3, shall nevertheless be liable to pay tax (a) on Sales of goods is respect of the purchase of which he has furnished a declaration under sub sec.
(4) of section 8 of the , and (b) on sales of goods in the manufacture of which the goods so purchased have been used; and accordingly, the provisions of sections 7 to 12 (both inclusive) shall apply to such sales, as they apply to the sales made by a dealer liable to pay tax under section 3.
(2) Every dealer who is liable to pay tax under sub section (1) shall, for the purposes of sections 32, 33, 35, 36, 37, 38, 46, 47 and 48 be deemed to be a Registered dealer.
" It is obvious that if a dealer is not registered under the Bombay Act, it could only be on the basis that he is not liable to pay tax under the Bombay Act, but even so, section 4, sub section (1) provides that if he is registered under the Central Act, he would be liable to pay tax under the Bombay Act in respect of the transactions of sale set out in that section.
This liability arises despite the fact that the dealer, not being liable to pay tax under section 3 of the Bombay Act, is not registered under that Act.
The question then would be: if the dealer is not registered under the Bombay Act, how to recover the tax from him? The dealer not being registered under the Bombay Act, the machinery of the Bombay Act would not of itself apply for recovery of tax from him.
Section 4, sub section (2) therefore enacts that every dealer who is liable to pay tax under sub section (1) shall, for the purposes of sections 32 to 38 and 46 876 to 48 be deemed to be a Registered dealer.
Sections 32 to 38 and 46 to 48 are machinery sections and it is for the purpose of making the machinery of these sections applicable for recovery of the tax imposed on the dealer under sub section (1) of section 4 that an artificial fiction is created deeming the dealer to be a Registered dealer, that is, a dealer registered under section 22 of the Bombay Act.
This legal fiction is created for a specific purpose and it is limited by the terms of sub section 2 of section 4 and it cannot be projected in section 8(ii).
Section 4 has, in fact, nothing to do with section 8(ii).
They are distinct and independent provisions operating on totally different areas, and it is difficult to see how section 4 can be availed of for the purpose of interpreting the expression "Registered dealer" in section 8(ii).
I would therefore set aside the judgment of the High Court under appeal and answer the question referred by the Tribunal in favour of the Revenue and against the assessee.
There will be no order as to costs of the appeal.
SEN, J.
This appeal, by special leave, is from a judgment of the Gujarat High Court, upon a question of law referred to it under sub s.(1) of s.61 of the Bombay Sales Tax Act, 1959 (hereinafter referred to as 'the Act ').
By that judgment the High Court answered the question referred in the affirmative and in favour of the assessee.
The point involved is of considerable importance.
The facts giving rise to the reference were these: Messrs Union Medical Agency, Ahmedabad was, at all material times, carrying on business in spirit and alcohol, and was a dealer registered under s.22 of the Act (hereinafter referred to as 'the assessee ').
In the assessment year 1964 65, the corresponding accounting year of which was the year ending March 31, 1965, the assessee claimed deduction from its turnover in respect of resales of certain goods purchased from one Motibhai Gopalbhai Patel of Baroda who, at the relevant time, was a dealer registered under s.7 of the (hereinafter referred to as 'the Central Act '), but was not a dealer registered under section 22 of the Act.
The Sales Tax Officer rejected the claim of the assessee for such deduction on the ground that the said Motibhai Gopalbhai Patel from whom the goods were purchased was not a registered dealer within the meaning of cl.(ii) of s.8 of the Act inasmuch as he was not registered as a dealer under s.22 of the Act.
The assessee appealed to the Assistant Commissioner of Sales Tax, the only material ground being that the expression 'registered dealer ' in cl.
(ii) of section 8 of the Act was wide enough to 877 include a registered dealer under the but the Assistant Commissioner affirmed the disallowance of the deduction.
On further appeal, the Gujarat Sales Tax Tribunal agreeing with the Sales Tax Authorities, held that in order to claim deduction from the turnover of sales of goods under cl.
(ii) of section 8 of the Act, what was required to be shown was that the goods were purchased by the dealer on or after the appointed day from a 'registered dealer ' under the Act, and that in view of the definition of the expression 'registered dealer ' in sub s.(25) of s.2 of the Act, such dealer had to be a dealer registered under s.22 of the Act.
The Tribunal accordingly held that since Motibhai Gopalbhai Patel, the Baroda dealer, from whom the assessee had purchased the goods, was not a registered dealer under the Act, therefore the requirements of cl.(ii) of s.8 of the Act were not fulfilled, and the claim for deduction made by the assessee had been rightly disallowed.
On the application of the assessee, the Tribunal referred the following question of law to the High Court under sub section
(1) of section 61 of the Act, for its opinion, namely: "Whether for the purpose of allowing deduction from the turnover of sales under clause (ii) of section 8 of the Bombay Sales Tax Act, 1959, purchases of goods made by a dealer registered under the Bombay Sales Tax Act, 1959 from a dealer registered under the but not registered under the Bombay Sales Tax Act.
1959 can be said to be purchases of goods made from a registered dealer within the meaning of clause (ii) of section 8 of the Bombay Sales Tax Act, 1959.
" It appears that the High Court was not satisfied at this formulation as it felt that the statement of the case as made by the Tribunal did not bring out the real question of law arising out of its order.
At the instance of the assessee, it re framed the question in the following terms: "Whether for the purpose of allowing deduction from the turnover of sales under clause (ii) of section 8 of the Bombay Sales Tax Act, 1959, purchases of goods made by a dealer registered under the Bombay Sales Tax Act, 1959 from a dealer who is registered under the and who is liable to pay tax under section 4 of the Bombay Sales Tax Act, 1959 though not registered under the Bombay Sales Tax Act, 1959 can be said to be purchases of goods made from a registered dealer within the meaning of clause (ii) of section 8 of the Bombay Sales Tax Act, 1959.
" 878 We feel that the High Court was not justified in re framing the question as referred.
It is nobody 's case that Motibhai Gopalbhai Patel, the Baroda dealer from whom the assessee had purchased the goods, had ever paid any tax on the sales effected by him under s.4 of the Act.
Nor is there any material on record to suggest that any proceedings were started against the Baroda dealer for subjecting the transactions to tax.
In answering the reference in the affirmative, in favour of the assessee and against the Commissioner of Sales Tax, the High Court observes: "The result of the foregoing discussion is that having regard to the context, collocation and the object of the expression 'registered dealer ' in clause (ii) of section 8 of the Bombay Act, and having regard to the policy of the Act, the said expression would also include a dealer registered under the Central Act on whom special liability to pay sales tax has been imposed under section 4 of the Act.
A dealer who purchases goods from a dealer registered under the Central Act, who is liable to pay sales tax on the sale of the said goods by virtue of the provisions of section 4 of the Bombay Act, would, therefore, be entitled to deduct from his turnover of sales of goods, resales of goods so purchased by him on or after the appointed day if the goods, at the time of their purchase, were goods specified in Schedule C." This conclusion of the High Court can hardly be supported.
The short question that falls for determination in the appeal is whether the expression 'registered dealer ' in cl.(ii) of s.8 of the Act must bear the meaning that is assigned to it in section 2(25) which is the definition section, or the said expression is capable of bearing an enlarged meaning, in view of the subject and context in which it is used in cl.(ii) of s.8 of the Act.
The decision of the appeal must turn on the construction of cl.(ii) of s.8 of the Act, which provides: "8.
There shall be levied a sales tax on the turnover of sales of goods specified in Schedule C at the rate set out against each of them in column 3 thereof, but after deducting from such turnover: (i) * * * * * * * (ii) resales of goods purchased by him on or after the appointed day from a Registered dealer if the goods at the time of their purchase were goods specified in Schedule C." 879 In the Act, the expression 'registered dealer ' is defined in section 2(25) in these terms: "2.
In this Act, unless the context otherwise requires, (25) "Registered dealer" means a dealer registered under section 22.
" The error in the decision of the High Court lies in its misunderstanding of the scope and effect of section 4 of the Act, which it has tried to project into cl.
(ii) of section 8 and it reads as follows: "4.
(1) Notwithstanding anything in section 3, a dealer who is registered under the , but who is not liable to pay tax under the said section 3, shall nevertheless be liable to pay tax (a) on sales of goods in respect of the purchase of which he has furnished a declaration under sub section (4) of section 8 of the , and (b) on sales of goods in the manufacture of which the goods so purchased have been used, and accordingly, the provisions of sections 7 to 12 (both inclusive) shall apply to such sales, as they apply to the sales made by a dealer liable to pay tax under section 3.
(2) Every dealer who is liable to pay tax under sub section (1) shall, for the purposes of sections 32, 33, 34, 35, 36, 37, 38, 46, 47 and 48 be deemed to be a Registered dealer.
" Sub section (3) of section 7 reads: "7.(3) In order to ensure that after the date of the coming into force of section 15 of the , tax shall not be levied on the sales or purchases of Declared goods at more than one stage, it is hereby provided that if under this Act or any earlier law, any tax has been levied or is leviable on the sale or purchase of such goods then no further tax shall be levied under this Act on any subsequent sale or purchase thereof; and accordingly, for the purpose of arriving at the taxable turn over of sales or purchases of a dealer, there shall be deducted from his total turnover of sales, or as the case may be, of purchases, the sales or purchases of such declared goods as have borne tax at any earlier stage.
" There is no obscurity in the language of cl.
(ii) of section 8 of the Act.
It is clear from the terms of cl.
(ii) of section 8 that no deduction is claimable in respect of resales of goods purchased from a dealer registered under the Central Act, who is not a registered dealer within the meaning of section 2(25) of the Act.
It follows that the 880 expression 'registered dealer ' in cl.
(ii) of section 8 of the Act must bear the meaning of that expression as given in section 2(25) of the Act.
If the meaning of the section is plain, it is to be applied whatever the result.
It is a well settled principle that when a word or phrase has been defined in the interpretation clause, prima facie that definition governs whenever that word or phrase is used in the body of the statute.
But where the context makes the definition clause inapplicable, a defined word when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause; all definitions given in an interpretation clause are, therefore, normally enacted subject to the usual qualification 'unless there is anything repugnant in the subject or context ', or 'unless the context otherwise requires '.
Even in the absence of an express qualification to that effect such a qualification is always implied.
The expression 'registered dealer ' having been defined in s.2(25) of the Act as having a particular meaning, i.e., a dealer registered under section 22 of the Act, it is that meaning alone which must be given to it in interpreting cl.
(ii) of s.8 of the Act, unless there is anything repugnant to the context.
It was not permissible for the High Court to ignore a statutory definition and give to the expression a wider meaning independent of it.
There is nothing to suggest that the expression 'registered dealer ' is used in cl.
(ii) of s.8 of the Act in any different sense from that in ' which it is defined.
It is significant to notice that whenever the legislature wanted that the expression 'registered dealer ' should have a different meaning, it has expressly said so.
Thus in sub s.(1) of s.4 it mentions of 'a dealer who is registered under the '.
The distinction between the two classes of dealers is, therefore, clearly maintained.
The High Court was obviously wrong in not interpreting the expression 'registered dealer ' in the context of cl.
(ii) of s.8 but with reference to the other provisions of the Act, particularly in the light of section 4 of the Act, to give effect to the so called legislative intent for the levy of a single point tax.
It was in error in making an exposition ex visceribus actus and in relying upon the leading cases of Bywater vs Brandling, Rein vs Lane, Jobbins vs Middlesex Country Council Craies on Statute Law, 6th ed., 99, and Maxwell on Interpretation of Statutes, 8th ed., 30.
The High Court expresses the view that the legislative intent in enacting cl.
(ii) of s.8 of the Act is two fold (1) to restrict the levy 881 of sales tax to a single point and to avoid multiple levy of sales tax on goods, and (2) that sales tax should be levied at the stage of the first sale and should be recovered from the registered dealer who effects the first sale and that all subsequent sales of such goods should not be subjected to sales tax over again.
In the light of this so called legislative intention and the policy of the Act, the High Court observes that 'having regard to the context, collocation and the object of the expression 'registered dealer ' in cl.(ii) of s.8 of the Act ', and 'having regard to the legislative intent, namely, to levy a single point tax under sub s.(3) of s.7 of the Act ', the expression 'registered dealer ' in cl.
(ii) of s.8 would also include a dealer registered under the , on whom a special liability to pay sales tax has been imposed under s.4.
Upon that view, it held that a dealer who purchased goods from a dealer registered under the Central Act, who was liable to pay sales tax on the sale of such goods by virtue of the provisions of s.4 of the Act, would be entitled to deduct from his turnover of sales of goods, resales of goods so purchased by him on or after the appointed day if the goods at the time of their purchase, were goods specified in Schedule C of the Act.
It accordingly held that the meaning of the expression 'registered dealer ' in cl.(ii) of s.8 was not limited only to a dealer registered under the Act but it was wide enough to also include a dealer registered under the Central Act.
There is no dispute with the proposition that the meaning of a word or expression defined may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in definition section, namely 'unless the context otherwise requires '.
In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words in a particular section, there is no scope for the application of the rule ex visceribus actus.
This rule is never allowed to alter the meaning of what is of itself clear and explicit.
The authorities relied upon by the High Court are, therefore, not applicable.
While accepting that sub s.(3) of s.7 of the Act was to give effect to cl.(a) of s.15 of the Central Act, and therefore cannot control the interpretation of cl.(ii) of s.8, the High Court commits the mistake of interpreting the expression 'registered dealer ' appearing therein, in the context of s.4 of the Act.
The provisions of s.4, sub s.(3) of s.7 and cl.(ii) of s.8 of the Act operate in three different fields.
882 While s.4 of the Act provides that a registered dealer under the Central Act who may not be liable to pay tax under s.3 of the Act may nevertheless in certain contingencies be liable to pay tax, sub section
(3) of s.7 provides for the levy of single point tax on sales in the course of inter state trade and commerce of declared goods, to bring the Act in conformity with cl.(a) of s.15 of the Central Act.
The object and purpose of enacting the provisions of s.8 are entirely different, namely, to lay down the mode of computation of the turnover of sales or purchases of a registered dealer for the imposition of a tax.
Clause (ii) of s.8 allows for deduction of resales from the turnover of such registered dealer when the goods are purchased from a registered dealer, i.e., a dealer registered under s.22 of the Act.
In effect, s.8 deals with transactions of sale or purchase taking place within the State.
There is a fallacy in the reasoning of the High Court.
It seems that the High Court was obsessed with two factors, namely (1) the concept of a single point tax under sub s.(3) of s.7 of the Act, and (2) the fact that a registered dealer under the Central Act who may not be liable to pay tax under s.3 of the Act may nevertheless in certain contingencies be liable to pay tax.
It failed to appreciate that cl.(ii) of s.8 which allows for deduction of sales by one registered dealer to another, deals purely with inside sales.
The expression 'registered dealer ' in cl.(ii) of s.8 is sought to be given an enlarged meaning by stretching, in effect, the legal fiction contained in sub s.(2) of s.4.
After observing that the legal fiction in sub s.(2) of s.4 is created for a limited purpose, it goes on to observe: "It would, therefore, have been inappropriate or at any rate wholly inartistic for the legislature to provide in sub section (2) of section 4 that every dealer who is liable to pay tax under sub section (1) shall be deemed to be a registered dealer for the purpose of clause (ii) of section 8 since the latter section provides for the levy of sales tax on sales of goods of an altogether different dealer after making certain deduction from the turnover of sales of goods of such dealer.
The legislature could have made a specific provision, if any, in this behalf only in clause (ii) of section 8 and not in sub section (2) of section 4." The High Court proceeds on the hypothesis that the transactions in question must have been brought to tax in the hands of the Baroda dealer and, therefore, it became necessary to avoid multiple levy of sales tax.
On that assumption, it felt that it was necessary to give to the assessee the benefit of s.8(ii) of the Act although the Baroda dealer was not a registered dealer within the meaning of 883 section 2(25) i.e., registered as a dealer under section 22 of the Act.
We regret to say that in reaching that conclusion, the High Court has proceeded on mere conjectures and surmises.
For aught we know, the Baroda dealer at the relevant time, might not be engaged in the business of selling goods in the State of Gujarat and was, therefore, not a dealer liable to pay tax at all.
Perhaps he was primarily engaged in effecting sales in the course of inter State trade and commerce, or it may be that the inside sales effected by him did not exceed the taxable limits.
Both the parties proceeded upon the basis that the purchases effected by the assessee were not subjected to tax.
It was, therefore, not right for the High Court to hold that the disallowance of deduction claimed by the assessee under cl.(ii) of s.8 of the Act would result in double taxation of the same goods.
It is evident that the High Court has completely misdirected itself.
The transactions of sales effected by the Baroda dealer to the assessee who was a dealer at Ahmedabad, were clearly inside sales.
While it is true that the Baroda dealer being a dealer registered under s.7 of the was, in certain contingencies, liable to pay tax under s.4 of the Act, but that circumstance by itself would not make him a 'registered dealer ' within the meaning of section 2(25) of the Act.
If the legislature really intended that the expression 'registered dealer ' in cl.(ii) of s.8 should take within its ambit a dealer registered under the , upon whom liability to pay sales tax is imposed by s.4 of the Bombay Act, it would have said so in clear words.
It would have made necessary provision in that behalf in sub s.(2) of s.4 which provides that every dealer liable to pay tax under sub s.(1) shall be deemed to be a registered dealer for purposes of certain sections of the Bombay Act viz., sections 32, 33, 34, 35, 36, 37, 38, 46, 47 and 48.
It is thus apparent that the legal fiction in sub s.(2) of s.4 is created for a limited purpose, namely, to make section 4 a self contained code which not only imposes a charge of tax and lays down the rate structure, but also provides the machinery for assessment and recovery of tax and penalty.
The legal fiction contained in sub s.(2) of s.4 of the Act cannot be stretched any further.
For these reasons, the judgment of the High Court answering the reference in favour of the assessee is set aside.
The question referred by the Tribunal is answered in the negative and in favour of the Revenue.
There shall be no order as to costs.
S.R. Appeal allowed.
| IN-Abs | Allowing the appeal by special leave and answering against the assessee, the Court.
^ HELD: Per Bhagwati,J. (Concurring with Sen and Venkataramiah, JJ.) (1) The expression "Registered dealer" is used in section 8 (ii) in its definitional sense to mean a dealer registered under section 22 of the Bombay Sales Tax Act and it does not include a dealer under the Central Sales Tax Act.
[875A] (2) The object of section 8 is to prevent a multiple point taxation on goods specified in Schedule C and for imposition of single point tax on them under the Act.
If a dealer is registered only under the Central Act and not under the Bombay Act, it would mean that he is not liable to pay tax under the Bombay Act and in that event, even if he has sold goods specified in Schedule 'C ', to a registered dealer under an intra State sale, no tax would be payable by him on such sale and if the purchasing dealer is also to be exempt from tax in respect of re sale effected by him, the result would be that the goods would escape tax altogether and not suffer even single point tax.
That is not the intendment of the legislature in enacting section 8(ii); on the contrary it would frustrate the very object of that section.
The situation would be the same even where the sale effected by the dealer registered under the Central Act is an inter State sale.
That sale would undoubtedly be taxable under the Central Act but there is no reason why the Gujarat State would give exemption to re sale of goods in respect of which, at the time of the first sale tax has been levied under the Central Act of which the benefit has gone to another State.
Moreover, in such a case, the first sale being an inter State sale, would be taxable at a fixed concessional rate under section 8(1)(a) or at the rate of 7% or at a rate equal to or twice the rate applicable to the sale of such goods in the State of the selling dealer, under clause (a) or (b) of sub section (2) of section 8 of the Central Act and if that be so, it is difficult to understand why the Legislature should have insisted, for attracting the applicability of section 8(ii), that the goods re sold by the dealer should at the time of their first sale be goods specified in Schedule 'C '.
[873F G, 874C G] 871 (3) Sections 4 and 8(ii) of the Bombay Act are distinct and independent provisions operating on totally different areas.
The legal fiction in sub section (1) of section (4) is created for a specific purpose and it is limited by the terms of sub section (2) of section 4 and it cannot be projected in section 8(ii).
If a dealer is not registered under the Bombay Act, it could only be on the basis that he is not liable to pay tax under the Bombay Act, but even so, section 4 sub section (1) provides that if he is registered under the Central Act, he would be liable to pay tax under the Bombay Act in respect of the transactions of sale set out in that section.
This liability arises despite the fact that the dealer, not being liable to pay tax under section 3 of the Bombay Act, is not registered under that Act.
The dealer not being registered under the Bombay Act, the machinery of the Bombay Act would not of itself apply for the recovery of tax from him.
Section 4 sub section 2, therefore, enacts that every dealer who is liable to pay tax under sub section (1) shall, for the purpose of sections 32 to 38 and 46 to 48 be deemed to be a registered dealer.
Sections 32 to 38 and 46 to 48 are machinery sections and it is for the purpose of making the machinery of these sections applicable for recovery of the tax imposed on the dealer under sub section (1) of section 4 that an artificial fiction is created deeming the dealer to be a registered dealer, that is, a dealer registered under section 22 of the Bombay Act.
Per Sen, J. (On behalf of himself and Venkataramiah, J.).
(1) It is a well settled principle that when a word or phrase has been defined in the interpretation clause, prima facie that definition governs whenever that word or phrase is used in the body of the statute.
But where the context makes the definition clause inapplicable, a defined word when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause; all definitions given in an interpretation clause, are, therefore, normally, enacted subject to the usual qualification "unless there is anything repugnant in the subject or context", or "unless the context otherwise requires".
Even in the absence of an express qualification to that effect such a qualification is always implied.
The expression "registered dealer" having been defined in section 2(25) of the Bombay Act as having a particular meaning, that is, a dealer registered under section 22 of the Act, it is that meaning alone which must be given to it in interpreting clause (ii) of section 8 of the Bombay Act unless there is anything repugnant to the context [880B D] There being no obscurity in the language of clause (ii) of section 8 of the Bombay Act, it is clear that no deduction is claimable in respect of re sales of goods purchased from a dealer registered under the Central Act, who is not a registered dealer within the meaning of section 2(25) of the Act.
It follows that the expression "registered dealer" in clause (ii) of section 8 of the Act must bear the meaning of that expression as given in section 2(25) of the Act.
If the meaning of the section is plain it is to be applied whatever the result, [879H 880A] (2) The meaning of a word or expression defined may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in definition section, namely, "unless the context otherwise requires".
In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words in a particular section.
But where there is no obscurity in the language of the section, 872 there is no scope for the application of the rule ex visceribus actus.
This rule is never allowed to alter the meaning of what is of itself clear and explicit.
[881E G] Bywater vs Brandling, ; Rein vs Lane, and Jobbins vs Middlesex County Council, Craies, , held inapplicable.
(3) The provisions of section 4, sub section (3) of section 7 and clause (ii) of section 8 of the Bombay Act operate in three different fields.
While section 4 of the Act provides that a registered dealer under the Central Act who may not be liable to pay tax under section 3 of the Act may nevertheless in certain contingencies be liable to pay tax, sub section (3) of section 7 provides for the levy of a single point tax on sale in the course of inter State trade and commerce of declared goods, to bring the Act in conformity with clause (a) of section 15 of the Central Act.
The object and purpose of enacting the provisions of section 8 are entirely different, namely, to lay down the mode of computation of the turnover of sales or purchases of a registered dealer for the imposition of a tax.
Clause (ii) of section 8 allows for deduction of re sale from the turnover of such registered dealer when the goods are purchased from a registered dealer, that is, a dealer registered under section 22 of the Act.
In effect, section 8 deals with transactions of sale or purchase taking place within the State.
The disallowance of deduction claimed by the assessee under clause (ii) of section 8 of the Act, therefore, would not result in double taxation of the same goods.
[881H 882C, 883C] While it is true that the Baroda dealer being a dealer registered under section 7 of the Central Sales Tax Act, in the instant case, was in certain contingencies, liable to pay tax under section 4 of the Act, but that circumstance by itself would not make him a "registered dealer" within the meaning of section 2(25) of the Act.
If the legislature really intended that the expression "registered dealer" in clause (ii) of section 8 should take within its ambit a dealer registered under the Central Sales Tax Act, upon whom liability to pay sales tax is imposed by section 4 of the Bombay Act, it would have said so in the clear words section (2) of section 4.
The legal fiction in sub section
(2) of section 4 is created for a limited purpose, namely, to make section 4 a self contained code which not only imposes a charge of tax and lays down the rate structure, but also provides the machinery for assessment and recovery of tax and penalty.
The legal fiction contained in sub section
(2) of section 4 of the Act cannot be stretched any further.
[883D E, G]
|
Civil Appeal No. 1712 of 1973.
From the Judgment and Order dated 20 5 1971 of the Allahabad High Court in Estate Duty Reference No. 95/66 connected with Estate Duty Reference No. 78/69.
S.C. Manchanda, K.C. Dua and Miss A. Subhashini for the Appellant.
P.K. Mukherjee and Pramod Swarup for the Respondent.
The Judgement of the Court was delivered by SEN J.
This appeal on certificate under section 65(1) of the (hereinafter referred to as 'the Act ') arises from a judgment of the Allahabad High Court delivered on a case stated under section 64 of the Act by which the High Court answered two of the questions against the accountable person and in favour of the Controller of Estate Duty but the third in the negative, against the Controller of Estate Duty and in favour of the accountable person.
We are not concerned with the first two questions, but only the third, which reads: "Assuming that the shares in dispute really belonged to Sri K.M. Mitra deceased, whether those shares in the circumstances of the case constituted property which passed on the death of Sri K.M. Mitra for the purposes of section 5 of the .
" The facts giving rise to the reference are these: The late Sri K.M. Mitra died on February 11, 1957 leaving a large and extensive estate.
On his death his son Aloke Mitra, the accountable person, filed a return of estate duty valuing the estate of deceased at Rs. 3,75,235.
This included 502 shares of Rs. 100/ each in Mitra Prakashan Pvt. Ltd. and 225 shares of Rs. 100/ in Maya Press Pvt.
Ltd. held by the deceased.
The Assistant Controller of Estate Duty did not accept this part of the return and included 2002 shares in Mitra Prakashan Pvt. Ltd. and 1602 shares in Maya Press Pvt.
Ltd. standing in the name of Smt.
N. Mitra, wife of the deceased, 947 and his three sons, Aloke Mitra, Ashoke Mitra and Deepak Mitra, brother in law B.N. Ghosh and an ex employee, R.N. Misra since they were holding these shares benami.
He accordingly included the value of these shares in the principal value of the estate of the deceased.
His order was affirmed in appeal by the Central Board of Direct Taxes, that is, the Appellate Tribunal.
Under section 64(1) of the Act the Appellate Tribunal referred the question whether the shares allotted to the wife of the deceased as his nominee or as benamidar, were, as from the commencement of the held by her as a full owner thereof by virtue of provisions of section 14 of that Act.
According to the High Court, the said question did not at all arise.
On the finding that the transaction was benami and that the deceased was the real owner of the shares, the wife must be held to have no interest or title to the shares.
She was merely a benamidar or name lender.
Since she had no interest at all, the provisions of section 14 of the were not attracted as she was not possessed of any right or title.
The material facts of the case may now be stated.
The deceased carried on the business of printer and publisher under the name and style of Maya Press.
In 1953, his brother in law, B.N. Ghosh alongwith some other persons floated two companies, Mitra Prakashan Pvt. Ltd. and Maya Press Pvt. Ltd.
Under an agreement dated May 29, 1953 the deceased agreed to transfer his publishing business to Mitra Prakashan Pvt. Ltd. for a consideration of Rs. 2,07,500 and the printing business to Maya Press Pvt. Ltd. for Rs. 1,64,800.
It was agreed that the consideration would be paid by Mitra Prakashan Pvt. Ltd. in the form of cash to the extent of Rs. 7,500/ and the balance by allotting 2000 fully paid up shares of the value of Rs. 100/ each to the deceased or his nominees.
The other company, namely Maya Press Pvt.
Ltd. agreed to pay Rs. 4,800/ in cash and the balance of Rs. 1,60,000 in the form of 1600 fully paid up shares of the value of Rs. 100/ each to be allotted in the name of the deceased or his nominees.
In pursuance of this agreement, the business of Maya Press was transferred by the deceased on July 1, 1953 to the two companies.
On January 24, 1954 the deceased wrote to the two companies letters intimating that the shares be allotted to his wife Smt.
N. Mitra, three sons Aloke Mitra, Ashoke Mitra, Deepak Mitra, brother in law B.N. Ghosh and and employee, R.N. Misra.
The companies allotted the shares accordingly.
They in addition allotted two more shares to the deceased.
Thus, 502 shares were held by the deceased in his own name in Mitra Prakashan Pvt. Ltd. and 225 shares in Maya Press 948 Pvt.
Ltd. The rest were held by his wife, sons, brother in law and an ex employee.
It has been found that the total number of shares issued by the two companies was 2006 by the Mitra Prakashan Pvt. Ltd. and 1605 by Maya Press Pvt.
Ltd. Out of these 2002 and 1602 shares respectively were held by the deceased and his nominees.
The deceased by transferring his personal printing and publishing business to the two new companies had thus become through himself or his nominees practically the exclusive owner of these two companies.
It is an admitted fact that the deceased supplied the entire consideration for the purchase of these 2002 and 1602 shares and that his wife, sons, brother in law or the ex employee did not make any contribution for their acquisition.
On these facts, both the Assistant Controller of Estate Duty as well as the Appellate Tribunal held that the share scrips standing in the name of the wife of the deceased and his sons, brother in law and the ex employee really belonged to the deceased as they were mere benamidars and, therefore, included the value of the shares held by the deceased in the name of his wife and sons etc.
in the principal value of the estate passing on his death.
The true legal effect of the finding of the Appellate Tribunal is this: Smt.
N. Mitra, wife of the deceased, his three sons, brother in law and the ex employee held the shares benami for the benefit of the deceased.
They were, therefore, the benamidars of the deceased.
While upholding the order of the Assistant Controller, the Central Board of Direct Taxes observed that the mere fact that the subject matter was the shares in the two companies would not throw any more onus of proof on the Assistant Controller than would be thrown if the subject matter was some other property.
When money was paid by the deceased, it was for the accountable person to prove the gift.
The deceased had clearly mentioned in the letters dated January 24, 1954 to the two companies that the shares should be issued and allotted in the names of the persons nominated by him.
If the deceased intended to make an outright gift of these shares, he would have very well said so in the letters.
There being no presumption of advancement, the mere fact that the shares were got issued in their names without making any indication of gift, would not make the nominees recipients of any gift.
Using of names of benamidars for holding of shares in companies was as common as for any other type of property.
As regards the enjoyment of the income of these shares, it observed that there was no clear evidence to show that the money was actually used by the nominees.
It appeared that the dividends were only credited by book entry to the 949 personal accounts of the deceased, Aloke Mitra and the deceased 's wife the account of the deceased 's wife was also credited with dividends in the names of others than Aloke Mitra.
There was nothing to show that before the death of the deceased these amounts were actually withdrawn and utilised by the persons to whom they were supposed to belong.
Whatever was done after the death of the deceased may, by agreement between the heirs, have been adjusted in the allocation of other assets, and obviously could not be of any legal effect in determining the question whether the shares belonged to the deceased.
As already stated, the only question of law in the opinion of the Appellate Tribunal which could be referred under section 64(1) of the Act, was whether the shares allotted to the wife of the deceased as his nominee or as benamidar were, as from the commencement of the held by her as full owner thereof by virtue of the provisions of section 14 of that Act.
But it declined to make a reference on the other questions, holding that the finding that the shares were held by the deceased in the name of his wife and sons etc.
benami, was a finding of fact and it did not give rise to any question of law.
The accountable person being dissatisfied moved the High Court under section 64(3) and it directed the Tribunal to draw up a supplementary statement of the case and refer two other questions of law said to arise from its order.
When the reference came up before the High Court, it declined to answer questions other than those which were questions of law.
It refused to be drawn into the question of benami, which was purely one of fact, and not one of mixed law and fact and, therefore, following the decision of this Court in Shree Meenakshi Mills Ltd. vs C.I.T. held that the finding was not open to review under section 64(1) of the Act.
In answering the reference in the negative and against the Controller of Estate Duty, and in favour of the accountable person, the High Court merely observed 'As at present advised ' and preferred to follow the two decisions of the Andhra Pradesh High Court in Smt.
Shantabai Jadhav vs Controller of Estate Duty and Smt.
Denabai Bomab Shah vs Controller of Estate Duty taking a view to the contrary.
There is no discussion in the judgment at all and it seems that its attention was not drawn to section 5(1) of the Act.
Following the view in Smt.
Shantabai Jadhav 's case and Smt.
Denabai Bomab Shah 's case the High Court observed that since the shares 950 stood in the name of the wife and sons etc.
benami for the deceased, the deceased had no power to transfer since he had not obtained a release from the benamidars or a declaration from an appropriate court.
On this wrongful assumption, the High Court held that the deceased remained incompetent to transfer the shares till his death, and so, the property in them would not be deemed to pass upon his death by reason of section 6 and, therefore, they were not includible in the estate of the deceased under section 5(1) of the Act.
In Controller of Estate Duty, U.P. vs T.N. Kochhar the High Court following the judgment under appeal, observed: "It is well settled that the property which stands benami in the name of another is one in respect of which the beneficial owner has no competency to dispose of.
Before he can dispose of such a property he has to acquire a declaration from the appropriate court of law releasing the property in his favour.
" The High Court seems to assume that there is some interrelation between sections 5 and 6.
It has held that though the shares in question really belonged to the deceased, they would not, on the facts and in the circumstances of the case, constitute property which 'passed ' on the death of the deceased for the purpose of section 5(1) of the Act since the shares stood in the name of wife and sons etc.
benami for the deceased, but he had only beneficial interest therein inasmuch as the deceased was at the time of his death not competent to dispose of the shares and they could not be 'deemed to pass ' under section 6 of the Act.
The main question involved in the appeal is whether in the case of a benami transaction, the value of the property held by a benamidar passes upon the death of the real owner and is includible in the estate of the deceased under section 5 of the Act, or being so held by the benamidar, it cannot be deemed to pass on his death because of section 6 of the Act and, therefore, the value of such property cannot be included in the principal value of the estate of the deceased.
That depends upon the precise effect of section 5(1) and section 6 and their relation ship to one another namely, whether the chargeability of estate duty under section 5(1) of the Act, is limited and controlled by section 6.
The imposes a tax upon the principal value of all properties, settled or not settled, passing on death or deemed to pass on death.
Estate duty is chargeable at percentage rates rising with the value of the estate on all property passing on 951 death, including property of which the deceased was competent to dispose and gifts made within limited period before death.
Primary liability falls on the deceased 's estate.
The charging section is sub section
(1) of section 5 which provides that in case of a person dying after the commencement of the Act, estate duty is leviable on the capital value of all property, settled or not settled which 'passes ' on death at the rates fixed in accordance with section 35.
That is followed by a group of sections, sections 6 to 15, which relate to the levy of estate duty on properties which by the Act are 'deemed to pass ' on death.
For the avoidance of doubt, it is provided by sub section
(3) of section 3 that references in the Act to property passing on death of a person shall be construed as including references to property deemed to pass on the death of such person.
The expression 'property passing on death ' is defined in section 2(16) to include property passing immediately on death.
In general, the word 'passes ' may be taken as meaning 'changing hands on death ' regardless of its destination.
Section 6 of the Act, upon which the controversy turns, provides: "6.
Property which the deceased was at the time of his death competent to dispose of shall be deemed to pass on his death.
" By no rule of construction can the operation of sub section (1) of section 5 of the Act be curtailed by the operation of section 6.
It is in addition to or supplemental of, the provisions of sub section (1) of section 5, which is the charging section.
As a matter of construction, two views are possible.
One view is that the two sections are mutually exclusive and they have independent fields of operation.
Whenever property changes hands on death, the State is entitled to step in and take a toll of the property as it passed without regard to its destination or to the degree of relationship, if any, that may have subsisted between the deceased and the person or persons succeeding.
Section 5(1) gives effect to that principle and it imposes a duty called estate duty upon the principal value of all property, settled or not settled, which passes on death.
Section 6 does not apply to property of which the deceased was competent to dispose of and which passes on his death; it applies only to property which does not pass on his death but of which he was competent to dispose.
Sections 5(1) and 6 being mutually exclusive, the application of section 5 accordingly precludes recourse to section 6.
The other and the better view appears to be that section 5(1) alone 952 is capable of imposing a charge of duty and where both section 5(1) and section 6 apply, the property would still be dutiable under both concurrently.
Section 6 is merely subsidiary and supplementary and it declares that the expression 'property passing on the death of the deceased ' shall be 'deemed to include property which the deceased was competent to dispose of '.
When section 6 has brought property within the charge of duty 'either alone ' as in the case of competency to dispose of under section 6, which could not be supposed to 'pass on death ' or concurrently with section 5, its function is at an end.
In England, the Finance Act, 1894 (57 & 58 Vict. c. 30) imposed by section 1 estate duty 'upon the principal value ascertained as hereafter provided of all property, real or personal, settled or not settled which passed on the death ' of a person dying after the commencement of the Act.
By section 2, sub section
(1) 'property passing on the death of the deceased ' shall be deemed to include categories of properties specified therein.
The precise relationship between sections 1 and 2, before the law was amended in 1969, was a question on which judicial opinion fluctuated widely.
For over 60 years, they were regarded as mutually exclusive and having independent fields of operation; the view was that property could not be liable to duty concurrently.
In a situation where both sections 1 and 2 might apply, section 1 took priority and excluded section 2 liability.
It was laid down by the House of Lords, in a series of cases, that section 2(1) was not a definition section, explanatory of section 1, but an independent section operating outside the field of section 1: Earl Cowley vs Inland Revenue Commissioners, Attorney General vs Milne, Nevill vs Inland Revenue Commissioners.
In Earl Cowley 's case the House of Lords reversing the decision of the Court of Appeal, held that if the case fell within section 1, it went out of the purview of section 2.
Lord Macnaghten after observing that section 1 contained the pith and substance of the enactment, stated: "It is comprehensive, broad and clear. .
The first question as it seems to me the question that lies at the very threshold of our inquiry is simply this: Under which section of the Finance Act 1894 does the present case fall? Is it the ordinary and normal case of property passing on death, or is it one of those exceptional cases in which property is deemed to pass, though there is no passing of property in fact? Does it come under section 1 or under section 2?" 953 After differing from the Court of Appeal, he went on to say: "What the Act has in view for the purpose of taxation is property passing on death,.
Now, if the case falls within section 1 it cannot also come within section 2.
The two sections are mutually exclusive.
In my opinion the two sections are quite distinct, and section 2 throws no light on section 1.
But section 2 does not apply to an interest in property which passes on the death of the deceased.
That is already dealt with in the earlier section .
That is section 1.
You do not want section 2 for that.
You cannot resort to section 2.
For that would be giving the duty twice over.
The Crown cannot have it both ways.
Double duty is forbidden by the Act." (Emphasis supplied) The ratio decidendi in Earl Cowley 's case was that if a case fell within section 1 without the aid of section 2(1), one is not concerned with section 2(1).
Lord Macnaghten 's exposition of the inter relation of sections 1 and 2 in Earl Cowley 's case contained the essential characteristics of a statement of legal principle; it was expressed in very precise language, and with a confidence that excluded the possibility of any alternative view.
In Attorney General vs Milne (supra) Lord Haldane, after referring to Earl Cowley 's case, said: "Section 2 is thus not a definition section, but an independent section operating outside the field of section 1." Lord Atkinson, however, adopted Lord Haldane 's earlier view, treating section 2 as merely supplementary to section 1, and as designed to make liable to estate duty certain dispositions of property which were outside the scope and beyond the reach of section 1. "This section", he said, "is not a definition section".
He did not, however, say (and that is significant) that the two sections were mutually exclusive.
Lord Dunedin took a different view.
Having said that whether Lord Macnaghten was strictly correct or not in saying that whether the two sections were mutually exclusive or not seemed to him to matter little, he added: "It seems to me that that is as much as to say that the words, 'property passing on the death ', in the first section, are to be read as if the words, 'including the property following, 954 'that is to say ' (and then all the sub sections) had been there inserted." In Nevill vs Inland Revenue Commissioners (supra) Lord Haldane said: " 'Passes ' may be taken as meaning 'changes hands '.
The principle is contained in section 1.
Section 2 combines definitions of such property with the extension of the application of the principle laid down in section 1 to certain cases which are not in reality cases of changing hands on death at all.".
In Public Trustee vs Inland Revenue Commissioners (Re.
Arnholz) the House of Lords after a lapse of over 60 years, however, struck a discordant note.
The theory of 'mutual exclusiveness ' of sections 1 and 2 enunciated by Lord Macnaghten was not accepted.
It was held s.1 imposed the charge in general terms and s.2, by exclusion and inclusion, defined area of that charge.
No clear exposition was given or required to be given on the facts of the case of what was the precise effect of the two sections or their relationship to one another.
There followed a period of uncertainty as to the precise relationship between the two sections, although subsequent to Arnholz 's case section 1 alone was held to be still capable of imposing a charge of duty, and where both sections 1 and 2 applied, the property was held to be dutiable under both concurrently.
If the property which passed was identical with the property which would otherwise be deemed to pass, the question under which head it shall be taxed was purely academic.
Estate duty is not leviable more than once on the same death in respect of any property, even if it is chargeable under more than one head.
In Weir 's Settlement Trusts, Re.
Mc Pherson vs Inland Revenue Commissioners, the contention on behalf of the tax payer was that the decision in Public Trustee vs Inland Revenue Commissioners (Re.
Arnholz) established the complete reverse of the view expressed by Lord Macnaghten in Earl Cowley 's case, that is, established that section 2 exhaustively laid down the only circumstances in which estate duty was leviable, and that if the circumstance could not be brought within section 1, as being circumstances set out in section 2, that was the end of the matter, the phrase in section 1 'property which passes on the death ' having no content independent of section 2.
955 Russell L.J., in delivering the judgment of the Court of Appeal, resolved the doubts as to the relationship of ss.1 and 2 of the Act, and rejected the contention of the tax payer, observing: "It was certainly not decided by the majority in Arnholz 's case that, as a matter of construction, the entire content of 'property. which passes on death ' in section 1 was to be found in s.2.
" As regards the relationship of sections 1 and 2, he stated: "Our view of the relationship of the two sections is as follows.
It is section 1 that imposes the charge of estate duty on the value of property described as 'property. which passes on the death '.
Section 2(1) does not describe a different category of property, being property deemed to pass on a death.
Section 2(1) states certain situations in relation to property which involve that property in section 1 as property which passes on a death.
We see no reason to hold that section 2(1) was intended exhaustively to define and limit the situations in relation to property which thus involve that property.
The language is not apt for that purpose; and the fact that the situations envisaged embrace occasions when without guidance from section 2 (1) the property would be manifestly 'property. which passes on the death ' does not mean that they embrace all such occasions.
" The question is a difficult one on which there may well be divergence of opinion, as reflected in these English decisions which largely turn on the construction of sections 1 and 2 of the Finance Act, 1894, the provisions of which are somewhat similar to those of sections 5 and 6 of the Act.
The simultaneous existence of a right to tax under sections 1 and 2 was inconsistent with the well known statement of Lord Macnaghten in Earl Cowley 's case and could not, therefore, be sustained.
Nevertheless, the trend of judicial opinion in England rightly changed, as we think that Lord Macnaghten 's opinion ought not to be regarded as subject to such refinement.
The Andhra Pradesh High Court in Smt.
Shantabai Jadhav 's case (supra) held that notwithstanding the fact that the property was purchased in the name of the wife, and had been included by 956 the deceased as his own property in the wealth tax returns filed by him, it could not be held to be the property of the deceased, for the purpose of its inclusion in the estate of the deceased.
It was observed: "Even assuming that the money for the purchase was found by her husband, it does not mean that he had beneficial interest in the property.
Normally, a husband takes a sale in the name of his wife either to make a provision for her or to screen the property from creditors, i.e., to keep it beyond the reach of the creditors.
Whatever may be the motive, so long as the deed stands in the name of another person, it could not be said that it was competent for the deceased to dispose of the property.
Section 6 of the enacts that property which the deceased was at the time of his death competent to dispose of shall be deemed to pass on his death.
It is thus manifest from the section that Estate duty could be levied in respect of the properties which could be disposed of by the deceased at the time of his death.
" Repelling the contention that the wife could not have alienated the properties by herself and that any disposition by her would not pass the title to such purchaser, having regard to the fact that it was open to the husband to impeach the sale sometime later, on the ground that the beneficial interest always vested in him, consideration having been paid by him, the Court relied upon the provisions of section 41 of the Transfer of Property Act and further observed: "Be that as it may, so long as the documents stand in the name of his wife, he could not dispose of the property.
It is true that it was open to him to have obtained the declaration that he was the beneficial owner thereof notwithstanding the fact that his wife was the ostensible owner.
But, so long as the husband does not have any recourse to these proceedings for obtaining such a relief, he could not have been in a position to dispose of the property standing in the name of the third person as his own.
This proposition was not contested on behalf of the Central Board of Revenue.
" In Smt.
Denaabi Boman Shah 's case (supra) following its earlier decision in Smt.
Shantabai Jadhav 's case while dealing with a similar benami transaction, the High Court held that the value of property held by a benamidar could not be included in the value of the property left by the deceased. 957 In Controller of Estate Duty vs M. L. Manchanda, the Punjab and Haryana High Court following these decisions had held that property which stood in the name of wife and of which the husband was the real owner, was upon the wife 's death chargeable to estate duty under section 5(1) of the Act, observing: "Irrespective of the fact that the husband was the true owner of the property, there was nothing to prevent the wife a minute before her death to transfer the property.
The legal title against the entire world excepting the true owner, vested in her and she had thus the right to dispose of that right, and once that right is conceded, the property shall be deemed to pass on her death and would, therefore, be liable to the levy of estate duty under section 5 of the Act.
" In delivering the judgment of the Full Bench in O. section Chawla vs Controller of Estate Duty, Dwivedi J. observes: "The scheme of the Act is two fold.
Firstly, there are properties which pass on the death of a person.
Section 5(1) imposes duty on their value.
Secondly, there are properties in which the deceased had an interest or power of appointment and which really do not pass on his death.
The scheme of the Act is to impose duty on the value of such properties also.
In the second class will fall provisions like sections 6, 7, 8, 9 and 10.
The Act creates a fiction of law to declare that the properties mentioned in those sections will be deemed to pass on the death of a person, though they do not 'pass ' in fact.
" This two fold scheme is made plain by the definition in section 2(16) and section 3(3).
Section 2(16) defines the phrase 'property passing on death '.
Section 3(3) declares that references in the Act to 'property passing on the death ' of a person shall be construed as including references to 'property deemed to pass on the death ' of such person.
The statement of objects and reasons of the Bill which ripened into the Act also emphasises the two fold scheme.
It states that the 'object of the Bill is to impose an estate duty on property passing or deemed to pass on the death of a person '.
The object of section 6 is to catch properties in the set of section 5(1) which do not really pass on the death of a person.
For instance, property comprised in a revocable gift is property which the donor is competent to dispose of whether the gift is 958 revoked or not and will be covered by section 6.
Similarly, property in respect of which the deceased had the power of appointment will also fall within section 6.
" We are in agreement with the observations made by the learned Judge on the relative scope of section 5 and section 6 of the Act, which bring out the true legislative intent.
In applying the Act to any particular transaction, regard must be had to its substance, that is, its true legal effect, rather to the form in which it is carried out.
On the facts found, it has been established beyond doubt that the deceased was the real owner of the shares.
The ownership which the deceased had in the shares passed on his death and must be brought to charge under sub section
(1) of section 5.
All that has been said above is sufficient to dispose of the appeal.
It, however, becomes necessary to deal with the law relating to benami transactions as there is some misconception as to the nature of the rights of a benamidar.
What follows is purely elementary.
The law in this matter is not in doubt and is authoritatively stated by a long line of decisions of the Privy Council starting from the well known case of Gopeekrist Gosain vs Gungapersaud Gosain to Sura Lakshmiah Chetty vs Kothandarama Pillai and of this Court in Shree Meenakshi Mills Ltd. vs C.I.T. As observed by Knight Bruce L.J. in Gopeekrist Gosain 's case, the doctrine of advancement is not applicable in India, so as to raise the question of a resulting trust.
When a property is purchased by a husband in the name of his wife, or by a father in the name of his son, it must be presumed that they are benamidars, and if they claim it as their own by alleging that the husband or the father intended to make a gift of the property to them, the onus rests upon them to establish such a gift.
In Sura Lakshmiah Chetty 's case, the law was stated with clarity by Sir John Edge in these words: "There can be no doubt now that a purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a benami transaction, by which the beneficial interest in the property is in the husband, although the ostensible title is in the wife.
" 959 It is but axiomatic that a benami transaction does not vest any title in the benamidar but vests it in the real owner.
When the benamidar is in possession of the property standing in his name, he is in a sense the trustee for the real owner; he is only a name lender or an alias for the real owner.
In Petheperumal Chetty vs Muniandy Servai, the Judicial Committee quoted with approval the following passage from Mayne 's Hindu Law 7th ed., para 446: "Where a transaction is once made out to be a mere benami, it is evident that the benamidar absolutely disappears from the title.
His name is simply an alias for that of the person beneficially interested.
" The cardinal distinction between a trustee known to English law and a benamidar lies in the fact that a trustee is the legal owner of the property standing in his name and cestui que trust is only a beneficial owner, whereas in the case of a benami transaction the real owner has got the legal title though the property is in the name of the benamidar.
It is well settled that the real owner can deal with the property without reference to the latter.
In Gur Narayan vs Sheo Lal Singh, the Judicial Committee referred to the judgment of Sir George Farwell in Mst.
Bilas Kunwar vs Dasraj Ranjit Singh, where it was observed that a benami transaction had a curious resemblance to the doctrine of English law that the trust of the legal estate results to the man who pays the purchase money, and went on to say: ". the benamidar has no beneficial interest in the property or business that stands in his name; he represents, in fact, the real owner, and so far as their relative legal position is concerned he is a mere trustee for him.
" In Guran Ditta vs Ram Ditta the Judicial Committee reiterated the principle laid down in Gopeekrist Gosain 's case and observed that in case of a benami transaction, there is a resulting trust in favour of the person providing the purchase money.
A benamidar has no interest at all in the property standing in his name.
Where the transaction is once made out to be benami, the Court must give effect to the real and not to the nominal title subject to certain exceptions.
In Mulla 's Hindu Law, 14th edn.
, p. 638, four exceptions to the normal rule are brought out.
But these exceptions are not material in this case.
One of the exceptions 960 enumerated therein is that where a benamidar sells, mortgages or otherwise transfers for value property held by him without the knowledge of the real owner, the real owner is not entitled to have the transfer set aside unless the transferee had notice, actual or constructive that the transferor was merely a benamidar.
The principle is embodied in section 41 of the Transfer of Property Act.
The section makes an exception to the rule that a person cannot confer a better title than he has.
The section is based on the well known passage from the judgment of the Judicial Committee in Ramcoomar Koondoo vs Macqueen: "It is a principle of natural equity, which must be universally applicable, that where one man allows another to hold himself out as the owner of an estate, and a third person purchases it for value from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title unless he can other throw that of the purchaser by showing, either that he had direct notice, or something which amounts to constructive notice, of the real title, or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it." A benamidar is an ostensible owner and if a person purchases from a benamidar, the real owner cannot recover unless he shows that the purchaser had actual or constructive notice of the real title.
But from this it does not follow that the benamidar has real title to the property, he is merely an ostensible owner thereof.
The law is succinctly stated by Mayne in his Treatise on Hindu Law, 11th edn., at p. 953, in the following terms: "A benami transaction is one where one buys property in the name of another or gratuitously transfers his property to another, without indicating an intention to benefit the other.
The benamidar, therefore, has no beneficial interest in the property or business that stands in his name; he represents in fact the real owner and so far as their relative legal position is concerned, he is a mere trustee for him.
In other words, a benami purchase or conveyance leads to a resulting trust in India, just as a purchase or transfer under similar circumstances leads to a resulting trust in England.
The general rule and principle of the Indian law as to resulting trusts differs but little if at all, from the general rule of English law upon the same subject.
" 961 (See also : Shree Meenakshi Mills Ltd. vs C.I.T. per Venkatarama Ayyar J., and Thakur Bhim Singh vs Thakur Kan Singh ; Per Venkataramiah J.] In the light of these settled principles the liability to pay estate duty under section 5 (1) of the Act arises upon the death of the real owner and not of the benamidar, who is merely an ostensible owner.
The test lies in whether upon the death of the benamidar, there would be incidence of liability to estate duty.
If the view of the High Court were to be accepted, the estate left by the deceased would escape the duty altogether.
We do not see how section 6 of the Act comes into play at all in this case.
In view of the finding that the shares were purchased by the deceased benami in the name of his wife and sons etc.
, the real ownership of the property was vested in the deceased was entitled to deal with the same as if it were his own and the benamidars held it in trust under section 82 of the Trusts Act, 1882 for the benefit of the deceased.
The benamidars, subject to the equities flowing from section 41 of the Transfer of Property Act, could not deal with the shares in any way.
Accordingly, the estate belonged to the deceased who died possessed of the same, and under section 5(1) of the Act the entire value of the shares was includible in the principle value of the estate of the deceased on his death.
For these reasons, the judgment of the High Court is set aside and the question is answered in the affirmative and in favour of the Controller of Estate Duty.
There shall be no order as to costs.
N.V.K. Appeal allowed.
| IN-Abs | One M carried on the business of printer and publisher.
In 1953 his brother in law alongwith some other persons floated two companies a publishing firm and a printing press.
Under an agreement dated May 29, 1953 M agreed to transfer his business to the newly floated companies, and on January 24, 1954 he wrote letters intimating that the shares in the companies be allotted to his wife, his 3 sons, his brother in law and an ex employee.
The companies allotted the shares accordingly.
502 shares were allotted to M in his own name in the publishing firm and 225 shares in the printing press.
Of the remaining, 2002 shares in the publishing firm and 1602 shares in the printing press were allotted to M and his nominees.
M died on February 11, 1957.
On his death the respondent, the accountable person filed a return of estate duty in which he included the value of the 502 shares in the publishing firm and 225 shares in the printing press.
The Assistant Controller of Estate Duty did not accept this part of the return and included the 2002 shares in the publishing firm and 1602 shares in the printing press standing in the name of the wife of the deceased, his 3 sons, brother in law and the ex employee, since they were holding these shares benami, and included the value of these shares in the principal value of the estate of the deceased.
In appeal, the Central Board of Direct Taxes, the Appellate Tribunal affirmed this order.
It observed that the mere fact that the subject matter was the shares in the two companies would not throw any more onus of proof on the Assistant Controller than would be thrown if the subject matter was some other property.
When money was paid by the deceased, it was for the accountable person to prove the gift.
The deceased had clearly mentioned in his letters dated January 24, 1954 to the two companies that the shares should be issued and allotted in the names of the persons nominated by him.
If the deceased intended to make an outright gift of the shares, he would have very 944 well said so in the letters.
There being no presumption of advancement, the mere fact that the shares were got issued in their names without making any indication of gift, would not make the nominees recipients of any gift.
The High Court answered the reference against the appellant and in favour of the accountable person.
Following the decisions of the Andhra Pradesh High Court in Shantabai Jadhav vs Controller of Estate Duty and Smt.
Denabai Bomab Shah vs Controller of Estate Duty (1964) 51 ITR (ED) 1 it observed that since the shares stood in the name of the wife and sons etc., benami for the deceased, the deceased had no power to transfer since he had not obtained a release from the benamidars or a declaration from an appropriate court.
As the deceased, remained incompetent to transfer the shares till his death, the property in them would not be deemed to pass upon his death by reason of section 6 and therefore, they would not be included in the estate of the deceased under section 5(1) of the Act.
Allowing the appeal, to this Court ^ HELD: 1.
The liability to pay estate duty under section 5(1) of the Act arises upon the death of the real owner and not of the benamidar, who is merely an ostensible owner.
The test lies in whether upon the death of the benamidar, there would be incidence of liability to estate duty.
[961B] 2.
The finding being that the shares were purchased by the deceased benami in the name of his wife and sons, the real ownership of the property was vested in the deceased who was entitled to deal with the same as if it were his own and the benamidars held it in trust under section 82 of the Trust Act, 1882 for the benefit of the deceased.
The estate, therefore, belonged to the deceased who died possessed of the same and under section 5(1) of the Act the entire value of the shares was includible in the principal value of the estate of the deceased on his death.
[961C E] 3.
(i) The imposes a tax upon the principal value of all properties, settled or not settled passing on death or deemed to pass on death.
Estate duty is chargeable at percentage rates rising with the value of the estate on all property passing on death, including property of which the deceased was competent to dispose and gifts made within limited period before death.
Primary liability falls on the deceased 's estate.
[950H; 951A] (ii) The scheme of the Act is two fold.
Firstly there are properties which pass on the death of a person.
Section 5(1) imposes duty on their value.
Secondly, there are properties in which the deceased had an interest or power of appointment and which really do not pass on his death.
The scheme of the Act is to impose duty on the value of such properties also.
In the second class will fall provisions like sections 6, 7, 8, 9 and 10.
The Act creates a fiction of law to declare that the properties mentioned in those sections will be deemed to pass on the death of a person, though they do not 'pass ' in fact.
[957D E] (iii) The object of section 6 is to catch properties in the net of section 5(1) which do not really pass on the death of a person.
For instance, property comprised in a revocable gifts is property which the donor is competent to dispose of whether the gifts is revoked or not and will be covered by section 6.
Similarly property in respect of which the deceased had the power of appointment will also fall within section 6.
[957H; 958A] O.S. Chawla vs Controller of Estate Duty (1973) 90 ITR approved.
945 4.
In applying the Act to any particular transaction, regard must be had to its substance, that is, its true legal effect, rather to the form in which it is carried out.
[958B] 5.
By no rule of construction can the operation of sub section (1) of section 5 of the Act be curtailed by the operation of section 6.
It is in addition to or supplemental of the provisions of sub section (1) of section 5, which is the charging section.
[951E] In the instant case, it has been established that the deceased was the real owner of the shares.
The ownership which the deceased had in the shares passed on his death and must be brought to charge under sub section (1) of section 5.
[958C] Smt.
Denabai Bomab Shah vs Controller of Estate Duty and Smt.
Shantabai Jadhav vs Controller of Estate Duty (1964) 51 ITR (ED) 1 disapproved.
(i) The provisions of sections 5 and 6 of the Act are somewhat similar to those of sections 1 and 2 of the Finance Act, 1894 in England.
[955F] (ii) The precise relationship between sections 1 and 2, before the law was amended in 1969, was a question on which judicial opinion fluctuated widely.
For over sixty years they were regarded as mutually exclusive and having in dependent fields of operation, the view was that property could not be liable to duty concurrently.
In a situation where both sections 1 and 2 might apply, section 1 took priority and excluded liability.
[952D E] Earl Cowley vs Inland Revenue Commissioners, L.R. , Attorney General vs Milne, L.R. [1914] A.C. 765, Nevill vs Inland Revenue Commissioners, LR [1924] A.C. 385 referred to.
(iii) In Public Trustee vs Inland Revenue Commissioners (Re Ambody) LR the House of Lords struck the discordant note, holding that section 1 imposed the charge in general terms and section 2 by exclusion and inclusion, defined area of that charge.
In Weir 's Settlement Trusts, Re Mc Pherson vs Inland Revenue Commissioners LR [1971] Ch.D. 145 the Court of Appeal resolved the doubts as to the relationship of these two sections.
[954C; G, 955A] 7.
When a property is purchased by a husband in the name of his wife or by a father in the name of his son, it must be presumed that they are benamidars, and if they claim it as their own by alleging that the husband or the father intended to make a gift of the property to them, the onus rests upon them to establish such a gift.
When the benamidar is in possession of the property, standing in his name, he is in a sense the trustee for the real owner; he is only a name lender or an alias for the real owner.
[1958F; 959A] Gopeekrist Gosain vs Gungapersaud Gosain (1854) 6 MIA 53, Sura Lakshmiah Chetty vs Kothandarama Pillai L.R. [1924 25] 52 IA 286, Shree Meenakshi Mills Ltd. C.I.T. referred to.
946 8.
A benamidar has no interest at all in the property standing in his name A benamidar is an ostensible owner and if a person purchases from a benamidar, the real owner cannot recover unless he shows that the purchaser had actual or constructive notice of the real title.
But from this it does not follow that the benamidar has real title to the property, he is merely an ostensible owner thereof.
[960E] Mayne Hindu Law 11th Edn.
p. 953 referred to.
|
: Criminal Appeal No. 76 of 1974.
Appeal by Special Leave from the Judgment dated 9 11 1973 of the Delhi High Court in, Criminal Appeal No. 174 of 1972.
R. L. Kohli (Amicus Curiae) and R. C. Kohli for the Appellant.
Hardayal Hardy, Miss A. Subhashini and R. N. Poddar for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
This appeal by special leave is filed against the judgment of the High Court of Delhi in Criminal Appeal No. 174 1972 convicting the appellant, Dara Singh, of an offence punishable under section 23F of the Foreign Exchange Regulation Act, 1947 (Act No. 7 of 1947) (hereinafter referred to as 'the Act ') and sentencing him to imprisonment for a term of one year with a direction that the said sentence should be served by him concurrently with the sentence of imprisonment for life imposed on him in another case on a charge of murder.
989 The facts leading to this appeal can be summarised thus: On March 28, 1963 foreign currencies amounting to $ 185 and U.S. $ 13060 besides Indian currency amounting to Rs. 1,300 were seized from the appellant by the Railway Police at the Railway Station at Sangrur.
Thereupon proceedings were initiated against the appellant for contravention of sections 4 and 9 of the Act under section 23 (1) (a) read with section 23D of the Act before the Director of Enforcement of Foreign Exchange Regulation appointed by the Central Government for the purpose of enforcing the provisions of the Act.
By an ex parte order dated May 12, 1967, the Director of Enforcement held the appellant guilty of contravention of provisions of section 9 of the Act read with the Central Government Notification No. F. 1(67 EC/57, dated 25 9 1958 as amended upto 6 3 1961) and section 4(1) of the Act and imposed on him a penalty of Rs. 6,000 which the appellant was directed to pay to the Directorate of Enforcement within forty five days of the issue of the order.
As the penalty was not paid within forty five days from the date of the issue of the order of the Director of Enforcement, a complaint was lodged on November 13, 1969 by the Deputy Director of Enforcement before the Judicial Magistrate, First Class, New Delhi under section 23F of the Act.
In the complaint it was specifically stated that a copy of the order of the Director of Enforcement imposing the penalty on the appellant had been served on him on May 4, 1968 and that as the appellant had not deposited the penalty with the 1 Directorate of Enforcement within forty five days from the date of the order, the appellant was liable to be punished under section 23F of the Act.
The appellant denied that he had been served with the copy of the order of the Director of Enforcement imposing penalty on him and further stated that he did not Know that he had to pay the penalty in question.
The learned Magistrate acquitted the appellant by his order dated July 29, 1972 holding that it had not been established that the order passed by the Director of Enforcement had been served on the appellant on May 4, 1968 as alleged in the complaint and that, therefore, there were no grounds to hold the appellant guilty of contravention of section 23F of the Act which read thus: "23F. If any person fails to pay the penalty imposed by the Director of Enforcement or the Appellate Board or the High Court, or fails to comply with any of their directions or orders, he shall, on conviction before a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
" The Magistrate while acquitting the appellant rejected the plea of the complainant that the appellant was liable to be punished under 990 section 23F since he had in any event come to know of the order of the Director of Enforcement on the date on which he appeared in the Court i.e., on August 7, 1970 and the charge had been framed by the Magistrate on March 4, 1972 after the expiry of a period of forty five days from the date on which the appellant had appeared in the Court by observing that "he could not be convicted in the case on that count because these allegations are not contained even in the charge much less in the complaint".
Aggrieved by the decision of acquittal of the Magistrate, the Director of Enforcement filed an appeal before the High Court of Delhi with the special leave of that court granted under section 417(3) of the Code of Criminal Procedure.
As the appellant who was undergoing imprisonment for life imposed on him in another case at the Central Jail Ferozepur did not make any arrangement for his defence before the High Court, an advocate was appointed as amicus curiae to assist the court in the appeal.
After hearing learned counsel who appeared in the case, the High Court by its judgment dated November 9, 1973 reversed the order of acquittal passed by the Magistrate, found the appellant guilty of The offence punishable under section 23F of the Act and sentenced him to imprisonment for a term of one year.
While doing so, the High Court agreed with the finding of the Magistrate that the order of the Director of Enforcement imposing penalty on the appellant had not been served on the appellant on May 4, 1968 as alleged in the complaint but it was of the view that since the appellant had come to know about the order on August 7, 1970 when he appeared before the Magistrate and he had not paid the penalty within a reasonable time thereafter, he was liable to be punished under section 23F of the Act.
The relevant part of the judgment of the High Court reads thus: "The order of acquittal made by the learned trial Magistrate proceeds, in our opinion, on an altogether erroneous view of the provisions of section 23F of the Act.
For proving the guilt of Dara Singh in the light of the charge framed against him, it had only to be established that he had failed to pay the penalty imposed by the Director of Enforcement.
As was ordered by the Director of Enforcement the penalty had to be paid within 45 days from the date of issue of the adjudication order.
Obviously, however, no payment could be made unless the person on whom the penalty was imposed had come to know about the order.
At the latest Dara Singh came to know about the adjudication order on ' August 7, 1970, if not earlier.
He should have, therefore, paid the penalty within a reasonable period from that date and in any case within 45 days from 991 the said date.
The penalty not having been paid or deposited by Dara Singh, he was clearly guilty of contravention of the adjudication order made by the Director of Enforcement and should have been, convicted under section 23F of the Act".
The question which arises for consideration in this appeal is whether the High Court was right in the circumstances of the case in finding the appellant guilty of the offence in question.
It is necessary at this stage to refer briefly to some of the provisions of the Act and the Adjudication Proceedings and Appeal Rules, 1957 (hereinafter referred to as 'the Rules ') framed under section 27 of the Act.
Under Clause (a) of sub section (1) of section "3 of the Act, the Director of Enforcement is empowered to levy penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by him in the manner provided in the Act in any person is found to contravene the provisions of section 4, section 9 or any of the other provisions referred to in section 23(1).
Section 23D of the Act requires the Director of Enforcement to hold an inquiry in the prescribed manner against any person who is liable to be proceeded against under clause (a) of section 23 (1) after giving him a reasonable opportunity of being heard and if on such inquiry, the Director of Enforcement is satisfied that the person has committed the contravention, he may impose such penalty as he thinks fit in accordance with the provisions of section 23 of the Act.
An appeal lies to the Appellate Board under section 23E of the Act against the order of the Director of Enforcement imposing penalty.
Rules 3, 4 and 5 of the Rules set out the procedure to be followed by the Director of Enforcement in holding the enquiry under section 23D of the Act.
Rule 3 of the Rules among others provides for the issue of a notice to the person against whom proceedings are initiated for contravention of the provisions referred to in section 23(1) of the Act and for giving an opportunity to him to defend himself in the proceedings before the Director of Enforcement.
Sub rule (7) of Rule 3 of the Rules provides that if, upon consideration of the evidence produced before the Director, the Director is satisfied that the person has committed the contravention, he may, by order in writing impose such penalty as he thinks fit in accordance with the provisions of clause (a) of sub section (1) of section 23.
There is no rule requiring the person against whom an order is made to appear before the Director of Enforcement on any specified date on which the order would be pronounced in his presence.
Rule 4 of the Rules requires the Director of Enforcement to specify in his order the provisions of the Act or of the Rules, 992 directions or orders made thereunder in respect of which contravention has taken place and to give brief reasons for his decision.
Rule 5 of the Rules requires that a copy of the order made under sub rule (7) of Rule 3 shall be supplied free of charge to the person against whom the order is made and that every copy of such order shall state that the copy is supplied free of charge for the use of the person to whom it is issued and that an appeal lies against that order to the Appellate Board under section 23E within thirty days of the date of the order.
Rule of the Rules states that every appeal presented to the Appellate Board under section 23E of the Act shall be in the form of a memorandum signed by the appellant and the memorandum shall be accompanied by a copy of the order appealed against.
Having regard to the aforesaid provisions of the Act and the Rules, it has to be held that the service of a copy of the order made under sub rule (7) of Rule 3 of the Rules on the person against whom the said order is made is not an empty formality.
In the absence of a provision of law requiring the Director of Enforcement to pronounce his order in the presence of the person against whom it is made, the only date on which it can be deemed to have been effectively made is the date on which he gets the knowledge of the order either by the supply of a copy of the order or by any other means because first, the statute provides a remedy to the person against whom the order is made by way of an appeal to be preferred within the prescribed period from the date of the order to the Appellate Board under section 23E of the Act and secondly noncompliance with the order would expose him to the punishment that may be imposed on him under section 23F of the Act.
It would be wholly unjust to compute the period of limitation to file an appeal from a date earlier than the date on which the party who is entitled to prefer an appeal has the knowledge of the order.
In cases where an order which is appealable is not pronounced in the presence of the person against whom it is made, it should be assumed that unless there is any specific provision of law to the contrary the date of his knowledge of the order is the date of the order for the purpose of computing the period of limitation irrespective of the date on which it is actually passed.
(Vide Raja Harish Chandra Raj Singh vs The Deputy Land Acquisition Officer & Anr.
It is equally so even in the case of an order non compliance of which would lead to prosecution and consequent imposition of penalty.
When the law lays down that non compliance with an order would expose the person against whom it is made to 993 criminal liability, it is reasonable to hold that in the absence of proof of his knowledge of the order no penal action can be taken against him for non compliance with it.
The information or knowledge which he may gather about such order in the course of the criminal proceedings instituted for non compliance with it cannot be a substitute for the knowledge of the order as mentioned above, which should ordinarily precede the institution of such proceedings.
Under section 23F of the Act if any person fails to pay the penalty imposed by the Director of Enforcement, he on conviction is liable to be punished with imprisonment which may extend to two years or with fine or with both.
No person can be convicted under section 23F for failure to pay the penalty imposed on him by the (Director of Enforcement when he is not at all informed earlier about the imposition of the penalty.
Hence in the absence of proof of his knowledge of the order either by the supply of the copy of the order under Rule 5 of the Rules or in any other manner, it cannot be said that such person has failed to pay the penalty imposed on him under the Act and has become liable to be proceeded against under section 23F. As mentioned earlier, the specific case set out in the complaint was that a copy of the order of the Director of Enforcement had been served on the appellant on May 4, 1968 and that both the Magistrate and the High Court refused to accept it.
The finding of the High e Court is that the appellant must have come to know of the order on! August 7, 1970 when he appeared before the Magistrate.
It is; therefore, obvious that on the date on which The complaint was filed before the Magistrate i.e. On November 13, 1969 or on the date on which process was issued by the Magistrate on taking cognisance of the case to The appellant to appear before him pursuant to which he appeared before him on August 7, 1970, the appellant had not even the knowledge of the passing of the order imposing penalty on him let alone the specific provision of the Act or the Rules which according to the order he had violated and the reasons in support of the order.
The appellant had not, therefore, committed any offence punishable under section 23F of the Act on those dates.
The Magistrate could not, therefore, take cognisance of any offence punishable under section 23F of the Act on the date on which he issued process to the appellant to appear before him.
Even the charge framed against the appellant did not state that the order imposing penalty on him had been communicated to him on August 7, 1970 and the he was being tried for an offence punishable under section 23F for non compliance with the order so communicated on August 7, 1970.
994 The charge only contained the gist of what was stated in the complaint on November 13, 1969.
The High Court was, therefore, in error in the circumstances of the case in setting aside the order of acquittal passed by the Magistrate and in finding the appellant guilty of the offence complained of.
In the result, the appeal is allowed and the conviction of the appellant and the sentence imposed on him by the High Court are set aside.
The order of acquittal passed by the Magistrate is restored.
At the time of grating special leave to appeal in this case, as it was stated that the appellant had been acquitted of the charge of murder, the sentence of imprisonment for life had been cancelled and that he had been undergoing imprisonment awarded by the High Court under section 23F of the Act, this Court granted bail to the appellant to the satisfaction of the trial court and directed that he should be released on bail unless he was required to be in prison in connection with or on account of any other case.
It is not known whether the appellant was in fact released on bail pursuant to the above order.
If he is on bail, his bail bond stands cancelled.
P.B.R. Appeal allowed.
| IN-Abs | An exparte order holding the appellant guilty of certain offences under the Foreign Exchange Regulation Act and imposing penalty for such contravention was passed by the Director of Enforcement.
On completion of 45 days of the issue of the order within which period the penalty was required to be paid, a complaint was lodged with the Judicial Magistrate, 1st class alleging that even though a copy of the impugned order had been served on the appellant, he failed to deposit the penalty and, that, therefore, he was liable to be punished under section 23F of the Act.
Accepting the appellant 's plea that no copy of the impugned order having been served on him there was no ground to hold him guilty of contravention of section 23F the Magistrate acquitted him.
The Magistrate, at the same time, rejected the complainant 's contention that even assuming that the impugned order had not been received by the appellant he had come to know of it on the date he appeared before the Magistrate and when the charge had been framed against him and his failure to pay the penalty despite this knowledge was enough to attract the provisions of section 23F.
He held that these allegations were stated neither in the complaint nor in the charge and, therefore, the appellant could not be convicted.
Although the High Court, on appeal, upheld the finding of the Magistrate that the impugned order had not been served on the appellant it was of the view that since the appellant had come to know about the order then he appeared before the Magistrate but still had not paid the penalty within a reasonable time thereafter, he was liable to be punished under section 23F of the Act.
Allowing the appeal.
^ HELD: The appellant had not committed any offence punishable under section 23F of the Act.
[993G] When the law lays down that non compliance with an order would expose The person against whom it is made to criminal liability, It is reasonable to hold that in the absence of proof of knowledge of the order no penal action H can be taken against him for non compliance with that order.
The information or knowledge which he may gather about such order in the course of criminal 988 proceedings instituted for non compliance with it cannot be a substitute for the knowledge of the order, which should ordinarily precede the institution of such proceedings.
The High Court was, therefore, in error in the circumstances of the case in setting aside the order of acquittal passed by the Magistrate and in finding the appellant guilty of the offence complained of.
[992H] The rules framed under the Act set out the procedure to be followed by the Director in holding an enquiry under section 23D of the Act.
Although, there is no rule requiring a person against whom an order is made to appear before the Director on the date of pronouncement of his order, rule 5 of the Rules requires that a copy of the order passed under rule 3(7) should be supplied free of charge to the person against whom the order is made.
In the absence of a provision requiring the service of a notice on such a person informing him that the order would be pronounced on a specified future date, the only date on which the order can be deemed to have been effectively made is the date on which he gets knowledge of the order either by supply of a copy of the order or by any other means.
The period of limitation to appeal cannot be computed from a date earlier than the date on which the aggrieved party has knowledge of the order.
In the absence of proof of knowledge of the order either by supply of its copy or in any other manner the person failing to pay the penalty cannot be proceeded against under section 23F. [991H, 992F] In the instant case the Magistrate and the High Court refused to accept the plea of the Director that a copy of the impugned order had been served on the appellant.
Neither on the date of the complaint nor on the date on which process was issued by the Magistrate had the appellant knowledge of the order imposing the penalty; nor did the charge state that the impugned order had been communicated to him and that he was being tried for non compliance with that order.
|
Civil Appeal No. 1204 of 1978.
Appeal by Special Leave from the Judgment and Order dated 5 4 1978 of the Allahabad High Court (Lucknow Bench) in Second Civil Appeal No. 90/75.
R. K. Garg, V. J. Francis and Sunil Kumar for the Appellant.
Uma Datta, Prem Malhotra and Kishan Datt for the Respondents.
The Judgment of the Court was delivered by FAZAL ALI, J.
How dishonest cousins, looking after the lands of their brother 's widow, situated far away from the place where the widow was living, taking undue advantage of the confi 865 dence reposed in them by their widowed sister in law and having painted a rosy picture of honestly managing the property and giving her due share, cast covetous eyes on their sister in law 's share and with a deplorable design, seek to deprive her of her legal share and deny her legal rights is not an uncommon feature of our village life.
That this is so is aptly illustrated by the facts of this case where the sister in law was driven by the force of circumstances to indulge in a long drawn litigation in order to vindicate her legal rights in wresting her share of the property from the hands of her cousins.
This is the unfortunate story of the poor and helpless appellant, Karbalai Begum, who having failed to get justice from the High Court of Allahabad was forced to knock the doors of the highest Court in the country and has, therefore, filed the present appeal in this Court after obtaining special leave.
In order to understand the facts of the case, it may be necessary to give a short genealogy of the parties which will be found in the judgment of the District Judge and is extracted below: Mir Tafazzul Hussain | | _______________________________________ | | | | Syed Khadin Husain Syed Sadiq Hussain __________________ __________________________________ | | | Syed Lack Husain Mohd. Bashir Modh.
Rasheed (Widow Karbalai (Deftd. No. 1) (Widow Smt Shakira Begum Plaintiff) Bano, Defdt No 2) The appellant Karbalai Begum was the widow of Syed Laek Husain and defendants No. 1 and 2 were her husband 's cousins.
The admitted position seems to be that the plaintiff and the defendants were in joint possession of the plots in dispute, being co bhumidars, because after the abolition of the zamindari by the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 the plaintiff appellant, Mohd. Bashir and Mohd. Rasheed became bhumidars of the plots in dispute.
It is also not disputed that upto 1359 Fasli both the parties had a joint khewat, as would appear from the extract of the khewat produced by the appellant.
The plaintiff 's case was that she was living with her sons at Lucknow and her husband 's cousins were looking after the lands which consisted of agricultural lands and groves and she was given her share by her cousins from time to time.
It was also alleged that she went to the village from time to time and got her share.
In her statement before the trial court, she has clearly stated that the defendants, Mohd. Bashir and Mohd. Rasheed used to manage the properties which were joint and used to give her share and assured her that her share would be properly looked after and protected by them.
Thus, 866 having gained the confidence of the plaintiff the first and the second defendants went on managing the properties and off and on gave her share so that she may not suspect their evil intentions.
The plaintiff further alleged in her statement that during the consolidation proceedings, separate plots were carved out and she was never informed about any proceedings by the defendants and was under the Impression that her share was being properly looked after.
It was only three years before the suit that the plaintiff came to know that her name had been deleted from the khewat and the entire property was mutated in the consolidation of holding proceedings in the name of the defendants.
Hence, the suit by the plaintiff for joint possession over the share.
The suit was dismissed by the trial court but on appeal, the district judge decreed the suit for joint possession in respect of Chakbandi plot Nos. 201 and 274 only.
As regards plot Nos. 93, 94 and 106 the dismissal of the plaintiff 's suit by the trial court was upheld.
In the instant case, therefore, we are concerned only with Chakbandi plot Nos. 201 and 274.
Plot No. 201 was carved out of plot Nos. 158, 159, 164, 165, 167, 166, 168, etc.
and plot No. 274 was formed out of plot Nos. 267, 268, 272, 273, 276, 277, 278, 279 and 280.
The suit was contested by the defendants mainly on the ground that the defendants were in separate occupation of the land or plots in dispute and the plaintiff had absolutely no concern with them.
It was further averred that although at some time before, the lands in dispute were joint but during the consolidation proceedings the plots in possession of the plaintiff were occupied by Adhivasi who having acquired the rights of a Sirdar under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, the plaintiff lost her title by operation of law.
The allegation of the plaintiff that the defendants had committed fraud was stoutly denied.
The learned trial court accepted the allegations of the defendants and dismissed the case of the plaintiff.
The District Judge, however, found that on the admitted facts even after the abolition of zamindari, the position was that in 1357 Fasli the plaintiff 's name was clearly recorded as a co sharer with the defendants and continued to be so until 1359 Fasli as would appear from exhibit 2.
The learned District Judge further found that the name of the plaintiff was suddenly deleted after 1359 Fasli and there was no order of any authority or court to show the circumstances under which the plaintiff 's name was suddenly deleted nor were there any judicial proceedings under which the name of the plaintiff as a co bhumidar was 867 deleted.
The learned District Judge, after a careful consideration of the documentary evidence, came to the clear conclusion that some sort of fraud must have been committed by Mohd. Bashir, and Mohd. Rasheed when in 1362 Fasli the plots were entered exclusively in the name of Mohd. Bashir and Mohd. Rasheed.
Even if no share was given to the plaintiff by the defendants, as the defendants were co shares, unless a clear ouster was pleaded or proved the possession of the defendants as co sharers would be deemed in law to be the possession of the plaintiff.
Another obvious fact which emerges from the admitted position is that if Mohd. Bashir and Mohd. Rasheed were co bhumidars with the plaintiff in the khewat and had also sirdari tenants under them, how could the sirdari tenants occupy the land of one of the co sharers leaving the defendants alone so that the plots were re allotted to them.
It is well settled that mere non participation in the rent and profits of the land of a co sharer does not amount to an ouster so as to give title by adverse possession to the other co sharer in possession.
Indeed even if this fact be admitted, then the legal position would be that Mohd. Basir and Mohd. Rashid, being co sharers of plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees.
The learned counsel appearing for the respondent was unable to contest this position of law.
In the present case, it is therefore manifest that the possession of the defendants, apart from being in the nature of constructive trustees, would be in law the possession of the plaintiff.
Apart from this, the fact remains that the District Judge has come to a clear finding of fact after consideration of the evidence that a clear fraud was committed during the consolidation operation either by the defendants or by somebody else as a result of which the rights of the plaintiff were sought to be extinguished.
In this connection, the learned District Judge found as follows: "This shows that a planned fraud was made to drop the appellant 's name from the revenue records and full advantage was taken of the consolidation operations in the village by the respondents.
In para 20 of the written statement, paper 31A, it was pleaded by the respondents that they acquired the suit plot through litigation and the plaintiff 's right extinguished during the consolidation proceedings.
There is no evidence before me to show that there was any litigation with the subtenants and the defendants acquired the plots exclusively.
Even 868 if it is accepted for the sake of arguments that the respondents did obtain the plots through litigation, even then it cannot be said that the plaintiff 's rights extinguished.
" This finding of the learned District Judge was a clear finding of fact and even if it was wrong (though in our opinion it is absolutely correct) it was not open to the High Court to interfere with this finding of fact in second appeal.
Furthermore, the District Judge at another place found that there was no evidence on the record to prove that the plaintiff was not given any share out of the produce and, therefore, the conclusion that the plaintiff should be deemed to be ousted from possession, was not correct.
In this connection, the learned Judge observed as follows: "The argument advanced by the counsel for the respondents that there is no evidence on the record that the plaintiff was given any share out of the produce and, therefore, the plaintiff should be deemed to be ousted from possession, is fallacious.
" This was also a finding of fact which was binding in second appeal.
The High Court seems to have relied on the fact that there was no evidence to prove that the plaintiff was prevented from filing a petition under section 9 of the U.P. Consolidation of Holdings Act, 1953 or that the defendants assured the plaintiff that her name shall be entered in the record during the consolidation proceedings.
Here also, the High Court committed an error of record because the clear evidence of PW, Karbalai Begum, is to the effect that she was not at all informed about the consolidation proceedings and was assured by the defendants that they would take proper care of her share in any proceedings that may be instituted.
This was accepted by the District Judge and should not have been interfered with by the High Court in second appeal.
The High Court proceeded on the basis that there was nothing to show that any fraud was practised upon the consolidation authorities so as to make the order a nullity.
Here the High Court completely misunderstood the case made out by the plaintiff.
It was never the case of the plaintiff that any fraud was committed on the consolidation authorities.
What she had stated in her plaint and in her evidence was that the defendants had practised a fraud on her by giving her an assurance that her share would be properly looked after by them and on this distinct understanding she had left the entire management of the properties to the defendants who also used to manage them.
The trial court did not fully appreciate this part 869 of the case made out by the plaintiff and the District Judge in clear terms accepted the same.
In these circumstances, therefore, the finding of the High Court regarding fraud having been committed in the consolidation proceedings was not legally sound.
The last ground on which the High Court non suited the appellant was that after the chakbandi was completed under the U.P. Consolidation of Holdings Act, the suit was barred by section 49 of the said Act.
It is well settled that unless there is an express provision barring a suit on the basis of title, the courts will not easily infer a bar of suit to establish the title of the parties.
In Subha Singh vs Mahendra Singh & Ors.
this Court made the following observations: "It was thus abundantly clear that an application for mutation on the basis of inheritance when the cause of action arose, after the finalisation and publication of the scheme under Section 23, is not a matter in regard to which an application could be filed "under the provisions of this Act" within the meaning of clause 2 of Section 49.
Thus, the other limb of Section 49, also is not attracted.
The result is that the plea of the bar of the civil courts ' jurisdiction to investigate and adjudicate upon the title to the land or the sonship of the plaintiff has no substance.
" In view of the clear decision of this Court, referred to above, the High Court erred in law in holding that the present suit was barred by section 49 of the U.P. Consolidation of Holdings Act.
Thus, the grounds on which the High Court reversed the decision of the District Judge are not sustainable in law and the judgment of the High Court cannot be allowed to stand.
We, therefore, allow the appeal with costs throughout, set aside the judgment of the High Court, decree the plaintiff 's suit for joint possession as far as plots Nos.
201 and 274 are concerned and restore the judgment of the District Judge.
The cost allowed by this Court would be set off against the sum of Rs. 15,000/ (fifteen thousand only) deposited by the respondents in the High Court and paid to the appellant and the balance may be refunded to the respondents.
N.K.A. Appeal allowed.
| IN-Abs | The appellant a widow and defendants nos.
1 and 2 were her husband 's cousins.
They were in joint possession of the plots in dispute, being co bhumidars.
The parties had a joint Khewat upto 1359 Fasli.
The plaintiff filed a suit for joint possession over her share contending that she was living with her sons at Lucknow and defendants were looking after the agricultural land and groves and that she was given her share by the defendant from time to time.
She also went to the village from time to time and got her share.
She alleged that the defendants assured her that her share would be properly looked after and protected by them.
The plaintiff further alleged that it was only 3 years before the suit that she came to know that her name had been deleted from the Khewat, and the entire property was mutated in the consolidation of holding proceedings, in the name of defendants of which she was never informed.
The defendants contested the suit on the grounds that, they were in separate occupation of the land in dispute, the plots in dispute were occupied by Adhivasi who acquired the Sirdar rights under the U. P. Zamindari Abolition and Land Reforms Act, 1950, the plaintiff lost her title by operation of law, and denied the allegation of fraud.
The trial court dismissed the suit but on appeal the District Judge decreed the suit for joint possession in favour of the plaintiff in respect of two plots of the land.
The High Court accepted the appeal of the defendants.
Allowing the appeal this Court, ^ HELD: 1.
The grounds on which the High Court reversed the decision of the District Judge are not sustainable in law and the judgment of the High Court cannot be allowed to stand.
[869F] 2.
Another fact which emerges from the admitted position is that if defendants 1 and 2 were co bhumidhars with the plaintiff in the Khewat and had also sirdari tenants under them, how could the sirdari tenants occupy the land of one of the co sharers leaving the defendants alone so that the plots were reallotted to them.
[867C] 864 3.
It is well settled that mere non participation in the rent and profits of the land of a co sharer does not amount to an ouster so as to give title by adverse possession to the other co sharer in possession.
Even if this fact be admitted, then the legal position would be that defendants nos.
1 and 2 being co sharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees.
[867D] In the instant case it is manifest that the position of the defendants apart, from being in the nature of constructive trustees, would be in law the possession of the plaintiff.
[867E] 4.(i) The finding of the District Judge that a planned fraud was made to drop the appellant 's name from the revenue records was a clear finding of fact and even if it was wrong (though it is absolutely correct) it was not open to the High Court to interfere with the finding of fact in second appeal.
[868B] 4.(ii) The High Court proceeded on the basis that there was nothing to show that any fraud was practised upon the consolidation authorities so as to make the order a nullity.
The High Court here completely misunderstood the case made out by the plaintiff.
[868G] 5.
The finding of fact of the District Judge that there was no evidence on the record to prove that the plaintiff was not given any share out of the produce and, therefore, the conclusion that the plaintiff should be deemed to be ousted from possession, was binding in second appeal.
[868C D] 6.
The High Court committed an error of record because the clear evidence of the appellant is to the effect that she was not at all informed about the consolidation proceedings and was assured by the defendants that they would take proper care of her share in any proceedings that may be instituted.
[868F] 7.
It is well settled that unless there is an express provision in the statute barring a suit on the basis of title, the courts will not easily infer a bar of suit to establish the title of the parties.
[869B] Suba Singh vs Mahendra Singh and Ors.
A.I.R. 1974 section C. 1657 referred to.
|
N: Criminal Appeal No. 687 of 1980.
Appeal by Special Leave from the Judgment and Order dated 18 4 1980 of the Punjab and Haryana High Court in Crl.
No. 26 M/1980.
Mrs. Urmila Sirur for the Appellant.
Mrs. Shobha Dixit and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
On August 13, 1979, Gurnam Singh a resident of Chandigarh submitted a complaint to the Judicial Magistrate 1st Class Chandigarh, alleging that the appellant H. section Bains accompanied by two persons had come to his house in a car on the morning of August 11, 1979, at about 8 a.m., tress passed into the house and threatened to kill him and his natural son if he did not take away his natural son Aman Deep Singh from the house of his sister Bakshish Kaur, who had taken the boy in adoption as she was issueless.
Bakshish Kaur was the widow of the brother of the appellant and the adoption made by Bakshish Kaur was not to the liking of the appellant.
It was alleged in the complaint that the appellant was armed with a revolver which he pointed at the complainant.
The complainant raised a hue and cry.
The accused and his companions fled away in their car.
As August 11, 1979 and August 12, 1979 were holidays, he was able to file the complaint only on 13th August, 1979.
The learned Magistrate to whom the complaint was submitted ordered an investigation by the police under Sec.
156(3) of the Code of Criminal Procedure.
The police after completing the investigation, 937 submitted a report to the Magistrate under Sec.
173 of the Code of Criminal Procedure stating that the case against the appellant was not true and that it might be dropped.
The police arrived at the conclusion that the case against the appellant was not true as their investigation revealed, according to them, that the appellant was at Amritsar with Shri Jai Singh, District Magistrate of Amritsar at 9 a.m. on August 11, 1979 and it was, therefore, impossible for him to have been at Chandigarh at 8 a.m. on August 11, 1979.
The learned Magistrate after perusing the report submitted by the police disagreed with the conclusion of police, took cognizance of the case under Sections 448, 451 and 506 of the Indian Penal Code and directed the issue of process to the appellant.
Aggrieved by the issue of process, the appellant filed Criminal Miscellaneous Case No. 26 M of 1980, in the High Court of Punjab and Haryana to quash the proceedings before the Magistrate.
The application was dismissed by the High Court and the appellant filed a petition for the grant of special leave to appeal against the order of the High Court.
We granted Special Leave and straightaway heard the appeal with the consent of the parties.
Shri Kapil Sibal urged that the Magistrate had issued process to the accused without recording the statement, on oath, of the complainant and the witnesses under Sec.
200 Criminal Procedure Code and therefore, he must be taken to have taken cognizance of the case under Sec.
190(1)(b), as if upon a police report.
Shri Sibal submitted that the Magistrate was not competent to take cognizance of the case as if it was upon a police report as the report under Sec.
173 Criminal Procedure Code submitted to him disclosed that no offence had been committed by the accused.
According to Shri Sibal, in the circumstances of the case, the Magistrate, on receipt of the report under Sec.
173 Criminal Procedure Code to the effect that the case against the accused was not proved, had only two options before him.
He could either order a further investigation or he could take cognizance of the case as if upon a complaint, record the statements of the complainant and witnesses under Sec.
200 Criminal Procedure Code and then proceed to issue process if he was satisfied that process ought to be issued.
In any case Shri Sibal submitted that the order of the Ist Class Magistrate taking cognizance of the case was so unjudicial that it ought to be struck down.
Shri Sibal invited our attention to two decisions of this Court: Abhinandan Jha & Ors.
vs Dinesh Mishra; and Tula Ram & Ors.
vs Kishore Singh.
938 Chapter XII of the Code of Criminal Procedure 1973 deals with information to the Police, and their powers to investigate.
156 (1) vests in an officer incharge of a Police Station the power to investigate any cognizable case, without the order of a Magistrate.
156(3) authorises a Magistrate, empowered under Sec. 190, to order an investigation as mentioned in Sec.
156(1).
The provisions from Sec.
157 onwards are concerned with the power and procedure for investigation.
169 prescribes that if upon an investigation it appears to the officer incharge of the Police Station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond (with or without sureties) to appear if and when required, before a Magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial.
170 prescribes that if upon investigation it appears to the officer incharge of the Police Station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial.
If the offence is bailable the officer shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
173(1) casts a duty upon the police officer to complete the investigation without unnecessary delay.
173(2) prescribes that as soon as the investigation is completed the officer incharge of the police station shall forward to a Magistrate empowered to take cognizance of an offence on a police report, a report in the prescribed form stating the various particulars mentioned in that sub section.
190(1) which occurs in Chap.
XIV (Conditions requisite for initiation of proceedings) may be extracted at this stage.
It is as follows: "190(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub section (2), may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; 939 (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed".
What has been extracted is Sec. 190 as it stands at present.
190 of the previous Code was slightly different.
Clause (1)(b) read as "upon a report in writing of such facts made by any police officer".
In clause (1)(c) after the word 'knowledge ', the words 'or suspicion ' occurred, and these words have now been omitted.
Chapter XV (Sections 200 to 203) of the Code deals with "complaints to Magistrates".
A Magistrate taking cognizance of an offence on complaint is required by Sec. 200 to examine the complainant and the witnesses present, if any.
Sec. 202 provides that a Magistrate taking cognizance of a case upon complaint, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.
203 empowers the Magistrate to dismiss the complaint, if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the enquiry or investigation (if any) under Sec. 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding.
Chapter XVI deals with "commencement of proceedings before Magistrate" and Sec. 204 enables a Magistrate to issue summons or a warrant as the case may be to secure the attendance of the accused if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding.
It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him.
He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Sec. 200.
Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Sec.
If in his opinion there is sufficient ground for proceeding he may issue process under Sec. 204.
However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding.
He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding.
On the other hand, in the first instance, on receipt 940 of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Sec. 156(3).
The police will then investigate and submit a report under Sec. 173(1).
On receiving the police report the Magistrate may take cognizance of the offence under Sec.
190(1)(b) and straightaway issue process.
This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not.
The Police report under Sec.
173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom.
The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further.
The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Sec.
200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process.
The mere fact that he had earlier ordered an investigation under Sec. 156(3) and received a report under Sec.
173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204.
Thus, a Magistrate who on receipt of a complaint, orders an investigation under Sec.
156(3) and receives a police report under Sec. 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Sec.
190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report: (3) he may take cognizance of the offence under Sec.
190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Sec. 200 If he adopts the third alternative, he may hold or direct an inquiry under Sec. 202 if he thinks fit.
Thereafter he may dismiss the complaint or issue process, as the case may be.
In Abhinandan Jha & Ors.
vs Dinesh Mishra, (supra) the question arose whether a Magistrate to whom a report under Sec.
173(1) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge sheet, on his disagreeing with the report submitted by the Police.
This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge sheet.
It was open to the Magistrate to agree or 941 disagree with the police report.
If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings.
If he came to the conclusion that further investigation was necessary he might make an order to that effect under Sec.
156(3).
If ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report.
While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police the Court observed that the Magistrate could take cognizance under Sec.
190(1)(c) '.
We do not have any doubt that the reference to 'Sec.
190(1)(c) ' was a mistake for 'Sec.
190(1)(b) '.
That appears to be obvious to us.
But Shri Kapil Sibal urged that the reference was indeed to Sec.
190(1)(c) since at that time Sec.
190(1)(c) included the words 'or suspicion ' and the Court had apparently taken the view that the Magistrate could take cognizance of the offence not under Sec.
190(1) (b) as if on a police report but under Sec.
190(1)(c) as if on suspicion '.
We do not agree with this submission.
190(1)(c) was never intended to apply to cases where there was a police report under Sec. 173(1).
We find it impossible to say that a Magistrate who takes cognizance of an offence on the basis of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion and not upon a police report merely because the Magistrate and the Police arrived at different conclusions from the facts.
The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint.
If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Sec.
307 Indian Penal Code the Magistrate is not bound by the conclusion of the complainant.
He may think that the facts disclose an offence under Sec.
324 Indian Penal Code only and he may take cognizance of an offence under Sec. 324 instead of Sec. 307.
Similarly if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses.
He may prefer ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence.
If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report.
He would be taking cognizance upon the facts disclosed by the police 942 report though not on the conclusions arrived at by the police.
It could not be said in such a case that he was taking cognizance on suspicion.
In Tula Ram & Ors.
vs Kishore Singh (supra) the Magistrate, on receiving a complaint, ordered an investigation under Sec.
156(3).
The Police submitted a report indicating that no case had been made out against the accused.
The Court, however, recorded the statements of the complainant and the witnesses and issued process against the accused.
It was contended that the Magistrate acted without jurisdiction in taking cognizance of the case as if upon a complaint when the police had submitted a report that no case had been made out against the accused.
This Court held that the Magistrate acted within his powers and observed that the complaint did not get exhausted as soon as the Magistrate ordered an investigation under Sec.
156(3).
We are, therefore unable to agree with the submission of Shri Sibal that the Magistrate acted without jurisdiction in taking cognizance of the offence and issuing process to the accused notwithstanding the fact that the police report was to the effect that no case had been made out.
We do not propose to say a word about the merits of the case since it was entirely a matter for the learned Magistrate to take cognizance or not to take cognizance of the several offences.
We however wish to observe that it was wholly unnecessary for the Magistrate to write such an elaborate order as if he was weighing the evidence and finally disposing of the case.
We also desire to say that some of the observations of the learned Magistrate about the District Magistrate were wholly uncalled for as the latter was yet to appear before him as a witness.
We are told that the case has already been transferred to some other Magistrate.
It is, therefore, unnecessary to say anything further in the matter.
The appeal is, therefore, dismissed.
| IN-Abs | On a complaint by the complainant that the appellant, armed with a revolver and accompanied by two persons, trespassed into his house and threatened to kill him, the Magistrate ordered investigation by the police under section 156(3) of the Code of Criminal Procedure.
In their report under section 173 the police stated that the complaint was false in that on the date and time mentioned therein, the appellant was at a different place far away from the place where the complainant alleged that the appellant had threatened to kill him.
Disagreeing with the conclusion of the police the Magistrate took cognizance of the case under sections 448, 451 and 506 I.P.C. and directed the issue of process to the appellant.
The appellant 's petition seeking to quash the proceedings before the Magistrate was dismissed by the High Court.
In appeal to this Court, it was contended on behalf of the appellant that the Magistrate was not competent to take cognizance of the case as if it was upon a police report since the report under section 173 by the police did not disclose any offence having been committed by the appellant.
Dismissing the appeal ^ HELD: Where the Magistrate, on receiving a complaint orders investigation under section 156(3) and receives a report under section 173 to the effect that no offence was disclosed against the accused, the Magistrate might either (i) decide that there is no sufficient ground for proceeding further and drop action or (ii) he may take cognizance of the offence under section 190(1)(b) and issue process without being bound in any manner by the conclusion of the police or (iii) he may take cognizance of the offence under section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under section 200.
If he adopts the third alternative, he may hold or direct an enquiry under section 202 if he thinks fit.
Thereafter he may dismiss the complaint or issue process as the case may be.
[940E G] In any event, it is impossible to say that the Magistrate, who takes cognizance of an offence on the basis of the facts disclosed in the police report, 936 must be said to have taken cognizance of the offence "on suspicion" and not upon police report, merely because he and the police arrived at different conclusions from the facts.
The Magistrate is not bound by the conclusions of the police: if he ignores their conclusions and takes cognizance of the offence himself, he does so upon the facts disclosed by the police report though not on the conclusions arrived at by them.
In such a case, it cannot be said that he was taking cognizance "on suspicion".
[942E H] In Abhinandan Jha & ors.
vs Dinesh Mishra ; , where this Court stated that the Magistrate could take cognizance of the offence under section 190(1)(c) notwithstanding the contrary opinion of the police, the reference to sub clause (c) therein was a mistake for sub clause (b).
The argument of the appellant that the Court, in this case, had apparently taken the view that the Magistrate could take cognizance of the offence not under section 190 (1)(b) as if it was a police report but under section 190(1)(c) as if it was "on suspicion" is not sustainable, because section 190(1)(c) was never intended to apply to cases where there was a police report under section 173(1).
[942C D]
|
ition No. 267 of 1979 (Under Article 32 of the Constitution) E. X. Joseph and N. section Das Bahl for the Petitioners.
L. N. Sinha, Att.
of India and Hardayal Hardy for RR 1 to 4.
section L. Aneja for RR 5 10 and 13.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
This is a Writ Petition under Article 32 of the Constitution by which the petitioners ask for an appropriate writ quashing the orders dated May 29, 1965 and May 16, 1975 issued by Respondent 2, the Director General of Posts and Telegraphs, New Delhi, and for striking down the provisions in Col. 10 of the Schedule to the Recruitment Rules, 1969.
Petitioner 1 joined the Posts and Telegraphs Audit Office of the Government of India at Delhi on July 31, 1956 as a Lower Division Clerk.
In 1961 he qualified in the departmental examination for promotion as an Upper Division Clerk.
On May 4, 1962 he joined the Savings Bank Control Organisation and Savings Bank Internal 974 Check Organisation (SBCO ICO), as an Upper Division Clerk.
Petitioner 2 joined the P and T Audit Office at Madras on June 3, 1950 as a Lower Division Clerk.
On passing the departmental examination he was promoted as an Upper Division Clerk on September 10, 1958.
He joined SBCO ICO on April 1, 1963 in the same capacity.
He is due to retire on October 31, 1980.
Respondent 1 to the Writ Petition is the Union of India, Respondent 2 is the Director General of P & T and Respondents 3 and 4 are the Post Master Generals of the Delhi Circle and the Tamil Nadu Circle respectively.
Respondents 5 to 13, though junior to Petitioner 1 in the Delhi Circle, have been promoted as Selection Grade Clerks/Head Clerks in supersession of him.
Respondents 14 to 47, though junior to Petitioner 2 in the Tamil Nadu Circle, have been promoted as Selection Grade Clerks/Head Clerks in supersession of him.
The petitioners, in effect challenge their supersession to the post of Selection Grade Clerks/Head Clerks.
Until the year 1961, the Savings Bank work of the post office was under the supervision and control of the Indian Audit and Accounts Department of which the Comptroller and Auditor General of India is the Head.
The branches of the Indian Audit and Accounts Department doing the Savings Bank work and the work of auditing P & T accounts were called P & T Audit Offices.
The Government of India having decided that the Savings Bank work should be taken over by the P & T Department, the audit offices were relieved of that responsibility by stages during the years 1961 to 1964 and a new Organisation called the Savings Bank Control Organisation and Savings Bank Internal Check Organisation (SBCO ICO) was created on May 4, 1962.
With the setting up of that organisation, volunteers were given the option of joining it.
Amongst those who were thus invited to opt for service in the new Organisation were Upper Division Clerks in the Audit Offices, Lower Division Clerks who had qualified for promotion to the Upper Division Clerks ' cadre in the audit offices, employees under the Post Master General and lastly those from amongst the time scale clerks in the P & T Accounts Organisation.
Employees belonging to the aforesaid departments who opted for service in the new Organisation were transferred thereto in the interest of public service.
In the audit department, 10% of the sanctioned strength of the posts of Upper Division Clerks were in the Selection Grade and promotion to those posts was made on the basis of seniority cum fitness.
By a letter dated May 15, 1964 the P & T Board informed all the Heads of Circles that the sanction of the President was obtained 975 to the conversion of 10% posts in the cadre of UDCs in the SBCO ICO into Selection Grade UDCs.
But, by the impugned letter No. 56/4/65 SPB I dated May 29, 1965 addressed to all Heads of P & T Circles, the Director General, Posts and Telegraphs modified the policy of reservation of 10% of the posts in the cadre of UDCs in the Selection Grade by directing, that the total number of Selection Grade posts available for the UDCs who came from the Audit Offices should be 10% of the total number of Audit office UDCs working in any particular Circle of the organisation.
Thus, whereas, under the original intendment, if the total number of posts in the cadre of UDCs in the new Organisation was 100, 10 posts were available in the Selection Grade for all the UDCs, under the new policy if, out of the total strength of 100, 40 posts were occupied by UDCs who had come from the Audit Offices, they would, as amongst themselves, be entitled to four posts only in the Selection Grade.
Under the new dispensation, the test is how many UDCs from Audit Offices are working in the Circle, not what is the total strength of the UDC cadre in the Circle.
On January 22, 1968, the President of India, acting in exercise of his powers under Article 309 of the Constitution, framed rules regulating the recruitment to the cadre of UDCs and other posts in the SBCO ICO.
The rules are called "The Indian Posts & Telegraphs (Clerks in Savings Bank Control and Internal Check Organisation) Recruitment Rules, 1969".
Brevity is obviously indicated and, for its sake, we will refer to these rules as the Recruitment Rules, 1969.
Rule 4 provides that the method of recruitment to the various posts, the age limit, qualifications etc.
shall be as specified in Columns 4 to 12 of the Schedule provide to the Rules.
Column 4 of the Schedule provides that the post of Selection Grade UDCs is a non Selection post.
Column 9 provides that recruitment of Selection Grade UDCs will be exclusively by promotion.
Column 10 provides that the appointment to the Selection Grade will be made from amongst Upper Division Clerks with 10 years of service in that grade in case of Audit office Staff, or with five years service in that grade in case of other Upper Division Clerks.
This is one of the provisions of the Rules which is challenged as being discriminatory.
On the basis of the recommendations made by the Third Pay Commission, the Supervisory Cadre in the SBCO ICO was reorganised with a view to providing better promotional avenues to the members of the staff.
Accordingly, the Director Gerneral issued instructions by his letter dated April 10, 1975 that the existing provision relating to the Selection Grade Posts will be replaced by the creation of a cadre of Head Clerks and that the number of posts in the said 976 cadre of Head Clerks will be fixed at 20 per cent of the posts of UDCs.
By another letter dated May 16, 1975 the Director General clarified this position by saying: "Under the new scheme the audit office UDCs will get the posts of Head Clerks to the extent of 20% of their strength instead of 10% as at present.
The remaining posts of Head Clerks will go to the non audit UDCs.
" This is the other of the two impugned letters.
The petitioners contend that the classification of the Upper Division Clerks for the purpose of promotion to the Selection Grade/Head Clerks Cadre, on the basis of the sources from which they are drawn and the limiting of the promotional posts available to them to 10% in the case of Selection Grade Posts and 20% in the case of the posts of the Head Clerks has resulted in stagnation of the UDCs.
, who joined the new organisation from the Audit Offices.
The petitioners ' grievance is that UDCs.
who joined that organisation from the P & T offices and who were junior to them in terms of the length of service in the U.D.C. cadre have been already promoted to the Selection Grade/Head Clerks cadre.
This classification of the U.D.Cs. of the SBCO ICO into two groups for the purpose of promotion on the basis of the sources from which they are drawn is challenged by the petitioners as discriminatory, arbitrary and unreasonable.
According to them, since the promotional post is a non selection post, the only criterion for promotion from amongst the U.D.Cs.
in the SBCO ICO can be the length of service in the cadre of U.D.Cs., subject to fitness.
Shri E. X. Joseph, who appears on behalf of the petitioners has made a very neat argument, focussing with the help of telling illustrations the injustice which has been done to the petitioners and to those similarly situated.
The learned Attorney General who appears for the Union of India and Shri Aneja who appears for the U.D.Cs.
drawn from the other departments, have attempted to meet Shri Joseph 's argument but we are left in no doubt that the policy adopted by the Union of India is discriminatory and unreasonable.
Though it appears prima facie that U.D.Cs.
in SBCO ICO were drawn from four different sources, the sources are really two and not four.
U.D.Cs.
in that organisation were appointed from amongst those who were previously serving in the Audit Offices and secondly from amongst the other employees of the P & T Department.
The recruitment rules of 1969 make a classification amongst the U.D.Cs. by providing that in so far as the U.D.Cs.
drawn from the 977 Audit Offices are concerned they will be eligible for promotion to the Selection Grade/Head Clerks Cadre after they put in a service of 10 years in the new organisation.
In regard to the U.D.Cs.
drawn from the P and T Department, the rules provide that they will be eligible for such promotion on completing five years ' service only.
Bearing in mind that the posts in the Selection Grade/Head Clerks Cadre are non selection posts to which appointments are made by the test of seniority cum fitness, that is the farthest limit to which classification of the U.D.Cs.
for the purpose of promotion could be carried.
It is difficult to appreciate the logic or the principle behind the direction that the Selection Grade Posts or the posts of Head Clerks which will be available to the U.D.Cs.
drawn from the Audit offices will be determined on the basis of the existing strength, at any given time, of such Clerks in the particular circle.
Since, under the impugned directions, the number of Selection Grade Posts/Head Clerks has to be 10% of the number of U.D.Cs.
drawn from the Audit Offices, no promotional opportunities at all will be available to them in certain circles in which less than 10 U.D.Cs.
drawn from the Audit Offices are working.
It is indisputable that, according to the impugned directive, there have to be at least ten persons drawn from the Audit Offices in a Circle, in order that at least one promotional post may become available to them.
We are informed, which again is not disputed, that in some small Circles, less than 10 U.D.Cs.
drawn from the Audit Offices are working in the new organisation.
These persons, for a purely fortuitous reason, will be denied for ever all promotional opportunities.
That seems to us wholly indefensible.
Apart from the injustice in specific cases where U.D.Cs.
drawn from the Audit Offices are attached to comparatively smaller Circles, the classification made for the purpose of determining the promotional opportunities seems to us unreasonable and arbitrary.
It is contended by the learned Attorney General that persons drawn from different sources were not integrated into a common service in the instant case and therefore different rules of promotion can be applied to the two classes.
We are unable to accept this contention.
The duties, functions and responsibilities of all the U.D.Cs.
in the new organisation are identical.
They are all in the same cadre and they draw the same pay in the same grade.
There is no reason then why different tests should be prescribed for determining their respective promotional opportunities, and that too solely in reference to the source from which they are drawn.
The test of educational qualifications can conceivable be an intelligible differentia bearing nexus 978 with the object of ensuring greater efficiency in public services.
But once a cadre is formed by recruiting persons drawn from different departments of the Government, there would normally be no justification for discriminating between them by subjecting one class to more onerous terms in the matter of promotional chances.
The impugned directives are therefore unconstitutional.
Apart from this consideration, we are unable to understand how the Director General could issue any directive which is inconsistent with the Recruitment Rules of 1969 framed by the President in the exercise of his powers under Article 309 of the Constitution.
Those rules do not provide for the kind of classification which is made by the Director General by his letters to the Heads of respective Circles of the new organisation.
It may be recalled that the Recruitment Rules only provide for a classification on the basis of the length of service in the new organisation.
Any directive which goes beyond it and superimposes a new criterion on the Rules will be bad as lacking in jurisdiction.
No one can issue a direction which, in substance and effect, amounts to an amendment of the Rules made by the President under Article 309.
That is elementary.
We are unable to accept the learned Attorney General 's submission that the directive of the Director General is aimed at further and better implementation of the Recruitment Rules.
Clearly, it introduces an amendment to the Rules by prescribing one more test for determining whether U.D.Cs.
drawn from the Audit Offices are eligible for promotion to the Selection grade/Head Clerks Cadre.
The High Court of Kerala in Balakrishnan vs Comptroller & Auditor General of India and the High Court of Karnataka in Krishnamurthy C.K. vs Director General, P & T have struck down the impugned directions issued by the Director General P & T on the ground that they are discriminatory and therefore unconstitutional.
These decisions of the Kerala and the Karnataka High Courts are correct.
In fact, it is significant that the Union of India did not file any appeal against those decisions and has acquiesced in them.
The High Court of Andhra Pradesh in V. Subramanyam vs The Director General of Posts and Telegraphs, New Delhi and the High Court of Madras in V. section Rajagopalan vs post Master General seem to have rejected the writ petitions filed before them by persons similarly situated as the petitioners, by holding that no 979 discrimination was involved in fixing separate quotas for the purpose of promotion between the U.D.Cs.
drawn from the Audit Offices and the other U.D.Cs.
With respect, we consider the decisions of the High Courts of Andhra Pradesh and Madras as incorrect.
The petitioners have also challenged the provision in Column 10 of item 3 of the Schedule to the Recruitment Rules of 1969 which provides that U.D.Cs.
drawn from Audit Offices must put in 10 years of service for acquiring eligibility for promotion whereas other U.D.Cs. are eligible for promotion after putting in 5 years ' service.
We are not inclined to entertain that challenge since the impugned provision has been in force since 1969 and it was not until the filing of this petition in 1979 that any objection was taken to its legality.
Besides, we are of the opinion that considering the history leading to the formation of the new organisation, SBCO ICO, the distinction made between the two classes of U.D.Cs. in the context of the length of their service for the purposes of promotion is not arbitrary or unreasonable.
The staff of the Audit Offices which was engaged in the Savings Bank 's work might well have faced retrenchment.
Instead of subjecting them to that hardship, they were given the option of joining the new organisation.
Experience wise also, there would appear to be fair justification for requiring them to put in longer service in the new organisation before they are eligible for promotion to the higher grade.
That challenge has therefore to be repelled.
In the result, we allow the writ petition partly and quash the directions issued by respondent 2 by his letters of May 16, 1975 and May 29,1965 to the effect that U.D.Cs.
drawn from the Audit Offices will be eligible for promotion to the Selection Grade on the basis of 10 per cent of the posts held by them or to the Head Clerks ' Cadre on the basis of 20 per cent of the posts held by them in SBCO ICO.
They and the other U.D.Cs. will accordingly be entitled equally to promotional opportunities.
We direct that the petitioners, and others similarly situated as them, shall be promoted to the Selection Grade/ Head Clerks Cadre with effect from the dates on which they were due for promotion, by applying the test of seniority cum fitness.
Since we have upheld the provision in Column 10 of item 3 of the Schedule to the Recruitment Rules, 1969, the petitioners will have become eligible for promotion after completing 10 years ' service in SBCO ICO.
Since the demotion of the respondents or any of them is likely to lead to undue hardship to them and to some administrative confusion, the Government may create supernumerary posts to which the petitioners and others similarly situated as them, may be promoted.
We are informed that consequent upon the judgments of the High 980 Courts of Kerala and Karnataka, the Government has adopted a similar course in the Kerala and Karnataka Circles.
The Writ Petition thus succeeds partly.
The petitioners will be entitled to their costs from the first respondent, the Union of India.
NKA Petition partly allowed.
| IN-Abs | The Government of India created the Savings Bank Control Organisation and Savings Bank Check Organisation (SBCO ICO).
Amongst those who were invited to opt for service in the said organisation were UDCs in the Audit Offices, LDCs who had qualified for promotion to the UDC cadre in the Audit Offices, employees under the Post Master General and those from amongst the Time Scale Clerks in the P & T Accounts Organisation.
By a letter dated May 15, 1964 the P & T Board informed all the Heads of the Circles that the sanction of the President of India was obtained to the conversion of 10% posts in the cadre of UDCs in the SBCO ICO into Selection Grade UDCs.
But, by his letter dated May 29, 1965 addressed to all Heads of P & T Circles, the Director General, Post & Telegraphs modified the policy of reservation of 10% of the post in the cadre of UDCs in the Selection Grade by directing, that the total number of Selection Grade Posts available for the UDCs who came from the Audit offices should be 10 of the total number Audit officer UDCs working in any particular circle of the Organisation.
On January 22, 1968, the Indian Posts & Telegraphs (Clerks in Savings Bank Control and Internal Check Organisation) Recruitment Rules, 1969 were framed regulating the recruitment to the cadre of UDCs and other posts in the SBCO ICO.
Col. 10 of Item 3 of the Schedule to the Rules provides that the appointment to the Selection Grade will be made from amongst UDCs with 10 years of service in that grade in case of Audit Office Staff, or with five years ' service in that grade in case of other UDCs.
Later, the Supervisory Cadre in the SBCO ICO was recognised.
Creating a cadre of Head Clerks in place of the Selection Grade posts and fixing the number of posts in the said cadre at 20% of the posts of UDCs.
By letter dated May 16, 1965, the Director General however, clarified the position by saying that "under the new scheme the audit office UDCs will get the post of Head Clerks to the extent of 20% of their strength instead of 10% as at present.
The remaining posts of Head Clerks will go to the non audit UDCs".
972 The two petitioners who belonged to the P & T Audit Offices and had qualified the departmental examination for promotion as UDCs, joined the SBCO ICO as UDCs.
They challenged the classification of UDCs for the purposes of promotion to the Selection Grade/Head Clerks cadre on the basis of the sources from which they were drawn and the limiting of the promotional posts available to them to 10% in the case of Selection Grade post and 20% in the case of Head Clerk posts thereby resulting in promotion of their Juniors who had joined the organisation from the P & T Offices, as discriminatory, arbitrary and unreasonable.
According to them the only criterion for promotion from amongst the UDCs in the SBCO ICO could be the length of service in the cadre of UDCs, subject to fitness.
The provision in Column 10 of Item 3 of the Schedule to the Recruitment Rules of 1969 was also challenged.
The respondents argued that persons drawn from different sources were not integrated into a common service and therefore different rules of promotion could be applied to the two classes and that the directive of the Director General was aimed at further and better implementation of the Recruitment Rules.
Partly allowing the petition.
^ HELD 1.
The Directions issued by Respondent 2 by his letters dated May 16, 1975 and May 29, 1965 that UDCs drawn from the Audit offices will be eligible for promotion to the Selection Grade on the basis of 10% of the posts or to the Head Clerks cadre on the basis of 20% of the posts, held by them in SBCO ICO are quashed.
[979 E F] The petitioners and the other UDCs will be entitled equality to promotional opportunities.
They and others similarly situated as them shall be promoted to the Selection Grade/Head Clerks Cadre with effect from the dates on which they were due for promotion by applying the test of seniority cum fitness.
[979 F G] 2.
The policy adopted by respondent 2 is discriminatory and unreasonable.
Apart from the injustice in specific cases where UDCs drawn from the Audit Offices are attached to comparatively smaller circles, the classification made for the purpose of determining the promotional opportunities seems unreasonable and arbitrary.
Since under the impugned directions, the number of Selection Grade/Head Clerks has to be 10% of the number of UDCs drawn from the Audit Offices, no promotional opportunities at all would be available to them in certain circles in which less than 10 UDCs drawn from the Audit Offices are working.
These persons, for a purely fortuitous reason.
will be denied for ever all promotional opportunities.
That seems wholly indefensible.
[976G, 977B F] 3.
The duties, functions and responsibilities of all the UDCs being identical, there is no reason why different tests should be prescribed for determining their respective promotional opportunities and that too solely in reference to the source from which they are drawn.
The test of educational qualifications can conceivably be an intelligible differentia bearing nexus with the object of ensuring greater efficiency in public services.
But once a cadre is formed by recruiting persons drawn from different departments of the Government, there would normally be no justification for discriminating between them by subjecting one class to more onerous terms in the matter of promotional chances.
The impugned directives are therefore unconstitutional.
[977G H, 978A B] 973 Balakrishnan vs Comptroller & Auditor General of India, 1976 Kerala Law Times 401 & C. K. Krishnamurthy vs Director General P & T , affirmed.
V. Subramanyam vs The Director General of Posts and Telegraphs, New Delhi WP 3935/75 decided on 18th November 1978 & V. section Rajagopalan vs Post Master General WP 3796/75 decided on 24th November 1976, reversed.
4.No one can issue a direction which, in substance and effect, amounts to an amendment of the Rules made by the President under Article 309.
The Recruitment Rules of 1969 do not provide for the kind of classification which is made by the Director General by his letters to the Heads of respective Circles of the new organisation.
They only provide for classification on the basis of length of service in the new organisation.
Any directive which goes beyond it and superimposes a new criterion on the rules will be bad as lacking in jurisdiction.
[978B E] 5.
The distinction made between the two classes of UDCs, in the context of the length of their service for the purposes of promotion is not arbitrary or unreasonable.
The staff of the Audit Offices which was engaged in the Savings Bank 's work might well have faced retrenchment.
Instead of subjecting them to that hardship, they were given the option of joining the new organisation.
Experience wise also, there would appear to be fair justification for requiring them to put in longer service in the new organisation before they are eligible for promotion to the higher grade.
The provision in Col.10 of Item 3 of Schedule to the Recruitment Rules 1969 is therefore upheld.
[979C E]
|
Civil Appeal No. 2520 of 1980.
Appeal by Special Leave from the Judgment and order dated 3 12 1979 of the Allahabad High Court in Civil Misc.
Writ No, NIL of 1979.
Yogeshwar Prasad and Mrs. Rani Chhabra for the Appellants.
O. P. Rana and P. K. Pillai for the Respondents, The Judgment of the Court was delivered by DESAI, J.
The appellants applied for temporary permits under section 68 F (1 C) for plying the passenger vehicles on Khurja Pahasu Chhatari Dabai Rajghat Ramghat Atrauli route (route for short) which applications came to be rejected by the State Transport Authority and their appeal to the State Transport Appellate Tribunal and writ petition to the High Court, of Allahabad did not meet with success.
It is a common ground that in respect of the route a scheme has been prepared and published under section 68C of Chapter IV A of .
The route in question is an inter regional route and therefore an application for temporary permit for the period intervening between the date of publication of the scheme and the date of publication of the approved or modified scheme has to be made to the State Transport Authority under sec.
68(1 C).
Ignoring the previous history of the litigation for the present, it may be noticed that the appellants made applications to the State Trans port Authority for grants of temporary permits to ply their vehicles on the route.
The U.P. State Road Transport Corporation (Corporation for short) also made an application for grant of three temporary 983 permits for the same purpose and the application of the Corporation for three permits was granted while the application made by each of the appellants was rejected on The ground that once a scheme has been published in view of the provision contained in Sec.
68 F(1 A) the Corporation alone to the exclusion of others, is entitled to apply for temporary permit and if such application is made by the Corporation and granted no one else is entitled to obtain a temporary permit.
This decision of the State Transport Authority has been upheld both by the State Transport Appellate Tribunal and the High Court Section 68 F(1) makes it obligatory upon the State Transport Authority or Regional Transport Authority as the case may be to grant permit of the nature envisaged in the section to the Corporation to the exclusion of any other applicant.
Section 68 F (1 A) confers power on the State Transport Authority or the Regional Transport Authority as the case may be, for the period intervening between the date of publication of the scheme and the date of publication of the approved or modified scheme to increase in public interest the number of vehicles operating on the route or the area in respect of which the scheme has been published by State Transport Corporation under section 68C and further enables the Corporation to apply for temporary permits to ply the vehicles during the interregnum.
On such applications being made it is obligatory upon the State Transport Authority or the Regional Transport Authority as the case may be to grant such temporary permits.
Section 68 F (1 B) is not relevant for the present purpose.
Section 68 F(1 C) reads as under: "If no application for a temporary permit is made under sub section (l A), the State Transport Authority or the Regional Transport Authority, as the case may be, may grant, subject to such conditions as it may think fit, temporary permit to any person in respect of the area or route or portion thereof specified in the scheme and the permit so granted shall cease to be effective on the issue of a permit to the State Transport Undertaking in respect of that area or route or portion thereof.
" Section 68 F (1D) takes away the power of permit granting authority to grant or renew any permit during the period intervening between the date of publication, under section 68 C of any scheme and the date of publication of the approved or modified scheme, in favour of any person for any class of road transport service in relation to an area or route or portion thereof covered by such scheme except as provided in sub section ((1 A) and sub section (1 C).
984 The Corporation has published a scheme in respect of the route.
Even when a scheme is published it is open to the State Transport Authority or the Regional Transport Authority as the case may be to fix or increase the number of vehicles that may operate on the route.
But the power to increase the number must be exercised in public interest.
It is common ground that the strength of vehicles on the route in question was raised from 13 to 20.
Hence in view of this raising of the strength, 7 temporary permits could be granted.
However, in view of the provision contained in section 68 F(1 A) consequent upon the scheme being published by the Corporation under section 68 C in respect of the route the Corporation will be entitled to all the temporary permits to the exclusion of any other operator.
But Legislature was aware of a possible situation where the Corporation though entitled to temporary permits to the exclusion of other operators may not be in a position to avail of this statutory right.
Section 68 F(1 C) appears to have been introduced to meet with the situation arising out of the inability of the Corporation to obtain all available temporary permits.
Section 68 F(1 C) caters to such a situation where a scheme has been published and, therefore, the Corporation would be entitled, to temporary permits till the approved scheme is published, yet if the Corporation is unable to provide service by obtaining all requisite temporary permits, the State Transport Authority or the Regional Transport Authority as the case may be, in exercise of power conferred specifically upon it by section 68 F(1 C) can grant temporary permits to persons other than the Corporation to operate vehicles on the route for which the scheme is published till modified or approved scheme is published.
It is not in dispute that there are 7 vacancies for temporary permits.
It is an admitted position that the Corporation applied for only 3 permits.
The State Transport Authority has not recorded finding that in public interest remaining 4 permits were not required to be issued.
Undoubtedly, therefore, there were 4 vacancies for which 4 temporary permits could be issued by the State Transport Authority on this inter regional route.
Undoubtedly the permits will have to be temporary permits because the scheme has been published in respect of the route under section 68C.
The State Transport Authority, the State Transport Appellate Tribunal and, the High Court fell into an error by interpreting section 68 F(1 C) only to mean that even though there are 7 vacancies and the Corporation applied for only 3 temporary permits, once the Corporation made an application for temporary permits not for the full strength but something short of it there was no power left in 985 the State Transport Authority to grant temporary permits to any one else.
Obviously section 68 F(1 C) does not admit of such a construction.
The State Transport Authority has power under sub section (1 C) to grant temporary permit to any person in respect of the area or the route or part thereof specified in the scheme.
The expression 'any person ' would comprehend any person even other than the Corporation.
One has to read section 68 F (1 A) and section 68 F (1 C) harmoniously.
If the Corporation applies for temporary permits undoubtedly the State Transport Authority cannot grant permit to any one else if the Corporation has applied for all the permits.
But section 68 F(1 C) clearly envisaged a situation where application for a temporary permit is not made under section 68 F(1 A) by the Corporation.
And there is felt need for providing transport service on the route in question.
Now it cannot be gain said that there were 7 vacancies for temporary permits because the strength was increased from 13 to 20.
The State Transport Authority is the proper authority lo decide the strength of vehicles to be plied on a route.
If the Corporation is willing to operate vehicles to the maximum strength undoubtedly the State Transport Authority will have to grant permit to the Corporation under section 68 F(1 A) to the exclusion of others.
But if the Corporation was unable to provide vehicles for the optimum strength fixed by the State Transport Authority the remaining permits will have to be granted to any other person willing Jo obtain temporary permit and ply vehicle because in respect of the remaining strength there would be no application by the Corporation and section 68 F(1 C) would be squarely attracted.
In interpreting the provisions of Chapter IV A of it is undoubtedly true that the Corporation enjoys a preferential treatment in the matter of obtaining permits.
The authority under the Act must not ever lose sight of the fact that the primary consideration must be the service available to the travelling public.
While interpreting the provisions of the undoubtedly the competing claims between the Corporation and the other private operators may be examined with reference to the provisions of the Act.
But the overall consideration namely the service is for the benefit of the travelling public should never be overlooked for a moment.
Reverting to the facts of this case if the approach of the High Court is accepted it would lead to a startling result.
Assuming there were 10 vacancies for temporary permits and the Corporation was able to provide only one vehicle and therefore applied for only one permit, according to the State Transport Appellate Tribunal as well as the High Court no temporary permit can be granted to any one else 986 for the remaining 9 vacancies.
Such is not the position emerging from a combined reading of section 68 F(1 A) and Section 68 F(1 C).
The correct approach would be that keeping in view the strength of the vehicles fixed by the competent authority, the authority should first examine the application for number of temporary permits made by the Corporation.
If the Corporation has made application for temporary permits covering all the vacancies the matter ends there.
But if the Corporation does not apply for all the permits but only for some, the inescapable conclusion is that for the remaining strength the Corporation has made no application for the temporary permits and section 68 F(1 C) would be squarely attracted.
In That event the State Transport Authority or the Regional Transport Authority as the case may be will have to examine the application for temporary permits made by persons other than the Corporation and if they are found to be competent, eligible and qualified they may have to be granted permits for the benefit of the large travelling public.
That is why power to increase strength of fleet operating on the route is conferred and has to be exercised in public interest meaning transport facility to travelling public.
In this case there were 7 vacancies for temporary permits.
The Corporation applied for only 3.
It was incumbent upon the State Transport Authority to consider the applications of the present appellants for the remaining 4 vacancies and grant four permits according to law.
Accordingly this appeal is allowed and the orders of the State Transport Authority, the State Transport Appellate Tribunal and the High Court are set aside and the matter is remitted to the State Transport Authority to consider the applications of the present appellants for the remaining 4 vacancies and pass orders according to law.
In the circumstances of this case, there will be no order as to costs.
S.R Appeal allowed.
| IN-Abs | Allowing the appeal by special leave, the Court ^ HELD: 1.
The combined reading of section 68 F (1 A) and section 68 F (1 C) makes it clear that keeping in view the strength of the vehicles filed in public interest by the competent authority under section 68 F (1 A), for the period intervening between the date of publication of the scheme and the date of publication of the approved or modified scheme, the authority should first examine the application for number of temporary permits made by the Corporation.
If the Corporation has made application for temporary permits covering all tho vacancies, the authority must grant permit to the Corporation to tho exclusion of any other applicant, as section 68 F(1) makes it obligatory upon the State Transport Authority or the Regional Transport Authority, as the case may be, to grant the same.
If the Corporation does not apply for all the permits but only for some, the inescapable conclusion will be that for tho remaining strength the Corporation has made no application for the temporary permits and section 68 F (1 C) of the Act squarely being attracted, the State Transport Authority or the Regional Transport Authority, as the case may be, will have to examine the application for temporary permits made by persons other than the Corporation and if they are found to be competent eligible and qualified they may have to be granted permits for the benefit of the largo travelling public.
That is why power to increase strength of fleet operating on the route is conferred under section 68 F (1 A) of the Act and has to be exercised in public interest meaning transport facility to travelling public.
In this case there were 7 vacancies for temporary permits.
The Corporation applied for only 3.
It was incumbent upon the State Transport Authority to consider the applications of the present appellants for the remaining four vacancies and grant four permits according to law.
[986A D] 2.
The expression "any person" in section 68 F (1 C) of the would comprehend any person to mean any one other than the Corporation.
[985A B]] Section 68 F (1 C) caters to such a situation where a scheme has been published and, therefore, the Corporation would be entitled to temporary permits till the approved scheme is published, yet if tho Corporation is unable to provide vehicles for the optimum strength fixed by the State Transport 982 Authority or the Regional Transport Authority, as the case may be, the concerned authority in exercise of power conferred specifically upon it by section 68 F (1 C) can grant temporary permits to persons other than the Corporation to operate vehicles on the route for which the scheme is published till modified or approved scheme is published.
[984C E] 3.
In interpreting the provisions of Chapter IV A of it is, undoubtedly, true that the Corporation enjoys a preferential treatment in the matter of obtaining permits the authority under the Act must not ever lose sight of the fact that the primary consideration must be the service available to the travelling public.
While interpreting the provision of the , undoubtedly, the competing claims between the Corporation and the other private operators may be examined with reference to the provisions of the Act.
But the overall consideration namely the service is for the benefit of the travelling public should never be overlooked for a moment.
[985F G]
|
: Special Leave Petition (Crl.) No. 1620 of 1980.
From the Judgment and order dated 13 11 1979 of the Bombay High Court in Criminal Appeal No 1310 of 1979.
Pramod Swarup for the Petitioner.
M. C. Bhandare and M. N. Shroff for the Respondent.
The order of the Court was delivered by KRISHNA IYER J. We were not happy at the disposal by the High Court of a case under section 302 I.P.C. without a speaking order.
After all in so serious a crime as murder, where so severe a sentence as life imprisonment has been inflicted by the trial court and the appeal is as of right, the High Court must indicate in a reasoned judgment that it has applied its mind to the material questions of fact and law.
A judgment may be brief but not a blank, especially in a situation such as this.
For this reason we should have straightaway set aside the judgment of the High Court and sent it back for fresh hearing, but under Article 136 where justice is the paramount consideration we wanted to reduce the delay in the proceedings since there is a sentence of life imprisonment on the petitioner so we directed that the original record be sent for so that counsel on both sides may 1195 have the opportunity to peruse the entire case records and make submissions to us as if we were hearing the appeal in the regular course.
Counsel have had that facility and have made submissions after perusal of the materials.
After a brief hearing counsel for the petitioner was unable to demonstrate that the trial court 's judgment was vitiated by any flaw in appreciation of evidence or assessment of probabilities.
We, therefore, dismiss the Special Leave Petition after satisfying ourselves that natural justice has had its full play.
Dismissed.
P.B.R. Petition dismissed.
| IN-Abs | In so serious a crime as murder where so severe a sentence as life imprisonment has been inflicted by the trial court and the appeal is as of right, the High Court must indicate in a reasoned judgment that it has applied its mind to the material questions of fact and law.
A judgment may be brief but not a blank especially in a situation such as this.
[1194 F G]
|
Civil Appeal No. 147 of 1974.
Appeal by special leave from the Judgment and Order dated 16 10 1973 of the Delhi High Court in LPA No. 238/72.
Dr. L. M. Singhvi and Mahinder Narain for the Appellant.
Lal Narain Sinha Att.
of India, B. P. Maheshwari, Suresh Sethi and section K. Bhattacharyya for Respondent No. 1.
Sardar Bahadur Saharya and Vishnu Bahadur Saharya for Respondent No. 2.
The Judgment of the Court was delivered by PATHAK, J.
Does the failure of the Standing Committee of the Delhi Municipal Corporation to consider under sub section
(3) of section 313, Delhi Municipal Corporation Act, 1957, an application for sanction to a lay out plan within the period specified in the subsection result in a "deemed" grant of the sanction? That is the principal question raised in this appeal by special leave which is directed against the judgment and order of the Delhi High Court allowing a Letters Patent Appeal and dismissing a writ petition filed by the appellant.
The appellant 's father, Amin Chand, owned a large parcel of land in village Chowkhandi near Tilak Nagar, Najafgarh Road, New Delhi.
The land was situated within the municipal limits of Delhi.
Amin Chand decided on developing the land as a residential colony named, after his father, the "Gangaram Vatika Colony".
He submitted a lay out plan for sanction under section 313 of the Delhi Municipal 1076 Corporation Act, 1957.
The plan was sanctioned by the Standing Committee of the Delhi Municipal Corporation by Resolution No. 17 passed on 10th December, 1958.
A revised lay out plan was approved by the Standing Committee by Resolution No. 871 dated 12th November, 1964.
Meanwhile, Amin Chand died, and the appellant, his son, thought it desirable that the lay out plan should include provision for the construction of a cinema.
Plots Nos.
33, 34 and 35 approved as separate units for the construction of residential houses in the lay out plan were selected as an amalgamated unit for the cinema.
An application dated 20th April, 1967, accompanied by a copy of the sanctioned lay out plan indicating the proposed changes, was filed by the appellant and he prayed for "an early sanction in terms of the provisions of section 313" of the Act.
The Town Planner of the Corporation informed him by letter dated 14th June, 1967 that his application did not fall within the purview of section 313 and that, moreover, the Master Plan did not envisage a cinema within a residential area, and therefore the request could not be considered.
Some correspondence followed between the appellant and the Corporation and concluded with a letter of 29th September, 1969 by the Corporation informing the appellant that his proposal could not be accepted because it would contravene the Master Plan of Delhi.
The Appellant filed a writ petition in the High Court of Delhi alleging that the application had not been considered by the Standing Committee, and as the period prescribed by the statute for doing so had expired the revised lay out plan must be treated as having been sanctioned.
Accordingly, he prayed that the respondents be restrained from interfering with his right to raise the construction including the cinema building in accordance with the revised lay out plan.
A learned Single Judge of the High Court while disposing of the writ petition directed the Corporation to treat the revised lay out plan as having been approved, but observed that the appellant would not be entitled to construct a cinema on the land unless due compliance had been effected with other provisions of the law and that it was open to the Standing Committee under sub section
(5) of section 313 to prohibit the construction of the cinema.
The Corporation preferred a Letters Patent Appeal, and a Division Bench of the High Court by its judgment and order dated 16th October, 1973 allowed the appeal, set aside the judgment and order of the learned Single Judge and dismissed the writ petition.
Section 313 of the Corporation Act consists of the following provisions: "313.
(1) Before utilising, selling or otherwise dealing with any land under section 312, the owner thereof shall send to the 1077 Commissioner a written application with a lay out plan of the land showing the following particulars, namely: (a) the plots into which the land is proposed to be divided for the erection of buildings thereon and the purpose or purposes for which such buildings are to be used; (b) the reservation or allotment of any site for any street, open space, park, recreation ground, school, market or any other public purpose; (c) the intended level, direction and width of street or streets, (d) the regular line of street or streets; (e) the arrangements to be made for levelling, paving, metalling, flagging, channelling, sewering, draining, conserving and lighting street or streets.
(2) The provisions of this Act and the bye laws made thereunder as to width of the public streets and the height of buildings abutting thereon, shall apply in the case of streets referred to in sub section (1) and all the particulars referred to in that sub section shall be subject to the sanction of the Standing Committee.
(3) Within sixty days after the receipt of any application under sub section (1) the Standing Committee shall either accord sanction to the lay out plan on such conditions as it may think fit or disallow it or ask for further information with respect to it.
(4) Such sanction shall be refused (a) if the particulars shown in the lay out plan would conflict with any arrangements which have been made or which are in the opinion of the Standing Committee likely to be made for carrying out any general scheme of development of Delhi whether contained in the master plan or a zonal development plan prepared for Delhi or not; or (b) if the said lay out plan does not conform to the provisions of this Act and bye laws made thereunder; or (c) if any street proposed in the plan is not designed so as to connect at one end with a street which is already open.
(5) No person shall utilise, sell or otherwise deal with any land or lay out or make any new street without or otherwise than in conformity with the orders of the Standing Committee 1078 and if further information is asked for, no step shall be taken to utilise, sell or otherwise deal with the land or to lay out or make the street until orders have been passed upon receipt of such information: Provided that the passing of such orders shall not be in any case delayed for more than sixty days after the Standing Committee has received the information which it considers necessary to enable it to deal with the said application.
(6) The lay out plan referred to earlier in this section shall, if so required by the Standing Committee, be prepared by a licensed town planner.
" The principal contention of the appellant before us is that on a true construction of section 313 it must be regarded that 'there is no restriction on his utilising, selling or otherwise dealing with the land in accordance with the lay out plan because the time prescribed by sub section
(3) for the Standing Committee to take action on the application had expired ', and reliance is place on Municipal Corporation of Delhi & ors.
vs Smt.
Kamala Bhandari & ors.(1).
It is necessary to examine for the purpose of this case what Parliament intended when enacting section 313.
Among the obligations vested in the Corporation under the Act are the construction, maintenance and improvement of streets.
Public streets vest in the Corporation and the Commissioner is enjoined to ensure their maintenance and repair.
Sections 313 to 316 related to private streets.
Section 312 provides that if the owner of any land utilises, sells, leases out or otherwise disposes of such land for the construction of buildings thereon, he must lay out and make a street or streets giving access to the plots in which the land is to be divided and connecting with an existing public or private street.
Sub section
(1) of section 313 obliges the owner of the land, before utilising, selling or otherwise dealing with the land under section 312 to apply to the Commissioner with a lay out plan of the land for sanction to the lay out plan.
The particulars detailed in sub section
(1) required in a lay out plan bear on the provisions of section 312.
The lay out plan will indicate in what manner the plots are proposed to be divided and the use to which they will be applied as well as the condition and direction of the streets, which provide access to them, so that it can be determined whether the private streets proposed in the lay out plan will adequately and sufficiently serve the buildings raised on the plots.
Sub section
(3) requires the Standing Committee, within sixty days after receipt of the application, either to accord sanction to the lay out plan or to disallow it 1079 or ask for further information in respect of it.
If further information is asked for, the ban on the owner utilising, selling or otherwise dealing with the land continues to operate until orders have been passed by the Standing Committee on receipt of the information.
That is sub section
Its proviso lays down that the passing of such orders shall not be in any case delayed for more than sixty days after the Standing Committee has received the information which it considers necessary.
Sub sections
(3) and (5) of section 313 prescribe a period within which the Standing Committee is expected to deal with the application made under sub section
But neither sub section declares that if the Standing Committee does not deal with the application within the prescribed period of sixty days it will be deemed that sanction has been accorded.
The statute merely requires the Standing Committee to consider the application within sixty days.
It stops short of indicating what will be the result if the Standing Committee fails to do so.
If it intended that the failure of the Standing Committee to deal with the matter within the prescribed period should imply a deemed sanction it would have said so.
They are two distinct things, the failure of the Standing Committee to deal with the application within sixty days and that the failure should give rise to a right in the applicant to claim that sanction has been accorded.
The second does not necessarily follow from the first.
A right created by legal fiction is ordinarily the product of express legislation.
It seems to us that when sub section
(3) declares that the Standing Committee shall within sixty days of receipt of the application deal with it, and when the proviso to sub section
(5) declares that the Standing Committee shall not in any case delay the passing of orders for more than sixty days the statute merely prescribes a standard of time within which it expects the Standing Committee to dispose of the matter.
It is a standard which the statute considers to be ' reasonable.
But non compliance does not result in a deemed sanction to the lay out plan.
Besides the absence of express language creating the legal consequence claimed by the appellant, there is nothing in the context to persuade us to accept the claim.
Parliament did not apparently view the matter of sanctioning a lay out plan as possessing the immediacy associated with the actual erection of a building or the execution of a work, where on the failure of the Commissioner to refuse sanction or to communicate such refusal within a specified period the applicant is entitled to commence and proceed with the building or work.
There is nothing in section 313 which has the contextual character of sections 336 and 337.
A perusal of sections 336 and 337 confirms that the cases covered there are controlled by a tightly woven time bound 1080 programme strongly indicating Parliament 's intent to regard the direction of a building and the execution of a work as matters of the utmost expedition and urgency.
Sub section
(3) of section 336 requires the Commissioner to communicate the sanction to the applicant and, where sanction is refused, to communicate the refusal with a statement of his reasons for such refusal.
If the period specified in sub section
(1) of section 337 has expired without the Commissioner refusing to sanction or, if refusing, without communicating the refusal, the applicant can commence and proceed with the projected building or work.
If it appears to the Commissioner that the site of the proposed building or work is likely to be affected by any scheme of acquisition of land for a public purpose or by any of the other public works mentioned in the proviso to sub section
(1) of section 337, he may withhold sanction of the proposed building or work, but even therefor not more than three months and the period specified in the sub section is computed as commencing from the expiry of such period.
That is not all.
On the sanction or deemed sanction, the applicant must under sub section
(3) of section 337 commence the erection of the building or execution of the work within one year.
Failure to do so will reduce him to the need for taking fresh steps for obtaining the sanction.
Then, before commencing the erection of the building or execution of the work with the period specified in sub section
(3), he is obliged, by virtue of sub section
(4) to give notice to the Commissioner of the proposed date of such commencement; and if the commencement does not take place within seven days fresh notice is necessary.
This network of provisions demonstrates the urgency attached by Parliament to the case where a building has to be erected or a work executed.
It is conspicuous by its absence in section 313.
We are, therefore, of opinion that if the Standing Committee does not consider the grant of sanction on the application made under sub section
(1) of section 313 within the specified period, it is not open to the applicant to regard the lay out plan as having been sanctioned.
We are unable to endorse the contrary view taken by the High Court in Municipal Corporation of Delhi 's case (supra) and overrule that decision.
The application made by the appellant for sanction to the lay out plan must be regarded as pending before the Standing Committee and must now be disposed of without any further delay.
The appellate Bench of the High Court has taken the view that the application does not lie under section 313.
As we have already observed, the purpose of filing a lay out plan under sub section
(1) of section 313 is related immediately to determining whether the access pro 1081 vided by the proposed private streets sufficiently and adequately serves the purpose enacted in section 312, and that is why the lay out plan must show the particulars specified in sub section
(1) of section 313.
Sanction to the lay out plan is also a preliminary step in the process of utilising the land for the construction of buildings thereon.
It is necessary to obtain that sanction because it is a pre requisite to the grant of sanction for the erection of the building or the execution of the work.
Under sub section
(1) of section 336, it is open to the Commissioner to refuse sanction of a building or work, in cases falling under section 312, if the lay out plans have not been sanctioned in accordance with section 313.
In our view, the appellant was right in making the application under section 313 regard to the amalgamation of the three plots for the proposed construction of a cinema building.
The Standing Committee has to determine whether the lay out plan now proposed can be sanctioned.
It may refuse the sanction by reason of sub section
(4) of section 313 on any of the ground specified therein.
That will be a matter for the Standing Committee to consider.
The Appellate Bench of the High Court has held that the appellant is not entitled to invoke sub section
(3) of section 313 for the grant of sanction to the revised lay out plan.
The High Court was apparently of the view that section 313 is attracted only when the owner of the land has not yet utilised or otherwise dealt with the land and the application for sanction envisaged under section 313 is the first application made for the purpose.
The High Court has referred to the circumstances that the owner had already commenced to act on the sanction granted to the original lay out plan.
We think that the limited view taken by the High Court is not justified.
It is open to the owner of land, after obtaining sanction to the original lay out plan, to apply afresh for sanction to a revised lay out plan.
Circumstances may arise, after the original sanction was granted, requiring the owner to incorporate changes in the original lay out plan.
In that event, when an application is made for the grant of sanction to a revised lay out plan it is, as it were, an application for the grant of a fresh sanction.
There is a fresh lay out plan for which sanction is applied.
It is differently constituted from the original lay out plan.
Such an application will fall under section 313.
It is no bar to making such an application and entertaining it that the owner has commenced to utilise the land or otherwise dealt with it.
Section 312 implies that the land must be utilised in accordance with the lay out plan.
If the land has been utilised to any degree by the appellant before 20th April, 1967, the utilisation must conform to the original sanctioned lay out plan.
No utilisation by the appellant in the manner subsequently proposed is 1082 permissible unless and until sanction is accorded to the revised lay out plan.
If such sanction is refused, it is the original sanction which will continue to operate, and the lay out plan to which such sanction was granted is the one that matters.
In the circumstances, we direct the first respondent, the Municipal Corporation of Delhi, to refer the application dated 20th April, 1967 along with the lay out plan accompanying it to its Standing Committee and the Standing Committee will dispose of the application expeditiously in accordance with law.
The appellant is not entitled to any further relief at this stage.
In the circumstances, the parties will bear their costs.
| IN-Abs | The Delhi Municipal Corporation Act, 1957 by sub section (1) of section 313 obliges the owner of the land, before utilising, selling or otherwise dealing with the land under section 312 to apply to the Commissioner with a layout plan of the land for sanction to the lay out plan.
Sub section (3) of the said section requires the Standing Committee, within sixty days after receipt of the application, either to accord sanction to the lay out plan or to disallow it or ask for further information in respect of it.
If further information is asked for, the ban on the owner utilising, selling or otherwise dealing with the land continues to operate until orders have been passed by the Standing Committee on receipt of the information.
The appellant 's father who owned a large parcel of land situated within the Municipal limits, decided on developing the land as a residential colony and submitted a lay out plan for sanction under section 313, which was sanctioned by the Standing Committee on 10th December, 1958.
After the death of the appellant 's father, the appellant thought it desirable that the lay out plan should include provision for the construction of a cinema and he submitted an application dated 20th April, 1967 accompanied by a copy of the sanctioned lay out plan indicating the proposed changes, and prayed for an early sanction in terms of the provisions of section 313.
The Town Planner of the Corporation informed by letter, dated 14th June, 1967 that as the application did not fall within the purview of section 313, and that as the Master Plan did not envisage a cinema within a residential area, the request could not be considered.
Some correspondence followed and ultimately by letter, dated 29th September, 1969 the appellant was informed that his proposal could not be accepted.
Feeling aggrieved, the appellant filed a Writ Petition in the High Court alleging that the application had not been considered by the Standing Committee and as the period prescribed by the statute for doing so had expired the revised lay out plan must be treated as having been sanctioned.
The Single Judge of the High Court allowed the Writ Petition and directed the Corporation to treat the revised lay out plan as having been approved but observed that it was open to the Standing Committee under sub section (5) of section 313 to prohibit the construction of the cinema.
The respondent Corporation preferred a Letters Patent Appeal and the Division Bench of the High Court allowed the appeal, holding that the appellant was not entitled to invoke sub section (3) of section 313.
In the appeal to this Court, on the question, whether the failure of the Standing Committee of the Municipal Corporation to consider under sub section 1074 (3) of section 313 of the Act, an application for sanction to a lay out plan within the period specified in the sub section can result in a deemed grant of the sanction: ^ HELD: 1.
Merely because the Standing Committee does not consider the grant of sanction on the application made under sub section (1) of section 313 within the specified period, does not entitle the applicant to regard the lay out plan as having been sanctioned.
[1080F] 2.
The Municipal Corporation is obliged to refer the application dated 20th April, 1967 alongwith the lay out plan accompanying it, to its Standing Committee to dispose of the application expeditiously in accordance with law.
[1082B] 3.
Sub sections (3) and (5) of section 313 prescribe a period within which the Standing Committee is expected to deal with the application made under sub section (1).
But neither sub section declares that if the Standing Committee does not deal with the application within the prescribed period of sixty days it will be deemed that sanction has been accorded.
The statute merely requires the Standing Committee to consider the application within sixty days.
It stops short of indicating what will be the result if the Standing Committee fails to do so.
[1070C] 4.
If the Act intended that the failure of the Standing Committee to deal with the matter within the Prescribed period should imply a deemed sanction it would have said so.
[1070C] 5.
When sub section (3) declares that the Standing Committee shall within sixty days of receipt of the application deal with it, and when the proviso to sub section (5) declares that the Standing Committee shall not in any case delay the passing of orders for more than sixty days the statute merely prescribes a standard of time within which it expects the Standing Committee to dispose of the matter.
It is a standard which the statute considers to be reasonable.
But non compliance does not result in a deemed sanction to the lay out plan.
[1070E F] 6.
Parliament did not apparently view the matter of sanctioning a lay out plan as possessing the immediacy associated with the actual erection of a building or the execution of a work, where on the failure of the Commissioner to refuse sanction or to communicate such refusal within a specified period the applicant is entitled to commence and proceed with the building or work.
[1070G] 7.
There is nothing in section 313 which has the contextual character of sections 336 and 337.
A perusal of sections 336 and 337 confirms that the cases covered there are controlled by a tightly woven time bound programme strongly indicating Parliament 's intent to regard the erection of a building and the execution of a work as matters of the utmost expedition and urgency.
This network of provisions demonstrate the urgency attached by Parliament to the case where a building has to be erected or a work executed.
[1079H 1080A, E] 8.
Sanction to the lay out plan is also a preliminary step in the process of utilising the land for the construction of buildings thereon.
It is necessary to obtain that sanction because it is a pre requisite to the grant of sanction for the erection of the building or the execution of the work.
[1081B] 9.
The appellant was right in making the application under section 313 in regard to the amalgamation of the three plots for the proposed construction 1075 of a cinema building.
The Standing Committee has to determine whether the lay out plan now proposed can be sanctioned.
It may refuse the sanction by reason of sub section (4) of section 313 on any of the grounds specified therein.
That will be a matter for the Standing Committee to consider.
[1081C D] 10.
It is open to the owner of the land, after obtaining sanction to the original lay out plan to apply afresh for sanction to a revised lay out plan.
Circumstances may arise, after the original sanction was granted, requiring the owner to incorporate changes in the original lay out plan.
In that event, when an application is made for the grant of sanction to a revised lay out plan it is, as it were, an application for the grant of a fresh sanction.
There is a fresh lay out plan for which sanction is applied.
It is differently constituted from the original lay out plan.
Such an application would fall under section 313.
[1081F G] In the instant case the application made by the appellant for sanction to the lay out plan must be regarded as pending before the Standing Committee which must be disposed of without any further delay.
[1080G] Municipal Corporation of Delhi & ors.
versus Smt.
Kamla Bhandari & Ors.
I.L.R. (1970) 1, Delhi 66 disapproved.
|
os. 102,105 to 110 of 1956.
Petitions under Article 32 of the Constitution for writs in the nature of Habeas Corpus.
N. C. Chatterjee, Sadhan Chandra Gupta and janardhan Sharma; for petitioners in Petitions Nos. 102, 105 to 108 of 1956.
Sadhan Chandra Gupta and Janardhan Sharma, for petitioners in Petitions Nos. 109 and 110 of 1956.
C.K.Daphtary, SoliCitor General for India, Porus A. Mehta and R. H Dhebar, for respondents in Petitions Nos. 102 and 105 of 1956.
Porus A. Mehta and R. H. Dhebar, for respondents in Petitions Nos. 106 to 110 of 1956.
September 17.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
These are petitions filed under article 32 of the Constitution for the issue of writs in the nature of habeas corpus.
They arise on the same facts and raise the same questions.
On 13 1 1956 the Commissioner of Police, Bombay, passed orders under section 3(2) of the IV of 1950 (hereinafter referred to as the Act), directing the detention of the present petitioners, and pursuant thereto, they were actually arrested on 16 1 1956.
The grounds on which the orders were made were formulated on 19 1 1956, and communicated to the petitioners the next day.
On 21 1 1956 the Commissioner reported the fact of the order and the grounds therefor to the State Govern 655 ment, which approved of the same on 231 1956.
The contention of the petitioners before us is that when the Commissioner passed the orders for detention on 13 1 1956, it was his duty under section 3(3) to report that fact forthwith to the State Government and as be did not do so until 21 1 1956, he had acted in contravention of the statute, and that the detention was therefore illegal.
That raises the question as to what "forthwith" in section 3 (3) of the Act signifies, and whether on the facts the report was made "forthwith", within the meaning of that word in that sub section.
The word "forthwith", it has been observed, is of elastic import.
In its literal sense, it might be construed as meaning that the act to be performed forth;with in relation to another should follow it automatically without any interval of time, or, as held in some of the American.
authorities, should be performed at one and the same time as the other.
But even in America, the preponderance of judicial opinion does not favour this construction.
In Corpus Juris, Volume 26, page 998 the position is thus stated: "Although the term has received a strict conStruction, ordinarily it is not to be strictly construed, but should receive a liberal or reasonable construction .
Some regard must be had to the nature of the act or thing to be performed and the circumstances of the case".
In England, there is a long catena of decisions interpreting the word "forthwith" occurring in statutes, rules and contracts, and their trend has been to construe it liberally.
As early as 1767, discussing the meaning of the word 'immediately ' and the word "forthwith" his been held to have the same significance Lord Hardwicke observed in Rex vs Francis "But then the word immediately, is strongly insisted on, as, a word which excludes all mesne acts and time; and therefore, that this taking away the money must necessarily be 'in the presence of Cox.
(1) Cun. 165; ; , 1183.
656 But all the nine Judges held this word immediately, to be of so loose a signification, and not to imply necessarily, that the money was taken away in Cox 's presence.
For this word does neither in its use and application, nor in its grammatical construction, exclude all mesne acts or time But it is more necessary and proper in this case, to consider the signification of this word in the legal, way.
And it is plain, that in this acceptation, it is not understood to exclude mesne acts or time And on the Statute Hue and Cry, 27 Eliz. c. 13, section 11, where ' the words with as much convenient speed as may be, are made use of, all the precedents have expressed these words, by the word immediate, as may be seen in the books.
The last case which I shall mention on this point, is that of the writs of habeas corpus, issuing out of this Court, which are most frequently made returnable immediately; and in this case the word is never understood either to exclude mesne acts or time, but only means, with convenient speed In Beg.
vs The Justices of Worcester(1), where the question was as to the meaning of the word "forthwith" in section 50 of 6 Will.
IV, Coleridge, J. observed: "I agree that this word 'forthwith ' is not to receive a strict construction like the word 'immediately ',, so that whatever follows, must be done immediately after that which has been done before.
By referring to section 50, it seems that whatever is to be done under it, ought to be done without any unreasonable delay.
I think that the word 'forthwith ' there used, must be considered as having that meaning ' The meaning of the word "immediately" came up for consideration in Thompson vs Gibson(2).
Holding that it was not to be construed literally, Lord Abinger C. B. observed: "If they" (acts of Parliament) "could be construed literally, consistently with common sense and justice, undoubtedly they ought; and if I could see, (1) [1889] 7 Dowl.
789 791: 54 R.R. 902 (903).
(2) (1841] 8 M. & NV. 282 ; ,1047.
657 upon this act of, Parliament, that it was the intention of the legislature that not a single moment 's interval should take place before the granting of the certificate, I should think myself bound to defer to that declared intention.
But it is admitted that this cannot be its interpretation; we are therefore to see how, consistently with common sense and the principles of justice, the words 'immediately afterwards ' are to be construed.
If they do not mean that it is to be done the very instant afterwards,do they mean within ten minutes, or a quarter of an hour, afterwards? I think we should interpret them to mean, within such reason able time as will exclude the danger of intervening facts operating upon the mind of the Judge, so as to disturb the impression made upon it by the evidence in the cause".
In agreeing with this opinion, Alderson, B. expressly approved of the decision of Lord Hardwicke in Rex vs Francis(1).
This construction of the word 'immediately ' was adopted in Page vs Pearce(), Lord Abinger C. B. observing: "It has already been decided, and necessarily so, that the words 'immediately afterwards 'in the statute, cannot be construed literally; and if you abandon the literal construction of the words, what can you substitute but 'within a reasonable time? '. " In The Queen vs The Justice 3 of Berkshire(3), where the point was as to the meaning of "forthwith" in section 52 of 35 & 36 Vict., Chapter 94, Cockburn C. J. observed: "The question is substantially one of fact.
It is impossible to lay down any bard and fast rule as to what is the meaning of the word 'immediately ', in all cases.
The words 'forthwith ' and 'immediately ' have the same meaning.
They are stronger than the expression within a reasonable time ', and imply prompt, vigorous action, without any delay, and whether there has been such action is a question of fact, having regard to the circumstances of the particular case".
(1) dun.
165: ; , 1188.
(2) ; (678): (1212).
(3) (471).
658 The same construction. has been put on the word "forthwith " occurring in contracts.
In Hudson and others vs Hill and others(1) which was a case of charterparty, it was observed at page 280: " Forthwith ' means without unreasonable delay.
The difference between undertaking to do something 'forthwith ' and kithin a specified time is familiar to everyone conversant with law.
To do a thing 'forthwith ' is to do it as soon as is reasonably convenient".
In Reg.
vs Price(2), it was held by the Privy Council that the word "forthwith" in a bail bond meant within a reasonable time from the service of notice.
On these authorities, it may be taken, an act which is to be done forthwith must be held to have been so done, when it is done with all reasonable despatch and without avoidable delay.
But it is argued by Mr. N. C. Chatterjee that the view taken in the above decisions as to the meaning of the word "forthwith" has been abandoned in the later decisions, and that under the law as it stands, when an act has to be performed forthwith in relation to another, what has to be decided is not whether it was done within a reasonable time, but whether it was done so closely upon the other as to form together one continuous act.
He relied in support of this opinion on the decision in Be Muscovitch(3), affirming that in Re Muscovitch(1).
That was a decision on rule 132 of the Bankruptcy Rules which provided that "Upon entering an appeal, a copy of the notice of appeal shall forthwith be sent by the appellant to the registrar of the court appealed from".
The facts were that the appeal was lodged in time on 25 10 1938 but the notice was served on 28 10 1938, and it was found that there was "no satisfactory reason or no reason at all, why there was any delay in the matter" (Re Muscovitch(4)).
On that, it was held that the requisition that "the notice shall forthwith be sent" was not satisfied.
This is authority only for the position that when an Act is done after an interval of time and there is no explanation forthcoming for (1) (280).
(2) ; 8 Moore P.C. 208: (3) (4) , 659 the delay, it cannot be held to have been done "forthwith".
That is made clear by Sir Wilfrid Greene M. R. in the following passage in Re Muscovitch(1) at page 139: "Having regard to the construction which was put upon the word 'forthwith ' which is peremptory, and. admits of no interval of time between the entry of the appeal and the sending of the notice save such as may be imposed by circumstances, which cannot be avoided, I find it impossible in the present case to say that the notice was sent forthwith within the meaning of the rule".
Reliance is also placed for the petitioners on the decision in Ex parte Lamb: In re Southam(2), which was followed in Re Muscovitch(1).
There, construing the word "forthwith" in rule 144 of the Bankruptcy Rules, 1870, which corresponds to rule 132, which was the subject of interpretation in Re Muscovitch(1), Jessel M. R. observed at page 173: "Ithink that the word 'forthwith ' must be construed according to the circumstances in which it is used Where, as in Hyde vs Watt8(3), there is a covenant to insure a man 's life, there must of necessity be some delay, for the act could not be done in a moment.
But where an act which is required to be done 'forthwith ' can be done without delay, it ought to be so done".
In that case also, the learned Judges found that the delay was not explained.
And the observation of Lush L. J. in the same case was that "the word 'forthwith ' has not a fixed and an absolute meaning; it must be construed with reference to the objects of the rule and the circumstances of the case".
There is nothing in the decisions in Re Muscovitch(1) and Ex parte Lamb: In re Southam(2) which can be considered as marking a departure from the construction put on the word "forthwith" in the earlier authorities that it meant only that the act should be performed with reasonable speed and expedition, and that any delay in the matter should be satisfactorily explained.
(1) (2) (3) ; 660 It is argued for the petitioners that even if the con.
struction put on the word "forthwith" in the above decisions is accepted as correct, it must, in any event, yield to any contrary intention expressed in the statute, and that the provisions of the Act afforded clear indication of such an intention.
It is co intended that the legislature while providing in section 7 that the grounds should be communicated to the detenu "as soon as may be" has enacted that the report under section 3(3) should be sent "forth with", that the use of two different expressions in the two sections is a clear indication that they do not mean the same thing, that as the words "as soon as may be" import that the act might be performed in a reasonable time, the word "forthwith" which is more peremptory must be construed as excluding it.
The decisions in Emperor vs Phuchai(1) and in K. U. Kulkarni vs Ganpat Teli(2) were quoted in support of the position that when two different expressions are used in different parts of the same clause or section, they should be construed as used in different senses.
We agree that "forthwith" in section 3(3) cannot mean the same thing as "as soon as may be" in section 7, and that the former is more peremptory than the latter.
The difference between the two expressions lies, in our opinion, in this that while under section 7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient, under section 3(3) what is allowed is only the period during which he could not, without any fault of his own, send the report.
Under section 7 the question is whether the time taken for communicating the grounds is reasonably requisite.
Under section 3(3) it is whether the report has been sent at the earliest point of time possible, and when there is an inter val of time between the date of the order and the date of the report, what has to be con sidered is whether the delay in sending the report could have been avoided.
(1) I.L.R. 50 All.
909: A.I.R. 1929 All.
(2) I.L.R. [1942] Bom.
287: A.I.R. 1942 Bom.
661 It was contended that as section 7 required that the communication should be made not later than 5 days from the date of the order, and as section 3(3) was more peremptory than section 7 in that it required that the report should be made forthwith, the period allowable under section 3(3) could not exceed 5 days, and that as in these cases the reports were sent 8 days later, they could not be held to have been sent forthwith.
This argument mixes up two different matters contained in section 7.
The period of 5 days provided therein is an absolute one and is independent of the period which is permissible under the expression "as soon as may be", which must, by its very nature, be indefinite depending on the facts and circumstances of the case.
It will be as erroneous to read 5 days into the period allowable under the expression "as soon as may be" as to read the 12 days within which the State has to approve the order under section 3(3) into the period which is allowable under the expression "forthwith".
The result then is that the report sent by the Commissioner to the State on 21 1 1956 could be held to have been sent "forthwith" as required by section 3(3), only if the authority could satisfy us that, in spite of all diligence, it was not in a position to send the report during the period from 13th to 21st January 1956.
We must now examine the facts from the above standpoint.
The Commissioner of Police has filed an affidavit explaining why the reports were not sent till 21,st January 1956, though the orders themselves had been made as early as 13th January 1956.
Ever since the publication of the proposal to form a State of Maharashtra without the city of Bombay, there ,had been considerable agitation for the establishment of a Samyuktha Maharashtra with the city of Bombay included in it.
An action committee had been set up on 15 11 1955 for the purpose, and there had been hartal and morchas resulting in outbursts of lawlessness and violence and in the burning of a police chowki.
The final decision on the question was expected to be taken and announced in the middle of January 1956, and the atmosphere was highly sur charged.
It was in this situation that the Commis 662 sioner decided to take action under section 3(2) of the Act against the leading spirits of the movement, and passed the present orders for detention against the petitioners on 13 1 1956.
In his affidavit the Commissioner states that he decided first "to locate the persons against whom orders of detention were made by me on the 13th January 1956 and after having done so, to arrest all of them simultaneously so that none of them may go underground or abscond or evade execution of the detention orders".
Then the affidavit goes on to state: "It was not possible for me to send the report earlier as the situation in the City of Greater Bombay was tense, pregnant with danger on the 13th January 1956, and continued to be so till 16th January 1956, and actual rioting occurred during that night and those riots continued till 22nd January 1956.
I and my staff were kept extremely busy all throughout in maintaining law and order and simultaneously taking steps to round up miscreants.
In this unusual and tense situation, it was not possible to make a report earlier than the day on which it was made".
We see no reason for not accepting these statements.
What happened on the 16th and the following days are now matters of history.
The great city of bombay was convulsed in disorders, which are among the worst that this country has witnessed.
The Bombay police had a most difficult task to perform in securing life and property, and the authorities must have been working at high pressure in maintaining law and order.
It is obvious that the Commissioner was not sleeping over the orders which he had passed or lounging supinely over them.
The delay such as it is due, to causes not of his making, but to causes to which the activities of the petitioners very largely contributed.
We have no hesitation in accepting the affidavit, and we bold that the delay in sending the report could not have been avoided by the Commissioner and that when they were sent by him, they were sent "forthwith" within the meaning of section 3(3) of the Act.
663 Mr. section C. Gupta put forward some special contentions on behalf of the petitioners in C.M.Ps.
109 and 110 of 1956.
He contended that as the order originally made against the petitioner in C.M.P. No. 109 of 1956 was that he should be detained in Arthur Road Prison, Bombay the subsequent order of the Commissioner by which he was detained in Nasik Prison was without jurisdiction.
It is clear from the affidavit of the Commissioner that the petitioner was not ordered to be detained in Arthur Road Prison but in Nasik Road Central Prison, and that he was kept temporarily in Arthur Road Prison, pending arrangements to transport him to Nasik.
It was next contended that the materials on which the orders of detention were made and set out in the communications addressed to the petitioners all related to their past activities, and that they could not constitute grounds for detention in future.
This contention is clearly unsound.
What a person is likely to do in future can only be a matter of inference from various circumstances, and his past record will be valuable, and often the only, record on which it could be made.
It was finally contended that what was alleged against the petitioners was only that they advocated hartal, and that was not a ground for making an order of detention.
But the charge in these cases was that the petitioners instigated hartal bringing about a complete stoppage of work, business and transport with a view to promote lawlessness and disorder, and that is a ground on which an order could be made under section 3(2).
All the contentions urged by the petitioners therefore fail, and these petitions must be dismissed.
| IN-Abs | Section 3(3) of the , provides that when an order of detention is made by an officer mentioned in section 3(2) he shall forthwith report the fact to the State Government together with the grounds on which the order has been made. . and no such order. shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government.
On 13th January 1956 the Commissioner of Police, Bombay, passed orders under section 3(2) of the directing the detention of the petitioners and in pursuance thereof ' they were arrested on 16th January 1956 The grounds on which the orders were made were furnished to the petitioners on 20th January 1956 and the next day the Commissioner reported the fact of the order and the grounds therefor to the State Government which approved of the same on 23rd January 1956.
The petitioners contested the validity of the detention on the ground that when the Commissioner passed the orders for detention on 13th January 1956 it was his duty under section 3(3) to report that fact forthwith to the State Government, and as he did not do so until 21st January '1956 he had acted in contravention of the statute and that the detention was therefore illegal.
It was found that the delay in sending the report could not have been avoided by the Commissioner and that it was due to causes to which the petitioners had very largely con tributed.
Held, that the word "forthwith" in section 3(3) of the , has not a fixed and an absolute meaning and it must be construed with reference to the object of the section and the circumstances of the case.
It cannot mean the same thing as "as soon as may be" in section 7 of the Act and the former is more peremptory than the latter.
The difference between the two .
expressions lies in this that while under a. 7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient, under section 3(3) what is allowed is only the 654 period during which he could not, without any fault of his own, send the report.
An act which is to be done forthwith must be held to have been so done when it is done with all reasonable despatch and without avoidable delay.
The Queen vs The Justices of Berkshire ([1878 79] 4 Q.B.D. 469), Hudson and others vs Hill and others ([1874] 43 L. J. C.P. 273), and Beg.
vs Price, ; , relied on.
|
ition No. 5287 of 1980.
(Under Article 32 of the Constitution).
P. H. Parekh, Amicus Curiae for the Petitioner.
B. D. Sharma for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The moral of this case is poignant: So long as an iron curtain divides the law set by the Constitution and lit by the Supreme Court from the minions of the State, so long shall this Court 's writ remain a mystic myth and harmless half truth making law in the books and law in action distant neighbours.
This shall not be.
The sombre scenario unfurled by this habeas corpus proceeding begins with a telegram (dated 3 10 1980) on behalf of the prisoners the petitioners to one of us, complaining, manu brevi, of insufferable, illegal solitary confinement punctuated by periods of iron fetters, a lot shared by two others with him in Jaipur Central Jail.
This trauma laden message reads: "Convict Kishore Singh Ravinder Dev Pareek Surjeet Singh Central Jail Jaipur confined in cells with fetters illegally unconstitutionally more than eight months habeas corpus writ prayed order enquiry and save .
Daulat Singh" This grievance of the prisoners in 'twisted gyves ' triggered off judicial action with telegraphic speed, as it were, and the Bench directed that the prisoners be forthwith liberated from solitary confinement and freed from fetters in terms of the law laid down by this Court in Sunil Batra 's case.
That order dated October 6, 1980 reads : "We appoint Shri P. H. Parekh as amicus curiae, 997 If the petitioner is in solitary confinement, he will be released from solitary confinement forthwith in the light of the decision of this Court in Sunil Batra 's case.
The Superintendent of the Central Jail concerned will report to this Court on 21st October 1980 the number of cases with particulars of persons in solitary confinement in that prison.
He will appear in person on that date.
Notice to Shri B. D. Sharma, Standing Counsel for the State of Rajasthan.
Counsel 's services, under our litigative process, are a necessary facility for remedial justice and so we took this step of appointing Shri P. H. Parekh as amount curiae.
The whole bar, if it has a larger dedication, is amicus curiae, because no cause should be dearer to a people oriented, justice centred profession, despite its esoteric genes, elitist strands and lucrative slant, than to be a decisive actor in the democracy of judicial remedies so that no man be he poor man or prisoner, dissenter, delinquent, eccentric or extremist shall suffer what the law forbids.
In this Court, the members of the bar, whenever called up by the bench have kept the door ajar and unfailingly helped the Court as free janitors of justice and free forensic functionaries at the service of any one aggrieved by injustice and seeking legal justice.
After all, the great proposition that inspires the calling of justicing by the Bench and the Bar alike is best expressed by Dr. Martin Luther King (Jr) in his letter from Alabama Prison : Injustice anywhere is a threat to justice everywhere.
We are caught in an inescapable network of mutuality, tied in a single garment of destiny.
Whatever affects one directly affects all indirectly.
We must, even here, record our appreciation of Shri Parekh 's passion for the prisoners ' cause coupled with pains taking presentation of the grievances they had.
So too Shri B. D. Sharma 's commitment to jail justice, beyond jailor 's injustice i.e. his client 's brief.
In retrospect, we feel it was right that we took quick action to liberate the three prisoners from their callously lonely, barbarously fettered solitary custody.
Justice must be instant and it has been wisely said: "Caution, caution, sir ! It is nothing but The word of cowardice ! Where human bondage and personal torture are involved, to wait is to defeat.
In personal liberty jurisprudence, this court has not tarried or teetered and shall not.
The reason is clear.
The writ must right the wrong forthwith or must stand self condemned as make believe.
Where justice is in jeopardy 998 or freedom is in fetters the court is not non aligned and acts with sensitive speed.
Time is of the essence where otherwise torture is the consequence.
The order of this court dated 6 10 1980 brought counsel on both sides into the scene, set free the prisoners from the hateful 'solitary ' and summoned before us the presence of the Superintendent dent of the Prison on 21 10 1980 to answer for his breach of the fundamental law laid down in Sunil Batra On that day, i.e. 21 10 1980, after a brief hearing, we directed: "The respondent will file a detailed affidavit giving particulars and also produce the proceedings relating to the enquiry held resulting in solitary confinement.
The prisoner will be produced on 24 10 1980 in this Court and Shri Parekh will be allowed to interview him." Pursuant to this order, the Superintendent of the Jail submitted his explanation for what in the light of the Batra (supra) ratio, is unlaw.
We will presently consider the conduct of the delinquent jailor but the more disturbing episode brought to our painful notice was the violence allegedly used by the escort police on the person of one prisoner, Surjeet Singh, while in transit and testified to by the visible wounds counsel found.
Shri Parekh shocked us into shame by seeking lo show us the physical injuries inflicted.
If the writ of this court brings a person from the Jaipur Prison to judicial presence can it be that a little set of constables in custody during transit violate, with brazen brutality, and criminal immunity the person of their charges and the hands of the law hang limp in the face of such lawlessness ? "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 what ever is powerful may be just." (Blaise Pascal) So, we ordered: "We are very disturbed to be told by Shri Parekh, amicus curiae that one of the prisoners, Surjeet Singh while being taken to this Court was manhandled severely.
Counsel says that there are bruises and other signs of injuries on his person.
The Superintendent of the Jail, who is present in Court, will take special care to see that this prisoner is taken to Jaipur safely.
The Superintendent will take the prisoner Surjeet Singh to Ram Manohar Lohia Hospital today for examination of the prisoner 999 and also for proper treatment which may be suggested by the Doctor in the Hospital.
In the light of the medical report the Superintendent will lay first information before the Police Station concerned against the constables who are the escorting police.
It will be open to the prisoner himself to lay a complaint and facilities will be afforded by the prison authorities.
We make it clear that the investigation should not have the slightest taint of departmental inclination to help a policeman if there is evidence of delinquency.
A report will be put into this Court about what has been done, by 31 10 1980.
" Thereafter, the medical report, of which we have been apprised by Shri Parekh, the report against the constables concerned, reported Jo us by Shri Sharma, are taking their course.
We do not make any observations thereon as that is the subject of a separate enquiry.
Even so, no police life style which relies more on fists than on writs, on torture more than on culture, can control crime, because means boomerang on ends and re fuel the vice which, it seeks to extinguish.
Secondly, the State must re educate the constabulary out of their sadistic arts and inculcate a respect for the human person a process which must begin more by example than by precept if the lower rungs are really to emulate.
Thirdly, if any of these escort policemen are found to have misconducted themselves, no sense of police solidarity or in service comity should induce the authorities to hide the crime.
Condign action, quickly taken is surer guarantee of community credence than bruiting about that 'all is well with the police, the critics are always in the wrong '.
Nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights.
We believe the basic pathology which makes police cruelty possible will receive Government 's serious attention.
Who will police the police? What psychic stress and social deprivation of the constabulary 's lifestyle need corrective healings ? When will 'wits, not fists ' become a police kit ? When will the roots of 'third degree ' be plucked out and the fresh shoots of humanist respect put out? We make these observations in the humane hope that article 21, with its profound concern for life and limb, will become dysfunctional unless the agencies of the law in the police and prison establishments have sympathy for the humanist creed of that Article.
This Court has frowned upon handcuffs save in the 'rarest of rare ' cases where security will be seriously jeopardized unless iron restraint is necessarily clamped on the prisoner.
We are heartened to know that there are States where escorting is done with civility 1000 and humanity.
For instance, para 443 of the Kerala Police Manual.
1970, Vol.
II, reads : "443.
(1) The use of hand cuffs or ropes causes humiliation to the person subjected to the restraint, and is contrary to the modern policy regarding the treatment of offenders.
Therefore, handcuffing and/or binding shall be restricted to cases where a person in custody is of a desperate character, or where there are reasons to believe that he will use violence or attempt to escape or where there are other similar reasons necessitating such a step.
We mention this here since policemen who beat those in their custody may with easy conscience handcuff and footcuff their charges, a course contrary to article 21.
The harrowing facts, in substantial measure emerge even from the statement of the case by the State.
The petitioners have admittedly been kept in separate solitary rooms for long periods from 8 months to 11 months spells long enough to be regarded as barbarous if Sunil Batra 's (supra) is to prevail.
Admittedly, cross bar fetters were put in Kishore Singh for several days and on Surjeet Singh for 30 days counsel for the petitioner has rightly submitted that flimsy grounds like "loitering in the prison", behaving insolently and in an "uncivilised" manner tearing off his history ticket, were the foundation for the torturesome treatment of solitary confinement and cross bar fetters.
We have read the affidavit of the Superintendent and feel utterly unsatisfied, that the mandate in Sunil Batra (supra) has been obeyed.
This ease and the uncivilised orders of cellular solitude and traumatic fetters compels us to repeat what we stated earlier in Sunil Batra (11).
The essence of the matter is that in our era of human rights consciousness the habeas writ has functional plurality and the constitutional regard for human decency and dignity is tested by this capability.
We ideologically accept the words of Will Durant: It is time for all good men to come to the aid of their party, whose name is civilization.
Likewise, we endorse, as part of our constitutional thought, what the British Government 's White Paper (3), titled "People in Prison", stated with telling effect: 1001 A society that believes in the worth of individual beings can have the quality of its belief judged, at least in part, by the quality of its prison and probation services and of the resources made available to them.
We do not accept the Superintendent 's version that he had given a hearing to the prisoners before punishing them It is a self defensive pretence and perhaps the only veracious alibis available to him are that the vintage Prison Rules (Rule l(f) Part 16 and Rule 79 of the Rajasthan Prison Rules, 1951) support the administrative absolutism of the prison boss and more to the point as counsel Shri Sharma candidly stated.
The Superintendent was 'innocent ' of the benign prescriptions in Sunil Batra (11) decision(1).
Indeed, Shri Sharma, convincingly persuaded us to take a lenient view of the delinquency of the Superintendent by emphasising that he had taken the Prison Superintendent through the effective exercise of reading and explaining the Batra rulings and assuring us that no more of solitary confinement disguised as "keeping in separate cell" and imposition of fetters will take place, save in the rarest of rare cases and with strict adherence to the procedural safeguards contained in the decisions of this Court relating to the punishment of prisoners.
We accept the bona fides of the prison official but emphasise that violation of article 21 as interpreted by this Court in its recent decisions, if repeated, will be visited with more serious consequences.
Even so, we will refer to the scripture relied on as absolvent of the sin complained of and reiterate Tersely the mandatory prescriptions and prescriptions implicit in article 21 and elucidated by case law.
Rules 79 and 1(f) of Part VI of the Rajasthan Prisons Rules, may be extracted here: 79. "Special Precautions for security: The Superintendent shall use his discretion in ordering such special precautions as may be necessary to be taken for the security of any important prisoner, whether he has received any warning from the Magistrate or not, as the Superintendent is the sole Judge of what measures are necessary for the safe custody of the prisoners; he shall be held responsible for seeing that precautions taken are reasonably sufficient for the purpose.
1 (f) Cells may be used for the confinement of convicted criminal prisoners who are in the opinion of the Superintendent, likely to exercise a bad influence over other prisoners, if kept in their association.
1002 These Rules were framed under section 46 of the Prisons Act which also may be read at this stage: 46.
The Superintendent may examine any person touching any such offence, and determine thereupon and punish such offence by . (6) imposition of handcuffs of such pattern and weight, in such manner and for such period, as may be prescribed by rules made by the Governor General in Council; (7) imposition of fetters of such pattern and weight in such manner and for such period, as may be prescribed by the rules made by Governor General in Council; (8) separate confinement for any period not exceeding three months; Explanation.
Separate confinement means such confinement with or without labour as secludes a prisoner from communication with, but not from sight of other prisoners, and allows, him not less than one hour 's exercise per diem and to have his meals in association with one or more other prisoners; . . . (9) Cellular confinement means such confinement with or without labour as entirely secludes a prisoner from communication with, but not from sight of other prisoners; We cannot agree that either the Section or the Rules can be read in the absolutist expansionism the prison authorities would like us to read.
That would virtually mean that prisoners are non persons to be dealt with at the mercy of the prison echelons.
This country has no totalitarian territory even within the walled world we call prison.
Articles 14, 19 and 21 operate within the prisons in the manner explained.
in Sunil Batra (I) (supra), by a Constitution Bench of this Court.
It is significant that the two opinions given separately in that judgment agree in spirit and substance, in reasoning and conclusions.
Batra in that case was stated to be in a separate confinement and not solitary cell.
An identical plea has been put forward here too.
For the reasons given in Sunil Batra 's case we must overrule the extenuatory submission that a separate cell is different from solitary confinement.
The petitioners will, therefore, be entitled Jo move within the confines of the prison like others undergoing rigorous imprisonment.
If special restrictions 1003 of a punitive or harsh character have to be imposed for convincing security reasons, it is necessary to comply with natural justice as indicated in Sunil Batra case.
Moreover, there must be an appeal not from Caeser to Caeser, but from a prison authority to a judicial organ when such treatment is meted out.
Sobraj in the same case (Sunil Batra, supra) was kept in fetters and reasons more persuasive than in the present case were put forward in defence.
This Court, however, directed "such fetters shall forthwith be removed".
Of course, we do not place any absolute ban but insist that only in extreme cases of compelling necessity for security of other prisoners or against escape can such fettering be resorted to.
Human dignity is a dear value of our Constitution not to be bartered away for mere apprehensions entertained by jail officials.
The latter decision of this Court in Sunil Batra 11 clothes with flesh and blood the principles laid down in Sunil Batra (I) (supra).
In Rakesh Kaushik the position has advanced further and concrete directions have been issued which we extract here because the law laid down by this Court applies not to one State or the other but to all national institutions in the country: "(2) He will further enquire, with specific reference to the charges of personal assault and compulsion for collaboration in canteen swindle and other vices 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 (W.P. 1009/79) 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 visitatorial functions for the Sessions Judge to acquaint himself with the condition of tension, vice and violence and prisoners ' grievances . . .
We hold that the jail authorities in Rajasthan will comply with the principles so laid down.
We read down section 46 and Rules 1(f) and 79 of the Rajasthan Prison Rules and sustain them in this limited fashion 1004 We direct the Respondents to act accordingly.
Further we remind that the Sessions Judges in the State of Rajasthan to remember the rulings of this Court in Sunil Batra I & 11 and Rakesh Kaushik (supra) and act in such manner that judicial authority over sentences and the conditions of their incarceration are not eroded by judicial in action.
We find that the old rules and circulars and instructions issued under the Prisons Act are read incongruously with the Constitution.
especially article 21 and interpretation put upon it by this Court.
therefore, direct the State Government of Rajasthan and indeed, all the other State Governments in the country to convert the rulings of this Court bearing on Prison Administration into rules and instructions forthwith so that violation of the prisoners ' freedoms can be avoided and habeas corpus litigation may not proliferate.
After all, human rights are as much cherished by the State as by the citizen.
Since the petitioners have been released from separate confinement and from cross bar fetters and since counsel for the State has assured us that nothing will be done in violation of the propositions set out in the catena of cases of this court (Sunil Batra I & 11 and Rakesh Kaushik (supra) ), we deem it unnecessary to give any further directives pursuant to this habeas corpus application.
N.V.K. Petition allowed.
| IN-Abs | One of the petitioners, in a telegram to one of the Judges of this Court complained of insufferable, illegal solitary confinement.
He also complained that he was kept in iron fetters alongwith the other two petitioners.
By an order of this Court, the petitioners were directed to be set free from solitary confinement and brought before the Court.
When the prisoners were brought before the Court they alleged that, while in transit, violence had been used by the escort police on the person of one of the petitioners resulting in deep wounds on his person.
The Superintendent of Prisons who was present in the Court was directed to take special care of the prisoner after giving him proper medical treatment.
Allowing the petition ^ HELD: 1.
Article 21 would become dysfunctional unless the agencies of the law in the police and prison establishments have sympathy for the humanist creed of that Article.
The State must re educate the police and , F, inculcate a respect for the human person.
If any of the escort were found to have misconducted themselves they should be given condign punishment.
[999G, D, E] 2.
By keeping the prisoners in separate solitary rooms for long periods ranging from 8 to 11 months, putting cross bar fetters for several days on the flimsy grounds of loitering in the prison, behaving insolently and in and; uncivilised manner the prison authorities have acted in utter disregard of the mandate of this Court in Sunil Batra.
[1000D E] 3.
The Jail Superintendent 's version that he had given a hearing to the prisoners before punishing them cannot be believed.
Neither section 46 of the Prisons Act nor Rule 79 of the Rajasthan Prison Rules can be read in the absolutist expansionism, the Prison Authorities would like them to be read.
That would virtually mean that prisoners are not persons to be dealt with at the mercy of the prison echelons.
Articles 14, 19 and 21 operate within the prisons in the manner explained in Sunil Batra.
A separate Cell is not different from solitary confinement.
[1001, 1002G H] (i) If special restrictions of a punitive or harsh character have been imposed for convincing security reasons, it is necessary to comply with natural justice as indicated in Sunil Batra.
There must be an appeal from a prison authority to a judicial organ when such treatment is meted out.
[1003A] 996 (ii) Section 46 of the Prisons Act and Rules 1(f) and 79 of the Rajasthan; Prison Rules are valid subject to the directions given by this Court in Rakesh Kaushik.
[1003G] (iii) The Sessions Judges in the State of Rajasthan should remember the rulings of this Court in Sunil Batra 1 and 11 and Rakesh Kaushik and act in such manner that judicial authority over sentences and the conditions of their incarceration are not eroded by judicial in action.
[1004A] Sunil Batra vs Delhi Administration ; Sunil Batra v Delhi Administration ; , Rakesh Kaushik vs B. L. Vig, Superintendents Central jail, New Delhi ; applied.
|
tition Nos.
626 630 of 1979.
(Under Article 32 of the Constitution) Raghubir Malhotra, Yash Pal, N. D. Garg and section K. Bisaria for the Petitioners.
Miss. A Subhashini for Respondent No. 1.
section T. Desai, Miss Bina Gupta and Praveen Kumar for other Respondents.
The Judgment of the Court was delivered by PATHAK, J.
The petitioners have filed these writ petitions under article 32 of the Constitution challenging the validity of the Central Secretariat Service (Amendment) Rules, 1979 and of the Regulations made consequent thereto by the Union of India for the purpose of holding a departmental competitive examination limited to candidates belonging to the Scheduled Castes and Scheduled Tribes for filling up vacancies reserved for those categories in Grade I of the Central Secretariat Service.
The petitioners are permanent Section Officers in the Central Secretariat Service and almost all of them are presently officiating as Under Secretaries in different Ministries.
The next higher category in the Central Secretariat Service above the Section Officers ' Grade consists of Grade I posts.
Recruitment to the Grade I posts are made under Rule 12 of the Central Secretariat Service Rules; vacancies are filled by the promotion of, inter alia, permanent officers of the Section officers ' Grade who satisfy certain prescribed qualifications.
For the purpose of such promotion a select list is prepared.
1187 The preparation of the select list is governed by the Central Secretariat Service (Promotion to Grade I & Selection Grade) Regulations, 1964.
The select list is to be prepared once every year.
The names of eligible officers are arranged in a single list by the Department of Personnel & Administrative Reforms in the Cabinet Secretariat in accordance with the field of selection determined by the Selection Committee.
Pursuant to an Office Memorandum issued by the Department on 20th July, 1974, 15% and 7/12% of the promotion posts stand reserved for Scheduled Caste and Scheduled Tribe candidates respectively.
The petitioners along with several other officials were included in the field of selection for the purpose of drawing up the select list for the year 1977 for promotion to the Grade I posts.
After an interview by the Selection Committee, ninety one unreserved vacancies were filled from the first ninety one candidates in the general category.
Twenty seven vacancies, reserved for members of the Scheduled Castes and Scheduled Tribes, remained unfilled because no candidate belonging to those categories was found suitable for including in the field of selection.
For the purpose of filling those reserved vacancies, the Government of India decided to hold a limited departmental competitive examination confined to members of the Scheduled Castes and Scheduled Tribes.
Accordingly, the President enacted the Central Secretariat Service (Amendment) Rules, 1979 whereby sub rule (2a) was inserted below sub rule (2) of Rule 12 of the Central Secretariat Service Rules.
Regulations, described as the Central Secretariat Service Grade I (Limited Departmental Competitive Examination for filling the vacancies reserved for Scheduled Castes and Scheduled Tribes) Regulations, 1979 were promulgated providing for the holding of a limited departmental competitive examination, including a statement of the conditions of eligibility and indicating how the selection would take place on such examination.
The first such examination was scheduled for July, 1979.
The case of the petitioners in the writ petitions is that the Government of India was not empowered to fill up the reserved vacancies by recourse to a departmental competitive examination for candidates from the Scheduled Castes and Scheduled Tribes and that instead the Government should have dereserved the vacancies and made them available to candidates falling under the general category.
Had that been done, the petitioners say, they would have been considered for promotion and, having regard to their position in the select list, they allege that they stood a probable chance of being promoted to Grade I.
The petitioners pray that the amendment of 1188 Rule 12, Central Secretariat Service Rules and the framing of regulations pursuant to the amendment should be declared ultra vires, and alternatively the amendment of the rules and the framing of the related regulations be regarded as prospective only and not affecting the twenty seven reserved vacancies pertaining to the year 1977.
It is also prayed that the Union of India should be directed to take immediate steps for de reserving the twenty seven vacancies for the year 1977 and upon such de reservation the petitioners be considered for filling those twenty seven vacancies.
The reservation of vacancies for Scheduled Castes and Scheduled Tribes in promotion posts from class II to class I of Government services flows from the Department of Personnel & Administrative Reforms Office Memorandum No. 10/41/73 Estt.
(SCT), dated 20th July, 1974.
Paragraph 2 of the Office Memorandum spells out how the vacancies should be filled up.
The selection is made from among Scheduled Caste and Scheduled Tribe officers who are within the normal zone of consideration.
If candidates qualifying on the basis of merit with due regard to seniority do not fill up all the reserved vacancies, those remaining unfilled are to be filled by selecting candidates of the two communities who are in the zone of consideration irrespective of merit but subject to their being considered fit for promotion.
A select list is then prepared of all the selected officers, general as well as those belonging to Scheduled Castes and Scheduled Tribes, arranged in the order of merit and seniority according to principles laid down by the Ministry of Home Affairs.
For determining the number of vacancies to be reserved for Scheduled Castes and Scheduled Tribes in a select list, a separate roster prescribed by an Office Memorandum dated 22nd April, 1970 is followed.
Then, the relevant provision declares: "If, owing to non availability of suitable candidates belonging to Scheduled Castes or Scheduled Tribes, as the case may be, it becomes necessary to de reserve a reserved vacancy, a reference for de reservation should be made to this Department indicating whether the Scheduled Castes/Scheduled Tribes candidates eligible for promotion in reserved vacancies have been considered in the manner indicated in this Office Memorandum." A further provision prohibits the carrying forward of reservations from year to year in the event of an adequate number of Scheduled Caste and Scheduled Tribe candidates not being available in any particular year.
1189 Shri Raghubir Malhotra, appearing on behalf of the petitioners, opened with the contention that the reservation of vacancies for members of the Scheduled Castes and Scheduled Tribes by the Office Memorandum dated 20th July, 1974 was invalid.
It was urged that the Office Memorandum possessed at best the status of departmental instructions and could not amend the Central Secretariat Service Rules.
It is not, it was said, a case of administrative instructions filling any gap or area left uncovered by that body of rules but, on the contrary, it is a case where administrative instructions have been made inconsistently with the rules.
At the outset an objection was taken by the respondents to our entertaining the contention because, they point out, it is not a contention raised in the writ petitions and should not be allowed to be raised for the first time by way of oral submission in the course of arguments during the final hearing of the writ petitions.
It is not denied by learned counsel for the petitioners that the point has not been specifically and clearly raised in the writ petitions, but he asks us to consider it by reason of what he describes as "its fundamental importance".
We have carefully perused the writ petitions, and it is plain that the entire scope of the petitions is limited to challenging the validity and application of the Central Secretariat Service (Amendment) Rules, 1979 and the consequent regulations for holding a limited departmental competitive examination.
No relief has been sought for quashing the Office Memorandum dated 20th July, 1974.
No ground has been taken in the writ petitions assailing the validity of the Office Memorandum on the basis now pressed before us.
We are of opinion that the courts should ordinarily insist on the parties being confined to their specific written pleadings and should not be permitted to deviate from them by way of modification or supplementation except through the well known process of formally applying for amendment.
We do not mean that justice should be available to only those who approach the court confined in a straight jacket.
But there is a procedure known to the law, and long established by codified practice and good reason, for seeking amendment of the pleadings.
If undue laxity and a too easy informality is permitted to enter the proceedings of a court it will not be long before a contemptuous familiarity assails its institutional dignity and ushers in chaos and confusion undermining its effectiveness.
Like every public institution, the courts function in the security of public confidence, and public confidence resides most where institutional discipline prevails.
Besides this, oral submissions raising new points for the first time tend to do grave injury to a contesting party by depriving it of the opportunity, to which the principles of natural justice hold it entitled, of adequately preparing its response.
1190 We must, therefore, decline to entertain the point now raised concerning the validity of the Office Memorandum.
We shall now proceed directly to the principal contentions raised in the writ petitions.
It is first contended that sub rule (2a) of Rule 12, newly enacted in the Central Secretariat Service Rules, and the related Regulations, providing for a limited departmental competitive examination for members of the Scheduled Castes and Scheduled Tribes are invalid because the Central Government should have dereserved the twenty seven vacancies when it was found that suitable Scheduled Caste and Scheduled Tribe candidates were not available for inclusion within the field of selection.
There is no merit in this contention.
Whether or not reserved vacancies should be de reserved is a matter falling primarily within the administrative discretion of the Government.
There is no right in candidates seeking to fill vacancies belonging to the general category to insist on dereservation of reserved vacancies so long as it is possible in law to fill the reserved vacancies.
If at all, a claim in that behalf can arise only if no valid arrangement can be made for filling the reserved vacancies, and dereservation is called for by reason of the prohibition, in clause (v) of paragraph 2 of the Office Memorandum dated 20th July, 1974, against the carry forward of reservations from year to year in the event of an adequate number of Scheduled Caste and Scheduled Tribe candidates not being available in any particular year.
Before reaching this extremity, the Government acts wholly within its power in adopting an alternative arrangement for filling the reserved vacancies.
Dereservation as a process should be resorted to only when it is not reasonably possible, within the contemplation of law, to fill the reserved vacancies.
The process of dereservation would otherwise be antagonistic to the principle embodied in Article 16(4) and Article 46 of the Constitution.
Paragraph 10.4 in the Brochure on Reservation of Scheduled Castes and Scheduled Tribes in the Services, prepared by the Government of India, provides that dereservation should be proposed only when such a course becomes inevitable due to non availability of Scheduled Caste and Scheduled Tribe candidates for appointment against the reserved vacancies after having fully observed the procedure prescribed in this behalf and after applying relaxed standards in the case of such candidates.
Once a decision has been taken to reserve vacancies for a backward class of citizens, the programming effected to that end should not be disturbed unless the avenues for fulfilling it have been explored and have failed.
If the petitioners can succeed in showing that the provisions in the Central Secretariat Service Rules, and the consequent Regulations, 1191 providing for holding the limited departmental competitive examination are ultra vires and void and there is no evidence of any other appropriate arrangement for filling the reserved vacancies they may have a case for contending that as there is no prospect of finding suitable Scheduled Caste and Scheduled Tribe candidates for appointment to the reserved vacancies it is only reasonable that the Government should dereserve the vacancies in view of the prohibition against carrying them forward to the next year.
That takes us then to the validity of sub rule (2a) of rule 12 of the Central Secretariat Service Rules and the Regulations of 1979.
Their validity is challenged by the petitioners on the ground that they violate Articles 14, 15 and 16 of the Constitution inasmuch as they result in two avenues of promotion for Government servants belonging to the Scheduled Castes and Scheduled Tribes, while a single avenue only of promotion is available to other Government servants.
Ex facie, the contention must fail.
The two avenues of promotion pointed out by learned counsel for the petitioners consist in, one, the preparation of a list of officers falling within the field of selection, both of the general category as well as members of Scheduled Castes and Scheduled Tribes and their selection on the basis of the principles laid down and, two, the selection of candidates of Scheduled Castes and Scheduled Tribes consequent upon the limited departmental competitive examination.
While considering this submission, we must remember that resort to the limited departmental competitive examination is not simultaneous with the preparation of the list embodying the field of selection.
The question of holding the examination arises only, as sub rule (2a) of rule 12 declares, when the reserved vacancies cannot be fined because eligible officers from the Scheduled Castes and Scheduled Tribes are not available through the original process.
Resort to the further process arises because of the constitutional mandate in favour of Scheduled Castes and Scheduled Tribes, because reserved vacancies must be filled if that is possible.
The petitioners could complain if such a need arose in respect of general category vacancies and was not supplied.
It has not been shown that the general category vacancies have remained unfilled for want of suitable candidates.
No need has arisen of being compelled to resort to a further process of selection in regard to such vacancies.
In the circumstances, it is not possible to see how a legitimate complaint can be laid by the petitioners on the basis alleged before us.
It has been urged that the decision of the Government not to dereserve the twenty seven vacancies is vitiated by legal malice.
Having regard to the considerations to which we have adverted, we see no substance in that submission.
1192 The next contention on behalf of the petitioners is that sub rule (2a) of rule 12 enacted in 1979 operates prospectively only and cannot effect the twenty seven vacancies to be filled in the Select List of 1977.
The argument proceeds on the assumption that the Select List of 1977 must be completed during the year 1977.
The submission is formed in fallacy.
There is no requirement in law that the Select List pertaining to a particular year must be finalised within that year.
It is open to the Government to complete the process of selection and finalise it after the expiry of that year.
It seems that when the Government found that suitable candidates belonging to the Scheduled Castes and Scheduled Tribes were not available for inclusion in the field of selection, it decided to consider the advisability of adopting some other mode of filling the reserved vacancies.
It appears that on 10th August.
1978 the Government stated in Parliament that as no Scheduled Caste and Scheduled Tribe officers could be included in the field of consideration proposals for filling the vacancies through some special method had been taken up with the Union Public Service Commission.
The Select List for 1977, which included already ninety one names of officers appointed to the general category vacancies, was held in abeyance for the purpose of filling the twenty seven reserved vacancies.
After discussion with the Chairman of the Union Public Service Commission and consideration of the alternatives before it the Government decided on holding a limited departmental competitive examination.
As long as the Select List was not declared final, no officer could claim any right.
In the aforesaid circumstances, it is not possible to say that in holding the departmental competitive examination the Government was applying sub rule (2a) of rule 12, and the Regulations, retrospectively.
A grievance has also been made of the circumstance that the qualifying standard for Scheduled Caste and Scheduled Tribe candidates appearing at the limited departmental competitive examination is as low as four years approved and continuous service in the Section officer 's Grade, while a period of ten years is insisted on in the case of officers who do not belong to either class and are considered for vacancies in the general category.
The definition of "crucial date" in clause (a) of Regulation 2 of the Regulations of 1979 as a point of reference qualifying the eligibility standard, it is urged, permits an even lower eligibility standard for Scheduled Caste and Scheduled Tribe candidates.
It is now well accepted, and has been affirmed by successive decisions of this Court, that relaxed eligibility criteria would be justified in the case of candidates of backward classes.
The principle finds expression also in the original rule 12 of the Central Secretariat Service Rules.
The record before us 1193 indicates that the lower eligibility standard was decided on after consultation with the Chairman of the Union Public Service Commission.
As regards the number of years of approved service considered sufficient for eligibility, we find that even if we consider ourselves entitled to go into that question the paucity of relevant material does not permit us to express any opinion in the matter.
Learned counsel for the petitioners has also challenged the reservation of the twenty seven vacancies on the ground that the vacancies pertain to selection posts.
On this point, we find ourselves bound by the decision of this Court in General Manager, Southern Railway vs Rangachari(1) where it has been held that Article 16(4) of the Constitution extends to selection posts.
C Finally, learned counsel for the petitioners challenges the reservation of vacancies on the ground that they are irrational, inhibiting and do not provide for healthy growth of the services besides offending the equality provisions of Part III of the Constitution.
Having regard to the percentage of vacancies reserved under the office memorandum dated 20th July, 1974, we consider that the case falls within the.
principles laid down in M. R. Balaji vs State of Mysore.(2) The majority view in State of Kerala vs N. M. Thomas(3) supports the validity of the reservation.
Accordingly, the writ petitions are dismissed, but without any order as to costs.
| IN-Abs | The Central Secretariat Service (Amendment) Rules 1979 which inserted sub rule (2a) below sub rule (2) of Rule 12 of the Rules provided for the holding of a limited departmental competitive examination, including a statement of the conditions of eligibility and indicating how the selection would take place on such examination.
The next higher category in the Central Secretariat Service above the Section officers ' Grade consists of Grade I posts.
Recruitment to the Grade I posts are made under Rule 12 of the Central Secretariat Service Rules.
For the purpose of such promotion a select list is prepared.
Pursuant to an office Memorandum issued by the Department on 20th July, 1974, 15%, and 7%, of the promotion posts stand reserved for Scheduled Caste and Scheduled Tribes candidates respectively.
The petitioners were permanent Section officers in the Central Secretariat Service and officiating as Under Secretaries in different Ministries.
They alongwith several other officials were included in the field of selection for the purpose of drawing up the select list for the year 1977 for promotion to Grade I posts.
Twenty seven vacancies reserved for members of the Scheduled Castes and Scheduled Tribes, remained unfilled because no candidate belonging to those categories was found suitable.
For the purpose of filling those reserved vacancies, the Government of India decided to hold a limited departmental competitive examination confined to members of the Scheduled Castes and Scheduled Tribes.
The petitioners argued that (i) the reservation of vacancies for members of the Scheduled Castes and Scheduled Tribes by the office Memorandum dated 20th July, 1974 was invalid (ii) the newly enacted sub rule (2a) of Rule 12, in the Central Secretariat Service Rules and the related regulations were invalid and the rule operated prospectively only and could not affect the 27 vacancies to be filled in the select list of 1977.
The Respondents took a preliminary objection that it was not a contention raised in the writ petitions and should not be allowed to be raised for the first time by way of oral submission.
Dismissing the petition.
^ HELD: 1.
The entire scope of the petitions is limited to challenging the validity and application of the Central Secretariat Service (Amendment) Rules, 1979 and the consequent regulations for holding a limited departmental competitive examination.
No relief has been sought for quashing the office Memorandum dated 20th July, 1974.
No ground has been taken in the writ petitions assailing the validity of the office Memorandum.
The Courts should 1185 ordinarily insist on the parties being confined to their specific written pleadings and should not be permitted to deviate from them by way of modification or supplementation except through the well known process of formally applying for amendment.
It is not that justice should be available to only those who approach the court confined in a straight jacket; but there is a procedure known to the law, and long established by codified practice and good reason, for seeking amendment of the pleadings.
[1189D F] If undue laxity and a too easy informality is permitted to enter the proceedings of a court, it will not be long before a contemptuous familiarity assails its institutional dignity and ushers in chaos and confusion undermining its effectiveness.
[1189 F G] Oral submission raising new points for the first time tend to do grave injury to a contesting party by depriving it of the opportunity, to which the principles of natural justice held it entitled, of adequately preparing its response.
[1189G H] Whether or not reserved vacancies should be dereserved is a matter falling primarily within the administrative discretion of the Government.
There is no right in candidates seeking to fill vacancies belonging to the general category to insist on dereservation of reserved vacancies so long as it is possible in law to fill the reserved vacancies.
If at all, a claim in that behalf can arise only if no valid arrangement can be made for filling the reserved vacancies and dereservation is called for by reason of the prohibition, in clause (v) of paragraph 2 of the office memorandum dated 20th July, 1974, against the carry forward of reservations from year to year in the event of an adequate number of Scheduled Caste and Scheduled Tribe candidates not being available in any particular year.
Before reaching this extremity, the Government acts wholly within its power in adopting an alternative arrangement for filling the reserved vacancies.
Dereservation as a process should be resorted to only when it is not reasonably possible, within the contemplation of law, to fill the reserved vacancies.
The process of dereservation would otherwise be antagonistic to the principle embodied in Article 16(4) and Article 46 of the Constitution.
[1190G F] 3.
Once a decision has been taken to reserve vacancies for a backward class of citizens, the programming effected to that end should not be disturbed unless the avenues for fulfilling it have been explored and have failed.
It is only reasonable that the Government should dereserve the vacancies in view of the prohibition against carrying them forward to the next year.
[1190 G H, 1191B] 4.
The question of holding the examination arises only, as sub rule (2a) of rule 12 declares that when the reserved vacancies cannot be filled because eligible officers from the Scheduled Castes and Scheduled Tribes are not available through the original process.
Resort to the further process arises because of the constitutional mandate in favour of Scheduled Castes and Scheduled Tribes because reserved vacancies must be filled if that is possible.
It has not been shown that the general category vacancies have remained unfilled for want of suitable candidates.
No need has arisen of being compelled to resort to a further process of selection in regard to such vacancies.
There is no requirement in law that the select list pertaining to a particular year must be finalized within that year.
[1191 E G, 1192 B] It is open to the Government to complete the process of selection and finalise it after the expiry of that year.
It seems that when the Government found that suitable candidates belonging to the Scheduled Castes and Scheduled Tribes 1186 were not available for inclusion in the field of selection, it decided to consider the advisability of adopting some other mode of filling the reserved vacancies.
The select list for 1977, which included already ninety one names of officers appointed to the general category vacancies, was held in abeyance for the purpose of filling the twenty seven reserved vacancies.
After discussion with the Chairman of the Union Public Service Commission and consideration of the alternatives before it the Government decided on holding a limited departmental competitive examination.
As long as the select list was not declared final, no officer could claim any right.
[1192B E] 6.
It is now well accepted, and has been affirmed by successive decisions of this Court, that relaxed eligibility criteria would be justified in the case of candidates of backward classes.
The principle finds expression also in the original rule 12 of the Central Secretariat Service Rules.
The record indicates that the lower eligibility standard was decided on after consultation with the Chairman of the Union Public Service Commission.
[1192 GH, 1193A] General Manager, Southern Railway vs Rangachari, ; M. R. Balaji vs State of Mysore [1963] Supply.
1 S.C.R. 434 State of Kerala vs N. M. Thomas. , affirmed.
|
Civil Appeal No. 1755 of 1980.
Appeal by Special Leave from the Judgment and order dated 8 8 1980 of the Allahabad High Court in Civil Misc.
Writ Petition No. 4376/69.
S.N. Kackar, R.B. Mehrotra and Pramod Swarup for the Appellants.
O. P. Rana and Mrs. Shobha Dikshit for Respondent No. 1.
Yogeshwar Prasad, Mrs. Rani Chhabra, P.K. Pillai and R.N. Trivedi for Respondent No. 2.
The Judgment of the Court was delivered by KOSHAL, J.
This appeal by special leave is directed against a judgement dated the 8th August 1980 of a Division Bench of the Allahabad High Court dismissing a petition instituted by the 18 appellants under article 226 of the Constitution of India in which the reliefs prayed for were (a) that the order dated the 19th July, 1969 (hereinafter referred to as the impugned order) passed by the Deputy Secretary (Judicial), Government of Uttar Pradesh, 1008 rejecting all the objections filed by the appellants to a scheme (hereinafter called the impugned scheme) published on the 21st January 1961 in the Government Gazette of Uttar Pradesh under section 68C of the (for brevity, the Act) be set aside as illegal.
and (b) that the notification published in the said Gazette dated the 7th November, 1970 and approving the impugned scheme (for short, the 1970 notification) be quashed.
The notification dated the 21st January 1961 declared that the State Government was of the 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 on the routes mentioned at item No. 2 of the annexed schemes should be run and operated by the State transport undertaking to the complete exclusion of other persons" and the impugned scheme was being published on that account under section 68C of the Act read with rule 4(1) of the Uttar Pradesh State Transport Services (Development) Rules, 1958 (for short, the rules).
The impugned scheme envisaged the plying of buses on the route Gorakhpur Khajni Gola via Dhuriapur and Malhanpur exclusively by the State transport undertaking (hereinafter described as the S.T.U.) and invited all persons whose interest was affected by it to file objections thereto within 30 days of its publication in the Official Gazette.
The impugned scheme was later on modified by different notifications and three allied routes were brought within its purview.
Supplementary objections to the scheme as amended were put forward by persons interested.
Shri S.K. Bhargava, Deputy Secretary (Judicial) to the U.P. Government rejected all the objections and approved the scheme through the impugned order, in pursuance of which The 1970 notification was published in the Government Gazette.
On behalf of the 18 appellants (out of whom appellants Nos. 1 to 17 are transport operators who were plying their buses on the routes covered by the impugned scheme while appellant No. 18 is the Motor operators Association, Gorakhpur) the following grounds were put forward before the High Court in support of the prayers made: (i) The impugned scheme was vitiated by mala fides inasmuch as it was the outcome of action taken by Shri Hanumant Singh Negi, Deputy Transport Commissioner, U.P., who had 1009 threatened Shri Bajrangi Lal, Pairokar for one of the petitioners, namely, Shri Kashi Prasad Gupta, that the disputed route would be nationalised in case the latter pursued in the Supreme Court the matter which had earlier been decided against him by the High Court.
(ii) The impugned order did not deal at all with objections of a personal nature which had been filed by the appellants and which, inter alia, indicated that the scheme would operate to the great disadvantage of the appellants all of whom were plying buses on the disputed route and had invested huge sums of money for that purpose.
(iii) The impugned order did not record specific findings on any of the objections of a "personal nature" and was liable to be quashed for that reason alone.
(iv) It was incumbent on the author of the impugned order to compare the services rendered by the appellants with those to be rendered by the S.T.U. That not having been done, the impugned order and the 1970 notification were both vitiated.
The High Court went at length into the question of mala fides and rejected the contention of the appellants in that behalf mainly on the ground that it was not Shri Hanumant Singh Negi who had initiated the nationalisation of the disputed route but that it was the State Government under whose decision the impugned scheme was formulated.
In support of ground (ii) reliance on behalf of the appellants was placed before the High Court mainly on Gullapalli Nageswara Rao and Others vs Andhra Pradesh State Road Transport Corporation and Another, which was decided by a Bench of five Judges of this Court.
The crucial question before the Court in that case was whether the authority deciding the objections under section 680 of the Act was bound to act judicially.
Subba Rao, J. (as he then was), who answered the question in the affirmative on behalf of the majority consisting of himself, Das, C.J., and Bhagwati, ., dealt at length with the provisions of sections 68C and 68D of the act and while concluding that the matter partook the character of a dispute between two parties, observed: "The citizen may object to the scheme on public grounds or on personal grounds.
He may oppose the scheme on the ground that it is not in the interest of the public or on the ground that the route which he is exploiting should be excluded from 1010 the scheme for various reasons.
There is, therefore, a proposal and an opposition and the third party, the State Government is to decide that lis and prima facie it must do so judicially.
The position is put beyond any doubt by the provisions in the Act and the Rules which expressly require that the State Government must decide the dispute according to the procedure prescribed by the Act and the Rules framed thereunder, viz., after considering the objections and after hearing both the parties.
It therefore appears to us that this is an obvious case where the Act imposes a duty on the Stale Government to decide the act judicially in approving or modifying the scheme proposed by the transport undertaking.
The scheme propounded may exclude persons from a route or routes and the affected party is given a remedy to apply to the Government and the Government is enjoined to decide the dispute between the contesting parties.
The statute clearly, therefore, imposes a duty upon the Government to act judicially.
Even if the grounds of attack against the scheme are confined only to the purposes mentioned in section 68C we cannot agree with this contention the position will not be different, for, even in that case there is a dispute between the State transport undertaking and the person excluded in respect of the scheme, though the objections are limited to the purposes of the scheme.
In either view the said two provisions, sections 68C and 68D, comply with the three criteria of a judicial act laid down by this Court.
" (emphasis supplied) Emphasis before The High Court was laid on the under lined portions of the above observations.
On the other hand, attention of the Court was invited to Capital Multi Purpose Co operative Society Bhopal and Others vs The State of M.P. & Others.
on behalf of the State for the proposition that the objections to the impugned scheme had to be related to the four purposes indicated in section 68C of the Act.
After giving consideration to the matter the High Court held: "There can be no quarrel with the proposition that an objection of a personal nature can be filed but it should be for the purposes of showing that the four purposes indicated in section 68C cannot be achieved.
In other words objections of the nature that the petitioners will suffer hardship and there will be financial loss to the petitioner or that the petitioners have 1011 invested large amount cannot per se be sufficient to nullify a scheme of the nature referred to above unless they have a material bearing on the purposes indicated in section 68C of the Act.
When a scheme is framed for nationalisation of a route, whether wholly or partly, the necessary consequence will be that the persons who have invested their money in purchasing vehicles will be displaced and that there will be loss in their earnings.
If this could have been the ground for rejecting or modifying a scheme, no scheme could be taken up.
A bare perusal of section 68C indicates that the purpose of the scheme is to provide an efficient, adequate, economical and properly coordinated road transport service which is necessary in public interest, and such a scheme will be liable to be approved under the provisions of the Act.
The objections of personal nature in the instant case in our opinion fail to establish that the four purposes which are sought to be achieved by the scheme will not be achieved and for that reason the scheme should either be rejected or modified.
" Ground (iii) was repelled by the High Court with a remark that even if objections of a personal nature were covered by section 68C the impugned order was not liable to be quashed merely on the ground that its author did not record specific findings thereon.
Support for this view was sought from a Full Bench decision of the same Court reported as Khuda Dad Khan vs State of U.P. and others The last ground of attack against the impugned order and the 1970 notification also did not find favour with the High Court as, according to it, in Capital Multi Purpose Co operative Society Bhopal and others vs The State of M.P. & others (supra), the Supreme Court had taken the view that it was not necessary for the concerned authority to compare the services rendered by the private operators with those to be expected from the S.T.U.
It was in these premises that the High Court passed the judgment under appeal.
Out of the grounds put forward before the High Court on behalf of the appellants, two, namely, those listed at serial Nos.
(i) and (ii) above were not pressed before us by their learned counsel, Shri section N. Kacker, who, however, argued the point covered by ground (iv) with great force and also challenged the finding recorded by the High Court in relation to ground (iii).
In order to determine 1012 the questions raised before us and canvassed by learned counsel for the parties it is necessary to undertake an analytical study of sections 68A to 68E contained in Chapter IVA which was added to the Act by Central Act 100 of 1956.
Section 68A contains two definitions According to it "(a) 'road transport service ' means a service of motor vehicles carrying passengers or goods or both by road for hire or reward; "(b) 'State transport undertaking ' means any undertaking providing road transport service, where such undertaking is carried on by, (i) the Central Government or a State Government; (ii) any Road Transport Corporation established under section 3 of the ; (iii) any municipality or any corporation or company owned or controlled by the Central Government or one or more State Governments, or by the Central Government and one or more State Governments.
" Section 68B gives over riding effect to the provisions of Chapter IVA.
Contents of sections 68C and 68D are reproduced below: "68C. 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 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 under taking may 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, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct." "68D. (1) on the publication of any scheme in the Official Gazette and in not less than one newspaper in regional language circulating in the area or route which is proposed to be covered by such scheme 1013 (i) any person already providing transport facilities by any means along or near the area or route proposed to be covered by the scheme; (ii) any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government; and (iii) any local authority or police authority within whose jurisdiction any part of the area or route proposed to be covered by the scheme lies, may, within thirty days from the date of its publication in the official Gazette, file objections to it before the State Government. "(2) The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State transport undertaking to be heard in the matter, if they so desire, approve or modify the scheme. "(3) The scheme as approved or modified under sub section (2) shall then be published in the official Gazette by the State Government and the same shall thereupon become final and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route: "Provided that no such scheme which relates to any inter State route shall be deemed to be an approved scheme unless it has been published in the official Gazette with the previous approval of the Central Government.
" Sub section (1) of section 68E gives to the S.T.U. power to cancel or modify at any time any scheme published under sub section (3) of section 68D and provides that "the procedure laid down in section 68C and section 68D shall, so far as it can be made applicable, be followed in every case where the scheme is proposed to be cancelled or modified as if the proposal were a separate scheme." Sub section (2) of section 68E confers on the Stale Government the power to modify a scheme published under sub section (3) of section 68D after giving the S.T.U. and any other person likely to be affected by the proposed modification an opportunity of being heard in respect thereof. 6.
A bare reading of the sections noted above makes it clear that they provide for nationalisation of road transport services.
However, such nationalisation, in view of the provisions of section 68C, 1014 is not nationalisation or nationalisation 's sake but nationalisation with a view to the achievement of certain specified objects.
A break up of the section brings out the following essential features.
(a) The S.T.U. is competent to prepare and publish a scheme under section 68C only after it has formed the opinion that it is necessary in the public interest that road transport services covered by the scheme should be run and operated by itself, whether to the exclusion, complete or partial, of other persons or otherwise.
(b) The necessity for the road transport services to be run and operated by the S.T.U. must flow, in its opinion, from the purpose of providing an efficient, adequate, economical and properly coordinated road transport service.
Unless a scheme conforms to these two conditions it will fall outside the ambit of section 68C. Section 68D gives the right to certain persons, associations and authorities to file objections to a scheme published under section 68C within the specified period of 30 days of its publication and also lays down the procedure for the hearing and disposal of such objections by the State Government.
An important feature of sub section (2) of the section is that (every objector or his representatives and the representatives of the S.T.U. have to be given an opportunity of being heard in the matter and it is only thereafter that the State Government has to exercise its power to approve or modify the scheme, which power includes the power not to approve the scheme at all and to drop it in its entirety), as held in Malik Ram v State Of Rajasthan (981).
The procedure provided in section 68D is thus designed to (a) enable parties affected by the scheme, to point out flaws therein, (b) enable the State Government to find out which flaws, if any, the scheme suffers from, and (c) enable the State Government either to remedy the flaws by a suitable modification of the scheme or to rescind the scheme altogether.
This brings us to the main point of controversy in the case, that is, the nature of objections which parties affected by a scheme may prefer to it.
Section 68D does not specify the type of objections 1015 envisaged by it but Then their purpose being to point out flaws in the scheme they must be confined to the matters covered by section 68C.
In the opinion forming the basis of the scheme does not suffer from errors such as may render it obnoxious to the dictates of section 68C and on the other hand, conforms to the conditions laid down in that section, the scheme would be unobjectionable.
Objections may thus be made to show : (a) that it is not necessary in the public interest for the concerned road transport services to be operated by the S.T.U.; (b) that it is not necessary in the public interest that such services be taken over by the S.T.U. to the complete exclusion (if such exclusion is envisaged by the scheme) of other persons and that their partial exclusion would suffice; (c) that it is not necessary in the public interest that such ser vices shall be taken over by the S.T.U. even to the partial exclusion of others; (d) that the scheme is not calculated to provide an efficient road transport service; (e) that the scheme would not provide an adequate road transport service; (f) that the road transport service envisaged by the scheme would not be economical, or (g) that the road transport service provided for by the scheme would suffer from lack of proper coordination.
Objections falling outside the seven categories above set out would not be admissible inasmuch as they would not have anything to do with any of the conditions which a scheme must satisfy in order to be covered by section 68C. To this conclusion there is no challenge from either side, but then it has been vehemently contended on behalf of the appellants that a comparison of the road transport services operating on the route covered by a scheme with those envisaged by the scheme itself may be necessary in order to find out if the scheme conforms to the provisions of section 68C and this contention is controverted by learned counsel for the respondents on the strength of Capital Multi Purpose Co operative Society Bhopal and Others vs The State of M.P. & Others, wherein Wanchoo, J., speaking for a Bench of this Court which consisted of himself, Bachawat and Ramaswami, JJ., observed: 1016 "We are further of opinion that there is no question of consideration of comparative merits of the State Transport Undertaking and the private operators in the context of Chapter IV A.
As we have said already Chapter IV A was enacted for nationalisation of road transport services in accordance with the amendment made in article 19(6) of the Constitution.
The nationalised road transport under that Chapter can only be run by the State Transport Undertaking as defined in section 68 A(b) of the Act.
In view of that fact, if nationalisation has to come as envisaged by the amendment of the Constitution, the only body which can run the nationalised service is the State Transport Undertaking, and in those circumstances we fail to see any necessity for comparison between a State Transport Undertaking on the one hand and individual operators on the other. "Apart from this general consideration, we are further of opinion that ordinarily no question of comparative merits based on past record between a State Transport Undertaking and individual operators can arise.
Section 68 C provides the State Transport Undertaking has to run an efficient, adequate, economical and properly coordinated road transport service, and for doing that it does not take up just one route and put one transport vehicle on it.
It takes up a large number of routes and puts a large number of transport vehicles on them in order to run an integrated service whether for passengers or for goods, or for both.
In these circumstances it is difficult to see how one can compare such an undertaking with individual private operators who are running one transport vehicle or so on individual routes.
Secondly, it would be unusual for the State Transport Undertaking to be running transport vehicles on individual routes before it produces a scheme for nationalisation of the type provided for in Chapter IV A, though it may be conceded that this may not be quite impossible, for some State transport undertaking might have entered into competition with private operators and might have obtained permits under Chapter V; (see for instance Parbani Transport Co operative Society Ltd. vs The Regional Transport Authority, ; Even so, when the State transport undertaking takes action under Chapter IV A of the Act there can in our opinion be no question of comparison between a State transport undertaking running an integrated service and individual operators running one transport vehicle or more on individual routes.
We are therefore of opinion that 1017 the authority cannot be said to have gone wrong in not asking for past records of the Corporation in the present case for purposes of such comparison.
It is true that section ' 68 C requires that the scheme should be in public interest.
But unless the scheme is shown not to be efficient, adequate, economical and properly coordinated, it will in our opinion generally follow that it is in the public interest.
We do not think therefore that the comparative merits of the Corporation as against individual operators require to be judged under Chapter IV A in the public interest." A careful study of these observations would show that they were meant to exclude from consideration a comparison between the S.T.U. and private operators for the purpose of finding out which of them should be preferred on the basis of their past performance and not to declare irrelevant a comparison between the service envisaged by the scheme and pre existing services for the purpose of determining whether the scheme as framed provides for the operation of a service which would be efficient, adequate, economical and properly coordinated.
Normally, as pointed out by Wanchoo, J., a S.T.U. takes up a large number of routes and puts a large number of vehicles on them in order to run an integrated service while private operators cater to individual routes and may not, therefore, be in a position to provide what is described in section 68C as "a properly coordinated service".
That does not mean, however, that.
all schemes, howsoever framed, would in the very nature of things provide for services which conform to the quality insisted upon by section 68C. As stated above, objections calculated to show that a scheme does not provide a road transport service which can be considered efficient, adequate, economical or properly coordinated would certainly lie; and the adjectives "efficient", "adequate", "economical" and "properly coordinated" are not absolute but more or less comparative terms.
A service consisting of only one round trip per day may be adequate if the traffic on the concerned route is lean.
On the other hand, a hundred round trips may not be adequate for a route burdened with heavy traffic.
If a private operator is running 10 buses either way and is sought to be replaced by the S.T.U. under a scheme which makes provision only for five round trips per day the proposed road transport service cannot be considered adequate if the number of round trips required to fully cope with the traffic is more than five.
Efficiency of the service covered by a scheme may similarly have to be determined in comparison to that which pertains to the pre existing services.
Economics and proper coordination of the service proposed in a scheme may again be 1018 matters for which a comparison with the pre existing services is called for.
In order to find out, therefore, if the scheme fulfils the requirements of section 68C a comparison of the attributes of the two services, such as quality, capacity, financial implications and coordination would certainly fall within the scope of the inquiry to be conducted by the State Government, although a comparison, would not be permissible for the sole purpose of finding out whether the private operators should be given a preference over the S.T.U.
If such a comparison as we have held to be permissible is ruled out, the result would be to shut out from the enquiry held by the State Government under section 68D most of the material relevant for determination of the validity of the scheme a result contemplated neither by section 68D nor by Wanchoo, J., in the observations above quoted, which, on the other hand, make it clear that the proposed scheme may certainly be shown (in whatever way it is possible) not to fulfil the criteria of efficiency, adequacy, economy and proper coordination.
The comparison ruled out by him was not between the merits of the rival services but between the expectations from their operators in view of their respective past records including these relating to other areas and routes.
The High Court thus erred in arriving at the conclusion that The Capital Multi Purpose case eschewed all comparison and its finding in that behalf, in so far as it runs counter to the opinion expressed by us above, is set aside.
We may in passing refer to what are called objections of a "personal" nature.
These may be of two types: (1) those challenging the scheme on the ground that it harms an existing operator and, (2) those which indicate the details of the services afforded by an existing operator for the purpose of showing that the service envisaged by the scheme would in comparison not be efficient, adequate, etc.
Objections of the second type, as we have just above concluded, would be admissible for the reasons stated.
Those of the first type, however, would be wholly irrelevant to the determination of the validity of the scheme in view of the postulates of section 68C and would, therefore, be inadmissible.
This proposition may appear at first sight to run counter to those observations of Subba Rao, J., in Gullappalli 's case (supra) which we have extracted above but this is not really so.
Those observations were made in the course of consideration by this Court of the sole question whether the State Government, in deciding objections under section 68D, acted judicially or purely in an administrative capacity.
The answer to that question, according to Subba Rao, J., depended on whether the matter before the State Government amounted to a lis; and it 1019 was in that connection that he said that the citizen may object to the scheme on public grounds or on personal grounds and also that the Court did not agree with the contention that the grounds of objection against the scheme were confined only to those mentioned in section 68C. The Court was not called upon to decide as to whether the scheme of sections 68C and 68D embraced objections of a "personal" nature or not and it was only incidentally that reference thereto was made.
We conclude that Gullapalli 's case (supra) is no authority for the proposition that "personal" objection not confined to the scope of the requirements of section 68C are admissible under section 68D. 9.
Referring to ground (iii) pressed in the High Court on behalf of the appellants, Shri Kacker made a serious grouse of the fact that the impugned order did not so much as mentioned those objections made by the appellants which called for a comparing of the type held by us to be permissible and he contended that the impugned order was bad on that account.
In reply learned counsel for the respondents argued that at the hearing before the State Government no such objections were pressed.
Our attention has been drawn by Mr. Kacker to paragraphs 14, 20(a), 21, 26, 43, 49? 51, 61, 63, 64, 73 and 75 of the statement of objections forming annexure to the petition under Article 226 of the Constitution before the High Court.
A perusal of those paragraphs makes it abundantly clear that quite a few of the objections were such as were related to the purposes mentioned in section 68C and called for a comparison of the proposed service with the existing one.
That some of these objections were pressed before the State Government is apparent from the written arguments which were submitted to Shri section K. Bhargava who is the author of the impugned order and which were appended to the petition under Article 226 or the Constitution of India before the High Court in the form of Annexure J.
The stand of the respondents to the contrary is thus not well founded.
But then we further find that in the impugned order its author has devoted five paragraphs to the objections which called for comparison of both the types above discussed.
In paragraphs 24 to 27 the impugned order rightly rejects the objections which were based on a comparison of the S.T.U. with the private operators in relation to their respective past performances, and in doing so relies correctly on The Capital Multi purpose case.
It proceeds then (in paragraph 28) to take note of the further opinion expressed in the same case from which it follows that a scheme may nevertheless be shown not to be in public interest by demonstrating 1020 that it does not provide for a service which would be efficient, adequate, economical and properly coordinated; but then dismisses the matter with the remark that the appellants had not been able "to show anything substantial which may justify this inference that the proposed scheme in respect of the routes in question would not be efficient, adequate, economical and properly coordinated", a remark which is obviously meant to dispose of those objections to the scheme which called for a comparison of the service envisaged by it with that already available.
The cryptic remark no doubt neither lists the objections disposed of by it nor discusses the relevant evidence but the reason for the absence of a discussion in this behalf appears to be that no such evidence had been produced before the State Government.
And if that be so, much fault cannot he found with the brevity of the contents of paragraph 28.
However, Mr. Kacker made another grouse in this connection, namely, that the State Government refused to summon witnesses and to enforce the production of documents at the request of the appellants and that in doing so it had acted illegally and by thus shutting out evidence had really denied to the appellants any real opportunity of being heard.
We find that when the case was at the evidence stage before the State Government, the appellants submitted two applications requesting that witnesses, one of whom, namely, the Secretary, Legislative Assembly, U.P. was to bring the proceedings of that Assembly, relating to the speech of the Chief Minister delivered on the 13th July 1967 in relation to the budget of the Transport Department, be summoned through letters of request and examined.
The applications were rejected by Shri S.K. Bhargava through an order dated the 20th March 1969, the relevant part of which runs thus: .
"It is nat necessary to issue letters of request as prayed for.
The objectors can only examine those witnesses whom they themselves brought.
It is also not necessary to send for any record as prayed.
No further reasons appear in the order for a rejection of the prayer made for issuing letters of request but it seems that while making the order Shri Bhargava had in mind the provisions of sub rules (2) and (4) of rule 7 of the Rules and of the absence from the Act and the Rules of any express provision conferring on the State Government the right to issue process for enforcing the attendance of witnesses and the production of documents.
The said two sub rules may be reproduced: 1021 "(2) The said officer shall fix the date, time and place for the hearing of the objections and issue notices thereof to the objector, and the representatives of the State transport undertaking, calling upon them to appear before him in person, or through a duly authorised agent or counsel and to produce their oral and documentary evidence on the date fixed for hearing." "(4) Subject to the provisions of sub rule (7) the objector and the State transport undertaking shall produce their evidence and witnesses, necessary and relevant to the inquiry, on the first date fixed for the hearing.
" The contention raised on behalf of the respondents is that the power the exercise of which the appellants sought by their applications had not been conferred by the Act or the Rules on the State Government and that, therefore, the order passed by Shri Bhargava was correct.
We find substance in this contention.
It is true that the State Government was acting in the discharge of its quasi judicial functions and it could devise its own procedure (in the absence of express provisions to the contrary) so that its functions could be effectively discharged.
Further, when the statute gives the power to the State Government to afford to the objectors a reasonable opportunity of being heard and to take evidence, oral as well as documentary, in support of their objections the power to send letters of request to witnesses to appear and give evidence or to produce documents is inherent in the situation and needs no statutory sanction, although the power to enforce their attendance or compel them to produce documents is lacking on account of absence of conferment thereof by a statute.
This view finds support from Nehru Mot Transport Co operative Society Limited vs The State of Rajasthan, in which also the argument raised was that there could be no effective hearing without a provision or coercive process compelling attendance of witnesses and production of documents.
It was pointed out in that case that the Rajasthan Rules did not provide for compelling the attendance of witnesses and that it was enough if the authority took evidence of witnesses whom the objector produced before it.
It was also remarked that the authority might 1022 help the objector to secure their attendance by issue of summonses, though in the absence of any provision in the law, the witnesses might or might not appear in answer thereto.
But then the question arises whether an order of the State Government rejecting a prayer for issuance of summons or letters of request would be illegal.
This question was answered in the negative by Wanchoo, J., in the Capital Multi purpose case (supra) with the following observations: "Further, reliance in this connection is placed on the observation of this Court in Nehru Motor Transport Co operative Society 's case (supra) that the authority might help the objectors by issuing summonses.
This observation in our opinion does not mean, in the absence of any provision in the Act or the Rules, that the authority was bound to summon witnesses even though the persons summoned were not bound to obey the summonses as there was no provision in law for issue of such summonses.
The use of the words 'by issue of summonses ' in the circumstances of that case was by oversight, for issue of summonses presumes that there is authority to issue them and the person to whom they are issued is bound to obey.
But in the absence of such power all that the authority can do is to issue letters merely requesting persons to appear and it is open to those persons to appear or not.
In this situation if an authority decides not to issue such letters it cannot be said that there was no effective hearing.
" These observations have our concurrence and we do not find that any right of the appellants was infringed when their applications for summoning witnesses and production of documents were rejected.
Here we may briefly advert to another aspect of the matter to which our attention was drawn on behalf of the respondents.
Sub rule (5) of rule 5 of the Rules states "A person filing an objection and desiring to be heard shall also submit along with the memorandum of objections, a list of documents and witnesses with their names and addresses and a brief summary of the nature and type of evidence which each such witness is likely to give." No compliance with this rule was made by the appellants when the two applications just above considered were filed.
The sub rule serves a salutary purpose and, that is, that the inquiring authority may shut out all evidence which is sought to be brought on the record 1023 but which is either irrelevant or otherwise inadmissible.
The two applications, therefore, suffered from a serious flaw by reason of which alone they merited dismissal unless the summary insisted upon by sub rule (5) was supplied before they were disposed of. 10.
In the result the appeal must fail in spite of the fact that we have accepted one main contention raised by Mr. Kacker, namely, that objections involving comparison of the pre existing services with those proposed in a scheme are relatable to the ingredients of section 68C and are, therefore, admissible under section 68D of the Act.
Accordingly it is dismissed but with no order as to costs.
S.R. Appeal dismissed.
| IN-Abs | Dismissing the appeal by special leave, the Court ^ HELD: (1) A bare reading of sections 68A to contained in Chapter IV A, which was added to the Act by Central Act 100 of 1956, makes it clear that they provide for nationalisation of road transport services.
However, such nationalisation, in view of the provisions of section 68C, is not nationalisation for nationalisation 's sake but nationalisation with a view to the achievement of certain specified objects.
Unless a scheme conforms to the two conditions referred to in section 68C, namely, (a) the S.T.U. is competent to prepare and publish a scheme under section 68C only after it has formed the opinion that it is necessary in the public interest that road transport services covered by the scheme should be run and operated by itself, whether to the exclusion, complete or partial, of other persons or otherwise; and (b) the necessity for the road transport services to be run and operated by the S.T.U. must flow, in its opinion, from the purpose of providing ar.
efficient, adequate, economical and properly coordinated road transport service, it will fall outside the ambit of section 68C. [1012A, 1013H, 1014A C] Section 68D gives the right to certain persons, associations and authorities to file objections to a scheme published under section 68C within the specified period of thirty days of its publication and also lays down the procedure for the hearing and disposal of such objections by the State Government.
The procedure provided in section 68D is designed to (a) enable parties affected by the scheme to point out flaws therein; (b) enable the State Government to find out which flaws, if any, the scheme suffers from, and (c) enable the State Government either to remedy the flaws by a suitable modification of the scheme or to rescind the scheme altogether.
Under section 68(2), every objector or his representatives and the representatives of the S.T.U. have to be given an opportunity of being heard in the matter and it is only thereafter that the State Government has to exercise its power to approve or modify the scheme, which power includes the power not to approve the scheme at all and to drop it in its entirety.
[1014D F] Malik Ram vs State of Rajasthan, ; at 981, followed.
1006 Section 68D does not specify the type of objections envisaged by it but then their purpose being to point out flaws in the scheme they must be confined to the matters covered by section 68C.
If the opinion forming the basis of the scheme does not suffer from errors such as may render it abnoxious to the dictates of section 68C and on the other hand, conforms to the conditions laid down in that section, the scheme would be unobjectionable.
Objections may thus be made to show: (a) that it is not necessary in the public interest for the concerned road transport services to be operated by the S.T.U.; (b) that it is not necessary in the public interest that such services be taken over by the S.T.U. to the complete exclusion (if such exclusion is envisaged by the scheme) of other persons and that their partial exclusion would suffice; (c) that it is not necessary in the public interest that such services shall be taken over by the S.T.U. even to the partial exclusion of others; (d) that the scheme is not calculated to provide an efficient road transport service; (e) that the scheme would not provide an adequate road transport service; (f) that the road transport service envisaged by the scheme would not be economical; or (g) that the road transport service provided for by the scheme would suffer from lack of proper coordination.
[1014H, 1015A E] Objections falling outside these seven categories would not be admissible inasmuch as they would not have anything to do with any of the conditions which a scheme must satisfy in order to be covered by section 68C. [1015E F] 2.
In order to find out if the scheme fulfils the requirements of section 68C a comparison of the attributes of the two services, such as quality, capacity, financial implications and coordination would certainly fall within the scope of the inquiry to be conducted by the State Government, although a comparison would not be permissible for the sole purpose of finding out whether the private operators should be given a preference over the State Transport Undertaking.
If such a comparison as held to be permissible is ruled out, the result would be to shut out from the enquiry held by the State Government under section 68D most of the material relevant for determination of the validity of the scheme a result contemplated neither by section 68D nor by the decision of this Court in ; [1018A C] Objections calculated to show that a scheme does not provide a road transport service which can be considered efficient, adequate.
economical o} properly coordinated would certainly lie; and the adjectives "efficient", "adequate", "economical" and "properly coordinated are not absolute but more or less comparative terms.
[1017E F1].
Capital Multi Purpose Co operative Society, Bhopal and others vs The State of Madhya Pradesh and others; , , explained.
Objections of a "personal" nature may be of two types.
(i) those challenging the scheme on the ground that it harms an existing operator and, (ii) those which indicate the details of the services afforded by an existing operator for the purpose of showing that service envisaged by the scheme would in comparison not be efficient, adequate, etc.
Objections of the second type would be admissible, while those of the first type, would be wholly irrelevant to the determination of the validity of the scheme in view of the postulates of section 68C and would, therefore, be inadmissible.
[1018E G] Gullapalli Nageswara Rao and others vs Andhra Pradesh State Road Transport Corporation and Another, [1959] Suppl.
1 S.C.R. 319, distinguished.
1007 4.
It is true that the State Government was acting in the discharge of its quasi judicial functions and it could devise its own procedure (in the absence of express provisions to the contrary) so that its functions could be effectively discharged.
Further, when the statute gives the power to the State Government to afford to the objectors a reasonable opportunity of being heard and to take evidence, oral as well as documentary, in support of their objections, the power to send letters of request to witnesses to appear and give evidence or to produce documents is inherent in the situation and needs no statutory sanction, although the power to enforce their attendance or compel them to produce documents is lacking on account of absence of conferment thereof by a statute.
[1021D F] Nehru Motor Transport Co operative Society Limited vs The State of Rajasthan, [1964] 1 S.C.R. 220, followed.
Sub rule (5) of rule 5 of Uttar Pradesh State Transport Services (Development) Rules, 1958 serves a salutary purpose and, that is, that the inquiring authority may shut out all evidence which is sought to be brought on the record but which is either irrelevant or otherwise inadmissible.
[1022G H, 1023A] 6.
In the instant case, no right of the appellants can be said to be infringed when their applications for summoning witnesses and production of documents were rejected by the State Government and the rejection is not illegal.
[1022E F] Capital Multi Purpose Co operative Society, Bhopal and Others vs The State of Madhya Pradesh and Others, ; ; applied.
|
Special Leave Petition No. 1262 of 1980.
From the Judgment and Order dated 19 2 1979 of the Allahabad High Court in C.M.W.P. No. 184 of 1975.
section N. Kaicker, Mrs. section Markendeya and section Markendeya for the Petitioners.
The Order of the Court was delivered by KRISHNA IYER, J. An order draped in relative brevity is sufficient since we are refusing leave to appeal although the issue raised is vires of a provision.
After due fulfillment of the obligation for oral hearing, we have considered the impact of two earlier decisions cited by Shri Kaicker sup 1025 posedly striking a note contrary to the judgment under attack but feel free why, bound to dismiss the petition for special leave not merely because the High Court is right but because justice to the travelling public a lost cause on our made roads conscientises to that course.
Tersely put, the petitioner is the grantee of permits to ply minibuses as contract carriages and in the grant a condition has been fastened that the vehicle shall not be more than seven years old.
Condition No. 18, relating to Mini Buses Contract Carriage permits, and the source of power, section 51 (2) (x) read thus: That the vehicle covered by the permit shall be not more than four years old counted from the date of registration at any time during the validity of the permit.
51(2) The Regional Transport Authority, if it decides to grant a contract carriage permit, may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely: (x) any other conditions which may be prescribed.
Section 51(2) (x) any other. 'Four years ' have been relaxed to seven years since September 23, 1978, the beneficiaries being the bus owners and the potential victims being the unknown casualties who have no 'poor lobby ' power.
The State must remember that it has responsibilities not merely to mini bus owners, but also to avoid the daily tragedies on the Indian high ways under the lethal wheels of these whirling carriages.
Section 51 (2) of the , is geared to public safety, not private profit and casts a solemn duty not to be deterred by any pressure except the pressure of social justice to Indian lives moving in buses, walking on roads or even standing on margins.
If the top killer road accident is to be awarded death sentence, section 51 and like provisions must receive severe enforcement.
In this spirit although backtracking from 4 year old models to 7 year old models the state imposed condition 18.
This was challenged artfully but unsuccessfully before the High Court and is attacked before us as ultra vires section 51(2) of the Act.
We will examine briefly the submission to reach the conclusion that mere lexical legalism cannot sterilise the sensible humanism writ large on section 51(2) (x).
If Indian life is not ultra vires Indian law every condition to save life and limb is intra vires such salvationary provision.
This perspective of social justice simplifies the problem and upholds the High Court.
Section 51(2) (x) authorises the impost of any condition, of course, having a nexus with the statutory purpose.
It is undeniable that human safety is one such purpose.
The State 's neglect in this area of policing 1026 public transport is deplorable but when it does act by prescribing a condition the court cannot be persuaded into little legalism and harmful negativism.
The short question is whether the prescription that the bus shall be at a seven year old model one is relevant to the condition of the vehicle and its passengers ' comparative safety and comfort on our chaotic highways.
Obviously, it is.
The older the model, the less the chances of the latest safety measures being built into the vehicle.
Every new model incorporates new devices to reduce danger and promote comfort.
Every new model assures its age to be young, fresh and strong, less likely to suffer sudden failures and breakages, less susceptible to wear and tear and moral fatigue leading to unexpected collapse.
When we buy a car or any other machine why do we look for the latest model ? Vintage vehicles are good for centenarian display of curios and cannot but be mobile menaces on our notoriously neglected highways.
We have no hesitation to hold, from the point of view of the human rights of road users, that the condition regarding the model of the permitted bus is within jurisdiction, and not to prescribe such safety clauses is abdication of statutory duty.
Two decisions Masi Ullah vs State Tribunal Appellate(1) and In re: Ramesh Chandra Tewari etc.(2) were cited as striking a contrary note.
The first deals with section 48(3) of the Act and prescription of the model or year of the make was held ultra vires because, lexically read, it was held that the expression specified description in section 48(3) did not cover, according to dictionaries, the year of manufacture of the vehicle.
We extract Black 's Law Dictionary on 'description ' to show how the model of a vehicle is obviously a facet of its description. 'Description ' means: (3) A delineation or account of a particular subject by the recital of its characteristic accidents and qualities.
So, dictionary versus dictionary leaves the matter at large, apart from the plain function of the court to gather the meaning, not under the dictatorship of dictionaries but guided by the statutory purpose without being deflected by logamachic exercises, the mischief to be countered and the public interest to be advanced.
We are clear that a later model is a better safeguard and, more relevantly to the point, the year of the make and the particulars of the model are part of the description.
1027 The unreported ruling in Civil Writ No. 7317 of 1975 interprets section 38 of the Act and the non issuance of the fitness certificate because the model was not recent enough.
May be the vehicle, regardless of the year of its make, may be fit and the refusal to certify fitness merely because it is old may not always be right.
But we see no conflict between a vehicle being fit to ride and the condition, as an additional requirement and safety factor, in the shape of the year of the model.
This is an extra measure, a further insurance against machine failure and cannot contradict the 'fitness ' provision.
More reasons are, superogatory, less discussion will leave the law obscure.
We hold the ration of the impugned ruling to be right and refuse leave to appeal.
S.R. Petition dismissed.
| IN-Abs | Dismissing the special leave petition, the Court ^ HELD: 1.
Mere lexical legalism cannot sterilise the sensible humanism writ large on section 51(2)(x).
If Indian life is not ultra vires Indian law every condition to save life and limb is intra vires such salvationary provision.
[1025G] 2.
Section 51(2) of the , is geared to public safety, not private profit and casts a solemn duty not to be deterred by any pressure except the pressure of social justice to Indian lives moving in buses, walking on roads or even standing on margins.
If the top killer road accident is to be awarded death sentence, section 51 and like provisions must receive severe enforcement.
In this spirit although backtracking from 4 year old models to 7 year old models the state imposed condition 18.
Section 51(2) (x) authorises the impost of "any condition" of course having a nexus with the statutory purpose.
Human safety is one such purpose.
[1025D F, H] 3.
From the point of view of the human rights of road users, the condition regarding the model of the permitted bus is within jurisdiction and not to prescribed such safety clauses is abdication of statutory duty.
There is no conflict between a vehicle being fit to ride and the condition as an additional requirement and safety factor in the shape of the year and the model.
This is an extra measure, a further insurance against machine failure and cannot contradict the 'fitness ' provision.
[1126D, 1027A B]
|
ition No. 350 of 1980.
(Under Article 32 of the Constitution) M. M. Abdul Khoder, V. M. Tarkunde and EMS Enam for the.
Petitioner.
V. J. Francis for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The lament of the petitioner, Gopalanachari, a septuagenarian languishing in a Kerala prison, is that in his case the law has become lawless and justice has fallen as the first casualty, a lot shared by several other prison mates.
He wrote a letter dated nil to one of us (Krishna Iyer, J) complaining of illegal detention under section 110 Criminal Procedure Code (for short, the Code) where upon the jurisdiction of this Court was invoked and the following order was made: Shri M. M. Abdul Kader Senior Advocate with Mr. E. M. Sardul Enarn, Advocate on Record will be appointed as amicus curiae for the petitioner.
Issue Show Cause Notice to the respondent state with a direction that the State shall furnish the total number of prisoners in the Sub Jail Kottayam, who are now kept in custody under section 110 Cr. P. C. and give further particulars as to how long they have been in prison on this score and whether the hearing of the cases under section 110 Cr. P. C. is over.
The Superintendent of the Jail will further furnish the number of prisoners in prison who are above seventy years old and below 25 years.
Copy of the Notice will be served on advocate amicus curiae as well as on Shri V. J. Francis, Advocate for the State.
order will also be issued to the Superintendent of the Jail apart from the State.
Post the matter on 2nd April, 1980.
1273 Even here we may state that Shri M. M. AbdulKader, Senior Advocate assisted by Shri E. M. Sadrul Enam, Advocate on Record, has rendered help as amicus curiae and enabled the court to set human rights in perspective in a section 110 situation.
Shri Tarkunde also, as intervener, has helped the court which, incidentally strengthens the current of participative justice since leading members of the bar and public organisations in the field taking part in the court process in the shape of assistance in the cause of justice lends reality to the democracy of judicial remedies.
The State, in response to the notice, put in a statement that in the Sub Jail at Kottayam there are as many as six prisoners detained under section 110 cf the Code.
Apparently, they have been suffering incarceration for several months, the petitioner himself having been in Jail iron 23 2 1980.
It is added by the Superintendent, Sub Jail that the petitioner "is well known habitual prisoner of the Kerala State. he is known as 'Kallan Gopalan ' " i.e., thief Gopalan.
In pathetic contrast to this stigmatising generalisation that the petitioner is a well known 'habitual ' we find the averment in the petition of the detainee that he has been falsely implicated without any regard for human rights.
His averments which have not been specifically contested may well be extracted: The case charged against me by the Kottayam Arpukkara .
Police in the Ettumanur Court is on night patrol, found hiding in the varanda of a shop, on asking the name and address: answered the name as Shankunni of Pala; on again questioning answered as Krishnan Kutty of Pankunnari.
and again on questioning, arrested on doubt as a "K. D." on the Pathanam Thitta Police Station and on enquiry it is found that the person is an ex criminal and not to be free; and for that, to obtain bail for two years, this is the charge against the person, submitted by the Police before the court.
I am 71 years old.
My native place is Pathanamthitta of Kottayam District.
While I was living in my house having loss of eyesight and hearing power due to old age, a Police man known to me earlier, saw me on a road near my house, saying that he has to enquire something, taken me in a van to Arpukkara Police Station, after putting me in the lock up for ten days produced me before the Court after making the record as having arrested me on the previous night of producing me before the Court.
But, it is such a position that if the bail alongwith the Bond as aforesaid is not furnished for a period of two years, I have to be inside the Jail for the said period.
1274 I submit before your Honour that I have much pain and agony that without considering that I am 71 years old and have difficulties due to that, and without seeing or giving remedy keeping me in the jail on such a fabricated case.
There is no indication even in the statement put in by the Superintendent that there has been any conviction by a criminal courts as yet.
The cases are pending, apparently without any sense of urgency and oblivious to the fact that for several months the petitioner has been deprived of his personal liberty even at the advanced age of 70.
If men can be whisked away by the Police and imprisoned for long months and the court can keep the cases pending without thought to the fact that an old man is lying in cellular confinement without hope of his case being disposed of, article 21, read with articles 14 and 19 of the Constitution, remain symbolic and scriptural rather than a shield against unjust deprivation.
Law is not a mascot but a defender of the faith.
Surely, if law behaves lawlessly, social justice becomes a judicial hoax.
A closer look at section 110 of the Code in the setting of peril to personal liberty thus becomes a necessity in this case.
Counsel for the State, Shri Francis, amicus curiae Shri Abdul Kader and Senior Advocate Shri Tarkunde, agreed that unless the preventive power under section 110 were prevented from pervasive misuse by zealous judicial vigilance and interpretative strictness; many a poor man, maybe cast into prison by sticking the label of 'habitual ' or by using such frightening expressions as 'desperate ', 'dangerous ' and 'hazardous to the community '.
Law is what the law does, even as freedom is what freedom does.
Going by that test, section 110 cannot be permitted in our free Republic to pick up the homeless and the have nots as it did when under British subjection because to day to be poor is not a crime in this country.
George Bernard Shaw, though ignorant of section 110, did sardonically comment that "the greatest of evils and the worst of crimes is poverty".
Article 21 insists that no man shall be deprived of his life or personal liberty except according to the procedure established by law.
In Maneka Gandhi case(l) this Court in clearest terms strengthened the rule of law vis a vis personal liberty by insisting on the procedure contemplated by article 21 having to be fair and reasonable, not vagarious, vague and arbitrary: The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non 1275 arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.
It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.(l) The principles and procedures are to be applied which, in .
any particular situation or set of circumstances, are right and just and fair.
Natural justice, it has been said, is only "fair play .
in action".
Nor do we wait for directions from Parliament.
The . common law has abundant riches; there may we find what Byles, J., called "the justice of the common law".
Procedural safeguards are the indispensable essence of liberty.
In fact, the history of personal liberty is largely the history of procedural safeguards and right to a hearing has a human right ring.
In India, because of poverty and illiteracy, the people are unable to protect and defend their rights; observance of fundamental rights is not regarded as good politics and their transgression as bad politics.
I sometimes pensively reflect that people 's militant awareness of rights and duties is a surer constitutional assurance of governmental respect and response than the sound and fury of the 'question hour ' and the slow and unsure delivery of court writ. .
To sum up, 'procedure ' in Article 21 means fair, not formal procedure. 'Law ' is reasonable law, not any enacted piece.
As Article 22 specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detentions should conform to Article 22.
It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Article 21 arc available.
The constitutional survival of section 110 certainly depends on its obedience to article 21, as this Court has expounded.
Words of wide import, vague amplitude and far too generalised to be safe in the hands of the Police cannot be constitutionalised in the context of article 21 unless read down to be as a fair and reasonable legislation with reverence for human rights.
A glance at section 110 shows that only a narrow signification can be attached to the words in clauses (a) to (g), "by habit a robber. ", "by habit a receiver of stolen property. ", 1276 "habitually protects or harbours thieve. ", "habitually commits or attempts to commit or abets the commission of . ", "is so desperate and dangerous as to render his being at large without security hazardous to the community".
These expressions, when they become part of the preventive chapter with potential for deprivation of a man 's personal freedom upto a period of three years, must be scrutinised by the court closely and anxiously.
The poor are picked up or brought up, habitual witnesses swear away their freedom and courts ritualistically commit them to prison and article 21 is for them a freedom under total eclipse in practice.
Courts are guardians of human rights.
The common man looks upon the trial court as the protector.
The poor and the illiterate, who have hardly the capability to defend themselves, are nevertheless not 'non persons ', the trial judges must remember, This Court in Hoskot 's case has laid down the law that a person in prison shall be given legal aid at the expense of the State by the court assigning counsel.
In cases under section 110 of the Code, the exercise is often an idle ritual deprived of reality although a man 's liberty is at stake.
We direct the trial magistrates to discharge their duties, when trying cases under section 11(), with great responsibility and whenever the counter petitioner is a prisoner give him the facility of being defended by counsel now that article 21 has been reinforced by article 39A.
Otherwise the order to bind over will be bad and void.
We have not the slightest doubt that expressions like "by habit", "habitual", "desperate", "dangerous", "hazardous" cannot be flung in the face of a man with laxity of semantics.
The Court must insist on specificity of facts and be satisfied that one swallow does not make a summer and a consistent course of conduct convincing enough to draw the rigorous inference that by confirmed habit, which is second nature, the counter petitioner .
is sure to commit the offences mentioned if he is not kept captive.
Preventive sections privative of freedom, if incautiously proved by indolent judicial processes, may do deeper injury.
They will have the effect of detention of one who has not been held guilty of a crime and carry with it the judicial imprimatur, to boot.
To call a man dangerous is itself dangerous; to call a man desperate is to affix a desperate adjective to stigmatise a person as hazardous to the community is itself a judicial hazard unless compulsive testimony carrying credence is abundantly available.
A sociologist may pardonably take the view that it is the poor man, the man without political clout the person without economic stamina, who in practice gets caught in .
the coils of section 110 of the Code, although, we as court, cannot subscribe to any such proposition on mere assertion without copious 1277 substantiation.
Even so, the court cannot be unmindful of social realities and be careful to require strict proof when personal liberty may possibly be the casuality.
After all, the judicial process must not fail functionally as the protector of personal liberty.
Indeed, several commissions, spread over decades, and even the Central Law Commission, in some of its reports, disclosed the presence in our midst of many habitual economic offenders and chronic corporate Criminals who, perhaps, may not be on the wanted list of the Police under section 110 of the Code although their dangerous activities may prove a hazard to the health and wealth of nation.
Referring to a similar situation in American Society, Ralph Nader in his introduction to a well documented book titled "America Inc." has observed: In no clearer fashion has the corporation held the law at bay than in the latter 's paralysis toward the corporate crime wave.
Crime statistics almost wholly ignore corporate or business crime; there is no list of the ten most wanted corporations; the law afford no means of regularly collecting data on corporate crime; and much corporate criminal behaviour (such as pollution) has not been made a crime because of corporate opposition.
For example, willful and knowing violations of auto, tire, radiation, and gas pipeline safety standards are not considered crimes under the relevant statutes even if lives are lost as a result.
The description of an array of corporate crimes in this forthright book reveals a legal process requiring courage, not routine duty, by officials to enforce the laws against such out rages.
The law is much more comfortable sentencing a telephone coin box 'thief to five years than sentencing a billion dollar price fixing executive to six weeks in jail.
In one recounting after another, the authors pile up the evidence towards one searing conclusion that corporate economic, product, and environmental crimes dwarf other crimes in damage to health, safety and property, in confiscation of theft of other people 's monies, and in control of the agencies which arc supposed to .
stop this crime and fraud.
And it all goes on year after year by blue chip corporate recidivists.
Why ? It is easy to answer "power".
But that is the beginning, not the end, of understanding.(l) True, American conditions are different from Indian conditions and these observations may not have necessary application to our societal situation.
The point of Ralph Nader has, however, some relevance.
1278 Let us allay misunderstandings.
We are clear in our mind that prevention is better than cure, in criminal law as in medicines especially when there is judicial supervision.
Society cannot be left at the mercy of predators and bandits who, like wild beasts, prey upon the weak and the innocent and become a menace to peace and security of society.
But personal liberty is a prized value and that is why we have insisted not merely upon the Police having to be careful before marching poor people into court under section but the Court itself having to be gravely concerned about using preventive provisions against helpless persons, not on formal testimony readily produced to order as we have noticed in a recent case, but on convincing testimony of clear and present danger to society.
In the present case, the petitioner has been too long in prison, and we take it that no circumstances placed before us justify keeping him longer in custody.
The trial magistrate will, having regard to the observations we have made, drop the proceedings in the interests of justice.
The other prisoner above 70 years also should be enlarged right away (Kutty Thankappan, U.T. No. 665).
We expect any Government which has any regard for human rights not to use section 110 of the Code, torturesome fashion, against the weak and the poor merely because they belong to the 'have not ' class and can be easily apprehended as 'habitual ' this or that or dangerous or desperate.
We draw the attention of the State Government to the likely misuse of the preventive provisions and expect it to issue suitable instructions to the Police minions so that the law will be legitimated by going into action where it must strike and by being kept sheathed where there is no need for indiscriminate display.
With these observations, we direct the release of the petitioner and Kutty Thankappan, U.T. No. 665 on their.
Own bonds until formal orders are passed by the trial court in the regular criminal proceedings under section 110 of the Code.
P.B.R. Petition allowed.
| IN-Abs | In a letter addressed to one of the Judges of this Court (V. R. Krishna Iyer, J.) the petitioner complained that he had been illegally detained under section 110, Cr. P. C.
In response to this Court 's notice the Superintendent of Sub Jail stated that the petitioner was "a well known habitual prisoner" of the Kerala State and was known as "thief Gopalan".
In his reply the detenu stated that being unable to see or hear because of his extreme old age of 71 years he was staying in his house in his native place and that one night a policeman took him from his house in a van to the police station saying that he had to inquire something from him and after putting him in the lock up for 10 days produced him before the Court as a person having been arrested the previous night.
He further stated that the charge against him was that on the night patrol one night a policeman found him hiding in a verandah of a shop and that on being asked his name and address he gave one name first and another name a little later and that on inquiry it was found that he was an ex criminal not to be let free.
Allowing the petition.
^ HELD: In the interests of justice proceedings against the petitioner must be dropped.
Section 110 cannot be permitted to pick up the homeless and the have nots as it did under British subjection because today to be poor is not a crime in this country.
[1274F] Article 21 insists that no man shall be deprived of his life or personal liberty except according to the procedure established by law.
In Maneka Gandhi vs Union of India [1978] 1 SCC 248 this Court in clearest terms strengthened the rule of law vis a vis the personal liberty by insisting on the procedure contemplated by article 21 having to be fair and reasonable not vagarious, vague and arbitrary.
[1274G] The constitutional survival of section 110 depends on its obedience to article 21.
Words of wide import, vague amplitude and far too generalised to be safe in the hands of the Police cannot be constitutionalised in the context of article 21 unless read down to be as a fair and reasonable legislation with reverence for human rights.
A glance at section 110 shows that only a narrow signification can be attached to the words in clauses (a) to (g) namely "by habit a robber", "by habit a receiver of stolen property", "habitually protects or harbours thieves", "habitually commits or attempts to commit or abets the commission of . " "is so desperate and dangerous as to render his being at large without security hazardous to the community '.
Expressions like these cannot be flung in the face of a man with laxity of semantics.
The Court must insist on specificity of facts and be satisfied that one swallow 1272 does not make a summer and a consistent course of conduct convincing enough to draw the rigorous inference that by confirmed habit which is second nature the counter petitioner is sure to commit the offences mentioned if he is not kept captive.
Preventive sections privative of freedom, if incautiously proved by indolent judicial processes, may do deeper injury.
They will have the effect of detention of one who has not been held guilty of a crime and carry with it the judicial imprimatur, to boot.
To call a man dangerous is itself dangerous; to call a man desperate is to affix a desperate adjective to stigmatise a person as hazardous to the community is itself a judicial hazard unless compulsive testimony carrying credence is abundantly available.
[1275 G H, 1276 E G]
|
of the Code of Criminal Procedure (or for that matter any other penal provision) cannot be attacked in the ground that they are hit by Article 14 of the Constitution inasmuch as they are arbitrary or irrational because they ignore the reformative aspect of punishment.
[1261 A B] & ORIGINAL JURISDICTION: Writ Petitions NOS.
865/79, 641/80, 409, 783, 695, 690, 747, 4346 of 1980, 147/79, 1860/80, 2389, 4115, 1365, 457,869, 4311 12, 813, 2505, 1659, 3784 94, 2602 10, 4376 91, 4392 95, 4404, 1177 of 1980.
(Under Article 32 of the Constitution of India) Dr. L. M. Singhvi, section K. Bagga and Mrs. section Bagga and Nand Lal for the Petitioners in WPs 865 and 695.
D. R. Mridul, Nemi Chand Chowdhary and Sushil Kumar Jain for the Petitioners in WP 641.
A. K. Sen, (409) & Uma Datt for the Petitioners in WPs.
409 and 1365.
1205 L. M. Singhvi.
section K. lain, A. section Sohal, Sushil Kumar and A L. K. Pandey for the Petitioners in 783.
(WP) R. K. Garg & Mrs. Urmila Sirur for the Petitioners in WP 690.
K. B. Rohatgi and section M. Ashri for the Petitioners in WP 747.
section N. Kacker, R. N. Kataria, G. K. Bansal & B. section Malik for the Petitioners in WPs.
4311 12. 4376 95, 3784 94. 1177.
P. R. Mridul and H. K. Puri for the Petitioner in WP 147.
Khanduja for the Petitioner in WP 1860.
Arun Madon for the Petitioner in WP 2389.
A. section Sohal, M. C. Dhingra and P. N. Gupta for the Petitioner in WP 457.
R. L. Kohli and R. C. Kohli for the Petitioner in WP 869.
P. R. Mridul, A. section Sohal, M. C. Dhingra and Lalit Gupta for the Petitioner in WP 813.
L. N. Gupta for the Petitioners in WP 2505.
Srinath Singh, Vijay K. jindal, Sarva Mitter and M. G. Gupta for the Petitioners in WP 1659.
A. P. Mohanty & section K. Sabharwal, Mr. C. P. Pandey and Lalit Gupta for the Petitioners in WP 2602 10.
R. K. Garg, V. 1.
Francis and Sunil K. Jain for the Petitioners in WP 4404.
V. M. Tarkunde, Govind Mukhotyy and P. K. Gupta for the Petitioner in 4346 (WP) in person K. Parasaran, Sol.
General, M. K. Banerjee, Addl.
and N. Nettar and Miss A. Subhashini for R. 1 in all WPs.
except in 457 & 869.
Badridas Sharma for r. 2 in 865 & r. in 147.
O. P. Rana, section C. Maheshwari and R. K. Bhatt for State of U.P. in 865, 4392 95, 4376 91.
O. P. Sharma and M. section Dhillon for r. in 457 & 869.
M. C. Bhandare, and M. N. Shroff for r. (State) in WP 2505.
M. Veerappa for other appearing rr.
in WP 2602 10.
P. Ram Reddy and G. N. Rao for r. in WP 4115.
The Judgment of Hon 'ble C.J., Bhagwati, and Krishna Iyer, JJ. was delivered by Iyer, J. Fazal Ali and Koshal, JJ.
gave separate concurring opinions.
1206 KRISHNA IYER, J. A procession of 'life convicts ' well over two thousand strong, with more joining the march even as the arguments were on, has vicariously mobbed this court, through the learned counsel, carrying constitutional missiles in hand and demanding liberty beyond the bars.
They challenge the vires of section 433A of the Criminal Procedure Code (Procedure Code, for short) which compels `caging ' of two classes of prisoners, atleast for fourteen eternal infernal years, regardless of the benign remissions and compassionate concessions sanctioned by prison law and human justice.
Their despair is best expressed in the bitter lines of Oscar Wilde I know not whether Laws be right, or whether Laws be wrong, All that we know who lie in gaol, Is that the wall is strong; And that each day is like a year, A year whose days are long.
(Emphasis added) But broken hearts cannot break prison walls.
Since prisons are built with stones of law, the key to liberation too is in law 's custody.
So, counsel have piled up long and learned arguments punctuated with evocative rhetoric.
But Judges themselves are prisoners of the law and are not free to free a prisoner save through the open sesame of Justice according to law.
Even so, there is a strange message for judges too in the rebellious words of Gandhiji 's quasi guru David Thoreau: The law will never make men free; it is men who have got to make the law free.
They are the lovers of law and order who observe the law when the government breaks it.
The case of the petitioners is that Parliament has broken the law of the Constitution by enacting section 433A.
Now, the concrete question and the back up facts.
All the petitioners belong to one or other of two categories.
They are either sentenced by court to imprisonment for life in cases where the conviction is for offences carrying death penalty as a graver alternative or are persons whom the court has actually sentenced to death which has since been commuted by the appropriate Governments under 5.
433(a) of the Procedure Code to life imprisonment.
The common 1207 factor binding together these two categories of 'lifers ' (if we may use A his vogue word, for brevity) is obvious.
The offences are so serious that the Penal Code has prescribed 'death ' as an alternative punishment although, in actual fact, judicial compassion or executive clemency has averted the lethal blow but at a price, viz., prison tenancy for life.
R Before the enactment of section 433A in 1978 these 'lifers ' we treated, in the matter of remissions and release from jail, like others sentenced to life terms for lesser offences which do not carry death penalty as an either/or possibility.
There are around 40 offences which carry a maximum sentence of life imprisonment without the extreme penalty of death as an alternative.
The rules of remission and release were common for all prisoners, and most States had rules under the or some had separate Acts providing for shortening of sentences or variants thereof, which enabled the life sentencee, regardless of the offence which cast him into the prison, to get his exit visa long before the full span of his life had run out often by about eight to ten or twelve years, sometimes even earlier.
Then came, in 1978, despite the strident.
peals of human rights of that time, a parliamentary amendment to the procedure Code and section 433A was sternly woven, with virtual consensus, into the punitive fabric obligating the actual detention in prison for full fourteen years as a mandatory minimum in the two classes of cases where the court could have punished the offender with death but did not, or where the court did punish the culprit with death but he survived through commutation to life imprisonment granted under section 433(a) of the Procedure Code.
All the lifers lugged into these two categories and they form the bulk of life convicts in our prisons suddenly found themselves legally robbed of their human longing to be set free under the remission scheme.
This poignant shock is at the back of the rain of writ petitions under article 32; and the despondent prisoners have showered arguments against the privative provision (section 433A) as constitutional anathema and penological atavism, incompetent for Parliament and violative of fundamental rights and reformatory goals.
The single issue, which has proliferated into many at the hands of a plurality of advocates, is whether section 433A is void for unconstitutionality and, alternatively, whether the said harsh provision admits of interpretative liberality which enlarges the basis of early release and narrow down the compulsive territory of 14 year jail term.
Lord Denning, in the first Hamlyn Lectures and Sir Norman Anderson in the next before last of the series, emphasised; 1208 . the fundamental principle in our courts that where there is any conflict between the freedom of the individual and any other rights or interests, then no matter how great or powerful those others may be, the freedom of the humblest citizen shall prevail.
Of course, most of the petitioners belong to 'the poorest, the lowliest and the lost '.
For those who listlessly languish waiting for their date with Freedom, the human hope of going home holds the lamp of life burning and a blanket ban against release before a brutal span of full 14 years, even if their habilitation be ever so complete and convincing, benumbs the very process of restoration which is cardinal to the rationale of penal servitude.
Indeterminate sentences for the same reason, have been criticised since they have led to a system of sentencing which has worked substantial hardship and injustice on countless inmates.
Indeterminate sentences generally are much longer and more costly than fixed sentences and create additional emotional strain on both the inmate and his family, who are left to wonder when they will be freed.(l) The imprisoned poet, Oscar Wilde, wrote that courts must know when adjudicating the arbitrariness of long term minima implacably imposed in the name of social defence :(2) Something was dead in each of us, And what was dead was Hope.
xx xx xx The vilest deeds like poison weeds Bloom well in prison air: It is only what is good tn Man That wastes and withers there: Pale Anguish keeps the heavy gate, And the Warder is Despair.
These generalities only serve as a backdrop to the consideration of the multi pronged attack on the vires of section 433A.
For judicial diagnosis, we must read it whole before dissecting into parts: 1209 433A.
Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where the sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.
Piecemeal understanding, like a little learning, may prove to be a dangerous thing.
To get a hang of the whole subject matter we must read s 432 ad 433 too.
(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
D 433.
The appropriate Government may, without the consent of the person sentenced, commute (a) a sentence of death, for any other punishment provided by the Indian Penal Code.
(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced or for fine: (d) a sentence of simple imprisonment, for fine.
F The Sections above quoted relate to remission and commutation of sentences.
There were similar provisions in the earlier Code corresponding to sections 432 and 433 (sections 401 and 402 of the 1898 Code), but section 433A is altogether new. 'Ay, there 's the rub '.
It is obvious that section 432 clothes the appropriate Government with the power to remit the whole or part of any sentence.
The mechanics for exercising this power and the conditions subject to which the power is to be exercised are also imprinted in the Section.
This is a wide power which, in the absence of section 433A, extends to remission of the entire life sentence if Government chooses so to do.
A liberal or promiscuous use of the power of remission under section 433(a) may mean that many a murderer or other offender who could have been given death sentence by the court but has been actually awarded only life sentence may legally bolt away the very next morning, the very 1210 next year, after a decade or at any other time the appropriate Government is in a mood to remit his sentence.
Bizarre freaks of remissions, such, for instance, as the impertinent happenstance of a Home Minister 's 'hallowed ' presence on an official visit to the Prison resulting in remissions of sentences have been brought to our notice, making us stagger at the thought that even high constitutional powers are devalued in practice by those 'dressed in a little brief authority ' thereby encouraging the fallacious impression that functionaries of our Republic are re incarnated quasi maharajas of medieval vintage ! We will deal with it a little later under article 161 of the Constitution but mention it here to prove what, perhaps, provoked Parliament to enact section 433A.
In many States, we are told, lifers falling within the twin tainted categories routinely earned remissions under the extant rules resulting in their release in the matter of a few years.
The penological sense of Parliament was apparently outraged by such extreme abbreviations of life sentences where the offence was grave as might have invited even death penalty.
The same situation prevailed in regard to those who had actually been subjected to death penalty but, thanks to section 433(a), had a commuted sentence of life , imprisonment.
Taking cognizance of such utter punitive laxity in these two graver classes of cases, the Joint Committee, which went into the Indian Penal Code (Amendment) Bill, suggested that a long enough minimum sentence should be suffered by both classes of lifers.
The draconian provision (as some counsel have described it) was the product of the Joint Committee 's proposal to add a proviso to section 57 of the Penal Code.
Its appropriate place was in the Procedure Code and so section 433A was enacted when the Criminal Procedure Code was amended.
It was a punitive prescription made to parliamentary measure which prohibited premature release before the lifer suffered actual incarceration for 14 years.
No opposition to this clause was voiced in Parliament (Sixth Lok Sabha) so far as our attention was drawn, although that was, vocally speaking, a period of high tide of human rights (1978).
The objects and Reasons throw light on the 'why ' of this new provision: The Code of Criminal Procedure, 1973 came into force on the 1st day of April, 1974.
The working of the new Code has been carefully watched and in the light of the experience it has been found necessary to make a few changes for removing certain difficulties and doubts.
The notes on clauses explain in brief the reasons for the amendments.
1211 The notes on clauses gives the further explanation: Clause 33: Section 432 contains provision relating to powers of the appropriate Government to suspend or remit sentences.
The Joint Committee on the Indian Penal Code (Amendment) Bill, 1972, had suggested the insertion of a proviso to section 57 of the Indian Penal Code to the effect that a person who has been sentenced to death and whose death sentence has been commuted into that of life imprisonment and persons who have been sentenced to life imprisonment for a capital offence should undergo actual imprisonment of 14 years in Jail, since this particular matter relates more appropriately to the Criminal Procedure Code, a new section is being inserted to cover the proviso inserted by the Joint Committee.
This takes us to the Joint Committee 's recommendation on section 57 of the Penal Code that being the inspiration for clause 33.
For the sake of completeness, we may quote that recommendation: Section 57 of the Code as proposed to be amended had provided that in calculating fractions of terms of punishment, imprisonment for life should be reckoned as equivalent to rigorous imprisonment for twenty years.
In this connection attention of the Committee was brought to the aspect that sometimes due to grant of remission even murderers sentenced or commuted to life imprisonment were released at the end of 5 to 6 years.
The committee feels that such a convict should not be released unless he has served atleast fourteen years of imprisonment.
Shortly put, the parliamentary committee concerned with the amendments to the Penal Code was seriously upset by the gross reductions and remissions resulting in premature releases of life sentences for capital offences.
This proposal was transposed into the Criminal Procedure Code (Amendment) Bill in clause 33 and eventuated in the incarnation of section 433A with none in Parliament shedding a human rights tear, although before us several counsel have turned truly eloquent, even indignant, in the name of human rights.
Of course, parliamentary taciturnity does not preclude forensic examination about legislative competency.
Nor does it relieve this court, as sentinel on the qui vive, from defending fundamental rights against legislative aggression, if any flagrant excess were clearly made out.
We have to examine the legislative history of sections 432 and 433 and study the heritage of articles 72 and 161 of the Constitution.
But this we will undertake at the appropriate stage.
Before proceeding 1212 further, we may briefly formulate the contentions which have been urged by wave after wave of counsel.
The principal challenge has been based upon an alleged violation of articles 72 and 161 by the enactment of section 433A. Sarvashri Nand Lal, R.K. Garg, Mridul, Tarkunde and Dr. Singhvi, among others have argued this point with repetitive vehemence and feeling for personal freedom.
The bar is the bastion.
Indeed, Shri Garg was shocked that we were not 'shocked ' by such long incarceration being made a statutory condition for release of a 'lifer ' guilty of murder and was flabbergasted at even a faint suggestion that the President or the Governor might exercise his power of commutation guided, inter alia, by the parliamentary pointer expressed in section 433A.
The next contention voiced with convincing vigour by Shri Tarkunde was that section 433A violated article 14 being wholly arbitrary and irrational.
Shri Mridul, with persuade flavour, stressed that section 433A lacked legislative competency under the Lists and must be struck down for the additional reason of contravention of article 20(1) of the Constitution and backed his plea with American authorities, Shri Kakkar made an independent contribution, apart from endorsement of the earlier submissions by other counsel.
The main thrust of his argument, which was ingeniously appealing, was that the various provisions for remissions under the Prison Rules and other legislations had their full operation notwithstanding section 433A, thanks to the savings provision in section 5 of the Procedure Code.
Dr. Singhvi, who brought up the rear, belatedly but eruditely strengthened the arguments of those who had gone before him by reference to the abortive history of the amendment of section 302 I.P.C. and the necessity of having to read down the text of section 433A in the context of the story of its birth.
Apart from the legislative vicissitudes in the light of which he wanted us to interpret section 433A restrictively, Dr. Singhvi treated us to the provisions of the Irish Constitution and international human rights norms by way of contrast and desired us to give effect to the rules of remission at least as directives for the exercise of the high prerogative powers under articles 72 and 161 of the Constitution.
Others who appeared in the many writ petitions made supplementary submissions numerically strong but lacking legal muscles, some of which we will refer to in passing.
One of the lifers, having been an advocate by profession, chose to appear in person and made brief submissions in interpretation which did not impress us.
The Union of India, represented by the learned Solicitor General, has repudiated the infirmities imputed to section 433A.
We must appreciatively mention that he did tersely meet point by point, with 1213 persuasive precision, juristic nicety, case law erudition and fair concession.
His submissions have helped us see the issues in perspective and focus attention on fundamentals without being side tracked by frills and frippery.
There has been much over lapping inevitable in plural orality but the impressive array of arguments on a seemingly small point does credit to the expansive potential of the forensic cosmos but brings despair when we contemplate the utter chaos in court having regard to the total litigation crying for justice.
A new modus vivendi is as imperative as it is urgent if the kismet of the court system must survive the challenge 'to be or not to be '! A preliminary observation may be merited since much argument has been made on the duty of this court to uphold human rights.
Counsel for the petitioners, who now rightly toll the knell of prisoners ' reformative freedom, have not shown us any criticism in the Press the Fourth Estate or by any member or Party in Parliament or outside, about this allegedly obnoxious provision repelling rules of remission and legislations for shortening sentences, the high tide of human rights notwithstanding.
Judge Learned Hand 's famous warning about liberty lying in the bosoms of the people comes to mind.
Court comes last; where is the first ? Issues of liberty are healthy politics and those sincerely committed to human rights must come to the support of poor prisoners who have no votes nor voice and may perhaps be neglected by human rights vocalists with electoral appetites.
It is a little strange that when no dissent is raised in Press or Parliament and a legislation has gone through with ease there should be omnibus demand in court as a last refuge for release of prisoners detained under a permanent legislation, forgetting the functional limitations of judicial power.
Nevertheless, we will cover the entire spectrum of submissions including those based upon fundamental freedoms because courts cannot abdicate constitutional obligations even if Parliament be pachydermic and politicians indifferent.
(With great respect, ordinarily they are not.) Indeed, we must go further, on account of our accountability to the Constitution and the country and clarify that where constitutional liberties are imperilled judges cannot be nonaligned.
But we must remind counsel that where counterfeit constitutional claims are pressed with forensic fervour courts do not readily oblige by consenting to be stampeded.
Justice is made of sterner stuff, though its core is like 'the gentle rain from heaven ' being interlaced with mercy.
We may now proceed to deal with the principal arguments and logically we must dispose of the question of legislative 1214 competency of Parliament to enact a minimum period of detention in prison.
We may safely assume that, but for the bar of section 433A.
The rules of remission and short sentencing legislation would, in probability, result in orders of release by Government of the thousands of petitioners before us.
Thus, it is of central importance to decide whether Parliament has no legislative competence to enact the impugned provision.
We dismiss the contention of competency as of little substance.
It is trite law that the Lists in the Seventh Schedule broadly delineate the rubrics of legislation and must be interpreted liberally.
Article 246(2) gives power to Parliament to make laws with respect to any of the matters enumerated in List III.
Entries 1 and 2 in List III (especially Entry 2) are abundantly comprehensive to cover legislation such as is contained in section 433A, which merely enacts a rider, as it were, to sections 432 and 433(a).
We cannot read into it a legislation on the topic of 'prisons and prisoners '.
On the other hand, it sets a lower limit to the execution of the punishment provided by the Penal Code and is appropriately placed in the Chapter on Execution and Sentences in the Procedure Code.
Once we accept the irrefutable position that the execution, remission and commutation of sentences primarily fall, as in the earlier Code (Criminal Procedure Code, 1898), within the present Procedure Code (Chapter XXXII), we may rightly assign section 433A to entry 2 in List III as a cognate provision integral to remission and commutation, as it sets limits to the power conferred by the preceding two sections.
This Limited prescription as a proviso to the earlier prescription relates to execution of sentence, not conditions in prison or regulation of prisoner 's life.
The distinction between prisons and prisoners on the one hand and sentences and their execution, remission and commutation on the other, is fine but real.
To bastardize section 433A as outside the legitimacy of Entry 2 in List III is to breach all canons of constitutional interpretation of legislative Lists.
Parliament has competency.
Let us assume for a moment that the laws of remission and short sentencing are enacted under Entry 4 of List II.
In that event the States ' competency to enact cannot be challenged.
After all, even in prison prisoner legislation, there may be beneficient provisions to promote the habilitative potential and reduce warder prisoner friction by stick cum carrot strategies.
Offer of remission paroles, supervised releases, opportunities for self improvement by family contacts, time in community work centres and even meditational centres, can properly belong to prison legislation.
Rewards by remissions, like punishments by privations are permissible under Entry 4 of List II.
1215 Indeed, progressive rehabilitatory prison laws which have a dynamic correctional orientation and reformatory destination, including meaningful intermissions and humane remissions is on the Indian, agenda of unfulfilled legislations.
Apart from these futurological measures, we have here an existing Central Law, viz. the which in section 59(27) expressly sanctions rules for premature release.
Even so, the power of the State is subject to article 246(1) and (2) and so parliamentary legislation prevails over State legislation.
Moreover, article 254 resolves the conflict in favour of parliamentary legislation.
If a State intends to legislate under Entry 2 of List III such law can prevail in that State as against a parliamentary legislation only if presidential assent has been obtained in terms of article 254 (2).
In the present case there is hardly any doubt that section 433A must hold its sway over any State legislation even regarding 'prison and prisoners ' if its provisions are repugnant to the Central Law.
We may read the Remission Schemes not as upsetting sentences but as merely providing rewards and remissions for imprison good conduct and the like.
If the sentence is life imprisonment remissions, as such cannot help as Godse has laid down.
If the sentence is for a fixed term, remissions may help but Sec.
433A does not come in the way.
Thus, no incompatibility between Sec.
433A and remission provisions exists.
This indubitable constitutional position drove counsel to seek refuge in the limited nature of the non obstante clause in section 433A and the savings provision in section 5 of the Procedure Code itself.
The contention was that section 433A allowed free play for the rules of remission and short sentencing legislation.
The narrow scope of the non obstante clause was the basis of this argument.
It excluded the operation of section 432 only and thereby implicitly sanctioned the operational survival of Remission Rules made by the various States.
This argument hardly appeals to reason because it fails to square with the command of the substantive text and virtually stultifies the imperative part of the Section.
In the province of interpretation, industry and dexterity of counsel can support any meaning, what with lexical plurality, case law prodigality and profusion of canons to support any position.
We had better base ourselves on the plain purpose and obvious sense of the statute which is a sure semantic navigatory before turning to erudite alternatives.
Oliver Wendel Holmes has wisely said: "It is sometimes more important to emphasize the obvious than to elucidate the obscure." Another sage counsel is Frankfurter 's three fold advice : 1216 (1) Read the statute; (2) read the statute, (3) read the statute ! If we read section 433A and emphasise the obvious, it easily discloses the dividing line between sense and non sense.
The fasciculus of clauses (sections 432, 433 and 433A), read as a package, makes it clear that while the Code does confer wide powers of remission and com mutation of sentences it emphatically intends to carve out an extreme category from the broad generosity of such executive power.
The non obstante clause, in terms, excludes section 432 and the whole mandate of the rest of the Section necessarily subjects the operation of section 433(a) to a serious restriction.
This embargo directs that com mutation in such cases shall not reduce the actual duration of imprisonment below 14 years.
Whether that Section suffers from any fatal constitutional infirmity is another matter but it does declare emphatically an imperative intent to keep imprisoned for at least 14 years those who fall within the sinister categories spelt out in the operative part of section 433A.
The argument is that the non obstante clause covers only section 432 and significantly omits the common phraseology 'or any other law in force ' and, therefore, all other provisions of law which reduce or remit the length of the incarceration prevail over section 433A.
In particular, the Prison Rules and local short sentencing laws will diminish the length of prison tenancy of all the lifers, despite the command of section 433A.
Why ? Because the non obstante clause is limited in nature and excludes only section 432.
The , is 'existing law ' saved by article 366(10) and article 372(1).
Section 59 of that Act vests rule making power in States.
Specifically section 59(5) refers to rules regulating "the award of marks and the shortening of sentences".
Clearly, therefore, the States have the power to make rules on Remission Systems and many States have, for long, made and worked such rules.
They are intra vires, since even new legislations on remissions and rewards are good under Entry 4 of List II.
These vintage schemes do not vanish with the enactment of the Constitution but suffer a partial eclipse if they conflict with and become repugnant to a Central law like the Procedure Code.
If section 433A, ' by sheer repugnancy, forces a permanent holiday on the prison remission laws of the States vis a vis certain classes of 'lifers ', the former must prevail in situations of irreconcilability.
Assuming that Rules under the are valid and cannot be dismissed as State law, a harmonious reading of section 433A and the Prison Rules must be the way out.
Otherwise, the later law must prevail or implied repeal may be inferred.
We may not be 1217 compelled to explore these ramifications here since the Remission Rules can peacefully co exist with section 433A once we grasp the ratio in Godse 's case and Rabha 's case.
We cannot agree with counsel that the non obstante provision impliedly sustains.
It is elementary that a non obstante tail should not wag a statutory dog (see for similar idea, "The Interpretation and Application of Statutes by Reed Dickerson, p. 10).
This court has held, way back in 1952 in Aswini Kumar Ghose that a non obstante clause cannot whittle down the wide import of the principal part.
The enacting part is clear the non obstante clause cannot cut down its scope.
The learned Solicitor General reinforced the conclusion by pointing out that the whole exercise of section 433A, as the notes on clauses revealed, was aimed at excluding the impact of Prison Remissions which led to unduly early release of graver 'lifers '.
Parliament knew the 'vice ', had before it the State Remission Systems and sought to nullify the effect in a certain class of cases by use of mandatory language.
To read down section 433A to give overriding effect to the Remission Rules of the State would render the purposeful exercise a ludicrous futility.
If 'Laws suffer from the disease of Language ', courts must cure the patient, not kill him.
We have no hesitation to hold that notwithstanding the 'notwithstanding ' in section 433A, the Remission Rules and like provisions stand excluded so far as 'lifers ' punished for capital offences are concerned.
The learned Solicitor General explained why the draftsman was content with mentioning only section 432 in the non obstante clause.
The scheme of section 432, read with the court 's pronouncement in Godse 's case (supra), furnishes the clue.
We will briefly indicate the argument and later expatiate on the implications of Godse 's case (supra) as it has an important bearing on our decision.
Sentencing is a judicial function but the execution of the sentence, after the courts pronouncement, is ordinarily a matter for the Executive under the Procedure Code, going by Entry 2 in List III of the Seventh Schedule.
Keeping aside the constitutional powers under articles 72 and 161 which are 'untouchable ' and 'unapproachable ' 1218 for any legislature, let us examine the law of sentencing, remission and release.
Once a sentence has been imposed, the only way to terminate it before the stipulated term is by action under sections 432/433 or articles 72/161.
And if the latter power under the Constitution is not invoked, the only source of salvation is the play of power under sections 432 and 433(a) so far as a 'lifer ' is concerned.
No release by reduction or remission of sentence is possible under the corpus juris as it stands, in any other way.
The legislative power of the State under Entry 4 of List II, even if it be stretched to snapping point, can deal only with Prisons and Prisoners, never with truncation of judicial sentences.
Remissions by way of reward or otherwise cannot cut down the sentence as such and cannot, let it be unmistakably under stood, grant final exit passport for the prisoner except by Government action under section 432(1).
The topic of Prisons and Prisoners does not cover release by way of reduction of the sentence itself.
That belongs to Criminal Procedure in Entry 2 of List III although when the sentence is for a fixed term and remission plus the period undergone equal that term the prisoner may win his freedom.
Any amount of remission to result in manumission requires action under section 432(1), read with the Remission Rules.
That is why Parliament, tracing the single source of remission of sentence to section 432, blocked it by the non obstante clause.
No remission, however long, can set the prisoner free at the instance of the State, before the judicial sentence has run out, save by action under the constitutional power or under section 432.
So read, the inference is inevitable, even if the contrary argument be ingenious, that section 433A achieves what it wants arrest the release of certain classes of 'lifers ' before a certain period, by blocking section 432.
articles 72 and 161 are, of course, excluded from this discussion as being beyond any legislative power to curb or confine.
We are loathe to loading this judgment with citations but limit it to two leading authorities in this part of the case.
Two fundamental principles in sentencing jurisprudence have to be grasped in the context of the Indian corpus juris.
The first is that sentencing is a judicial function and whatever may be done in the matter of executing that sentence in the shape of remitting, commuting or otherwise abbreviating, the Executive cannot alter the sentence itself.
In Rabha 's case, a Constitution Bench of this Court illumined this branch of law.
What is the jural consequence of a remission of sentence ? 1219 In the first place, an order of remission does not wipe out the offence, it also does not wipe out the conviction.
All that it does is to have an effect on the execution of the sentence; though ordinarily a convicted person would have to serve out the full sentence imposed by a court, he need not do so with respect to that part of the sentence which has been ordered to be remitted.
An order of remission thus does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court, though the order of conviction and sentence passed by the court still stands as it was.
The power to grant remission is executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court.
This distinction is well brought out in the following passage from Weater 's "Constitutional Law" on the effect of reprieves and pardons vis a vis the judgment passed by the court imposing punishment, at p. 176, para 134: "A reprieve is a temporary suspension of the punishment fixed by law.
A pardon is the remission of such punishment.
Both are the exercise of executive functions and should be distinguished from the exercise of judicial power over sentences. 'The judicial power and the executive power over sentences are readily distinguishable ', observed Justice Sutherland, 'To render a judgment is a judicial function.
To carry the judgment into effect is an executive function.
To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment but does not alter it qua judgment.
" Though, therefore, the effect of an order of remission is to wipe out that part of the sentence of imprisonment which has not been served out and thus in practice to reduce the sentence to the period already undergone, in law the order of remission merely means that the rest of the sentence need not be undergone, leaving the order of conviction by the court and the sentence passed by it untouched.
The relevance of this juristic distinction is that remission cannot detract from the quantum or quality of sentence or its direct and 1220 side effects except to the extent of entitling the prisoner to premature freedom if the deduction following upon the remission has that arithmetic effect.
Ordinarily, where a sentence is for a definite team, the calculus of remissions may benefit the prisoner to instant release at that point where the subtraction results in zero.
Here, we are concerned with life imprisonment and so we come upon another concept bearing on the nature of the sentence which has been highlighted in Godse 's case.
Where the sentence is indeterminate and of uncertain duration, the result of subtraction from an uncertain quantity is still an uncertain quantity and release of the prisoner cannot follow except of some fiction of quantification of a sentence of uncertain duration.
Godse was sentenced to imprisonment for life.
He had earned considerable remissions which would have rendered him eligible for release had life sentence been equated with 20 years of imprisonment a la section 55 I.P.C.
On the basis of a rule which did make that equation, Godse sought his release through a writ petition under article 32 of the Constitution.
He was rebuffed by this Court.
A Constitution Bench, speaking through Subba Rao, J., took the view that a sentence of imprisonment for life was nothing less and nothing else than an imprisonment which lasted till the last breath.
Since death was uncertain, deduction by way of remission did not yield any tangible date for release and so the prayer of Godse was refused.
The nature of a life sentence is incarceration until death, judicial sentence of imprisonment for life cannot be in jeopardy merely because of long accumulation of remissions.
Release would follow only upon an order under section 401 of the Criminal Procedure Code, 1898 (corresponding to section 432 of the 1973 Code) by the appropriate Government or on a clemency order in exercise of power under articles 72 or 161 of the Constitution.
Godse (supra) is authority for the proposition that a sentence of imprisonment for life is one of "imprisonment for the whole of the remaining period of the convicted person 's natural life".
The legal position has been set out in the context of remissions in life sentence cases thus: Unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison.
The rules framed under the enable such a prisoner to earn remissions ordinary, special and State 1221 and the said remissions will be given credit towards his term of imprisonment.
For the purpose of working out the remissions the sentence of transportation for life is ordinarily equated with a definite period.
but it is only for that particular purpose and not for any other purpose.
As the sentence of transportation for life or its prison equivalent, the life imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predicate the time of his death.
That is why the rules provide for a procedure to enable the appropriate Government to remit the sentence under section 401 of the Code of Criminal Procedure on a consideration of the relevant factors, including the period of remissions earned.
The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under section 401 of the Code of Criminal Procedure, it did not remit the entire sentence.
We, therefore, hold that the petitioner has not yet acquired any right to release.
In Godse 's case, Subha Rao, J., also drew the conceptual lines of 'remission ', 'sentence ' and 'life sentence '. 'Remission ' limited in time, helps computation but does not ipso jure operate as release of the prisoner.
But when the sentence awarded by the judge is for a fixed term the effect of remissions may be to scale down the term to be endured and reduce it to nil, while leaving the factum and quantum of the sentence in tact.
That is the ratio of Rabha (supra).
Here, again if the sentence is to run until life lasts, remissions, quantified in time, cannot reach a point of zero.
This is the ratio of Godse.
The inevitable conclusion is that since in section 433A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release.
In this view, the remission rules do not militate against section 433A and the forensic fate of Godse (who was later released by the State) who had stock piled huge remissions without acquiring a right to release, must overtake all the petitioners until 14 years of actual jail life is suffered and further an order of release is made either under section 432 or articles 72/161 of the Constitution.
The next submission urged to show that section 433A is bad is based on article 20(1) of the Constitution.
It is a rule of ancient English vintage that export facto infliction of heavier penalties that prevailed at the time of commission of the offence is obnoxious.
It is incarnated as article 20(1) in our Constitution.
The short question is whether the inflexible insistence on 14 years as a minimum term for release retroactively enlarges the punishment.
Another argument addressed to reach the same conclusion is that if at the time of the 1222 commission of the offence a certain benign scheme of remissions ruled.
the penalty to which he would then have been subjected was not the punishment stated in the Penal Code but that sentence reduced or softened by the Remission Scheme or short sentencing provision.
On this basis, the lifers would ordinarily have been released well before 14 years which is the harsh but mandatory minimum prescribed by section 433A.
This indirectly casts a heavier punishment than governed the Crime when it was committed.
Neither argument has force.
The first one fails because section 302 I.P.C. (or other like offence) fixes the sentence to be life imprisonment.
14 Years ' duration is never heavier than life term.
The second submission fails because a remission, in the case of life Imprisonment, ripens into a reduction of sentence of the entire balance only when a final release order is made.
Godse (supra) is too emphatic and unmincing to admit of a different conclusion.
The haunting distance of death which is the terminus ad quem of life imprisonment makes deduction based on remission indefinite enough not to fix the date with certitude.
Thus, even if remissions are given full faith and credit, the date of release may not come to pass unless all the unexpired, uncertain balance is remitted by a Government order under section 432.
If this is not done, the prisoner will continue in custody.
We assume here that the constitutional power is kept sheathed.
Let us assume for the sake of argument that remissions have been earned by the prisoner.
In Murphy vs Commonwealth, ; , referred to by Cooley and cited before us (infra), it has been held that earned remissions; may not be taken away by subsequent legislation.
Maybe, direct effect of such a privative measure may well cast a heavier penalty.
We need not investigate this position here.
A possible confusion creeps into this discussion by equating life imprisonment with 20 years imprisonment.
Reliance is placed for this purpose on section 55 IPC and on definitions in various Remission Schemes.
All that we need say, as clearly pointed out in Godse, is that these equivalents are meant for the limited objective of computation to help the State exercise its wide powers of total remissions.
Even if the remissions earned have totalled upto 20 years, still the State Government may or may not release the prisoner and until such a release order remitting the remaining part of the life sentence is passed, the prisoners cannot claim his liberty.
The reason is that life sentence is nothing less than life long imprisonment.
Moreover, the penalty then and now is the same life term.
And remission 1223 vests no right to release when the sentence is life imprisonment.
No greater punishment is inflicted by section 433A than the law annexed originally to the crime.
Nor is any vested right to remission cancelled by compulsory 14 years jail life once we realise the truism that a life sentence is a sentence for a whole life.
see Sambha Ji Krishan Ji vs State of Maharashtra, AIR 1974 SC 147 and State of Madhya Pradesh vs Ratan Singh & ors.
[1976] Supp.
SCR 552.
Maybe, a difference may exist in cases of fixed term sentences.
Cooley lends support : Privilege existing at time of commission of offence (e.g. privilege of earning a shortening of sentence by good behaviour) cannot be taken away by subsequent statute.
The next submission, pressed by Shri Kakkar with great plausibility, is that section 5 of the Procedure Code saves all remissions, short sentencing schemes as special and local laws and, therefore, they must prevail over the Code including section 433A. Section 5 runs thus : 5.
Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
The anatomy of this savings section is simple, yet subtle.
Broadly speaking, there are three components to be separated.
Firstly, the Procedure Code generally governs matters covered by it.
Secondly, if a special or local law exists covering the same area, this latter law will be saved and will prevail.
The short sentencing measures and remission schemes promulgated by the various States are special and local laws and must over ride.
Now comes the third component which may be clinching.
If there is a specific provision to the contrary, then that will over ride the special or local law.
Is section 433A a specific law contra ? If so, that will be the last word and will hold even against the special or local law.
Three rulings were cited by the learned Solicitor General to make out that section 433A is a specific law.
A Bombay case in AIR 1941 Bom.
146, he frankly stated, takes a contrary but scrappy view.
The Judicial Committee in Pakala Narayana Swamy vs The King Emperor inconclusively considered what is a specific law, in a similar setting.
Two later cases of Lahore [a full bench of five .
1224 judges] and of Allahabad [a bench of three judges] discussed almost an identical issue and held that some provisions of the Procedure Code were specific sections to the contrary and would repeal any special law on the subject.
Section 1(2) of the Criminal Procedure Code, 1898, is the previous incarnation of section 5 of the Present Code and contains virtually the same phraseology.
The expression 'specific provision to the contrary ' in the Code of 1898 was considered in the two Full Bench Decisions (supra).
The setting in which the issue was raised was precisely similar and the meaning of 'specific provision to the contrary ' was considered by Young, C.J. in the Lahore case where the learned Judge observed : The word 'specific ' is defined in Murray 's Oxford Dictionary as 'precise or exact in respect of fulfillment, conditions or terms; definite, explicit '.
In a similar situation, the same words fell for decision in the Allahabad case where Braund, J., discussed the meaning of 'specific provision ' in greater detail and observed : I have, I confess, entertained some doubt as to what exactly the words 'specific provisions ' mean.
I think first, that they must denote something different from the words 'express provision '.
For a provision of a statute to be an 'express ' provision affecting another statute or part of it, it would have, I think, to refer in so many words to the other statute or to the relevant portion of it and also to the effect intended to be produced on it.
Failing this, it could hardly be aid to be 'express '.
But the word 'specific ' denotes, to my mind, something less exacting than the word 'express '.
It means, I think, a provision which 'specifies ' that some 'special law ' is to be 'affected ' by that particular provision.
A dictionary meaning of the very 'to specify ' as given in Murray 's New English Dictionary, is 'to mention, speak of or name (something) definitely or explicitly; to set down or state categorically or particularly. ' and a meaning of the adjective 'specific ' in the same dictionary is 'precise definite, explicit. exactly named or indicated or capable of being so, precise, particular. ' What I think the words 'specific provision ' really mean therefore is that the particular 1225 provision of the Criminal Procedure Code must, in order to 'affect ' the 'special. law, ' clearly indicate, in itself and not merely by implication to be drawn from the statute generally, that the 'special law ' in question is to be affected without necessarily referring to that 'special law ' or the effect on it intended to be produced in express terms.
Lord Hatherley in at 938 has defined the word 'specific ' in common parlance of language as meaning 'distinct from general ' . 'It would, no doubt, be possible to multiply illustrations of analogous uses of the words 'specify ' and 'specific '.
But this is I think sufficient to show that, while requiring something less than what is 'express ', they nevertheless require something which is plain certain and intelligible and not merely a matter of inference or implication to be drawn from the statute generally.
That, to my mind, is what is meant by the word 'specific ' in section 1(2), Criminal P.C.
In an English case Buckley J., has interpreted the Word 'specific ' to mean explicit and definable.
While Indian usage of English words often loses the Atlantic flavour and Indian Judges owe their fidelity to Indian meaning of foreign words and phrases, here East and West meet and 'specific ' is specific enough to avoid being vague and general.
Fowler regards this word related to the central notion of species as distinguished from genus and says that it is 'often resorted to by those who have no clear idea of their meaning but hold it to diffuse an air of educated precision '.
Stroud says 'specifically. ' means 'as such '.
Black gives among other things, the following meaning for 'specific ': definite, explicit; of an exact or particular nature. particular; precise.
While legalese and English are some times enemies we have to go by judicialese which is the draftsman 's lexical guide.
The contrary view in the Bombay case is more assertive than explanatory, and ipse dixit, even if judicial, do not validate themselves.
We are inclined to agree with the opinion expressed in the Lahore and Allahabad cases (supra).
A thing is specific if it is explicit.
It ' need not be express.
The anti thesis is between 'specific ' and 'indefinite ' or 'omnibus ' and between 'implied ' and 'express '.
What is precise, exact definite and explicit is specific.
1226 Sometimes, what is specific may also be special but yet they are distinct in semantics.
From this angle, the Criminal Procedure Code is a general Code.
The remission rules are special laws but section 433A is a specific, explicit, definite provisions dealing with a particular situation.
Or narrow class of cases, as distinguished from the general run of cases covered by section 432 Cr.
P. C. Section 433A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicity to a particularised treatment.
It follows that section 433A applies in preference to any special or local law because section 5 expressly declares that specific provisions, if any, to the contrary will prevail over any special or local law.
We have said enough to make the point that 'specific ' is specific enough and even though 'special ' to 'specific ' is near allied and 'thin partition do their bounds divide ' the two are different.
Section 433A escapes the exclusion of section 5.
The stage is now set for considering the contention that section 433A violates article 14 for two reasons.
It arbitrarily ignores the unequal, yet vital, variations of crimes and criminals so relevant to punishment in.
Our age of penological enlightenment and subjects them equally to a terrible term of 14 years in jail as a mandatory minimum.
Treating unequals equally is anathema for article 14.
Secondly, the Section inflicts, with anti reformative inhumanity and Procrustean cruelty, a prolonged minimum of 14 years ' servitude on every life arbitrarily disregarding the audit report on progressive healing registered by some as against others.
The capricious insistence on continued detention of a prisoner long after he has been fully resocialised is a penological overkill, purposeless torture and constitutional blunder.
These two inter twined arguments cannot be appreciated without investigating the rational penal policy of our system and the brutal impertinence of rigorous incarceration beyond the point of habilitation, what with Mahatma Gandhi 's therapeutic approach to criminals and Maneka Gandhi 's accent on fairness in privative processes where personal liberty is involved.
The larger issues of sentencing legitimacy and constitutionality have been examined by this court in the past and throws us well into a different level of criminal justice.
Of course, finer propositions need a sublime perception for fuller appreciation as the learned Judges of this Court have invariably shown.
Here, the proposition is Mr. Tarkunde and Mr. Garg, et al, have pressed this to excess the primary purpose of prison sentence is hospital setting and 1227 psychic healing, not traumatic suffering, curative course, not retributive force, presented these days as a sophisticated variant called public denunciation.
This submission excludes other punitive objectives such as deterrence through example of prolonged pain and retribution through condign infliction.
A penological screening is fundamental to sentencing jurisprudence but, for our present pursuit, the only relevant point is whether rehabilitation is such a high component of punishment as to render arbitrary, irrational and therefore, unconstitutional, any punitive technique which slurs over prisoner reformation.
We feel that correctional strategy is integral to social defence which is the final justification for punishment of the criminal.
And since personal injury can never psychically heal, it is obdurate obscurantism for any legislative criminologists to reject the potential for prisoner re socialisation from the calculus of reformative remission and timely release.
The compulsive span of 14 years in custody, whether the man within the 'lifer ' has become an angel by turning a new page or remains a savage, thanks to jail regimen and jailor relations, sounds insensitive.
Karuna, daya, prema and manavata, are concepts of spiritualised humanism secularly implicit in our constitutional preamble.
Alienation of our justice system from our cultural quintessence, thanks to the hang over of the colonial past, may be the pathological root of the brute penology which confuses between crime and criminal.
Torturing the latter to terminate the former is not promotional of human dignity and fair legal process.
Be that as it may, this court in Sunil Batra, has observed : The winds of change must blow into our carcers and self expression and self respect and self realization creatively substituted for the dehumanising remedies and 'wild life ' techniques still current in the jail armoury.
A few prison villains they exist shall not make martyrs of the humane many; and even from these few, trust slowly begets trust.
Sarvodaya and antyodaya have criminological dimensions which our social justice awareness must apprehend and actualize.
I justify this observation by reference to the noble but inchoate experiment (or unnoticed epic) whereby Shri Jai Prakash Narain redemptively brought murderously dangerous dacoits of Chambal Valley into prison to turn a responsible page in their life in and out of jail.
The rehabilitative follow up was, perhaps, a flop.
* * * * * 1228 Prison laws, now in bad shape, need rehabilitation; prison staff, soaked in the Raj past, need reorientation; prison houses and practices, a hangover of the die hard retributive ethos, need reconstruction; prisoners, these noiseless, voiceless human heaps or for therapeutic technology, and prison justice, after long jurisprudential gestation, must now be re born through judicial midwifery, if need be.
Again, We share the concern and anxiety of our learned brother Krishna Iyer, J. for reorientation of the outlook towards prisoners and the need to take early and effective steps for prison reforms.
Jail Manuals are largely a hangover of the past, still retaining anachronistic provisions like whipping and the ban on the use of the Gandhi cap.
Barbaric treatment of a prisoner from the point of view of his rehabilitation and acceptance and retention in the mainstream of social life, becomes counter productive in the long run.
The Model Jail Manual, prepared by the Indian Prison echelons plus a leading criminologist, Dr. Panakkal, back in 1970, has stated, right at the outset, in its Guiding Principles: Social reconstruction and rehabilitation as objectives of punishment attain paramount importance in a Welfare State The supreme aim of punishment shall be the protection of society.
through the rehabilitation of the offender Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking away from him the right of self determination.
Therefore the prison system should not except as incidental to justifiable segregation or maintenance of discipline, aggravate the suffering inherent in such a situation.
The institution should be a centre of correctional treatment, where major emphasis shall be given on the re education and reformation of the offender.
The impacts of institutional environment and treatment shall aim at producing constructive changes in the offender, as would be having profound and lasting effects on his habits, attitudes, approaches and on his total value schemes of life.
1229 One of the subjects dealt with in the Manual is 'release planning '.
We need nat tarry long to tell the truth that every sinner has a future, given the social chance, and every prisoner a finer chapter as a free person, given the creative culturing of his psychic being.
The measure of this process is not the mechanical turn of the annual calendar fourteen times over, but the man making methodology of the correctional campus, together with individual response.
It follows that an inflexible 14 year term for lifers under section 433A eschews chances of human change and puts all the penal eggs in the linear cellular basket.
May be, the failure of prisons (this is the title of a recent book by a competent criminologist) has not occurred to Parliament when it enacted section 433A or the Gandhian gospel has, by 1978, lost its living impact on the parliamentary majority in the field of prison reform.
We cannot speculate on these imponderables and must do our batting from within textual crease.
Surely arbitrary penal legislation will suffer a lethal blow under article 14.
But the main point here is whether section 433A harbours this extreme vice of arbitrariness or irrationality.
We must remember that Parliament as legislative instrumentality, with the representatives of the people contributing their wisdom to its decisions, has title to an initial presumption of constitutionality.
Unless one reaches far beyond unwisdom to absurdity, irrationality, colourability and the like, the court must keep its hands off.
A Judicial journey to the penalogical beginning reveals that social defence is the objective.
The triple purposes of sentencing are retribution, draped sometimes as a public denunciation, deterrence, another scary variant, with a Pavlovian touch, and in our era of human rights, rehabilitation, founded on man 's essential divinity and ultimate retrievability by raising the level of consciousness of the criminal and society.
We may avoid, for the nonce, theories like 'society prepares the crime, the criminal commits its; ' or that crime is the product of social excess ' or that 'poverty is the mother of crime '.
Judicial pronouncements are authentic guidance and so a few citations may serve our purpose.
In Sobraj, this court observed: It is now well settled, as a stream of rulings of courts proves, that deterrence, both specific and general rehabilitation and institutional security are vital considerations.
Compassion wherever possible and cruelty only where inevitable, is the art of correctional confinement.
When prison policy advances such a valid goal, the court will not intervene officiously.
1230 The overall attitude was incorporated as a standard by the American National Advisory Commission on Crime, Justice Standards and Goals: In a series of decisions this court has held that, even though the Governmental purpose be legitimate and substantial, that Purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.
The breadth of legislative abridgment must be viewed in the light of loss drastic means for achieving the same basic purpose.
Earlier, this court in Hiralal Mullick 's case stated: The dignity and divinity, the self worth and creative potential of every individual is a higher value of the Indian people, .
Again in Mahammud Giasuddin, a bench belighted in the penological basics: It is thus plain that crime is a pathological aberration, that criminal can ordinarily be redeemed, that State has to rehabilitate rather than avenge.
The sub culture that leads to anti social behaviour has to be countered not by undue cruelty but by re culturisation.
Therefore the focus of interest in penology is the individual, and the goal is salvaging him for society.
The infliction of harsh and savage punishment is thus a relic of past and regressive times.
The human to day views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defence.
We, therefore, consider a therapeutic rather than an 'in terrorem ' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind.
In the words of George Bernard Shaw: 'if you are to punish a man retributively, you must injure him.
If you are to reform him, you must improve him and, men are not improved by injuries '.
We emphasise here that Remission Schemes offer healthy motivation for better behaviour, inner improvement and development of social fibre.
While eccentricities of remission reducing a murderer 's life term to short spells of 2 or 3 years in custody may scandalise penologists, such fear may not flabbergast any sociologist if by sheer 1231 good behaviour, educational striving and correctional success, a prisoner earns remission enough for release after serving 7 or 8 years.
It makes us blush to jettison Gandhiji and genuflect before Hammurabi abandon reformatory humanity and become addicted to the 'eye for an eye ' barbarity: Said Churchill: The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.
The mood and temper of our Constitution certify that arbitrary cruelty to the prisoner and negative attitude to reformation of the individual are obnoxious.
Even the recent ruling in Bachan Single on the vires of death penalty upholds this high stance.
Basic to the submissions of counsel for the petitioners is the humane assumption that the object of sentencing is not deterrent, torture simpliciter but mainly the rehabilitation of the prisoner.
Human dignity, emphasised in the Preamble, compassion, implicit in the prescription of fair procedure in article 21, and the irrationality of arbitrary incarceratory brutality violative of article 14 invest the demand for a reformatory component in jail regimen with the status of a constitutional requirement.
We need not prolong the judgment by substantiation of this proposition because the learned Solicitor General, with sweet reasonableness and due regard to the precedents of this court, Has not disputed that reform of the prisoner is one of the major purpose of punishment.
The sequiter is irresistible.
Any provision that wholly or substantially discards the relevancy of restoration of the man mired by criminality is irrational.
How is section 433A affected by this vice? The argument is that 14 years in prison is an inordinate spell which is not only an unrewarding torment but a negation of reformation indeed, the promotion of embittered hostility to society and hardening of, brutality counter productive of hopeful humanization.
The argument pressed before us is that section 433A does injustice to the imperative of reformation of the prisoner.
Had his in prison good behaviour been rewarded by reasonable remissions linked to improved social responsibility, nurtured by familial contacts and liberal 1232 parol, cultured by predictable, premature release, the purpose of habilitation would have been served.
If law section 433A in this case rudely refuses to consider the subsequent conduct of the prisoner and forces all convicts, good, bad and indifferent, to serve a fixed and arbitrary minimum it is an angry flat untouched by the proven criteria of reform.
Surely, an avant garde penologist or T.M. Oriented jurist would regard enlightened sentencing as abbreviated life behind bars coupled with rehabilitatory exposure inside and outside.
May be, he may even criticise the draconian duration, blindly running beyond 14 years, as penological illiteracy.
Criminologists concentrate on the activisation of the creative intelligence of the culprit by various procedures and by his release from jail at a cut off point when the jural netural tests of mental moral normalcy, otherwise called Rehabilitation Indices, are satisfied.
To violate these research results and to be addicted to a 14 year prison term is a penal superstition without any rational support and, therefore, is arbitrary.
Why not 20 years? or a whole life? No material, scientific cultural or other has been placed for our consumption by the State indicating that if a murderer does not spend at least 14 endless years inside jail he will be a social menace when released.
Sadism and impressionism even if it incarnates as legislation, cannot meet the social science content of articles 14 and 21 which are part of the suprema lex.
While the light of this logic is not lost on US and the non institutional alternatives to prison as the healing hope of humane habilitation are worthy of exploration, we are in the province of constitutionality where the criteria are different.
We have no doubt that reform of the prisoner, as a social defence strategy, is high on the agenda of Indian penal policy reform.
The question is whether a 14 year term as a mandatory minimum, is so extremist and arbitrary as to become unconstitutional, even assuming the rehabilitatory recipe to be on our penological pharmacopea.
We cannot go that far as judges, whatever our personal dispositions may incline us were we legislators.
Two broad grounds to negative this extreme position strike us.
Deterrence, as one valid punitive component has been accepted in Sunil Batra by a five judge bench (see Desai J. supra).
So, a measure of minimum incarceration of 14 years for the gravest class of crimes like murder cannot be considered shocking, having regard to the escalation of Horrendous crime in the country and the fact that this court has upheld even death penalty (limited though to 'the 1233 rarest of rare cases '.
The time has not, perhaps, arrived to exclude deterrence and even public denunciation altogether.
Secondly, even For correctional therapy, a long 'hospitalisation ' in prison may sometimes be needed.
To change a man 's mind distorted by many baleful events, many primitive pressures, many evil companies and many environmental pollutions, may not be an instant magic but a slow process assuming that correctional strategies are awarely available in prisons, 'a consummation devoutly to be wished ' but notoriously rather victoriously, absent.
We agree that many studies by criminologists high powered commissions and court pronouncements have brought home the truth of the lie; once a murderer always a murderer and, therefore, early release will spell a hell of manslaughter.
Social scientists must accept Robert Ingersoll 's tart remark: "In the history of the world, the man who is ahead has always been called a heretic".
We, as Judges, have no power to legislate but only to invigilate.
In the current state of things and ethos of society we have to content ourselves with the thought that, personal opinions apart, a very long term in prison for a murderer cannot be castigated as so outrageous as to be utterly arbitrary and violative of rational classification between lifers and as so blatantly barbarous as to be irrational enough to be struck down as ultra vires.
Even the submission that no penal alibi justifies a prisoner being kept walled off from the good earth if, by his e. conduct, attainments and proven normalisation, he has become fit to be a free citizen, cannot spell unconstitutionality.
And the uniform infliction of a 14 year minimum on the transformed and the unkept is an unkind disregard for redemption inside prison.
Even so, to overcome the constitutional hurdle much more material, research results and specialist reports, are needed.
How to assert who has become wholly habilitated and who not, unless you rely on the Rehabilitation Index ? Currently, we have theories, and experiments awaiting social scientists ' certificates of certitude.
For instance, deep relaxation recipes and meditational techniques, researched with scientific tools, well known and sophisticated experiments, neurological and psychological, claim to have achieved a break through and has put across to the scientific world a Rehabilitation Index.
This complex of tests reference to which, culled from a publication titled "Criminology and Consciousness, Series I," (developed by the Maharshi European Research University according to 1234 scientifically established standard measures of successful rehabilitation), as credentials enough to be taken cognisance of in some Indian Prisons.
There are sceptics and skepticism is good because it 'is the chastity of the intellect '.
But to dogmatic disbelievers one may only say with John Dewey: "Every great advance in science has issued from a new audacity of imagination".
But courts, when assaying constitutionality, have to wait till the Establishment accepts it in some measure.
So, we are not now in a position to assert, as Court, that at least a 14 year term for a murderer is arbitrary, unusually cruel and unconstitutional.
We hold against violation of article 14.
Another argument based on article 14 may also be briefly dealt with, although we are not carried away by it.
In terms, section 433A applies only To two classes of life imprisonment.
The true content of the provision is that in the two specific categories specified in section 433A the prisoner shall actually suffer the minimum jail tenure set in it.
There are around forty one other offences, including attempt to murder, homicide not amounting to murder, grievous hurt, dacoity and breach of trust, where life sentence is the maximum.
But the framers of the Penal Code have classified maximum sentences principally on the basis of gravity of the crime.
By that token, where a terrible crime has been committed the Penal Code has prescribed death penalty as the maximum.
The attack on its constitutionality has recently been repulsed by this Court.
The main mass of cases where life imprisonment is actually inflicted by the courts belongs to the "either or" category where the court has the responsible discretion to impose death penalty or life imprisonment and actually awards only life imprisonment.
Even in cases where the court sentences a convict to death the appropriate Government often by virtue of section 433(a) reduces the lethal rigour to life term.
These classes of cases are categorised separately by section 433A.
When the crime is so serious as to invite death penalty as a possible sentence, Parliament, in its wisdom, takes the view that ameliorative judicial award or statutory commutation by the executive should not devalue the sterness of the sentence to be equated with the life sentence awarded for the obviously less serious clauses of offences where the law itself has fixed a maximum of only life imprisonment, not death penalty as a harsher alternative.
The logic is lucid although its wisdom, in the light of penological thought, is open to doubt.
We have earlier stated the parameters of judicial restraint and, as at present advised, we are not satisfied that the classification is based on an irrational differentia unrelated to the punitive end of social defence.
Suffice it to say here, the classification, if due respect to Parliament 's choice is given, 1235 cannot be castigated as a capricious enough to attract the lethal consequence of article 13 read with article 14.
Law and Life deal in relatives, not absolutes.
No material, apart from humane hunches, has been placed by counsel whose focus has been legal, not social science oriented, to show that prolonged jail life reaches a point of no return and is unreasonable.
On the materials now before us, we do not strike down section 433A on the score of capricious classification.
Some day, when human sciences have advanced far beyond and non institutional alternatives have fully developed, parliamentary faith in the fourteen year therapy may well change or be challenged as unscientific credulity and superstitious cruelty.
But that is a far away day and futurology is not a forensic speciality.
The womb of tomorrow may hold, like Krishna to Kamsa, lethal omen to the faith of to day.
We rest content with Bertrand Russel 's words of scepticism.
The essence of the Liberal outlook lies not in what opinions are held, but in how they are held: instead of being held dogmatically they are held tentatively, and with a consciousness that new evidence may at any moment lead, to their abandonment.
This is the way opinions are held in science, as opposed to the way in which they are held in theology.
The major submissions which deserve high consideration may now be taken up.
They are three and important in their outcome in the prisoners ' freedom from behind bars.
The first turns on the 'prospectivity ' (loosely so called) or otherwise of section 433A.
We have already held that article 20(1) is not violated but the present point is whether.
On a correct construction.
those who have been convicted prior to the coming into force of section 433A are bound by the mandatory limit.
If such convicts are out of its coils their cases must be considered under the Remission Schemes and 'Short sentencing ' laws.
The second plea, revolves round 'pardon jurisprudence ', if we may coarsely call it that way, enshrined impregnably in articles 72 and 161 and the effect of section 433A thereon.
The power to remit is a constitutional power and any legislation must fail which seeks to curtail its scope and emasculate its mechanics.
Thirdly, the exercise of this plenary power cannot be left to the fancy frolic or frown of Government, State or Central, but must embrace reason, relevance and reformation, as all public power in a republic must.
On this basis; we will have to scrutinise and screen the survival value of the various Remission Schemes and short sentencing projects, not to test their supremacy over section 433A, but to train the wide and beneficient power to remit life sentences without the hardship of fourteen fettered years.
1236 Now to the first point.
lt is trite law that civilised criminal jurisprudence interdicts retroactive impost of heavier suffering by a later law.
Ordinarily, a criminal legislation must be so interpreted as to speak futuristically.
We do not mean to enter the area of article 20(l) which has already been dealt with.
What we mean to do is so to read the predicate used in section 433A as to yield a natural result, a humane consequence, a just infliction.
While there is no vested right for any convict who has received a judicial sentence to contend that the penalty should be softened and that the law which compels the penalty to be carried out in full cannot apply to him, it is the function of the court to adopt a liberal construction when dealing with a criminal statute in the ordinary course of things.
This humanely inspired canon, not applicable to certain terribly anti social categories may legitimately be applied to section 433A. (The sound rationale is that expectations of convicted citizens of regaining freedom on existing legal practices should not be frustrated by subsequent legislation or practices unless the language is beyond doubt).
Liberality in ascertaining the sense may ordinarily err on, the side of liberty where the quantum of deprivation of freedom is in issue.
In short, the benefit of doubt, other things being equal, must go to the citizen in penal statute.
With this prefatory caution, we may read The Section.
"Where a sentence of imprisonment for life is imposed on conviction of a person. . such person shall not be released from prison unless he had served atleast fourteen years of imprisonment".
Strict conformity to tense applied by a precision grammarian may fault the draftsman for using the past perfect tense.
That apart, the plain meaning of this clause is that "is" means "is" and, therefore, if a person is sentenced to imprisonment for life after section 433A comes into force, such sentence shall not be released before the 14 year condition set out therein is fulfilled.
More precisely, any person who has been convicted before section 433A comes into force goes out of the pale of the provision and will enjoy such benefits as accrued to him before section 433A entered Chapter XXXII.
The other clause in the provision suggests the application of the mandatory minimum to cases of commutation which have already been perfected, and reads: "Where a sentence of death. . has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served atleast fourteen years of imprisonment.
" The draftsman, apparently, is not a grammarian.
He uses the tenses without being finical.
We are satisfied that even this latter clause merely means that if a sentence of death has been commuted after this Section comes into force, such person shall not be released until the condition therein is complied with.
'Is ' and 'has ' are not words which 1237 are weighed in the scales of grammar nicely enough in this Section and, therefore, over stress on the present tense and the present perfect tense may not be a clear indicator.
The general rule bearing on ordinary penal statutes in their construction must govern this case.
In another situation, interpreting the import of "has been sentenced" this court held that "the language of the clause is neutral" regarding prospectivity.
It inevitably follows that every person who has been convicted by the sentencing court before December 18, 1978, shall be entitled to the benefits accruing to him from the Remission Scheme or short sentencing project as if section 433A did not stand in his way.
The Section uses the word 'conviction ' of a person and, in the context, it must mean 'conviction ' by the sentencing court; for that first quantified his deprivation of personal liberty.
We are mindful of one anomaly and must provide for its elimination.
If the trial court acquits and the higher court convicts and it so happens that the acquittal is before section 433 A came into force and the conviction after it, could it be that the convicted person would be denied the benefit of prospectivity and consequential non application of section 433 A merely because he had the bad luck to be initially acquitted? We think not.
When a person is convicted in appeal, it follows that the appellate court has exercised its power in the place of the original court and the guilt, conviction and sentence must be substituted for and shall have retroactive effect from the date of judgment of the trial court.
The appellate conviction must relate back to the date of the trial court 's verdict and substitute it.
In this view, even it ' the appellate court reverses an earlier acquittal rendered before section 433 A came into force but allows the appeal and convicts the accused, after section 433 A came into force, such persons will also be entitled to the benefit of the remission system prevailing prior to section 433 A on the basis we have explained.
An appeal is a continuation of an appellate judgment as a replacement of the original judgment.
We now move on to the second contention which deals with the power of remission under the Constitution and the fruits of its exercise vis a vis section 433 A. Nobody has a case indeed can be heard to contend that Articles 72 and 161 must yield to section 433 A. Cooley has rightly indicated that 'where the pardoning power is vested exclusively in the (top executive) any law which restricts The power is unconstitutional '.
Rules to facilitate the exercise of the power stand 1238 on a different footing.
The Constitution is the suprema lex and any legislation, even by Parliament must bow before it.
It is not necessary to delve into the details of these two Articles; nor even to trace the antiquity of the royal prerogative which has transmigrated into India through the various Westminster statutes, eventually to blossom as the power of pardon vested in the President or the Governor substantially in overlapping measure and concurrently exercisable.
The present provisions (sections 432 and 433) have verbal verisimilitude and close kinship with the earlier Code of 1898 (sections 401 and 402).
Likewise, the Constitutional Provisions of today were found even in the Government of India Act, 1935.
Of course, in English constitutional law, the sovereign, acting through the Home Secretary, exercises the prerogative of mercy.
While the content of the power is the same even under our Constitution, its source and strength and, therefore, its functional features and accountability are different.
We will examine this aspect a little later.
Suffice it to say that articles 72 and 161 are traceable to section 295 of the Government of India Act, 1935.
The Central Law Commission has made certain observations based on Rabha 's case to the effect that the effect of granting pardon is not to interfere with the judicial sentence but to truncate its execution.
There is no dispute regarding this branch of pardon jurisprudence.
What is urged is that by the introduction of section 433A, section 432 is granted a permanent holiday for certain classes of lifers and section 433(a) suffers eclipse.
Since sections 432 and 433(a) are a statutory expression and modus operandi of the constitutional power, section 433A is ineffective because it detracts from the operation of section 432 and 433(a) which are the legislative surrogates, as it were, of the pardon power under the Constitution.
We are unconvinced be, the submissions of counsel in this behalf.
It is apparent that superficially viewed, the two powers, one constitutional] and the other statutory, are co extensive.
But two things may be similar but not the same.
That is precisely the difference.
We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States.
The source is different, the substance is different, the strength is different although the stream may be flowing along the same bed.
We see the two powers as far from being identical, and, obviously, the constitutional power is 'untouchable ' and 'unapproachable ' and cannot suffer the 1239 vicissitudes of simple legislative processes.
Therefore, section 433A cannot be invalidated as indirectly violative of articles 72 and 161.
What the Code gives, it can take, and so, an embargo on sections 432 and 433(a) is within The legislative power of Parliament.
Even so, we must remember the constitutional status of articles 72 161 and it is common ground that section 433A does not and cannot affect even a wee bit the pardon power of the Governor or the President.
The necessary sequel to this logic is that notwithstanding section 433A the President and the Governor continue to exercise the power of commutation and release under the aforesaid Articles.
Are we back to Square one ? Has Parliament indulged in legislative futility with a formal victory but a real defeat? The answer is 'yes ' and 'no ' Why 'yes '? because the President is symbolic, the Central Government is the reality even as the Governor is The formal head and sole repository of the executive power but is incapable of acting except on, and according to, the advice of his council of ministers.
The upshot is that the State Government, whether the Governor likes it or not, can advise and act under article 161, the Governor being bound by that advice.
The action of commutation and release can thus be pursuant to a governmental decision and the order may issue even without the Governor 's approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligatory that the signature of the Governor should authorise the pardon, commutation or release.
The position is substantially the same regarding the President.
It is not open either to the President or the Governor to take independent decision or direct release or refuse release of any one of their own choice.
It is fundamental to the Westminster system that the Cabinet rules and the Queen reigns.
Being too deeply rooted as foundational to our system no serious encounter was met from the learned Solicitor General whose sure grasp of fundamentals did not permit him to controvert the proposition, that the President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers save in a narrow area of power.
The subject is now beyond controversy, this court having authoritatively laid down the law in Shamsher Singh 's case.
So, we agree, even without reference to Art, 367 and sections 3(8)(b) and 3(60)(b) of the , that, in the matter of exercise of the powers under articles 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice 1240 of the ministers.
Article 74, after the 42nd Amendment silences speculation and obligates compliance.
The Governor vis a vis his Cabinet is no higher than the President save in a narrow area which does not include article 161.
The Constitutional conclusion is that the Governor is but a shorthand expression for the State Government and the President is an abbreviation for the Central Government.
An issue of deeper import demands our consideration at this stage of the discussion.
Wide as the power of pardon, commutation and release (articles 72 and 161) is, it cannot run riot; for no legal power can run unruly like John Gilpin on the horse but must keep sensibly to a steady course.
Here, we come upon the second constitutional fundamental which underlies the submissions of counsel.
It is that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power, We proceed on the basis that these axioms are valid in our constitutional order.
The jurisprudence of constitutionally canalised power as spelt out in the second proposition also did not meet with serious resistance from the learned Solicitor General and, if we may say so rightly.
Article 14 is an expression of the egalitarian spirit of the Constitution and is a clear pointer that arbitrariness is anathema under our system.
It necessarily follows that the power to pardon, grant remission and commutation, being of the greatest moment for the liberty of the citizen, cannot be a law unto itself but must be informed by the finer canons of constitutionalism.
In the Inter national Airport Authority case this court stated: "The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweet will, but its action must be in conformity with some principle which meets the test of reason and relevance.
This rule also flows directly from the doctrine of equality embodied in Article 14.
It is now well settled as a result of the decisions of this Court in E. P. Royappa vs State of Tamil Nadu and Maneka Gandhi vs Union of India that Article 1241 14 strikes at arbitrariness in State action and ensures fairness, and equality of treatment.
It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non discriminatory; it must not be guided by any extraneous or irrelevant considerations, because that would be denial of equality.
The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non arbitrariness is projected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law.
" Mathew, J. In V. Punnan Thomas vs State of Kerala observed: "The Government, is not and should not be as free as an individual in selecting the recipients for its largesse.
Whatever its activity the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society.
A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal.
If we excerpt again from the Airport Authority case: Whatever be the concept of the rule of law, whether it be the meaning given by Dicey in his "The Law of the Constitution" or the definition given by Hayek in his "Road to Serfdom" and "Constitution of Liberty" or the exposition set forth by Harry Jones in his "The Rule of Law and the Welfare State", there is as pointed out by Mathew J., in his article on "The Welfare State, Rule of Law and Natural Justice" in "Democracy, Equality and Freedom" "Substantial agreement in Juristic thought that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power, wherever it is found".
It is indeed unthinkable that in a democracy governed by the rule of Law the executive Government or any or its officers should possess arbitrary power over the interests of the individual.
Every action of the Executive Government must be informed with reason and should be free from ,, arbitrariness.
That is the very essence of the rule of law and its bare minimal requirement.
And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege.
1242 .
The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold Largesse in its arbitrary discretion or at its sweet will.
It is insisted, as pointed out by Prof. Reich in an specially stimulating . article on "The New Property" in , "that Government action be based on standards that are not arbitrary or unauthorised.
" The Government cannot be permitted, to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith.
The Government is still the Government when it acts in , the matter of granting largesse and it cannot act arbitrarily.
It does not stand in the same position as a private individual.
It is the pride of our constitutional order that all power, whatever its source, must, in its exercise, anathematise arbitrariness and obey standards and guidelines intelligible and intelligent and integrated with the manifest purpose of the power.
From this angle even the power to pardon, commute or remit is subject to the wholesome creed that guidelines should govern the exercise even of presidential power.
Speaking generally, Lord Acton 's dictum deserves attention I cannot accept your canon that we are to judge Pope and .
King unlike other men, with a favourable presumption that the did no wrong.
If there is any presumption it is the other was, against the holders of power, increasing as the power increases.
Likewise, Edmund Burke, the great British statesman gave correct counsel when he said: All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author, and Founder of society.
Pardon, using this expression in the amplest connotation, ordains fair exercise, as we have indicated above.
Political vendetta or party favouratism cannot but be interlopers in this area.
The order which is the product of extraneous or mala fide factors will vitiate the exercise.
While constitutional power is beyond challenge, its actual exercise may still be vulnerable.
Likewise, capricious criteria will void the exercise.
For example, if the Chief Minister of a State releases every one m the 1243 prisons in his State on his birthday or because a son has been born to him, it will an outrage on the Constitution to let such madness survive.
We make these observations because it has been brought to our notice that a certain Home Minister 's visit to a Central Jail was considered so auspicious an omen that all the prisoners in the jail were given substantial remissions solely for this reason.
Strangely enough, this propitious circumstance was discovered an year later and remission order was issued long after the Minister graced the penitentiary.
The actual order passed on July 18, 1978 by the Haryana Government reads thus In exercise of the powers conferred under Article 161 the Constitution of India, the Governor of Haryana grants special: remissions on the same scale and terms as mentioned in Govt.
Of India, Ministry of Home Affairs letter No. U. 13034/59/77 dated 10th June, 1977 to Prisoners who happened to be confined in Central Jail, Tihar, New Delhi on 29th May, 1977, at the time of the visit of Home Minister Govt.
Of India, to the said Jail and who has been convicted by the Civil Courts of Criminal Jurisdiction in Haryana State.
A. BANERJEE Secretary to Govt.
of Haryana Jails Department Dated: Chandigarh, the 18th July, 1978.
Push this logic a little further and the absurdity will be obvious.
No Constitutional power can be vulgarised by personal vanity of men in authority.
Likewise, if an opposition leader is sentenced, but the circumstances cry for remission such as that he is suffering from cancer or that his wife is terminally ill or that he has completely reformed himself, the power of remission under articles 72/161 may ordinarily be exercised and a refusal may be wrong headed.
If, on the other hand, a brutal murderer, blood thirsty in his massacre, has been sentenced by a court with strong observations about his bestiality, it may be arrogant and irrelevant abuse of power to remit his entire life sentence the very next day after the conviction merely because he has joined the party in power or is a close relation of a political high up.
The court, if it finds frequent misuse of this power may have to investigate the discrimination.
The proper thing to do, if Government is to Keep faith with the founding fathers, is to make 1244 rules for its own guidance in the exercise of the pardon power keeping, of course, a large residuary power to meet special situations or sudden developments.
This will exclude the vice of discrimination such as may arise where two persons have been convicted and sentenced in the same case for the same degree of guilt but one is released and the other refused, for such irrelevant reasons as religion, caste, colour or political loyalty.
Once we accept the basic thesis that the public power vested on a high pedestal has to be exercised justly The situation becomes simpler.
The principal considerations will turn upon social good by remission or release.
Here, we come back to the purpose of imprisonment and the point of counter productivity by further prolongation of incarceration.
But when is this critical point reached? Bitter verse burns better into us this die hard error This too I know and wise it were If each could know the same That every prison that men build If built with bricks of shame, And bound with bars lost Christ should see How men their brothers maim.
President Carter when he was Governor of Georgia, addressing a Bar Association, said: In our prisons, which in the past have been a disgrace to Georgia, we 've tried to make substantive changes in the quality of those who administer them and to put a new realm of understanding and hope and compassion into the administration of that portion of the system of justice 95 per cent of those who are presently incarcerated in prisons will be returned to be our neighbors, and now the thrust of the entire program, as initiated under Ellis MacDougall and now continued under Dr. Ault, is to try to discern in the Soul of each convicted and sentenced person redeeming features that can be enhanced.
We plan a career for that person to be pursued while he is in prison.
I believe that the early data that we have on recidivism rates indicate the efficacy of what we 've done.
All these go to prove that the length of imprisonment is not regenerative of the goodness within and may be proof of the reverse a 1245 calamity which may be averted by exercise of power under article 161, especially when the circumstances show good behaviour, industrious conduct, social responsibility and humane responses which are usually reflected in the marks accumulated in the shape of remission.
In short, the rules of remission may be effective guidelines of a recommendatory nature, helpful to Government to release the prisoner by remitting the remaining term.
The failure of imprisonment as a crime control tool and the search for non institutional alternatives in a free milieu, gain poignant pertinence while considering the mechanical exclusion of individualised punishment by section 433A, conjuring up the cruel magic of 14 years behind bar where 'each day is like a year, a year whose days are long as a solvent of the psychic crisis which is crimeogenic factor, blinking at the blunt fact that at least after a spell the penitentiary remedy aggravates the recidivist 's malady.
In the "Failure of Imprisonment" (a 1979 publication) the authors start off with the statement "The failure of imprisonment has been one of the most noticeable features of the current crisis in criminal justice system in advanced industrial or post industrial societies such as Australia, Britain, Canada and the United States.
One justification after another advanced in favour of the use of imprisonment has been shown to be misconceived.
At best, prisons are able to provide a form of crude retribution to those unfortunate to be apprehended.
At worst, prisons are brutalising, cannot be shown to rehabiliate or deter offenders and are detrimental to the re entry of offenders into society.
Furthermore, the heavy reliance upon prisons, particularly maximum security institutions with their emphasis upon costly security procedures, has led to an inordinate drain upon the overall resources devoted to the criminal justice area.
" Likewise, in many current research publications the thesis is the same.
Unless a tidal wave of transformation takes place George Ellis will be proved right: There are many questions regarding our prison systems and their rehabilitative quality.
Observers from inside the walls find prisons to be a melting pot of tension and anxiety.
Tension and 1246 anxiety are the result of a variety of abnormal conditions.
Prisons, including the so called model prisons, rob a man of his individual identity and dignity.
Contrary to popular opinion, all convicts are not rock hard individuals lacking sufficient emotional balance.
They are people.
with fears and aspirations like everyone else.
Generally, they don 't want to fight with or kill their neighbor any more than the man on the street.
They want to live in peace and return to it their loved ones as soon as possible.
They are not a different breed of human being or a distinct type of mentality.
They are persons who have made mistakes.
This point is made not to solicit pity but to bring attention to the fact that any individual could be caught in a similar web and find himself inside a pit such as Folsom Prison.
The rule of law, under our constitutional order, transforms alt public power into responsible, responsive, regulated exercise informed by high purposes and geared to people 's welfare.
But the wisdom and experience of the past have found expression in remission rules and short sentencing laws.
No new discovery by Parliament in 1978 about the futility or folly of these special and local experiences, spread ever several decades, is discernible.
No High power committee report, no expert body 's recommendations, no escalation in recidivism attributable to remissions and releases, have been brought to our notice.
Impressionistic reaction to some cases of premature release of murderers, without even a follow up study of the later life of these quondam convicts, has been made.
We find the rise of enlightenment in penological alternatives to closed prisons as the current trend and failure of imprisonment as the universal lament.
We, heart warmingly, observe experiments in open jails, filled by lifers, liberal parolee and probations, generosity of juvenile justice and licensed release or freedom under leash a la The Uttar Pradesh Prisoners ' Release on Probation Act, 1978.
We cannot view without gloom the reversion to the sadistic superstition that the longer a life convict is kept in a cage the surer will be his redemption.
It is our considered view.
that, beyond an optimum point of, say, eight years we mean no fixed formula prison detention benumbs and makes nervous wreck or unmitigated brute of a prisoner.
If animal farms are not reformatories, the Remission Rules and short sentencing schemes are humanising wheel of compassion and reduction of psychic tension.
We have no hesitation to reject the notion that 1247 articles 72/161 should remain uncanalised.
We have to direct the provisional acceptance of the remission and short sentencing schemes as good guidelines for exercise of pardon power a jurisdiction meant to be used as often and as systematically as possible and not to be abused, much as the temptation so to do may press upon the pen of power.
The learned Solicitor General is right that these rules are plainly made under the and not under the constitutional power.
The former fails under the pressure of section 433A.
But that, by no means.
precludes the States adopting as working rules the same remission schemes which seem to us to be fairly reasonable.
After all, the Government cannot meticulously study each prisoner and the present praxis of marks, until a more advanced and expertly advised scheme is evolved, may work.
Section 433A cannot forbid this method because it is immunised by article 161.
We strongly suggest that, without break, the same rules and schemes of remission be continued as a transmigration of soul into article 161, as it were, and benefits extended to all who fall within their benign orbit save, of course, in special cases which may require other relevant considerations.
The wide power of executive clemency cannot be bound down even by self created rules.
One point remains to be clarified.
The U.P. Prisoners ' Release on Probation Act.
1938, a welcome measure, what with population pressure on prisons and burden on the public exchequer, will survive section 433A for two reasons.
Firstly, Government may resort to the statutory scheme, not qua law but as guideline.
Secondly, and more importantly, the expression 'prison ' and 'imprisonment ' must receive a wider connotation and include any place notified as such for detention purposes. 'Stone walls and iron bars do not a prison make '; nor are 'stone walls and iron bars ' a sine qua non to make a jail.
Open jails are capital instances.
Any life under the control of the State, whether within the high walled world or not, may be a prison if the law regards it as such.
House detentions, for example.
Palaces, where Gandhiji was detained, were prisons.
Restraint on freedom under the prison law is the lest.
Licensed releases where instant re capture is sanctioned by the law, and, likewise, parole, where the parole is no free agent, and other categories under the invisible fetters of the prison law may legitimately be regarded as imprisonment.
This point is necessary to be cleared even for computation of 14 years under section 433A. Sections 432, 433 and 433A read together.
Iead to the inference we have drawn and liberal though guarded, use of this Act may do good.
Prison reform, much bruised about though, is more the skin than in the soul and needs a deeper stirring of 1248 consciousness than tantrums, threats and legalised third degree, if the authentic voice of the Father of the Nation be our guide.
To chain the man is not to change him; the error is obvious a human is more than simian.
Our reasoning upholds section 433A of the Procedure Code but upbraids the abandonment of the healing hope of remissions and release betimes.
To legislate belongs to another branch but where justice is the subject the court must speak.
There was some argument that section 433A is understood to be a ban on parole.
Very wrong.
The Section does not obligate continuous fourteen years in jail and so parole is permissible.
We go further to say that our Prison Administration should liberalise parole to prevent pent up tension and sex perversion which are popular currency in many a penitentiary (see Sethna, "Society and the Criminal" Tripati publications, 4th Edn.
p. 296).
We conclude by formulating our findings.
We repulse all the thrusts on the vires of section 433A.
Maybe, penologically the prolonged terms prescribed by the Section is supererogative.
If we had our druthers we would have negatived the need for a fourteen year gestation for reformation.
But ours is to construe not construct, to decode, not to make a code.
We affirm the current supremacy of section 433A over the Remission Rules and short sentencing statutes made by the various States.
We uphold all remissions and short sentencing passed under Articles 72 and 161 of the Constitution but release will follow, in life sentence cases, only on Government making an order en masse or individually, in that behalf.
We hold that section 432 and section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power, and section 433A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like.
We negate the plea that section 433A contravenes Article 20(1) of the Constitution.
We follow Godse 's case (supra) to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government.
We declare that section 433A, in both its limbs (i.e. 'both types of life imprisonment specified in it), is prospective in effect.
To put the position beyond doubt, we direct that the mandatory minimum of 14 years ' actual imprisonment will not operate against those whose 1249 cases were decided by the trial court before the 18th December, 1978 (directly or retroactively, as explained in the judgment) when section 433A came into force.
All 'lifers ' whose conviction by the court of first instance was entered prior to that date are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only if Government makes an order to that effect.
To this extent the battle of the tenses is won by the prisoners.
It follows, by the same logic, that short sentencing legislations, if any, will entitle a prisoner to claim release thereunder if his conviction by the court of first instance was before section 433A was brought into effect.
The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own.
The advice of the appropriate Government binds the Head of the State.
No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to.
the whole group.
Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide.
Only in these rare cases will the court examine the exercise.
Although the remission rules or short sentencing provisions proprio vigore may not apply as against section 433A, they will override section 433A if the Government, Central or State, guides itself by the selfsame rules or schemes in the exercise of its constitutional power.
We regard it as fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking a desirable step, in our view the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release passed.
We cannot fault the Government, if in some intractably savage delinquents, section 433A is itself treated as a guideline for exercise of Articles 72/161.
These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules, should not survive until replaced by a more wholesome scheme.
The U. P. Prisoners ' Release on Probation Act, 1938, enabling limited enlargement under licence will be effective as legislatively sanctioned imprisonment of a loose and liberal type and such licensed enlargement will be reckoned for the purpose of the 14 year duration.
Similar other statutes and rules will enjoy similar efficacy.
1250 12.
In our view, penal humanitarianism and rehabilitative desideratum warrant liberal paroles, subject to security safeguards, and other humanizing strategies for inmates so that the dignity and worth of the human person are not desecrated by making mass jails anthropoid zoos.
Human rights awareness must infuse institutional reform and search for alternatives.
We have declared the law all right, but law in action fulfils itself not by declaration alone and needs the wings of communication to the target community.
So, the further direction goes from this court that the last decretal part is translated and kept prominently in each ward and the whole judgment, in the language of the State, made available to the inmates in the jail library.
Section 433A does not forbid parole or other release within the 14 year span.
So to interpret the Section as to intensify inner tension and taboo intermissions of freedom is to do violence to language and liberty.
11 The length of this judgment (like the length of section 433A Cr. P. C.) could have been obviated but the principles and pragmatics enmeshed in the mass of cases which are but masks for human trials warrant fuller examination even of peripherals.
Moreover, Chief Justice Earl Warren 's admonition makes us scrutinise the basics, undeterred by length: Our judges are not monks or scientists, but participants in the living stream of our national life, steering the law between the dangers of rigidity on the one hand and of formlessness on the other.
Our system faces no theoretical dilemma but a single continuous problem: how to apply to ever changing conditions the never changing principles of freedom.
(Fortune, November, 1955) A Final Thought Fidelity to the debate at the bar persuades us to remove a misapprehension.
Some argument was made that a minimum sentence of 14 years ' imprisonment was merited because the victim of the murder must be remembered and all soft justice scuttled to such heinous offenders.
We are afraid there is a confusion about fundamentals mixing up victimology with penology to warrant retributive severity by the backdoor.
If crime claims a victim criminology must include victimology as a major component of its concerns.
Indeed, when a murder or other grievous offence is committed the dependants or other aggrieved persons must receive reparation and the social 1251 responsibility of the criminal to restore the loss or heal the injury is part of the punitive exercise.
But the length of the prison term is no reparation to the crippled or bereaved and is futility compounded with cruelty. 'Can storied urn or animated bust call to its mansion the fleeting breath ? ' Equally, emphatically, given perspicacity and freedom from sadism, can flogging the killer or burning his limbs or torturing his psychic being bring balm to the soul of the dead by any process of thanatology or make good The terrible loss caused by the homicide ? Victimology, a burgeoning branch of humane criminal justice, must find fulfillment, not through barbarity but by compulsory recoupment by the wrong doer of the damage inflicted, not by giving more pain to the offender but by lessening the loss of the forlorn.
The State itself may have its strategy of alleviating hardships of victims as part of Article 41.
So we do not think that the mandatory minimum in section 433A can be linked up with the distress of the dependants.
We dismiss the Writ Petition vis a vis the challenge to section 433A but allow them to the extent above indicated.
The war is not lost even if a battle be lost.
Justice must win.
The authorities concerned will carefully implement The directives given in this judgment.
Since personal liberty is at stake urgent action is the desideratum.
FAZAL ALI, J.
While I concur with the judgment proposed by Brother Krishna Iyer, J., I would like to express my own views on certain important features of the case and on the nature and character of the reformative aspect of penology as adumbrated by Brother Krishna Iyer, J.
The dominant purpose and the avowed object of the legislature in introducing section 433A in the Code of Criminal Procedure unmistakably seems to be to secure a deterrent punishment for heinous offences committed in a dastardly, brutal or cruel fashion or offences committed against the defence or security of the country.
It is true that there appears to be a modern trend of giving punishment a colour of reformation so that stress may be laid on the reformation of the criminal rather than his confinement in jail which is an ideal objective.
At the same time, it cannot be gainsaid that such an objective cannot be achieved without mustering the necessary facilities, the requisite education and the appropriate climate which must be created to foster a sense of repentance and penitence in a criminal so that he may undergo such a mental or psychological revolution that he realises the consequences of playing with human lives.
In the world of today and particularly in our country, this ideal is yet to be achieved and, in fact, with all our efforts it will take us a long time to reach this sacred goal.
1252 The process of reasoning that even in spite of death sentence murders have not stopped is devoid of force because, in the first place, we cannot gauge, measure or collect figures or statistics as to what would have happened if capital punishment was abolished or sentence of long imprisonment was reduced.
Secondly, various criminals react to various circumstances in different ways and it is difficult to foresee the impact of a particular circumstance on their criminal behaviour.
The process of reformation of criminals with an unascertained record would entail a great risk as a sizable number of criminals instead of being reformed may be encouraged to commit offences after offences and become a serious and horrendous hazard to the society.
The question, therefore, is should the country take the risk of innocent lives being lost at the hands of criminals committing heinous crimes in the holy hope or wishful thinking that one day or the other, a criminal, however dangerous or callous he may be, will reform himself.
Valmikis are not born everyday and to expect that our present generation, with the prevailing social and economic environment, would produce Valmikis day after day is to hope for the impossible.
Section 433A has advisedly been enacted to apply to a very small sphere and includes within its ambit only offences under sections 121, 132, 302, 303, 396, etc., of the Indian Penal Code, that is to say, only those offences where death or life imprisonment are the penalties but instead of death life imprisonment is given or where a sentence of death is commuted to that of life imprisonment.
The problem of penology is not one which admits of an easy solution.
The argument as to what benefit can be achieved by detaining a prisoner for fourteen years is really begging the question because a detention for such a long term in confinement however comfortable it is, is by itself sufficient to deter every criminal or offender from committing offences so as to incur the punishment of confinement for a good part of his life.
The effect of such a punishment is to be judged not from a purely ethical point of view but from an angle of vision which is practical and pragmatic.
Crime has rightly been described as an act of warfare against the community touching new depths of lawlessness.
The object of imposing deterrent sentences is threefold: (1) to protect the community against callous criminals for a long time, 1253 (2) to administer as clearly as possible to others tempted to follow them into lawlessness on a war scale if they are brought to and convicted, deterrent punishment will follow and (3) to deter criminals who are forced to undergo long term imprisonment from repeating their criminal acts in future.
Even from the point of view of reformative form of punishment "prolonged and indefinite detention is justified not only in the name of prevention but cure.
The offender has been regarded in one sense as a patient to be discharged only when he responds to the treatment and can be regarded as safe ' '(1) for the society.
Explaining the material and practical advantages of long term imprisonment Sir Leon Radzinowicz in his book 'The Growth of Crime ' aptly observes as follows: "Long imprisonment could be regarded as the neat response to all three requirements: it would put the miscreants behind bars for a long time; it would demonstrate that the game was not wirth the candle for others." (p. 195) The author gives examples in support of his views thus: "Two English police officers were sentenced to seven years imprisonment for accepting bribes and conspiring to pervert the courts of justice, two others for hounding a vagrant.
In Turkey a similar sentence was passed upon a writer for translating and publishing the works of Marx and Engels.
In Russia the manager of a mechanical repair shop was sentenced to death for theft of state property.
In the Philippines a Chinese businessman was condemned to public execution by firing squad for trafficking in drugs.
In Nigeria something like eighty people suffered the same fate within a year or two for armed robbery.
All these sentences had, of course, their elements of deterrence and retribution.
But they have in common another element, what has been called denunciation, a powerful reassertion or assertion Of the values attacked." (p. 197) But, at the same time, it cannot be gainsaid that a sentence out of proportion of the crime is extremely repugnant to the social sentiments of a civilized society.
This aspect of the matter is fully taken care of by section 433A when it confines its application only to those categories of offences which are heinous and amount to a 1254 callous outrage on humanity.
Sir Leon Radzinowicz referring to this aspect of the matter observes thus: "Maximum penalties, upper limits to the punishment a judge may impose for various kinds of crime, are essential to any system which upholds the rule of law.
Objections arise only when these penalties are illogical, inconsistent, at odds with people 's sense of justice .
Thus the problem with maximum penalties is not whether they should be laid down but whether they can be made reasonably proportionate to people 's assessment of the comparative gravity of crimes, and a consistent guide to sentences rather than an additional factor in discrepancies." (p. 216) Similarly, the same author in Vol.
II of his book 'Crime and Justice ' observes as follows: "the solution to which most recent efforts have come is that the legislative function is best discharged by the creation of a small number of distinct sentencing categories .
And it can also serve to emphasize the futility of close line drawing in an area where precision to the extent that it can be achieved at all must come from the efforts of those in a position to know and to judge the particular offender." (p. 332) The existence of a distinct number of sentencing categories and a list of the offences within each should be of great aid in other words, in assuring consistency of treatment for present offences and in determining the appropriate sentence levels for NEW offences." (p. 340) This is exactly what section 433A of the Code of Criminal Procedure seeks to achieve by carving out a small and special field within which alone the statutory provisions operate.
While I agree that the deterrent form of punishment may not be a most suitable or ideal form of punishment yet the fact remains that the deterrent punishment prevents occurrence of offences by (i) making it impossible or difficult for an offender to break the law again, (ii) by deterring not only the offenders but also others from committing offences, and (iii) punishment or for that matter a punishment in the form of a long term imprisonment may be a means to changing a 1255 person 's character or personality so that out of some motivation or reasons of a personal or general nature, the offender might obey the law.
Ted Honderich in his book 'punishment ' while dealing with the deterrent form of punishment observes as follows: "It is also to be noticed that the conditions have other consequences as well.
Penalties must be sufficiently severe to deter effectively.
" Bentham has also pointed out that a penalty may be justified when the distress it causes to the offenders and others is not greater than the distress that will result if he and others undeterred, offended in the future.
Ted Honderich after highlighting various aspects of the deterrent form of punishment concludes as follows: "There are classes of offenders who are not deterred by the prospect of punishment, it cannot be acceptable that a society should attempt to prevent all offences by punishment alone . .
In anticipation of the discussion to come of com promise theories of punishment, we can say that punishment may be justified by being both economically deterrent and also deserved.
" I am not at all against the reformative form of punishment on principle, which in fact is the prime need of the hour, but this matter has been thoroughly considered by Graeme Newman in his book 'The Punishment Response ' and where he has rightly pointed out that before the reformative form of punishment can succeed people must be properly educated and realise the futility of committing crimes.
The author observes as below: "In sum, I have suggested that order was created by a criminal act, that order cannot exist without a structured inequality.
order and authority must be maintained by punishment, other wise there would be even more revolutions and wars than we have had throughout history.
. . . . . . .
People in criminal justice know only too well that the best intentioned reforms often turn out to have unfortunate results.
Thus, for example, in the area of criminal sentencing, a popular area at present, practical moves to reform should be based soundly on the historical precedents of criminal law and not on 1256 grand schemes that will sweep all of what we have out the door.
There have been many examples of grand schemes that looked great on paper, but by the time they had been trans formed into legislation were utterly unrecognizable.
It seems to follow from this that sentencing reform should not be achieved by new legislation, but by a close analysis and extrapolation from the already existing practice and theory of criminal law:" Having regard to these circumstances I am clearly of the opinion that section 433A is actually a social piece of legislation which by one stroke seeks to prevent dangerous criminals from repeating offences and on the other protects the society from harm and distress caused to innocent persons.
Taking into account the modern trends in penology there are very rare cases where the courts impose a sentence of death and even if in some cases where such sentences are given, by the time the case reaches this Court, a bare minimum of the cases are left where death sentences are upheld.
Such cases are only those in which imposition of a death sentence becomes an imperative necessity having regard to the nature and character of the offences, the antecedents of the offender and other factors referred to in the Constitution Bench judgment of this Court in Bachan Singh vs State of Punjab.
In these circumstances, I am of the opinion that the Parliament in its wisdom chose to act in order to prevent criminals committing heinous crimes from being released through easy remissions or substituted form of punishments without undergoing atleast a minimum period of imprisonment of fourteen years which may in fact act as a sufficient deterrent which may prevent criminals from committing offences.
In most parts of our country, particularly in the north, cases are not uncommon where even a person sentenced to imprisonment for life and having come back after earning a number of remissions has committed repeated offences.
The mere fact that a long term sentence or for that matter a sentence of death has not produced useful results cannot support the argument either for abolition of death sentence or for reducing the sentence of life imprisonment from 14 years to something less.
The question is not what has happened because of the provisions of the penal Code but what would have happened if deterrent punishments were not given.
In the present distressed and disturbed atmosphere we feel that if deterrent punishment is not resorted to, there will be complete chaos in the entire country and criminals be let loose endangering 1257 the lives of thousands of innocent people of our country.
In spite of all the resources at its hands, it will be difficult for the State to protect or guarantee the life and liberty of all the citizens, if criminals are let loose and deterrent punishment is either abolished or mitigated.
Secondly, while reformation of the criminal is only one side of the picture, rehabilitation of the victims and granting relief from the tortures and sufferings which are caused to them as a result of the offences committed by the criminals is a factor which seems to have been completely overlooked while defending the cause of the criminals for abolishing deterrent sentences.
Where one person commits three murders it is illogical to plead for the criminal and to argue that his life should be spared, without at all considering what has happened to the victims and their family.
A person who has deprived another person completely of his liberty for ever and has endangered the liberty of his family has no right to ask the court to uphold his liberty.
Liberty is not a one sided concept, nor does article 21 of the Constitution contemplate such a concept.
If a person commits a criminal offence and punishment has been given to him by a procedure established by law which is free and fair and where the accused has been fully heard, no question of violation of article 21 arises when the question of punishment is being considered.
Even so, the provisions of the Code of Criminal Procedure of 1973 do provide an opportunity to the offender, after his guilt is proved, to show circumstances under which an appropriate sentence could be imposed on him.
These guarantees sufficiently comply with the provisions of article 21.
Thus, it seems to me that while considering the problem of penology we should not overlook the plight of victimology And the sufferings of the people who die, suffer or are maimed at the hands of criminals.
For these reasons, I am clearly of the opinion that in cases where section 433A applies, no question of reduction of sentence arises at all unless the President of India or the Governor choose to exercise their wide powers under article 72 or article 161 of the Constitution which also have to be exercised according to sound legal principles as adumbrated by Brother Krishna Iyer, J. I, therefore, think that any reduction or modification in the deterrent punishment would r far from reforming the criminal be counter productive.
Thus, on a consideration of the circumstances, mentioned above, the conclusion is inescapable that parliament by enacting section 433A has rejected the reformative character of punishment, in respect of offences contemplated by it, for the time being in view of the prevailing conditions in our country.
It is well settled that the legislature understands the needs and requirements of its people 1258 much better than the courts because the Parliament consists of the elected representatives of the people and if the Parliament decides to enact a legislation for the benefit of the people, such a legislation must be meaningfully construed and given effect to so as to subserve the purpose for which it is meant.
Doubtless, the President of India under article 72 and the State Government under article 161 have absolute and unfettered powers to grant pardon, reprieves, remissions, etc.
This power can neither be altered, modified or interfered with by any statutory provision.
But, the fact remains that higher the power, the more cautious would be its exercise.
This is particularly so because the present enactment has been passed by the Parliament on being sponsored by the Central Government itself.
It is, therefore, manifest that while exercising the powers under the aforesaid Articles of the Constitution neither the President, who acts on the advice of the Council of Ministers, nor the State Government is likely to overlook the object, spirit and philosophy of section 433A so as to create a conflict between the legislative intent and the executive power.
It cannot be doubted as a proposition of law that where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter.
So viewed, I am unable to find any real inconsistency between section 433A and Articles 72 and 161 of the Constitution of India as contended by the petitioners.
I also hold that all the grounds on which the constitutional validity of section 433A has been challenged must fail.
I dismiss the petitions with the modification that section 433A would apply only prospectively as pointed out by Brother Krishna Iyer, J. KOSHAL, J.
On a perusal of the judgment prepared by my learned brother, Krishna Iyer, J., I agree respectfully with findings (2) to (11), (13) and (14) enumerated by him in is concluding part as, also with the first sentence occurring in finding (1), but regret that I am unable to endorse all the views expressed by him on the reformative aspect of penology, especially those forming the basis of finding (1) minus the first sentence and of finding (12).
In relation to those views, while concurring generally with the note prepared by my learned brother, Fazal Ali, J., I am appending a very short note of my own.
That the four main objects which punishment of an offender by the State is intended to achieve are deterrence, prevention, retribution and reformation is well recognised and does not appear to be 1259 open to dissent.
In its deterrent phase, punishment is calculated to act as a warning to others against indulgence in the anti social act for which it is visited.
It acts as a preventive because the incarceration of the offender, while it lasts, makes it impossible for him to repeat the offending act.
His transformation into a law abiding citizen is of course another object of penal legislation but so is retribution which is also described as a symbol of social condemnation and a vindication of the law.
The question on which a divergence of opinion has been expressed at the bar is the emphasis which the legislature is expected to place on each of the said four objects.
It has been contended on behalf of the petitioners that the main object of every punishment must be reformation of the offender and that the other objects above mentioned must be relegated to the background and be brought into play only incidentally, if at all.
I have serious disagreement with this proposition and that for three reasons.
In the first place, there is no evidence that all or most of the criminals who are punished are amenable to reformation.
It is true that in recent years an opinion has been strongly expressed in favour of reformation being the dominant object of punishment but then an opposite opinion has not been lacking in expression.
Champions of the former view cry from housetops that punishment must have as its target the crime and not the criminal.
Others, however, have been equally vocal in bringing into focus the mischief flowing from what the criminal has done to his victim and those near and dear to him and have insisted on greater attention being paid to victimology and therefore to the retributive aspect of punishment.
They assert: "Neither reformers nor psychologists have, by and large, succeeded in reducing recidivism by the convicted criminals.
Neither harshness nor laxity has succeeded in discouraging repeaters .
Criminality is not a disease admitting of cure through quick social therapy . " The matter has been the subject of social debate and, so far as one can judge, will continue to remain at that level in the foreseeable future.
Secondly, the question as to which of the various objects of punishment should be the basis of a penal provision has, in the very nature of things, to be left to the legislature and it is not for the courts to say which of them shall be given priority, preponderance 1260 or predominance.
It may well in fact be that a punitive law may be intended to achieve only one of the four objects but that is something which must be decided by the legislature in its own wisdom.
An offence calculated to thwart the security of the State may be considered so serious as to demand the death penalty and nothing else, both as a preventive and a deterrent, and without regard to retribution and reformation.
On the other hand, offences involving moral turpitude may call for reformation as the chief objective to be achieved by the legislature.
In a third case all the four objects may have to be borne in mind in choosing the punishment.
As it is, the choice must be that of the legislature and not that of the courts and it is not for the latter to advise the legislature which particular object shall be kept in focus in a particular situation.
Nor is it open to the courts to be persuaded by their own ideas about the propriety of a particular purpose being achieved by a piece of penal legislation, while judging its constitutionality.
A contrary proposition would mean the stepping of the judiciary into the field of the legislature which, I need hardly say, is not permissible.
It is thus outside the scope of the inquiry undertaken by this Court into the vires of the provisions contained in section 433A to find out the extent to which the object of reformation is sought to be achieved thereby, the opinions of great thinkers, jurists, politicians and saints (as to what the basis of a penal provision should be) notwithstanding.
The third reason flows from a careful study of the penal law prevalent in the country, especially that contained in the Indian Penal Code which brings out clearly that the severity of each punishment sanctioned by the law is directly proportional to the seriousness of the offence for which it is awarded.
This, to my mind, is strongly indicative of reformation not being the foremost object sought to be achieved by the penal provisions adopted by the legislature.
A person who has committed murder in the heat of passion may not repeat his act at all later in life and the reformation process in his case need not be time consuming.
On the other hand, a thief may take long to shed the propensity to deprive others of their good money.
If the reformative aspect of punishment were to be given priority and predominance in every case the murderer may deserve, in a given set of circumstances, no more than a six months ' period of incarceration while a thief may have to be trained into better ways of life from the social point of view over a long period, and the death penalty, the vires of which has been recently upheld by a majority of four in a five Judge Bench of this Court in Bachan Singh and others vs State of Punjab and others would have to be 1261 exterminated from Indian criminal law.
The argument based on the object of reformation having to be in the forefront of the legislative purposes behind punishment must, therefore, held to be fallacious.
I conclude that the contents of section 433A of the Code of Criminal Procedure (or, for that matter any other penal provision) cannot be attacked on the ground that they are hit by article 14 of the Constitution inasmuch as they are arbitrary or irrational because they ignore the reformative aspect of punishment.
S.R. Petitions dismissed.
| IN-Abs | Dismissing the writ petitions but partly allowing, the Court ^ HELD: By Iyer, J. (on behalf of Y. V. Chandrachud, C.J., P. N. Bhagwati. J. and himself) 1.
Section 433A of the Code of Criminal Procedure Code as introduced With effect from 18 12 1978 is constitutionally valid.
May be, penologically the prolonged terms prescribed by the Section is supererogative [1248 C D] 2.
Section 433A is supreme over the Remission Rules and short sentencing, statutes made by the various States.
[1248 D] 3.
All remissions and short sentencing passed under Articles 72 and 161 of the Constitution are valid but release with follow in life sentence case only on Government making an order en masse or individually, in that behalf [124D E] 4.
Section 432 and section 433 of the Code are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power and section 433A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like.
[1248 E F] 5.
Section 433A of the Code does not contravene the provisions of Article 20(1) of the Constitution.
[1248G] 6.
Imprisonment for life lasts until the last breath and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government.
[1248 G] Gopal Vinayak Godse vs State of Maharashtra & Ors., [19611 3 S.C.R. 440, reiterated .
1197 7.
Section 433A, in both its limbs (i.e. both types of life imprisonment specified in it), is prospective in effect.
The mandatory minimum of 14 years actual imprisonment will not operate against those whose cases were decided by trial court before the 18th December, 1978, directly or retroactively as explained in the judgment when section 433A came into force.
All 'lifers ' whose conviction by the court of first instance was entered prior to that date are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only it Government makes an order to that effect.
It follows by the same logic, that short sentencing legislations if any, will entitle a prisoner to claim release thereunder if his conviction by the court of first instance was before section 433A was brought into effect.
[1248 H, 1249 A] 8.
The power under Articles 72 and 161 of the Constitution can be exercised by the Central and the State Governments, not by the President or Governor on their own.
The advice of the appropriate Government binds the Head of the State.
No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group.
[1249 D] 9.
Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, by no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide.
Only in these rare cases will the court examine the exercise.
[1249 D E] 10.
Although the remission rules or short sentencing provisions proprio vigore may not apply as against section 433A. if the Government, Central or State, guides itself by the self same rules or schemes in the exercise of its constitutional power.
Until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking.
the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release passed.
Government cannot be faulted, if in some intractably savage delinquents, section 433A is itself treated as a guideline for exercise of Articles 72/161.
[1249E G] 11.
The U.P. Prisoners ' Release on Probation Act, 1938 enabling limited enlargement under licence will be effective as legislatively sanctioned imprisonment of a loose and liberal type and such licensed enlargement will toe reckoned for the purpose of the 14 year duration.
Similar other statutes and rules will enjoy similar efficacy.
[1249 G H] 12.
Penal humanitarianism and rehabilitative desideratum warrant liberal paroles.
subject to security safeguards, and other humanizing strategies for inmates so that the dignity and worth of the human person are not desecrated by making mass jails anthropoid zoos.
Human rights awareness must infuse institutional reform and search for alternatives.
[1250 A B] 13.
Law in action fulfils itself not by declaration alone and needs the wings of communication to the target community.
So, the whole judgment well translated in the language of the State, must be kept prominently in each ward and made available to the inmate, in the jail library.
[1250B C] 14.
Section 433A does not forbid parole or other release within the 14 year span .
So to interpret the Section as to intensify inner tension and taboo intermissions of freedom is to do violence to language and liberty.
[1250 C D] 1198 15.
Parliament has the legislative competency to enact the provisions in section 433A of Criminal Procedure Code.
[1214F] It is trite law that the Lists in the Seventh Schedule broadly delineate the rubrics of legislation and must be interpreted liberally.
Article 246(2) gives power to Parliament to make laws with respect to any of the matters enumerate ed in List III.
Entries 1 and 2 in List 111 (especially Entry 2) are abundantly comprehensive to cover legislation such as is contained in section 433A, which merely enacts a rider, as it were, to sections 432 and 433(a).
A legislation on the topic of "Prisons and Prisoners" cannot be read into section 433A.
On the other hand, section 433A sets a lower limit to the execution of punishment provided by the Penal Code and is appropriately placed in the Chapter on "Execution and Sentences" in the Procedure Code.
Once the irrefutable position that the execution, remission and commutation of sentences primarily fall, as in the earlier 1898 Code, within the 1973 Procedure Code (Chapter XXIII) is accepted, section 433A can be rightly assigned to Entry 2 in List III as a cognate provision integral to remission and commutation, as it sets limits to the power conferred by sections 432 and 433.
This limited prescription as a proviso m, the earlier prescription relates to execution of sentence, not conditions in prison or regulation of prisoner 's life.
The distinction between prisons and prisoners on the one hand and sentences and their execution, remission and commutation on the other, is fine but real.
To bastardize section 433A as outside the legitimacy of Entry 2 in list III is to breach all canons of constitutional interpretation of legislative list [1214B F] 15.
(i) The power of the State to enact the laws of remissions and short sentencing under Entry 4 of List 11 is subject to Articles 246(1) and (2) and so parliamentary legislation prevails over State legislation.
Moreover, Article 254 resolves the conflict in favour of parliamentary legislation.
If a State intends to legislate under Entry 2 of list III such law can prevail in that State as against a parliamentary legislation only if Presidential assent has been obtained in terms of Article 254(2).
In the present case, section 433A must hold its sway over any State legislation even regarding "prisons and prisoners", if its provisions are repugnant to the Central law.
[1214G, 1215 B C] 15 (ii).
Remission schemes do not upset sentences, but merely provide re wards and remissions for in prison good conduct and the like If the sentence is life imprisonment remissions, as such cannot help.
If the sentence is for a fixed term, remissions may help, but section 433A does not come in the way.
Thus incompatibility between section 433A and remission provisions exists.
[1215 C D] 16.
The fasciculus of clauses (sections 432, 433 and 433A), read as a package, makes it clear that while the Code does confer wide powers of remission and commutation or sentences, it emphatically intends to carve out an extreme category from the broad generosity of such executive power.
The non obtained clause, in terms, excludes section 432 and the whole mandate cf the rest of the Section necessarily subjects the operation of section 433(a) to a serious restriction.
This embargo directs that commutation in such cases shall not reduce the actual duration of imprisonment below 14 years.
Section 431 does declare emphatically an imperative intent to keep imprisoned for at least 14 years those who fall within the sinister categories spelt out in the operative part of section 433A. [1216 B C] 1199 It is elementary that a non obstante tail should not wag a statutory dog.
A non obstante Clause cannot whittle down the wide import of the principal part.
The enacting part is Clear and the non obstante clause cannot cut down its scope.[1217 A B] Aswini Kumar Ghose and Another vs Aravinda loose & Another; , , followed.
To read down section 433A to give overriding effect to the Remission Rules of the State would render the purposeful exercise a ludicrous futility.
If "Laws suffer from the disease of Language", courts must cure the patient.
not kill him.
, "Notwithstanding the "notwithstanding. " in section 433A, the Remission Rules and like provisions stand excluded so far as "lifers" punished for capital offences are concerned.
[1217D E] 17.
Sentencing is a judicial function but the execution of the sentence.
after the courts pronouncement, is ordinarily a matter for the Executive under the Procedure Code, going by Entry 2 in List 111 of the Seventh Schedule.
Once a sentence has been imposed, the only way to terminate it before the stipulated term is by action under sections 432/433 of the Code or Articles 72/161.
And if the latter power under the Constitution is not invoked, the only source of salvation is the play of power under sections 432 and 433(a) so far as a 'lifer ' is concerned.
No release by reduction or remission of sentence is possible under the corpus juris as it stands, in any other way.
The legislative power of the state under Entry 4 of List 11, even if it be stretched to snapping point, an deal only with Prisons and Prisoners, never with truncation of judicial sentences.
Remissions by way of reward or otherwise cannot cut down the sentence as such and cannot grant final exit passport for the prisoner except by Government action under section 432(1).
The topic of Prisons and Prisoners does not cover release by way of reduction of the sentence itself.
That belongs to Criminal Procedure in Entry 2 c f List 111 although when the sentence is for a fixed term and remission plus the period undergone equal that term the prisoner may win his freedom.
Any amount of remission to result in manumission requires action under section 432(1), read with the Remission Rules.
That is why Parliament, tracing the single source of remission of sentence to Section 43 ', blocked it by the non obstante clause.
No remission, however long.
can set the prisoner free at the instance of the State, before the judicial sentence has run out, save by action under r the constitutional power or under section 432.
So read, section 433A achieves what it wants arrest the release of certain classes of "lifers" before a certain period, by blocking of section 432.
[1217 G H, 1218 A E] Sentencing is a judicial function and whatever may be done in the matter of executing that sentence in the shape of remitting.
commuting or otherwise abbreviating, the Executive cannot alter the sentence itself.
Remission cannot detract from the quantum or quality of sentence or its direct and side effects except to the extent of entitling the prisoner to premature freedom if the deduction following upon the remission has that arithmetic effect.
The nature of a life sentence is incarceration until death, judicial sentence of imprisonment for life cannot be in jeopardy merely because of long accumulation of remissions.
Release would follow only upon an order under section 401 of the Criminal Procedure Code, 1898 (corresponding to section 432 of the 1973 Coded by the appropriate Government or on a clemency order in exercise of power under Article 72 or 161 of the Constitution.
[1218 F &, 1219H. 1220A, E F] Sarat Chandra Rabha and Ors.
vs Khagendranath Nath & Ors. ; ; Gopal VinayaK Godse vs State of Maharashtra & Ors. ; , referred to.
1200 18.
Section 433A escapes the Exclusion of section 5 of the Code of Criminal Procedure.
A thing is specific if it is explicit.
It need not be "express".
What is precise, exact, definite and explicit, is specific.
Sometimes, what is specific may also be special but yet they are distinct in semantics.
From this angle the Criminal Procedure Code is a general Code.
The remission rules are special laws but section 433A is a specific, explicit, definite provision dealing with a particular situation or narrow class of cases.
as distinguished from the general run of cases covered by section 432 Crl.
P.C. Section 433A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to a particularised treatment.
Therefore, section 433A applies in preference to any special or local law because section 5 expressly, declares that specific provisions, if any, to the contrary will prevail over any special or local law.
[1225 G H, 1226 A C] Hakim Khuda Yar vs Emperor A.I.R. 1940 Lah. ]29; Baldeo Bikram Sardar & Ors.
vs Emperor A.I.R. 1941 Bom.
146, dissented from.
In Re Net Book Agreement 1957 [1962] 3 All E.R. QBD 751, quoted with approval.
It is trite law that civilised criminal jurisprudence interdicts retroactive impost of heavier suffering by a later law.
Ordinarily, a criminal legislation must be so interpreted as to speak futuristically.
While there is no vested right for any convict who has received a judicial sentence to contend that the penalty should be softened and that the law which compels the penalty to be carried out hl full cannot apply to him, it is the function of the court to adopt a liberal construction when dealing with a criminal statute in the ordinary course if things.
This humanely inspired canon, not applicable to certain terribly antisocial categories may legitimately be applied to section 433A. (The sound rationale is that expectations of convicted citizens of regaining freedom on existing legal practices should not be frustrated by subsequent legislation or practice unless the language is beyond doubt).
Liberality in ascertaining the sense may ordinarily err on the side of liberty where the quantum of deprivation of freedom is in issue.
In short, the benefit of doubt, other things being equal, must go to the citizen in penal statute.
[1236 A D] The plain meaning of ' is" and "has been" is "is" and "has been ' only and, therefore, these expressions refer lo "after this Section comes into force".
"Is" and "has" are not words which are weighed in the scale of grammar nicely enough in this Section and, therefore, over stress on the present tense and the present perfect tense may not be a clear indicator.
The general rule bearing on ordinary penal statutes in their construction must govern this.
[1236 F, G, H, 1237 A] Boucher Pierre Andre vs Supdt.
Central Jail, Tihar.
[1975] I S.C.R. 192 at 1 95, followed.
When a person is convicted in appeal, it follows that the appellate court has exercised its power in the place of the original court and the guilt, conviction and sentence must be substituted for and shall have retroactive effect from the date of judgment of the trial court.
The appellate conviction must relate back to the date of the trial court 's verdict and substitute it.
In this view, even if the appellate court reverses an earlier acquittal rendered before section 433A came into force but allows the appeal and convicts the accused after section 433A came into force, such persons will also be entitled to the benefit of the remission system prevailing prior to section 433A on the basis 1201 which has been explained.
An appeal is a continuation of an appellate judgment as a replacement of the original judgment.
[1237D F] 21.
The President is symbolic, the Central Government is the reality even as the Governor is the formal head and sole repository of the executive power but is incapable of acting except on, and according to, the advice of his council of ministers.
The upshot is that the State Government, whether the Governor.
likes it or not, can advise and not under Article 161, the Governor being bound by that advice.
The action of commutation and release can thus be pursuant to a governmental decision and the order may issue even withhold the Governor 's approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligation that the signature of the Governor should authorise the pardon, commutation or release.
The position is substantially the same regarding the President.
It is not open either to the President or the Governor to take independent decision or direct release or refuse release of any one of their own choice.
It is fundamental to the Westminster system that the Cabinet rules and the Queen reigns.
The President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers save in a narrow area of power.
So, even without reference to Article 367(1) and sections 3(8)(b) and 3(60)(b) of the , that in the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers.
Article 74, after the 42nd Amendment silences speculation and obligates compliance.
The Governor vis a vis his Cabinet is no higher than the President save and narrow area which does not include Article 161.
The constitutional conclusion is that the Governor is but a shorthand expression for the State Government and the President is an abbreviation for the Central Government.
[1239 C H, 1240A B] Shamsher Singh & Anr, vs State of Punjab, ; , applied.
Victimology, a burgeoning branch of humane criminal justice, must find fulfillment, not through barbarity but by.
compulsory recoupment by the wrong doer of the damage inflicted, not by giving more pain to the offender but by lessening the loss of the forlorn.
The State itself may have its strategy of alleviating hardships of victims as part of Article 41.
So the mandatory minimum in section 433A cannot be linked up with the distress of the dependants [1251 B C] Observations: 1.
Parliamentary taciturnity does not preclude forensic examination about legislative competency.
Nor does it relieve the Supreme Court as sentinel on the qui vive, from defending fundamental rights against legislative aggression, if any flagrant excess were clearly made out.
[1211 F G] 2.
Courts cannot abdicate constitutional obligations even if Parliament be pachydermic and politicians indifferent, with great respect, ordinarily they are not.
indeed, Judges must go further, on account of their accountability to the Constitution and the country and clarify that where constitutional liberties are imperilled judges cannot be non aligned.
But where counterfeit constitutional I claims are pressed with forensic fervour courts do not readily oblige by consenting to be stampeded.
Justice is made of sterner stuff, though its core is like "the gentle rain from heaven" being interlaced with mercy.
11213 F Hl 1202 Per Fazal Ali, J. (Concurring) 1.
Section 433A of the Code is constitutionally valid Section 433A is actually a social piece of legislation which by one stroke seeks to prevent dangerous criminals from repeating offences and on the other protects the society from harm and distress caused to innocent persons.
[1256 B] 2.
The dominant purpose and the avowed object of the legislature in introducing section 433A in the Code of Criminal Procedure unmistakably seems to be to secure a deterrent punishment for heinous offences committed in a dastardly, brutal or cruel fashion or offences committed against the defence or security of the country.
[1251E F] Section 433A has advisedly been enacted to apply to a very small sphere and includes within its ambit only offences under sections 121, 132.
302., 303.
, 396 etc., of the Indian Penal Code, that is to say, only those offence, where death or life imprisonment are the penalties but instead of death life imprisonment is given or where a sentence of death is commuted to that of life imprisonment.
Section 433A when it confines its application only to these categories of offences which are heinous and amount to a callous outrage on humanity, has taken care of the fact that a sentence out of proportion of the crime is extremely repugnant to the social sentiments of a civilized society.
[1252 D E, 1253 H, 1254 A B] 3.
The deterrent punishment prevents occurrence of offences by (i) making it impossible or difficult for an offender to break the law again,(ii) by deterring not only the offenders but also others from committing offences, and (iii) punishment or for that matter a punishment in the form of a long term imprisonment may be a means to changing a person 's character or personality so that out of some motivation or reasons of a personal or general nature, the offender might obey the law.
[1254G H, 1255A] The Parliament in its wisdom chose to act in order to prevent criminals committing heinous crimes from being released through easy remissions or substituted form of punishments without undergoing at least a minimum period of imprisonment of fourteen years which may in fact act as a sufficient deterrent which may prevent criminals from committing offences.
[1256 E F] 4.
No doubt, the reformative form of punishment on principle, is in fact the prime need of the hour, but before it can succeed people must be properly educated and realise the futility of committing crimes.
[1255 E F] In the present distressed and disturbed atmosphere if deterrent punishment is not resorted to, there will be complete chaos in the entire country and criminals will be let loose endangering the lives of thousands of innocent people of our country.
In spite of all the resources at its commands, it will be difficult for the State to protect or guarantee the life and liberty of all the citizens, if criminals are let loose and deterrent punishment is either abolished or mitigated.
Secondly, while reformation of the criminal is only one side of the picture, rehabilitation of the victims and granting relief from the tortures and suffering which are caused to them as a result of the offences committed by the criminals is a factor which seems to have been completely overlooked while defending the cause of the criminals for abolishing deterrent sentences [1256H, 1257 A B] 5.
A person who has deprived another person completely of his liberty for ever and has endangered the liberty of his family has no right to ask the court to uphold his liberty.
Liberty is not a one sided concepts nor does Article 21 of the Constitution contemplate such a concept.
If a person commits 1203 a criminal offence and punishment has been given to him by a procedure established by law which is free and fair and where the accused has been fully heard, no question of violation of Article 21 arises when the question of punishment is being considered.
Even so, the provisions of the Code of Criminal Procedure of 1973 do provide an opportunity to the offender, after his guilt is proved to show circumstances under which an appropriate sentence could be imposed on him.
These guarantees sufficiently comply with the provisions of Article 21.
Thus, while considering the problem of penology courts should not overlook the plight of victimology and the sufferings of the people who die, suffer or are maimed at the hands of criminals.
[1257C E] 6.
In cases where section 433A applies, no question of reduction of sentence arises at all unless the President of India or the Governor choose to exercise their wide powers under Article 72 or Article 161 of the Constitution which also have to be exercised according to sound legal principles.
Any reduction or modification in the deterrent punishment would far from reforming the criminal be counter productive.
[1257 F G] 7.
Parliament by enacting section 433A has rejected the reformative character of punishment in respect of offences contemplated by it, for the time being in view of the prevailing conditions in our country.
It is well settled that the legislature understands the needs and requirements of its people much better than the courts because the Parliament consists of the elected representatives of the people and if the Parliament decides to enact a legislation for the benefit of the people, such a legislation must be meaningfully construed and given effect to so as to subserve the purpose for which it is meant.
[1257 G H, 1258 A B] 8.
There is no real inconsistency between section 433A and Articles ?2 and 161 of the Constitution of India.
[1258E] Doubtless, the President of India under Article 72 and the State Government under Article 161 have absolute and unfettered powers to grant pardon, reprieves, remissions, etc.
This power can neither be altered, modified or interfered with by any statutory provision.
But, the fact remains that higher the power, the more cautious would be its exercise.
This is particularly so because the present enactment has been passed by the Parliament on being sponsored by the Central Government itself.
It is, therefore, manifest that while exercising the powers under the aforesaid Articles of the Constitution neither the President, who acts on the advice of the Council of Ministers.
nor the State Government is likely to overlook the object, spirit and philosophy of section 433A so as to create a conflict between the legislative intent and the executive power.
It cannot be doubted as a proposition of law that where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter.
[1258 B D] Per Koshal, J. (Generally concurring) 1.
The contention that the main object of every punishment must be reformation of the offender and that the other objects deterrence, prevention and retribution should be relegated to the background and be brought into play only incidentally is not correct for three reasons: (i) There is no evidence that all or most of the criminals who are punished are amenable to re formation.
The matter has been the subject of social debate and so far as one can judge, will continue to remain at that level in the foreseeable future; (ii) The question as to which of the various objects of punishment should be the basis 1204 of a penal provision has, in the very nature of things, to be left to the Legislature and it is not for the courts to say which of them shall be given priority, preponderance or predominance.
As it is , the choice must be that of the legislature and not that of the court and it is not for the latter to advise the legislature which particular object shall be kept in focus in a particular situation.
Nor is it open to the courts to be persuaded by their own ideas about the propriety of a particular purpose being achieved by a piece of penal legislation, while judging its constitutionality.
A contrary proposition would mean the stepping of the judiciary into the field of the legislature which is not permissible.
It is thus outside the scope of the inquiry undertaken by this Court into the vires of the provisions contained in section 433A to find out the extent to which the object of reformation is sought to be achieved thereby, the opinion of great thinkers, jurists, politicians and saints (as to what the basis of a penal provision should be) notwithstanding; (iii) A careful study of the Penal Code brings out clearly that the severity of each.
punishment sanctioned by the law is directly proportional to the seriousness of the offence for which it is awarded.
This is strongly indicative of reformation not being the foremost object sought to be achieved by the penal provisions adopted by the legislature.
A person who has committed murder in the heat of passion may not repeat his act at all later in life and the reformation process in his case need not be time consuming.
On the other hand, a thief may take long to shed the propensity to deprive others of their good money.
If the reformative aspect of punishment were to be given priority and predominance in every case the murderer may deserve, in a given set of circumstances, no more than a six months ' period of incarceration while a thief may have to be trained into better ways of life from the social point of view over a long period, and the death penalty, the vires of which has been recently upheld by a majority of four in a five Judges Bench of this Court in Bachan Singh and others vs State of Punjab and others, , would have to be exterminated from Indian criminal law.
The argument based on the object of reformation having to be in the forefront of the legislative purposes behind punishment is, therefore, fallacious.
[1259B D, G H, 1260A H, 1261 A]
|
ition No. 3804 of 1980.
(Under Article 32 of the Constitution).
R. K. Garg, Sunil K. Jain, D. K. Garg, Sukumar Sahu and V. J. Francis for the Petitioners.
L. N. Sinha, Att.
General of India, M. M. Abdul Khader, T.V.S. Narasimhachari and M. N. Shroff for Respondent No. 1.
M. K. Banerjee, Addl.
Genl., J. B. Dadachanji, C. M. Oberoi and K. J. John for Respondent No. 2. A. K. Sen, section section Ray, R. section Narula, Anindya Mitra, Parijat Sinha N. P. Agarwala, C. K. Jain, Bardar Ahmad, Mrs. R. Dhariwal and M. C. Dhingra for Respondent No. 4.
56 The Judgment of Y. V. Chandrachud, C.J., section Murtaza Fazal Ali and A. D. Koshal, JJ. was delivered by, Chandrachud.
C.J. V. R. Krishna Iyer J. gave a concurring Opinion of his own and on behalf of P.N. Bhagwati, J. CHANDRACHUD, C.J.
By this petition under Article 32 of the Constitution, the petitioners challenge the legality of the sale of certain plants and equipment of the Sindri Fertilizer Factory, whereby the highest tender submitted by Respondent 4 in the sum of Rs. 4.25 crores was accepted on May 30, 1980.
The relief sought by the petitioners is that the respondents should be directed not to sell away the plant and equipment, that they should be asked to withdraw their decision to sell the same and that the said decision should be quashed as being illegal and unconstitutional.
Petitioner 1 is a Union of the Workers of the Factory, Petitioner 2, Shri A. K. Roy, a Member of Parliament from Dhanbad, is the President of that Union, while Petitioners 3 and 4 are workers employed in the Factory.
Respondent 1 to the Writ Petition is the Union of India, Respondent 2 is the Fertilizer Corporation of India, ( 'FCI '), Respondent 3 is the Sindri Fertilizer Factory, while the added Respondent 4, Ganpatrai Agarwal, is the highest tenderer.
Respondent 2, a Government of India Undertaking, is a Company incorporated under the and is a 'Government Company ' within the meaning of Section 617 of that Act.
It established the Respondent 3 Factory, which was commissioned in 1951.
By article 66(1) of the Articles of Association of respondent 2, its directors are appointed by the President of India.
On January 4, 1980 the Board of Directors of respondent 2, (FCI), decided that tenders should be invited for the sale of 'Redundant/retired plants and equipment of respondent 3.
In pursuance of that decision, an advertisement was inserted in the newspapers on February 25, 1980 inviting tenders for the sale of nine units of the "closed down chemical plants" of the Factory on "as is where is" basis.
The advertisement gave to the intending purchasers the option to quote for four alternatives, one of which was the quotation for individual equipment such as pumping sets and compressors.
Each tenderer was required to submit three separate envelopes: Envelope No. 1 relating to the payment of earnest money; envelope No. 2 relating to the terms and conditions of the sale; and envelope No. 3 relating to the amount of bid offered by the tenderer.
The offers were to be valid until June 19, 1980.
On March 20, 1980 when the envelopes bearing No. 1 were opened, it was found that two tenderers had not complied with the 57 term as to the payment of the earnest money.
As a result, the number of valid tenders was reduced to nine.
Discussions took place thereafter between the tenderers and the authorities, as a result of which an agreed formula was evolved regarding the exclusion of the weights of foundation and the exclusion of sales tax from the bids offered.
A few items were also excluded from the list of articles advertised for sale.
In the light of these modifications, the tenderers were asked to submit fresh quotations in a separate envelope marked 'No. 4 '.
On March 21, 1980 envelopes bearing No. 3 which contained the original offers and those bearing No. 4 which contained the modified offers, were opened in the presence of the tenderers.
The highest original offer was that of respondent 4 in the sum of Rs. 7.6 crores.
The highest modified offer of Rs. 6.2 crores was also made by respondent 4.
The sale was thereafter adjourned.
On March 31, 1980 a letter was received by Respondent 2 that a part of the plants and equipment which were advertised for sale were needed by the Fertilizer (Planning and Development) India Ltd. for the purposes of experiment and research.
On April 10, 1980 a similar request was received from the Ramagundam Division of Respondent 2.
On May 14, 1980 the Board of Directors decided that only those items should be offered for sale which remained after meeting the requirements of the Fertilizer (Planning and Development) and the Ramagundam Division and that fresh offers should be invited for the reduced stock, restricted to the tenderers who had submitted modified tenders in sums exceeding Rs. 4 crores.
There were six such tenders amongst the nine valid tenders.
A week later, the six tenderers who had submitted those tenders were called to Sindri and a fresh list of reduced items was furnished to them.
They submitted their revised tenders in sealed covers on May 23, 1980.
On May 24, the Tender Committee considered the offer made by Respondent 4 in the sum of Rs. 4.25 crores as the best, that being the highest amongst the fresh reduced offers.
The Tender Committee referred the matter to the Board on the same date and on May 29, the Board gave its approval to the acceptance of respondent 4 's offer.
On May 30, a letter of Intent was issued by Respondent 2 in the name of Respondent 4 who paid the security deposit of Rs. 50 lakhs on June 13, 1980.
An order of sale in favour of Respondent 4 was issued by Respondent 2 on July 7, 1980 whereupon Respondent 4 started dismantling the machinery and equipment which he had purchased.
This Writ Petition was filed on August 14, 1980.
On August 25, the Court issued a show cause notice on the writ petition and stayed the sale.
58 The petitioners challenge the sale, inter alia, on the following grounds: (1) that the decision to sell the plants and equipment of the Factory was taken without calling for any report, expert or otherwise; (2) that the original tender of Rs. 7.6 crores was unaccountably reduced to Rs. 4.25 crores; (3) that the price of the plants and equipment, which was ultimately realised in the sale was manipulated with ulterior purposes; (4) that the decision to restrict the fresh offers, in respect of the reduced equipment, to the tenderers who had submitted tenders for more than Rs. 4 crores was unfair and arbitrary; (5) that the said decision resulted in a huge loss to the public exchequer since, if the sale was readvertised, an appreciably higher price would have been realised; and (6) the sale has jeopardised the employment of 11000 odd workers who face retrenchment as a result of the sale.
Petitioners 3 and 4 support this petition under Article 32 of the Constitution by contending that the sale will deprive them of their fundamental right under Article 19(1)(g) to carry on their occupation as industrial workers.
They contend further that the sale is in violation of the provisions of Article 14, since it is arbitrary and unfair.
The learned Attorney General, who appears on behalf of the Union of India, has raised a preliminary objection to the maintainability of the writ Petition on the ground that in the first place, the petitioners have no locus standi to file the petition and secondly, that the impugned sale does not violate any of the fundamental rights of the petitioners.
We must decide this objection before considering the contentions raised by Shri R. K. Garg on behalf of the petitioners.
Article 32 of the Constitution which guarantees by clause (1) the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III, provides by clause (2) that: "The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas 59 corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part".
It is manifest that the jurisdiction conferred on this Court by Article 32 can be exercised for the enforcement of the rights conferred by Part III and for no other purpose.
Clause (1) as well as clause (2) of Article 32 bring out this point in sharp focus.
As contrasted with Article 32, Article 226 (1) of the Constitution provides that: "Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose".
(emphasis supplied).
The difference in the phraseology of the two Articles brings out the marked difference in the nature and purpose of the right conferred by these Articles.
Whereas the right guaranteed by Article 32 can be exercised for the enforcement of fundamental rights only, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights but for any other purpose.
The jurisdiction conferred on the Supreme Court by Article 32 is an important and integral part of the basic structure of the Constitution because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated.
A right without a remedy is a legal conundrum of a most grotesque kind.
While the draft Article 25, which corresponds to Article 32, was being discussed in the Constituent Assembly, Dr. Ambedkar made a meaningful observation by saying: "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".
(Constituent Assembly Debates, December 9, 1948, Vol.
VII, p. 953).
60 But though the right guaranteed by Article 32 is one of the highly cherished rights conferred by the Constitution, the purpose for which that right can be enforced is stated in the very article which confers that right.
The violation of a fundamental right is the sine qua non of the exercise of the right conferred by Article 32.
That makes it necessary to consider whether any of the fundamental rights of the petitioners is violated or is in the imminent danger of being violated by the sale of the plants and equipment of the Factory.
The grievance of the petitioners is that two of their fundamental rights are violated by the sale, one under Article 19(1) (g) and the other under Article 14 of the Constitution.
We find no substance in the grievance that the petitioners ' right under Article 19(1)(g) is violated or is in the imminent danger of being violated by the sale.
That Article confers on all citizens the right to practise any profession or to carry on any occupation trade or business.
The right of the petitioners to carry on an occupation is not infringed by the sale mediately or immediately, actually or potentially, for two reasons.
In the first place, Shri R. C. Malhotra, who is the Chief Engineer of the Sindri Unit, says in paragraph 5 of the counter affidavit filed by him on behalf of the FCI, that although the old plants and equipment had to be shut down from 1976 to 1979 because they had become redundant, unsafe or unworkable, no employee was deprived of his employment on that account.
Shri Malhotra says further in the same paragraph and in paragraph 6 of the counter affidavit, that the management of the FCI had decided to deploy the workmen working in the plants that had to be shut down in various other plants set up under the scheme of modernisation and rationalisation and in the various facilities that had been renovated in the Sindri complex itself.
Thus, not only did the sale not affect the employment of the workers employed in the Factory, but those of them who were rendered surplus from time to time on account of the closure of the plants were absorbed in alternate employment in the same complex.
Secondly, the right of Petitioners 3 and 4 and of the other workers to carry on the occupation of industrial workers is not, in any manner affected by the impugned sale.
The right to pursue a calling or to carry on an occupation is not the same thing as the right to work in a particular post under a contract of employment.
If the workers are retrenched consequent upon and on account of the sale, it will be open to them to pursue their rights and remedies under the Industrial Laws.
But the point to be noted is that the closure of an establishment in 61 which a workman is for the time being employed does not by itself infringe his fundamental right to carry on an occupation which is guaranteed by Article 19(1)(g) of the Constitution.
Supposing a law were passed preventing a certain category of workers from accepting employment in a fertiliser factory, it would be possible to contend then that the workers have been deprived of their right to carry on an occupation.
Even assuming that some of the workers may eventually have to be retrenched in the instant case, it will not be possible to say that their right to carry on an occupation has been violated.
It would be open to them, though undoubtedly it will not be easy, to find out other avenues of employment as industrial workers.
Article 19(1) (g) confers a broad and general right which is available to all persons to do work of any particular kind and of their choice.
It does not confer the right to hold a particular job or to occupy a particular post one 's choice.
Even under Article 311 of the Constitution, the right to continue in service falls with the abolition of the post in which the person is working.
The workers in the instant case can no more complain of the infringement of their fundamental right under Article 19(1)(g) than can a Government servant complain of the termination of his employment on the abolition of his post.
The choice and freedom of the workers to work as industrial workers is not affected by the sale.
The sale may at the highest affect their locum, but it does not affect their locus, to work as industrial workers.
This is enough unto the day on article 19(1)(g).
In regard to the infringement of the right under Article 14, the contention of the petitioners is that the plants and equipment of the factory were sold without the benefit of any expert report, that the decision to effect the sale was taken arbitrarily, that it was actuated by an ulterior motive, and that the sale is vitiated by the violation of the principles of natural justice since the ultimate bid was restricted to a select group of persons.
The petitioners contend that the arbitrariness and unfairness of the sale is reflected in the circumstance that the original bid of Rs. 7.6 crores came down to Rs. 4.25 crores.
If the sale was readvertised after there was a material variation in its terms, the plants and equipment, according to the petitioners, would have fetched a much higher price.
A clear and satisfactory answer to this contention is provided by the learned Additional Solicitor General, who appears on behalf of Respondent 2, FCI.
He has pointed out to us numerous circumstances from which it would appear that the grievance of the petitioners that the sale was unfair and arbitrary is not justified.
62 The affidavits filed on behalf of the respondents, particularly those of Shri R. C. Malhotra, Chief Engineer of the Sindri Unit and of Shri K. V. Krishna Ayyar, Under Secretary in the Department of Chemicals and Fertilisers, Government of India, show that the Sindri Plant, which was commissioned in 1951 and was expanded in 1959 and 1969 by providing certain extra facilities, had outlived its use.
Various schemes were considered from time to time for improving the economics of the Sindri Unit in order to ensure continued employment to the workers.
The first of such schemes was the Sindri Rationalisation Scheme, which was approved by the Government in 1967.
This scheme was completed in October 1979 at a cost of Rs. 60.77 crores While the Rationalisation Scheme was under implementation, it transpired that the Ammonia manufacturing facilities based on coke were fast deteriorating and unless the equipment was renovated substantially or was replaced with modern equipment, it was impossible to expect stability in the production of Nitrogenous fertilisers from the plant.
Different alternatives were before the Government in this behalf, and, finally, the Sindri Modernisation Scheme was approved by it in November 1973.
This Scheme envisaged the shutting down of the old Ammonia plant based on coke and the setting up of a modern Ammonia plant producing 900 tonnes a day of Ammonia with low sulphur heavy stock as food stock.
This scheme was completed in October 1979 at a cost of Rs. 183.19 crores.
Thus, the long term plan of the Government was to retain the Ammonium Sulphate plant after renovating it and to shut down the old coke based Ammonia plant.
The plant operations with the old plant showed considerable deterioration in 1975 76.
A team of engineers of the Sindri Unit as well as of the Planning and Development Division of the Fertiliser Corporation, in association with the engineers of the Central Mechanical Engineering Research Institute, Durgapur, undertook Survey, examination and inspection of the plants with a view to determining their status and condition.
A committee of Directors was also appointed for the same purpose.
One of the main criteria which the Directors kept before themselves in view of the reported unsafe working condition of the plant was the safety of the personnel and the workmen.
The matter was thereafter kept under constant review and parts of the plant were retired or closed down from time to time as and when their operation became unsafe and uneconomical.
The running of the old plant had indeed become so uneconomical that as against the cost of production of Rs. 787.23 per ton of Ammonia in 1971 72, the cost of production in 1978 79 was approximately Rs. 6296/ per ton.
An additional circumstance which compelled the closure of a part of the plant is the fact that the raw material required for the old plant comprised special high quality coal which is in short supply.
63 On the question of arbitrariness of the sale, the following facts and circumstances are particularly relevant: (1) The decision of the Board of Directors in respect of the sale relates only to the redundant or retired plants and equipment; (2) The Board is authorised by article 68(20) of the Articles of Association of the Corporation to sell even the whole of the undertaking with the prior approval of the President of India.
Such approval was taken before the sale was finalised in favour of Respondent 4; (3) The decision of the Board was restricted to a small part of the assets of the Sindri Factory.
The balance sheet for 1954 55 of the erstwhile Sindri Fertiliser & Chemicals Ltd. shows that the assets of the said Factory were of the value of Rs. 22,82,99,086/ as on April 1, 1954, out of which plants, equipment, machinery, etc.
were of the value of Rs. 14,68,59,502/ .
The original cost of the plants and equipment, which have now been sold, was about Rs. 10 crores, of which the written down value as on March 31, 1980 was about Rs. 50 lakhs.
The present outlay on the Sindri Unit is in the region of Rs. 220 crores; (4) The decision to sell the redundant or retired plants became necessary for the reason that they had out lived their life, having run for a period ranging from 18 to 28 years.
It had also become unsafe, hazardous and uneconomic to run such plants and equipment; and (5) Although the old plants had to be shut down on account of the sale, no employee at all was retrenched or is likely to be retrenched on account of the sale.
The answer which the Minister for Petroleum and Chemicals gave on the floor of the House to the question put by respondent 2 is, if we may say so, strictly 'parliamentary '.
The question was whether there was any report justifying the sale.
The answer was 'NO ' because there were reports which preceded the sale and which advised the sale.
But they did not 'justify ' the sale, which is an ex post facto matter.
In fact 64 many a report had suggested the disbanding of worn out, uneconomical and hazardous plants of Fertilizer undertakings like: 1.
Report of the Fertilizer Mission to India of the International Bank for the Reconstruction and Development published July, 1969.
Techno economic study of Alternative schemes for Sindri Modernisation Project prepared by Planning and Development Division of Fertilizer Corporation of India and published May 1971.
Techno economic Feasibility Report of Sindri Modernisation Project published by Planning and Development Division 1973 of Fertilizer Corporation of India.
Appraisal of Sindri Fertilizer Project India Report of the International Bank for Reconstruction & Development, International Development Association, published November, 1974.
Report on Works Transformation and Environmental Study by M/s UNICO International Corporation of Japan, published July 1975.
In view of these facts and circumstances, it is quite difficult to hold that the decision to sell the plants and equipment of the Factory was arbitrary, unreasonable or mala fide.
It has to be emphasized that the real drive of the petition is against the decision of the Board to sell the plants and equipment.
It is that decision which is stated to furnish the cause to complain of the violation of the right conferred by article 14, fairness, justness and reasonableness being its implicit assumptions.
There is only one other aspect of the matter and that we are unable to view with any great equanimity.
It is clear from the proceedings that the plants which were initially advertised for sale went through variation on two occasions.
The first variation which was made on March 20, 1980 may not be regarded as substantial.
But after the sale was adjourned to March 31, 1980, the requests received by the FCI from the other public sector undertakings stating, that they were in need of a part of the equipment which was advertised for sale, led to a substantial reduction in the goods advertised for sale.
The authorities then sent for the nine tenderers and negotiated with them across the table.
We want to make it clear that we do not doubt the bonafides of the authorities, but as far as possible, sales of public property, when the intention is to get the best price, ought to take place publicly.
The vendors are not necessarily bound to accept the highest or any other 65 offer, but the public at least gets the satisfaction that the Government has put all its cards on the table.
In the instant case, the officers who were concerned with the sale have inevitably, though unjustifiably, attracted the criticism that during the course of negotiations the original bid was reduced without a justifying cause.
We had willy nilly to spend quite some valuable time in satisfying ourselves that the reduction in the price was a necessary and fair consequence of the reduction in the quantity of the goods later offered for sale on March 31, 1980.
One cannot exclude the possibility that a better price might have been realised in a fresh public auction but such possibilities cannot vitiate the sale or justify the allegation of mala fides.
In view of the fact that neither the decision to sell nor the sale proceedings were unreasonable, unjust or unfair, it cannot be held that the petitioner 's rights, if any, under Article 14 are violated.
The learned Attorney General contended that arbitrariness would be actionable under Article 32, only if it causes injury to the fundamental rights of the petitioner, and that the petitioners in the instant case have no fundamental right in the exercise of which they can challenge the sale.
We consider it unnecessary to examine this contention because the sale is not vitiated by any unfairness or arbitrariness.
If and when a sale of public property is found to be vitiated by arbitrariness or mala fides, it would be necessary to consider the larger question as to who has the right to complain of it.
That disposes of the question as regards the maintainability of the writ petition.
But, we feel concerned to point out that the maintainability of a writ petition which is correlated to the existence and violation of a fundamental right is not always to be confused with the locus to bring a proceeding under Article 32.
These two matters often mingle and coalesce with the result that it becomes difficult to consider them in water tight compartments.
The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated.
But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding be it under Article 226 or under Article 32 of the Constitution.
If public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations.
Public enterprises are owned by the people and those who run them are accountable to the people.
The accountability of the public sector to the Parliament is 66 ineffective because the parliamentary control of public enterprises is "diffuse and haphazard".
We are not too sure if we would have refused relief to the workers if we had found that the sale was unjust, unfair or mala fide.
Several decisions were cited before us by the learned Attorney General, the learned Additional Solicitor General, Shri A. K. Sen and Shri R. K. Garg on the question of the maintainability of the writ petition.
We consider it unnecessary to discuss them in view of the fact that we have come to the conclusion that the petitioner 's fundamental right under Article 19 (1) (g) to carry on the occupation of an industrial worker is not affected by the sale, and similarly, that his fundamental right, if any, under Article 14 of the Constitution has not been violated.
The question as regards 'access to justice '.
particularly under Article 226 of the Constitution, has been dealt with by Brother Krishna Iyer, at some length, for which reason I do not consider it necessary to dwell upon that topic.
In the result, we dismiss the petition and discharge the rule.
There will be no order as to costs.
KRISHNA IYER, J.
This Writ Petition which, in the forensic unfolding through oral submissions, has exceeded our expectations, bristles with profound issues of deep import one of which is the citizen 's legal standing vis a vis illegal handling of public resources a jurisprudential area of critical importance but of precedential barrenness and, therefore, all the more demanding in the developmental setting and social justice imperatives of Law India.
The learned Chief Justice has considered with care some of the profound questions covered in the course of the arguments and it may be supererogation to tread the same territory.
The general factual presentation and legal conclusions of the learned Chief Justice have our concurrence.
Equally, the approach to articles 14 and 32, with its fascinating expansionism, is of strategic significance, viewed in the perspective of Third World jurisprudence.
Maybe, that while we broadly agree, our emphasis may differ, our shades of meaning may vary and, in some places, even our processes of reasoning may lead us to other destinations.
Even so, a general consensus suffices and we desist from dealing with all the points discussed by our learned brothers.
Nevertheless, some problems of seminal significance affecting the adjectival law are of such compelling futuristic impact that we shall examine them alone in our separate opinion.
67 The facts have been stated, the arguments have been indicated and that helps us to plunge straight into the points we propose to consider.
Briefly, a Government company has gone through the long exercise of selling and allegedly obsolescent steel plant for junk price, after receiving tenders, holding discussions, making modifications and ultimately settling the sale in favour of Ganpatrai Aggarwal of Calcutta.
In this process, two decisions were taken; the first was a policy decision to sell a substantial plant, part of which could have been salvaged, as if the entire material were scrap; the second question which the company decided was to call for tenders but to settle the sale, not exactly as originally intended, but with many changes, negotiations and alterations, so much so, while the maximum offer in the first round was for over Rs. 7 crores the actual offer which was accepted was for Rs. 4 crores and odd, the difference being explained by the respondents on the score that many items included in the original proposal to sell had since been withdrawn.
When a plant is shut down, as in this case, it has been, for reasons the merits of which we do not propose to scrutinise, the workers employed in it are ordinarily thrown out of employment.
Assuming some patch work arrangement to give lingering employment for some time more were offered as a measure of alleviation, that certainly is not equal to the steady and assured service in a public sector undertaking which is a Government company owned entirely by the President of India.
Their economic fortunes and employment status are affected by the amputation of a limb of the company.
These workers have invoked the jurisdiction of this Court under article 32 of the Constitution and sought to demolish through the writ of this Court, both the decision to sell the plant on the score of obsolescence and the dubious manner of sale which, in their submission, has resulted in colossal loss to the public exchequer and, vicariously, to the citizenry of the country, including, a fortiori, the workers in the enterprise.
Two questions incidentally arise: Have the workers locus standi under article 32, which is a special jurisdiction confined to enforcement of fundamental rights ? What, if any, are the fundamental rights of workmen affected by the employer 's sale of machinery whose mediate impact may be conversion of permanent employment into precarious service and eventual exit ? Lastly, but most importantly, where does the citizen stand, in the context of the democracy of judicial remedies, absent an ombudsman? In the face of (rare, yet real) misuse of administrative power to play ducks and drakes with the public exchequer, especially where developmental expansion necessarily involves astronomical expenditure and concomitant corruption, do public bodies enjoy immunity from challenge save through the post 68 mortem of parliamentary organs.
What is the role of the judicial process, read in the light of the dynamics of legal control and corporate autonomy ? This juristic field is virgin but is also heuristic challenge, so that law must meet life in this critical yet sensitive issue.
The active co existence of public sector autonomy, so vital to effective business management, and judicial control of public power tending to berserk, is one of the creative claims upon functional jurisprudence.
The Court cannot wait and, despite allergy to minimal decisional law making in vacant spaces, the rule of law in this virgin area cannot leave the fertile field fallow.
Judicial, though interstitial, law making is needed in this field.
"Many of the judges of England have said that they do not make law.
They only interpret it.
This is an illusion they have fostered.
But it is notion which is now being discarded everywhere.
Every new decision on every new situation is a development of the law.
Law does not stand still.
It moves continually.
" We have no doubt that public law, as part of the panorama of the developmental process, must possess the specific techniques of public sector control within well defined parameters which will anathematise administration by court writ and interdict public officials handling public resources in disregard of normative essentials and constitutional fundamentals.
The functional future of the rule of law in our country depends on the fulfillment of the words of Chief Justice Earl Warren: Our Judges are not monks or scientists, but participants in the living stream of national life .
Our system faces no theoretical dilemma, but a single continuous problem; how to apply to ever changing conditions the never changing principles of freedom".
The Indian citizen does expect some cybernetic system or ombudsman Mechanism whereby power geared to public good does not betray the goals of social engineering.
The jural postulates which are an imperative of our Independence and planned development assume this command function of the law It is good that we state the inter action between planning and law in the words of Prof. Berman: "Plan is that aspect of the social process which is concerned with the maximum utilization of institutions and resources from the point of view of economic development; law is that aspect of the social process which is concerned 69 with the structuring and enforcing of social policy (plan) in terms of the rights and duties therefrom".
Our national reconstruction involves an enormous increase in public sector operations in fulfillment of the paramount directives of Part IV of the Constitution.
In a society in which the State had thrust upon it the imperative of effectuating massive transformation of economy and social structure the demands upon the legal order to inhibit administrative evils and engineer developmental progress are enormous, though novel.
The present case, whatever the merits and the ultimate conclusion, does raise the deeper issue of the dynamics of social justice vis a vis the role of the Rule of Law where the public sector occupies the commanding heights of the national economy and yet asserts a right to be free from judicial review.
That cannot be.
While it is unnecessary for us to spell out in greater detail the emergence of a new branch of administrative law in relation to the national plan and the public sector of the economy.
It is important to underscore the vital departure from the pattern of judicial review in the Anglo American legal environment because the demands of development obligated by Part IV compel creative extensions to control jurisprudence in many fields, including business administrative law, contract law, penal law, fiscal law and the like.
Robert Siedmann, dealing with the law of economic development in Sub Saharan Africa has dealt with the maintenance of legality in a developmental setting with focus on stability and change and the evolution of new norms of constitutional and administrative law.
He rightly stresses what applies to India as well: "If there are to be some reasonable norms for administrative behaviour in Africa, the formulation of codes of administrative law is desirable.
But such codes are not self enforcing; without institutional devices to support them, they become meaningless." He continues to make certain observations on the enforcement on the regime of legality and their importance for the Indian scene: "If the tone of public life is sufficiently honest and fair minded, formal norms are relatively unneeded.
That is not the position in Africa; on the contrary, there is a notable lack of restraints upon the exercise of state power.
This betrays itself most blatantly in the widespread corruption that seems 70 to exist, especially in West Africa.
When corruption permeates the entire fabric of government, legality is the first sufferer, for state power is exercised on grounds unrelated to its nominal purposes.
In English speaking Africa, the devices for the enforcement of the few standards of administrative probity that exist are in the common law tradition.
In some cases there are internal administrative appeals.
Resort to the courts for relief is theoretically available if an ascertainable norm has been violated.
Relief can be sought in a civil action brought by the extreme cases, in a criminal action brought by the director of public prosecutions.
The civil remedies for administrative wrongdoing thus depend upon the action of individual citizens.
In such an action, the individual is pitted against the State always an unequal contest.
The individual does not have even the few procedural devices that the common law imports into criminal actions to try to redress the balance.
At his own expense, he must challenge the vast panoply of State power with all its resources in personnel, money, and legal talent, by a civil action for a declaratory judgment or for an extraordinary remedy injunction, writ of mandamus, or writ of prohibition.
Aside from the manifold technical insufficiencies of these forms of action, the financial impediments to such an action are staggering.
As a result of these impediments, in the United States, where almost the sole institutional protection against administrative error or arbitrariness is such an action, usually only great corporations or individuals who are supported by large voluntary associations have been able to carry through litigation.
To rely upon such individual actions as the primary means of policing administrative action in Africa is to rely upon what is nonexistent.
" A pragmatic approach to social justice compels us to interpret constitutional provisions, including those like articles 32 and 226, with a view to see that effective policing of the corridors of power is carried out by the court until other ombudsman arrangements a problem with which Parliament has been wrestling for too long emerges.
I have dwelt at a little length on this policy aspect and the court process because the learned Attorney General challenged the petitioners locus standi either qua worker or qua citizen to question 71 in court the wrong doings of the public sector although he maintained that what had been done by the Corporation was both bona fide and correct.
We certainly agree that judicial interference with the Administration cannot be meticulous in our Montesquien system of separation of powers.
The court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded.
If the Directorate of a Government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super auditor, take the Board of Directors to task.
This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules, of public administration.
Assuming that the Government company has acted mala fide, or has dissipated public funds, can a common man call into question in a court the validity of the action by invocation of articles 32 or 226 of the Constitution.? Here, we come up on the crucial issue of access to justice and the special limitations of article 32 which is the passport to this Court.
We have no doubt that in a competition between courts and streets as dispenser of justice, the rule of law must win the aggrieved person for the law court and wean him from the lawless street.
In simple terms, locus standi must be liberalised to meet the challenges of the times.
Ubi just ibi remedium must be enlarged to embrace all interests of public minded citizens or organisations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in its triune facets.
Lord Scarman 's warning in his Hamlyn Lectures lend strength to our view : "I shall endeavour to show that there are in the contemporary world challenges, social, political and economic, which, if the system cannot meet them, will destroy it.
These challenges are not created by lawyers; they certainly cannot be suppressed by lawyers: they have to be met either by discarding or by adjusting the legal system.
Which is to be ?" Lest there should be misapprehension, we wish to keep the distinction clear between the fundamental right to enforce fundamental rights and the interest sufficient to claim relief under article 226 and even under other jurisdictions.
The learned Attorney General almost 72 agreed, under pressure of compelling trends in the contemporary law of procedure, that article 226 may probably enable the petitioner to seek relief if the facts suggested by the court hypothetically existed.
Shri A. K. Sen also took up a similar position.
I will put aside article 32 for a moment and scan the right under article 226.
There is nothing in the provision (unlike under article 32) to define 'person aggrieved ', 'standing ' or 'interest ' that gives access to the court to seek redress.
The argument is, who are you to ask about the wrong committed or illegal act of the Corporation if you have suffered no personal injury to property, body, mind or reputation ? An officious busybody picking up a stray dispute or idle peddlar of blackmail litigation through abuse of the process of the court cannot be permitted to pollute the court instrumentality, for private objectives.
Public justice is always and only at the service of public good, never the servant or janitor of private interest or personal motive.
Law as I conceive it, is a social auditor and this audit function can be put into action only when some one with real public interest ignites the jurisdiction.
We cannot be scared by the fear that all and sundary will be litigation happy and waste their time and money and the time of the court through false and frivolous cases.
In a society where freedoms suffer from atrophy and activism is essential for participative public justice, some risks have to be taken and more opportunities opened for the public minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi.
Schwartz and H.W.R. Wade wrote in Legal Control of Government: "Restrictive rules about standing are in general inimical to a healthy system of a administrative law.
If a plaintiff with a good case is turned away, merely because he is not sufficiently affected personally, that means that some government agency is left free to violate the law, and that is contrary to the public interest.
Litigants are unlikely to expend their time and money unless they have some real interest at stake.
In the rare cases where they wish to sue merely out of public spirit, why should they be discouraged?" They further observed: "The problem of standing, or locus standi is inherent in all legal systems.
But in the United States, perhaps 73 because of the constitutional basis which the subject has acquired in federal law it can be discussed as a single topic.
In Britain it is a thing of shreds and patches, made up of various differing rules which apply to various different remedies and procedures.
It is a typical product of the untidy system of remedies, each with its own technicalities, which all British administrative lawyers would like to see reformed.
" We have no doubt that having regard to the conditions in Third World countries, Cappelletti is right in his stress on the importance of access: "The right of effective access to justice has emerged with the new social rights.
Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection.
Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system.
Effective access to justice can thus be seen as the most basic requirement the most basic 'human right ' of a system which purports to guarantee legal rights.
" The need for a radical approach has been underscored in New Zealand by Black: ". .today it is unreal to suggest that a person looks to the law solely to protect his interests in a narrow sense.
It is necessary to do no more than read the newspapers to see the breadth of the interests that today 's citizen expects the law to protect and he expects the court where necessary to provide that protection.
He is interested in results, not procedural niceties.
" India is an a fortiori case, especially as it suffers from the pathology of mid Victorian concepts about cause of action.
The Australian Law Reform Commission in its discussion paper No. 4 has considered the pros and cons and strongly supported the wider basis for access to justice.
Class actions will activise the legal process where individuals cannot approach the court for many reasons.
I quote from the Discussion Paper No. 4 : 74 "Widened standing rules may assist consumers in attaining relevant injunctive or declaratory relief but they do not assist in recovering losses inflicted by illegal trading practices, nor do they threaten the illegal trader where he is mot hurt, his pocketbook.
The most potent legal instrument in that regard so far devised is the modern class action, to some an 'engine of destruction ', to others a mighty force for good.
Consider the New York Commissioner of Consumer Affairs giving evidence before a United States Senate Committee in 1970. 'A federal class action law will have more impact on the market places of the nation than all the myriads of laws and ordinances against fraud and deception which are hidden away, in the statute books of the 50 States and their various sub divisions, put together.
All these laws make fraud illegal.
But they have not made fraud unprofitable.
Many of these laws can only be invoked by administrative agencies, which long ago lost their concern for the consumer and their appetite for action.
A Federal class action law. will put the power to seek justice in court where it belongs beyond the reach of campaign contributors, industry lobbyists, or Washington lawyers and it will put power in the hands of the consumers themselves and in the hands of their own lawyers, retained by them to represent their interests alone. ' " Public interest litigation is part of the process of participate justice and 'standing ' in Civil litigation of that pattern must have liberal reception at the judicial doorsteps.
The flood gates argument has been nailed by the Australian Law Reforms Commission : "The idle and whimsical plaintiff, a dilettante who litigates for a lark, is a specter which haunts the legal literature, not the courtroom.
A major expressed reason for limiting standing rights is fear of a spate of actions brought by busybodies which will unduly extend the resources of the courts.
No argument is easier put, none more difficult to rebut.
Even if the fear be justified it does not follow that present restrictions should 75 remain.
If proper claims exist it may be necessary to provide resources for their determination.
However, the issue must be considered.
Over recent years successive decisions of the United States Supreme Court have liberalised standing so as to afford a hearing to any person with a real interest in the relevant controversy.
Surveying the result in 1973 Professor Scott commented : 'When the floodgates of litigation are opened to some new class of controversy by a decision it is notable how rarely one can discern the flood that the dissentors feared.
Professor Scott went on to point out that the liberalised standing rules had caused no significant increase in the number of actions brought, arguing that parties will not litigate at considerable personal cost unless they have a real interest in a matter.
" We agree with the conclusion of the Commission: "The moral, perhaps, applies; if the courts cannot, or will not, give relief to people who are in fact concerned about a matter then they will resort to self held, with grave results for other persons and the rule of law.
Some may reply that if there is no evidence of a great increase in numbers there is no evidence of need for enlarged standing rights.
The reply would overlook two considerations.
One case may have a dramatic effect on behaviour in hundreds of others; this is the whole notion of the legal 'test case '.
Secondly, the mere exposure to possible action is likely to affect the behaviour of persons who presently feel themselves immune from legal control".
In the Municipal Council, Ratlam, a bench of this Court observed: " 'It is procedural rules ' as this appeal proves, 'which infuse life into substantive rights, which activate them to make them effective ' .
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 tradi 76 tional 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 a ward, is a pathfinder in the field of people 's involvement in the justicing process, sans which as Prof. Sikes points the system may 'crumble under the burden of its own insensitibity '. . .
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. .
After all (Australian, 16 November, 1977) was right.
We quote as a concluding thought of benign import for us: "Under a banner 'Easier Access to Courts of Law ' the Australian, 16 November 1977 declared: 'Perhaps and it is only a perhaps there was once some justification for restricting access to the courts to prevent their being bogged down in a morass of ineffectuality.
But today 's better informed, better educated, more literate and more politically aware citizens should certainly not be barred from the courts by tradition.
The law can no longer be a closed shop.
" In the present case a worker, who, clearly, has an interest in the industry, brings this action regarding an alleged wrong doing by the Board of Management.
Article 43A of the Constitution confers, in principle, partnership status to workers in industry and we cannot, therefore, be deterred by technical considerations of corporate personality to keep out those who seek to remedy wrongs committed in the management of public sector.
Locus standi and justiciability are different issues, as I have earlier pointed out.
This takes us to the 77 question of justiciability of questions like sale of public property by public bodies.
Certainly, it is not part of the judicial process to examine entrepreneurial activities to ferret out flaws.
The court is least equipped for such oversights.
Nor, indeed, is it a function of the judges in our constitutional scheme.
We do not think that the internal management, business activity or institutional operation of public bodies can be subjected to inspection by the Court.
To do so, is incompetent and improper and, therefore, out of bounds.
Nevertheless, the broad parameters of fairness in administration, bona fides in action, and the fundamental rules of reasonable management of public business, if breached, will become justiciable.
If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him.
But he belongs to an organisation which has special interest in the subject matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered.
I, therefore, take the view that the present petition would clearly have been permissible under Article 226.
The learned Attorney General drew our attention to article 32 and cited decisions to support his contention that only the petitioner 's fundamental rights could be agitated under that Article.
As the rulings now stand, he is right, although the question still survives as to whether a worker 's fundamental right under article 14 is not affected when arbitrary action of the enterprise in which he is employed ha an impact on his well being.
The democratisation of judicial remedies which is the thrust of our separate opinion, induces us to conclude with a quote : It was the boast of Augustus that he found Rome of brick and left it of marble.
But how much nobler will be the sovereigns boast when he shall have it to say that he found law dear and left it cheap; found it a sealed book and left it a living letter; found it the patrimony of the rich and left it the inheritance of the poor; found it the two edged sword of craft and oppression and left it the staff of honesty and the shield of innocence.
78 Having sought to illumine the half lit zone of access jurisprudence, we wish to make it clear that we are not dealing with the likely application article 19(1) (f) or of article 14 which have been raised in the present case because the learned Chief Justice has held that on the merits the action of the Corporation is above board.
The question which we reserve may well be considered when an appropriate occasion arises.
N. K. A. Petition dismissed.
| IN-Abs | The petitioners (workers) challenged the legality of the sale of certain plants and equipment of the Sindri Fertilizer Factory, whereby the highest tender submitted by respondent No. 4 was accepted by the Tender Committee and approved by the Board of Directors.
The petitioners, amongst others, contended that (i) that the decision to sell the plants and equipment of the Factory was taken without calling for any report;(ii) the original tender of Rs. 7.6 crores was unaccountably reduced to Rs. 4.25 crores; (iii) the price of the plants and equipment, which was ultimately realised in the sale was manipulated with ulterior purposes; (iv) the decision to restrict fresh offers, in respect of the reduced equipment, to the tenderers who had submitted tenders for more than Rs. 4 crores was unfair and arbitrary; (v) the said decision resulted in a huge loss to the public exchequer and (vi) the sale had jeopardised the employment of 11000 odd workers who faced retrenchment as a result of the sale.
On behalf of petitioners 3 and 4 it was further contended that the sale will deprive them of their fundamental right under Article 19(1) (g) to carry on their occupation as industrial workers and that the sale is in violation of the provisions of Article 14 of the Constitution being arbitrary and unfair.
The respondents raised a preliminary objection to the maintainability of the writ petition on the ground that the petitioners have no locus standi and that the impugned sale did not violate any of the fundamental rights of the petitioners.
Dismissing the petition: ^ HELD (By the Court) The petitioners ' right under article 19(1)(g) to carry on their occupation as industrial workers was not affected by the sale, nor was their fundamental right, if any, under Article 14 of the Constitution violated.
[60 A] (Per Chandrachud, C.J., Fazal Ali & Koshal, JJ.) 1.
The violation of a fundamental right is the sine qua non of the exercise of the right conferred by Article 32.
53 The jurisdiction conferred on the Supreme Court by Article 32 is an important and integral part of the basic structure of the Constitution because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated.
A right without a remedy is a legal conundrum of a most grotesque kind.
[59 E F] 2.
Whereas the right guaranteed by Article 32 can be exercised for the enforcement of fundamental rights only, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights but for any other purpose.
[59 E] 3(i).
There is no substance in the grievance that the petitioners ' right under Article 19(1)(g) is violated or is in the imminent danger of being violated by the impugned sale, since not only did the sale not affect the employment of the workers employed in the Factory, but those of them who were rendered surplus from time to time on account of the closure of the plants were absorbed in alternate employment in the same complex.
[60 C, F G] (ii) The right of petitioners 3 and 4 and of the other workers is not, in any manner, affected by the impugned sale.
The right to pursue a calling or to carry on an occupation is not the same thing as the right to work in a particular post under a contract of employment.
If the workers are retrenched consequent upon and on account of the sale, it will be open to them to pursue their rights and remedies under the Industrial Laws.
The closure of an establishment in which a workman is for the time being employed does not by itself infringe his fundamental right to carry on an occupation which is guaranteed by Article 19(1)(g) of the Constitution.
[60 G H, 61 A] 4.
Article 19(1)(g) confers a broad and general right which is available to all persons to do work of any particular kind and of their choice.
It does not confer the right to hold a particular job or to occupy a particular post of one 's choice.
Even under Article 311 of the Constitution, the right to continue in service falls with the abolition of the post in which the person is working.
The workers in the instant case can no more complain of the infringement of their fundamental right under Article 19(1)(g) than can a Government servant complain of the termination of his employment on the abolition of his post.
The choice and freedom of the workers to work as industrial workers is not affected by the sale.
The sale may at the highest affect their locum, but it does not affect their locus, to work as industrial workers.
[61 B D] 5.
In the instant case, it is quite difficult to hold that the decision to sell the plants and equipment of the Factory was arbitrary, unreasonable or mala fide.
The real drive of the petition is against the decision of the Board to sell the plants and equipment.
It is that decision which is stated to furnish the cause to complain of the violation of the right conferred by Article 14, fairness, justness and reasonableness being its implicit assumptions.
[64 D F] 6.
As far as possible, sales of public property, when the intention is to get the best price, ought to take place publicly.
The vendors are not necessarily bound to accept the highest or any other offer, but the public at least gets the satisfaction that the Government has put all its cards on the table.
One cannot exclude the possibility here that a better price might have been realised in a fresh public auction but such possibilities cannot vitiate the sale or justify the allegation of mala fides.
[64 G H, 65 A B] 54 7.
It cannot be held that the petitioners ' rights, if any, under Article 14 are violated, in view of the fact that neither the decision to sell nor the sale proceedings were unreasonable, unjust or unfair.
But if and when a sale of public property is found to be vitiated by arbitrariness of mala fides, it would be necessary to consider the larger question as to who has the right to complain of it.
[65C, D E] 8.(i) The maintainability of a writ petition which is correlated to the existence and violation of a fundamental right is not always to be confused with the locus to bring a proceeding under Article 32.
These two matters often mingle and coalesce with the result that it becomes difficult to consider them in water tight compartments.
The question whether a person has the locus to file a proceedings depends mostly and often on whether he possesses a legal right and that right is violated.
But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Article 226 or under Article 32 of the Constitution.
[65 E G] (ii) The Court might not have refused relief to the workers if it had found that the sale was unjust, unfair or mala fide.
If a public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations.
Public enterprises are owned by the people and those who run them are accountable to the people.
The accountability of the public sector to the Parliament is ineffective because the parliamentary control of public enterprises is "diffuse and haphazard".
[65 G H, 66 A] (Per Bhagwati and Krishna Iyer, JJ.
concurring) 1.
Public law, as part of the panorama of the developmental process, must possess the specific techniques of public sector control within well defined parameters which will anathematise administration by court writ and interdict public officials handling public resources in disregard of normatice essentials and constitutional fundamentals.
In a society in which the State had thrust upon it the imperative of effectuating massive transformation of economy and social structure the demands upon the legal order to inhibit administrative evils and engineer developmental progress are enormous, though novel.
[68 E & 69 A B] 2.
It is important to underscore the vital departure from the pattern of judicial review in the Anglo American legal environment because the demands of development obligated by Part IV compel creative extensions to control jurisprudence in many fields, including business administrative law, contract law, penal law, fiscal law and the like.
[69 C D] 3.
Judicial interference with the Administration cannot be meticulous.
The court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded.
If the Directorate of a Government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super auditor, take the Board of Directors to task.
This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules of public administration.
[71 A C] 55 4.
Locus Standi must be liberalized to meet the challenges of the time.
Ubi jus ibi remedium must be enlarged to embrace all interests of public minded citizens or organisations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in its triune facets.
[71 D E] 5.
An officious busybody picking up a stray dispute or idle peddlar of blackmail litigation through abuse of the process of the court cannot be permitted to pollute the court instrumentality, for private objectives.
Public justice is always and only at the service of public good, never the servant or janitor of private interest or personal motive.
[72 B C] 6.
Public interest litigation is part of the process to participate justice and 'standing ' in civil litigation of that pattern must have liberal reception at the judicial door steps.
[74 E F] 7.
Certainly, it is not part of the judicial process to examine entrepreneurial activities to ferret out flaws.
The court is least equipped for such oversights, Nor, indeed, is it a function of the judges under the constitutional scheme.
The internal management, business activity or institutional operation of public bodies cannot be subjected to inspection by the Court.
To do so, is incompetent and improper and, therefore, out of bounds.
Nevertheless, the broad parameters of fairness in administration, bona fides in action, and the fundamental rules of reasonable management of public business, if breached will become justiciable.
[77 A C] 8.
Article 43A of the Constitution confers, in principle, partnership status to workers in industry and therefore technical considerations of corporate personality cannot keep out those who seek to remedy wrongs committed in the management of the public sector.
[76 G] Municipal Council, Ratlam vs Shri Vardhichand and Ors. ; Wisconsin Law Review, Vol.
1966: 999 at P. 1064 and M. Cappelletti, Rabels Z (1976) 669 at 672 referred to.
|
tition Nos.
4228 4230 of 1978 and 266 of 1979.
(Under Article 32 of the Constitution) V. M. Tarkunde, O. P. Malhotra, K. N. Bhatt, Vijay Kumar Verma and R. C. Kathuria for the Petitioners in WPs 4228 4230/78.
Y. section Chitale (Dr.), Lala Ram Gupta, C. R. Somashekharan, M. section Ganesh, P. N. Jain and M. V. Goswami for the Petitioners in W.P. 266/79.
N. Kackar, section N. Ashri, R. N. Sachthey and M. N. Shroff for Respondent 1 in WP 4228 4230/78.
Soli J. Sorabjee, and Hardev Singh for R. 2 in WPs 4228 30 of 1978 and 266/79.
F. section Nariman, B. R. Tuli and R. section Sodhi for RR 3 11 in WP 266/79.
Kuldip Singh, Prem Malhotra and R. section Mongia for R. 3 in WPs 4228 30/78 and intervener.
A. K. Sen and Mrs. Urmila Kapoor for R. 1 in WP 266/79.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
These Writ Petitions under Article 32 of the Constitution involve the consideration of a two fold controversy: first, as to the rules governing seniority between direct recruits and promotees appointed to the Superior Judicial Services of Punjab and Haryana and second, between the control over district courts and subordinate courts vested in the High Court by article 235 and the power conferred upon the Governor by the proviso to article 309 of the Constitution to make rules regulating the recruitment and conditions of service of persons appointed, inter alia, to the Judicial Service of the State.
We have two sets of Writ Petitions before us which involve identical points except for one material difference which we will mention later.
Writ Petitions 4228 to 4230 of 1978 are filed by three judicial officers of the State of Haryana who are promotees, that is to say, who were promoted to the Superior Judicial Service of the State 1031 from the Haryana Civil Service (Judicial Branch).
Respondents 1 and 2 to those Writ Petitions are the State of Haryana and the High Court of Punjab and Haryana respectively.
Respondent 3, Shri N. section Rao, is a direct recruit, having been appointed from the Bar to the Haryana Superior Judicial Service.
Writ Petition 266 of 1979 is filed by twenty two promotees, that is to say, those who were promoted to the Punjab Superior Judicial Service from the Punjab Civil Service (Judicial Branch).
Respondents 1 and 2 to that petition are the State of Punjab and the High Court of Punjab and Haryana respectively.
Respondents 3 to 11 were appointed directly from the Bar to the Punjab Superior Judicial Service.
Some of the more important grievances of the petitioners are that their seniority qua direct recruits is wrongly and unjustly made to depend upon the fortuitous circumstance of the date of their confirmation in the Superior Judicial Service; that even if a substantive vacancy is available, the confirmation of a promotee in that vacancy is postponed arbitrarily and indefinitely, that promotees are treated with an unequal hand qua direct recruits: for example, a promotee, despite his satisfactory performance and the availability of a substantive vacancy in which he can be confirmed, is continued in an officiating capacity until after a direct recruit completes his probation and is due for confirmation, and that, the High Court applies the principle of rotation as between promotees and direct recruits at the time of their confirmation when, in fact, that the relevant rules provide for is the application of a rule of quota at the time of their appointment.
These grievances of the promotees can best be understood in the light of the following facts: The three petitioners in the Haryana Writ Petitions were selected for recruitment to the Punjab Civil Service (Judicial Branch) after qualifying in a competitive examination.
They were appointed as Subordinate Judges in 1950.
By Act 3 of 1966, the State of Haryana came into existence on November li 1966.
Petitioners 1 and 2 Shri B. section Yadav and Shri V. P. Aggarwal were promoted in an officiating capacity to the Haryana Superior Judicial Service on July 28 and October 7, 1967 respectively, while petitioner No. 3 Shri A. N. Aggarwal, was promoted similarly on March 27, 1968.
Respondent 3, Shri N. section Rao who as a member of the Bar was working as a District Attorney, was appointed directly to the Haryana Superior Judicial Service with effect from July 7, 1970.
The normal period of his two years ' probation expired on July 7, 1972 but before the issuance of the orders of his confirmation, a complaint dated August 2, 1977 was received against him.
That complaint was inquired into by a High Court Judge who, by his report of March 1973, held it to be unfounded.
Respondent 3 1032 was thereupon confirmed by the High Court as a District and Sessions Judge with effect from March 30, 1973.
By a notification dated May 4, 1973 that date was corrected to July 7, 1972 being the date on which Respondent 3 completed the two years ' probationary period.
By the same notification, the High Court confirmed the Petitioners and two other promotees as District and Sessions Judges with effect from July 8, 1972.
Thus, the petitioners, who were officiating continuously in the Superior Judicial Service of the State as Additional District and Sessions Judges for two or three years prior to the appointment of Respondent 3 directly to that service, lost their seniority over him by being allotted a date of confirmation which was one day later than the date on which he completed his probationary period.
(A small digression will be permissible here.
The Government of Haryana was unwilling to concede to the High Court the right to confirm a Judicial officer.
It disregarded the High Court 's order whereby Shri N. section Rao was confirmed and passed an order reverting him to the post of a District Attorney which he was holding at the time of his appointment as a District and Sessions Judge.
Rao filed a Writ Petition in the High Court to challenge the order of the Government.
The High Court set aside his reversion on certain other grounds but it held by a majority (N. section Rao vs State of Haryana that the power to confirm a direct recruit vested in the Governor and not in the High Court.
A Constitution Bench or this Court reversed the view of the High Court and held by a unanimous judgment (High Court of Punjab and Haryana vs State of Haryana), that the power to confirm a District and Sessions Judge resides in the High Court and not in the Governor).
In the Punjab Writ Petition, the contesting parties are twenty two promotees who have filed the writ petition and Respondents 3 to 11 who were appointed directly to the Punjab Superior Judicial Service.
Petitioner No. 1, Shri Pritpal Singh, was promoted to that Service on November 12, 1969 when he was 44 years of age.
Respondent 3, Shri J. section Sekhon, was appointed directly to that Service on February 1, 1973 when he was 41 years of age.
The former, though promoted to the Superior Judicial Service more than three years before the appointment of Respondent 3, was confirmed on February 3, 1975 which was one day later than February 2, 1975 on which date Respondent 3 was confirmed on the completion of his two years ' probation.
The grievance of Petitioner No. 1 is that a permanent vacancy was available on December 23, 1972 in which 1033 he could have been confirmed but the High Court marked time in order to enable Respondent 3 to complete his probation and gave to Petitioner 1 an arbitrary and artificial date of confirmation in order that he may not rank higher in seniority to Respondent 3.
The case of Petitioner 1 in the Punjab Writ Petition is illustrative of the grievance of the other petitioners.
Petitioners 2 to 6 were Promoted to the Superior Judicial Service between January 1972 and August 1972.
Petitioner 7 was promoted in April 1973, Petitioners 8 to 10 in August 1974, Petitioners 11 to 16 in 1975, Petitioner 17 in 1976, Petitioners 18 to 20 in 1977 and Petitioners 21 and 22 in 1978.
Respondents 4 and 5 were recruited directly in January 1973 and were confirmed in February 1975 on the completion of the probationary period.
Their confirmation is open to no exception but, Petitioners 2 and 3 Shri Amarjit Chopra and Shri H. section Ahluwalia who were promoted on January 16 and August 21, 1972 were confirmed on August 6 and August 7, 1975 respectively.
The significance of these dates of confirmation becomes apparent in relation to the confirmation of respondents 6 and 7.
Having been appointed directly to the Superior Judicial Service on the 1st and 2nd of April 1975, they were confirmed on the 2nd and 5th August 1976 respectively, which was even before they had completed their probationary period.
Petitioners 2 and 3 who were promoted to the Superior Judicial Service roughly three years prior to the direct appointment of Respondents 6 and 7 were confirmed on the 6th and 7th August, 1976 which was three or four days later than the dates of confirmation allotted to Respondents 6 and 7.
Petitioners 4 to 22 whose dates of promotion to the Superior Judicial Service range between August 1972 and July 1978 were not yet confirmed when the Writ Petition was filed on February 27, 1979.
Do the rules which apply to the members of the Superior Judicial Services of Punjab and Haryana warrant this course of action and how far are the rules valid ? For deciding these questions we must necessarily have a look at the relevant rules.
The recruitment to the Punjab Superior Judicial Service and the other conditions of service of the members thereof are regulated by the "Punjab Superior Judicial Service Rules, 1963" as amended from time to time.
These rules were originally framed by the Governor of Punjab in consultation with the Punjab High Court, in exercise of the powers conferred on the Governor by the proviso to article 309 of the Constitution.
By that proviso, the Governor has the power to make Rules regulating the recruitment and the conditions of service of persons appointed to services and posts in connection with the affairs of the State 1034 Rules 2, 4, 8, 9, 10, 11, 12 and 14 of the aforesaid rules which are relevant for the present purposes read as follows in so far as they are material: Rule 2: Definitions. (1) 'appointment to the service ' means an appointment to a cadre post, whether on permanent, temporary or officiating basis, or on probation; (2) 'cadre post ' means a permanent post in the Service; (6) 'member of the Service ' means a person (a) who immediately before the commencement of these rules, holds a cadre post, whether on permanent, temporary or officiating basis, or on probation; or (b) who is appointed to a cadre post in accordance with the provisions of these rules; (7) 'Promoted officer ' means a person (a) who is not a direct recruit and is holding a cadre post whether on permanent, temporary or officiating basis or on probation, immediately before the commencement of these rules; or (b) who is appointed to the Service by promotion from Punjab Civil Service (Judicial Branch).
Rule 4: Appointing Authority All appointments to the Service shall be made by the Governor in consultation with the High Court.
Rule 8: Recruitment to service (1) Recruitment to the Service shall be made (i) by promotion from the Punjab Civil Service (Judicial Branch); or (ii) by direct recruitment.
(2) of the total number of cadre posts, two third shall be manned by promoted officers and one third by direct recruits: Provided that nothing in this sub rule shall prevent the officiating appointment of a member of the provincial Civil Service (Judicial Branch) on any post which is to be filled up by direct recruitment, till a direct recruit is appointed.
Rule 9: Appointment of direct recruits. (1) No person shall be eligible for direct recruitment unless he (i) is not less than 35 years and not more than 45 years of age on the first day of January next following the year in which his appointment is made; 1035 (ii) has been for not less than 7 years an Advocate or a pleader and is recommended by the High Court for such appointment (2) No person who is recommended by the High Court for appointment under sub rule (i) shall be appointed unless he is found physically fit by a Medical Board set up by the Governor and is also found suitable for appointment in all other respects.
Rule 10: Probation. (1) Direct recruits to the Service shall remain on probation for a period of two years, which may be so extended by the Governor in consultation with the High Court, as not to exceed a total period of three years; (2) on the completion of the period of probation the Governor may, in consultation with the High Court, confirm a direct recruit on a cadre post with effect from a date not earlier than the date on which he completes the period of probation; (3) If the work or conduct of a direct recruit has, in the opinion of the Governor, not been satisfactory he may, at any time, during the period of probation or the extended period of probation, if any, in consultation with the High Court, and without assigning any reason, dispense with the services of such direct recruits.
Rule 11: Reversion of promoted officers the work of E a promoted officer officiating on a cadre post has, in the opinion of the Governor, not been satisfactory, he may, at any time during the period of officiation, in consultation with the High Court, (i) revert him to his substantive post; or (ii) deal with him in such other manner as may be warranted by the terms and conditions of his substantive appointment.
Rule 12: Seniority The seniority, inter se, of the substantive members of the Service, whether direct recruits of promoted officers, shall be determined with reference to the respective dates of their confirmation.
Provided that the seniority, inter se, of substantive members of the Service having the same date of confirmation shall be determined as follows: (i) in the case of direct recruits the older in age shall be senior to the younger; (ii) in the case of promoted officers, in accordance with the seniority in the Punjab Civil Service (Judicial Branch) as it stood immediately before their confirmation; 1036 (iii) in the case of promoted officers and direct recruits, the older in age shall be senior to the younger.
Rule 14: Selection Grades. (1) The members of the Service shall be eligible for promotion, permanently or provisionally, to the following selection grade posts, carrying scales of pay specified against them: Two Selection Grade posts in the time scale of Rs. 1800 100 2000; and Two Selection Grade posts at a fixed pay of Rs. 2,250.
(2) Promotion to the Selection grade posts shall be made on merit and suitability in all respects with due regard to seniority and no member of the Service shall be entitled as of right to suck promotion.
Appendix to the rules shows that the Punjab Superior Judicial Service consisted then of 20 posts: one Legal Remembrancer and Secretary to Government, Punjab, Legislative Department; 15 District and Sessions Judges; and 4 Additional District and Sessions Judges.
These rules were amended from time to time with or without the consultation of the High Court.
The relevant amendments are these: On February, 1966 the Governor of Punjab, in exercise of the powers conferred by the proviso to article 309 of the Constitution and all other powers enabling him in this behalf, promulgated the "Punjab Superior Judicial Service (First Amendment) Rules, 1966".
By clause 2 of these rules the following proviso was added to sub rule (1) of rule 10 of the 1963 Rules: "Provided that the Governor may in exceptional circumstances or any case, after consulting the High Court, reduce the period or probation".
On December 31, 1976 the Governor of Punjab, in exercise of the powers conferred by the proviso to article 309 of the Constitution and all other powers enabling him in this behalf, made the "Punjab Superior Judicial Service (Second Amendment) Rules, 1976" in consultation with the High Court of Punjab and Haryana.
These rules were given retrospective effect from April 9, 1976.
Rule 2(2) of the 1963 Rules defined a 'cadre post ' to mean a permanent post in the service.
Clause 2 of the Second Amendment Rules substituted the following sub rule (2) in rule 2 for the original sub rule: "2(2) 'cadre post ' means a permanent or temporary post in the service .
1037 Rule 12 of the 1963 Rules provided that the seniority, inter se, of the substantive members of the Service, whether direct recruits or promoted officers, shall be determined with reference to the respective dates of their confirmation.
Clause 3 of the Second Amendment Rules substituted the following rule for the original rule 12: "12.
Seniority.
The seniority, inter se, of the members of the service, shall be determined by the length of continuous ser vice on a post in the Service irrespective of the date of confirmation; Provided that in the case of two members appointed on the same date, their seniority shall be determined as follows: (i) in the case of direct recruits, the older in age shall be senior to the younger; (ii) a member recruited by direct appointment shall be senior to a member recruited otherwise; and (iii) in the case of members appointed by promotion, seniority shall be determined according to the seniority of such members in the appointments from which they were promoted.
" This is how the rules stand in so far as the State of Punjab is concerned.
The State of Haryana came into existence on November 1, 1966 by Act 3 of 1966.
The Punjab Superior Judicial Service Rules, 1963, as amended upto November 1966 apply to the State of Haryana with the amendments made from time to time by the Governor of Haryana.
On March 17, 1971 certain formal amendments were made to the 1963 Rules by the Haryana First Amendment Rules, 1971.
On April 21, 1972 the Governor of Haryana, in exercise of the powers conferred by the proviso to Article 309 of the Constitution and all other powers enabling him in that behalf, amended the 1963 Rules by the Haryana First Amendment Rules, 1972, with retrospective effect from April 1, 1970.
By Clause 3 of the Amendment, the definition of "cadre post" in Rule 2(2) was amended to mean a post, whether permanent or temporary, in the service.
Rule 8(2) of the 1963 Rules provided that the total number of cadre posts, two third shall be manned by promoted officers and one third by direct recruits.
Clause 5 of the Amendment altered this ratio by providing that of the total number of posts, three fourth shall be manned by promoted officers and one fourth by direct recruits.
Rule 12 governing seniority was amended by clause 6 in the same manner as in Punjab, that is to say, 1038 by providing that the seniority of the members of the service, whether direct recruits or promoted officers, shall be determined by the length of continuous service (in a post in the service irrespective of the date of confirmation.
As an aside we may mention, though it has no direct relevance in the points under consideration, that on December 3, 1976 the Governor in the exercise of his constitutional and other power promulgated an amendment providing that: "No person (a) who has more than two children and has not got himself or herself or his or her spouse sterilized, or (b) who, having not more than two children, does not give an undertaking not to have more than two children.
shall be allowed to Join the Service.
" On September, 2, 1977 the Governor in the exercise of his constitutional and other powers further amended the 1963 Rules with retrospective effect from April 1, 1970.
The definition of 'cadre post ' in rule 2(2) was once again amended to mean "a permanent post in the Service".
Similarly, Rule 8(2) was amended for the purpose of restoring the quota between promotees and direct recruits.
Once again, two third of the cadre posts were to be manned by promoted officers and one third by direct recruits.
Rule 12, which deals with seniority, was also amended so as to restore the original position by providing that the seniority of members of the Service will be determined with reference to the dates of confirmation.
In short, the Haryana First Amendment Rules, 1977, which were given retrospective effect from April 1, 1970, superseded the amendments made by the Haryana First Amendment Rules, 1972 and restored the position as it obtained originally under the 1963 Rules, in regard to the definition of 'cadre post ', the quota between promotees and direct recruits and the rule of seniority.
Ever since November 1, 1966 when the State of Haryana was formed, there has been a common High Court for the States of Punjab and Haryana called the High Court of Punjab and Haryana.
Two separate High Courts were not created for these two States probably because of considerations of viability in regard to one of the States and the need to foster a spirit of national integration.
But the fact of there being two separate Governors for the two States with independent powers under the proviso to Article 309 of the Constitution has made the task of the High Court difficult and unenviable.
The Chief Justice and Judges of the Common High Court of the two States are faced with the predicament of applying one set or service rules to members of the Superior Judicial Service of one State and a totally different, 1039 and to a large extent opposite, set of rules to those of the other State.
As the matter stands to day, (and we mean what we say because there is no knowing when one or the other State will amend the rules and with what degree of retroactivity) under the Haryana First Amendment Rules, 1977, 'cadre post ' means a permanent post in the Service.
Temporary posts are not cadre posts in Haryana.
In Punjab, 'cadre post ' means both permanent and temporary posts in the Superior Judiciary.
The definition of 'cadre post ' has a significant bearing on the fortunes and future of judicial officers.
In Punjab, prior to the amendment made to the 1963 Rules on December 31, 1976 promotees alone used to be appointed, though on an officiating basis, to temporary posts in the Superior Judicial Service.
Direct recruits were not appointed to temporary posts because temporary posts were outside the cadre and C. direct recruits were appointed to cadre posts only, in which they were entitled to be confirmed on the completion of the probationary period.
After the amendment, applications were invited for direct recruitment to temporary posts also with the result that promotees lost the opportunity of being appointed to those posts, though on an officiating basis.
Respondents 9 to 11 in the Punjab writ petition were appointed directly in July 1977 to temporary posts of Additional District and Session Judges.
In regard to the rule of seniority, the position as it obtains in the two States is fundamentally different: In Punjab, under rule 12 as amended on December 31, 1976 with retrospective effect from April 9, 1976, seniority is determined by the length of continuous service on a post irrespective of the date of confirmation.
In Haryana, rule 12 as it stood originally was revived with effect from April 1, 1976 with the result, that seniority of judicial officers in the Superior Judicial Service is determined with reference to the dates of confirmation.
The High Court has to deal with one set of officers under its control on the basis that the date of confirmation is the correct criterion of seniority and with another set of officers, also under its control, on the basis that the length of continuous officiation in a post is the true test of seniority.
Whatever decision the High Court takes or is driven to take administratively in the matter of seniority of judicial officers becomes a bone of contention between the promotees and direct recruits.
Sometimes, the administrative decision satisfies neither the one class nor the other, leading to a triangular controversy.
The frequent amendments to the rules which are often given a long retrospective effect, as long as seven years, makes the High Court 's administrative 1040 task difficult.
And if the amendments are made either without consulting the High Court or against its advice, the High Court has a delicate task to perform because if it adheres to its opinion, it is accused of bias and if it gives up its stand, it is accused of being weak kneed and vacillating.
The administrative decisions taken by the High Court in the instant cases from time to time have been assailed by members of the Judiciary on one or the other of these grounds.
That is hardly conducive to the sense of discipline and the feeling of brotherhood which ought to animate the Judiciary.
Surely, the State Governments of Punjab and Haryana could have saved the High Court from this predicament by evolving a common set of rules of seniority, at least in the name of national integration.
There is nothing peculiar in the soil of Punjab and nothing wanting in the soil of Haryana to justify the application of diametrically opposite rules of service to the judicial officers of the two States.
The territories comprised in these two States were at one time, and that too not in the distant past, parts of the territory of the same State of Punjab.
The promotees, at any rate, who figure in these proceedings, all flowered on the soil of Punjab but are not told that their claim to seniority will depend upon whether they remained in Punjab or were allotted to Haryana.
This unfortunate position has arisen largely because of the failure of the State Governments to take the High Court into confidence while amending the rules of service.
The amendments made in Punjab on December 3, 1966 with retrospective effect from April 9, 1976, including the amendment to rule 12 governing seniority, were made in the teeth of opposition of the High Court and indeed, in so far as tho retrospective effect of the rules ii concerned, the amendment was made without consulting the High Court.
In Haryana, rule 12 was amended in 1972 with retrospective effect from April 1, 1970 contrary to the advice of the High Court.
The plain infirmity of that amendment could be that it was designed to operate to the detriment of one and only one judicial officer who was directly recruited to the Superior Judicial Service, namely, Shri.
N. section Rao, who is respondent No. 3 to the Haryana Petitions.
The original rule 12 was, however, subsequently, restored by the State Government by yet another amendment dated September 4, 1977.
There was a change in the Government which evidently led to a change in the rules, as if service rules are a plaything in the hands of the Government.
This only shows how essential it is for the Governors, though not as a constitutional requirement, to consult the High Court before framing rules under the proviso to Article 309 of the Constitution.
Consultation, be it said is not to be equated with the formal process of asking the High Court what opinion it holds on a particular issue.
Consultation is a 1041 meaningful prelude to the proposed action, whereby the High Court is afforded an opportunity to discuss the matter under consideration and to meet the Government 's or Governor 's reasons for the proposed action.
In the instant case, the High Court could have made an effort to persuade one or the other Governor to see its point of view; or else, it could at least have impressed upon the two Governors the imperative need to adopt an identical pattern of rules for the two States which are blessed with a common High Court.
Little wonder then that the Superior Judicial Service of the two States was thrown into a state of turmoil and uncertainty.
Neither promotees nor direct recruits felt secure about their existing rank or seniority because the rules were being amended from time to time, sometimes just to suit the convenience, sometimes to tide over a temporary crisis, sometimes to appease a class of officers who shouted louder and at least once in order to strike at an individual.
The amendments to the rules led to a spate of representations from the members of the service to the High Court and human nature being what it is, Judicial Officers were not wanting who sought the intercession of the concerned State Government in order to advance the interests of an individual or the interest of a class.
Once it was known that the Governor could ignore or defy the High Court while framing rules of service, the centre of power shifted from the Nyayalaya to the Mantralaya which is an undesirable state of affairs because thereby the very independence of the Judiciary is put in jeopardy.
Questions regarding confirmation, seniority and the equitable integration of direct recruits and promotees had plagued the High Court for nearly two decades, even before the separate State of Haryana was formed.
These questions were further complicated by the changes brought about in the rules of 1963 by the respective State Governments of Punjab and Haryana.
The case of Shri N. section Rao, who is respondent 3 to the Haryana Writ Petition, is an eloquent illustration of the effect of the amendments made to the rules with retrospective effect.
At the time when the Governor of Haryana amended the rules in 1972 with retrospective effect from April 1, 1970, Shri N. section Rao was the only direct recruit in the Haryana Superior Judicial Service.
He was appointed on probation on July 7, 1970.
The amendment was given retrospective effect from April 1, 1970, as if to demote him and him alone.
In so far as the Haryana Writ Petitions are concerned some time in February 1972 the Punjab and Haryana High Court took up the question of confirmation of some of the promotees, including the petitioners, against the permanent posts which fell within the quota 1042 of promotees out of the six permanent posts which were newly created w.e.f. January 18, 1972.
Before the High Court could decide the question of confirmation of the promotees against the aforesaid posts, respondent 3 made a representation to the High Court on February 13, 1972 contending that the ratio of 2: 1 between the promotees and direct recruits had to be maintained at all stages, that is to say, not only at the time of appointment but at the time of confirmation also.
The High Court appears to have postponed the confirmation of the promotees in response to respondent 3 's representation.
Later respondent 3 was confirmed with effect from July 7, 1972.
Five promotees including the three petitioners were confirmed w.e.f. July 8, 1972, that is, a day after respondent 3 was confirmed.
The Governor of Haryana refused to recognise the order of confirmation of respondent 3 passed by the High Court and he reverted the latter to the post of a District Attorney w.e.f. June 23, 1973.
Respondent 3 challenged the order of his reversion by Writ Petition No. 2147 of 1973.
The Petition was heard by a special Bench of five Judges of the High Court which set aside the order of reversion of respondent 3 but held by a majority that the order of respondent 3 's confirmation passed by the High Court was invalid since the power to confirm a District & Sessions Judge was vested in the Governor and not in the High Court.
The Judgment of the High Court is reported in Narendra Singh Rao vs State of Haryana(1).
The view of the High Court regarding the power of confirmation was set aside by this Court by its judgment dated January 24, 1975 in High Court of Punjab and Haryana vs The State of Haryana.(2).
It was held by this Court that the power to confirm a District and Sessions Judge resides in the High Court and not in the Governor.
Petitioner No. 1 then made representations to the High Court on February 12 and March 31, 1975 contending that recruitment to the Superior Judicial Service was governed by a rule of quota only and not also by the rule of rotation; therefore, it was not open to the High Court to give an arbitrary date of confirmation to the promotees.
Petitioners 2 and 3 also made similar representations.
In the meanwhile the Governor of Haryana amended rule 12 by the Haryana First Amendment Rules 1972 providing that the seniority of the members of the Service, direct recruits or promoted officers, shall be determined by the length of the continuous service on a post in the service irrespective or the date of confirmation.
In pursuance of that amendment, the High Court decided by an administrative order dated November 2, 1975 that the Petitioners were senior to 1043 respondent 3.
It does not, however, appear to have taken any decision on the representations of the petitioners that the rule of rotation cannot be applied at the time of confirmation.
Aggrieved by the order of the High Court that the petitioners were senior to respondent 3 by reason of the amended rule 12, the latter filed yet another writ petition, No. 100 of 1977, in the High Court challenging the vires of the amended rule 12.
During the pendency of that Writ Petition, the Governor of Haryana amended the rules again by a notification dated September 2, 1977 rescinding the amendment introduced to the rules in April 1972.
The original rule 12 thus having been restored, the High Court dealt with respondent 3 's writ petition on the basis that he had automatically become senior to the petitioners.
The High Court therefore confined its judgement to the question of inter se seniority between respondent 3 and Shri J. M. Tandon (now a Judge of the High Court).
The representations of the petitioners appear to have been rejected by the High Court since on June 6, 1978 respondent 3 was granted the selection grade, presumably on the basis that he was senior to the petitioners.
It is thereafter that the petitioners filed these writ petitions (4228 to 4230 of 1978) under article 32 of the Constitution, claiming the following reliefs: (a) a writ of certiorari directing respondents 1 and 2 (the State of Haryana and the High Court of Punjab & Haryana respectively) to quash the order dated May 4, 1973 where by respondent 3 was confirmed w.e.f. July 7, 1972 and the order dated June 6, 1978 granting the selection grade to him; (b) a writ of mandamus declaring rule 12 of the Rules as violative of the fundamental rights of the petitioners guaranteed under Articles 14 and 16 of the Constitution; and (c) a writ of prohibition restraining respondents 1 and 2 from taking any action on the new seniority list or in pursuance of the orders dated May 4, 1973 and June 6, 1978.
This is the genesis of the controversy between the promotees and direct recruits in Haryana.
In Punjab, matters were in no better shape, though it must be said to the credit of its Governor that no amendment was made with an evil eye on any individual Judicial Officer.
In 1975, the Association of promoted officers made a representation to the State Government asking that in order to avoid arbitrary dates of confirmation being given to the promotees, continuous officiation in the service and not the date of confirmation should be accepted as the criterion of seniority, as was done in the case of 1044 other employees of the Punjab Government.
The State Government forwarded that representation to the High Court for its comments but the High Court appears to have kept the matter pending with it for quite some time.
Sometime in 1976, the State Government ultimately sent a draft notification to the High Court proposing an amendment to the Rules.
It seems that the Government did not then convey to the High Court its intention to give retrospective effect to the proposed amendment.
By that time, ten vacancies in the quota of promoted officers had become available and an equal number of promoted officers was officiating for more than three years as Additional District and Sessions Judges.
The High Court, however, did not confirm the promotees in those vacancies.
On the contrary, apprehending that the proposed amendment to rule 12 may be given retrospective effect, the High Court confirmed the promotees and the direct recruits by applying the rule of rotation.
It issued a Notification dated August 25, 1976 which was published in the Punjab Government Gazette dated September 3, 1976, whereby Respondents 3 to 8 were given prior dates of confirmation in comparison with the promotees.
The confirmation of eight promotees was evidently postponed.
In the case of respondents 6 to 8, the period of probation of two years was reduced by the High Court substantially.
Respondent 6, Shri B. section Nehra, was appointed on probation on April 1, 1975 and was confirmed on August 2, 1976.
Respondent 7, Shri T. section Cheema, was appointed on probation on April 2, 1975 and was confirmed on August 5, 1976.
Respondent 8 Shri J. section Sidhu was appointed on April 11, 1975 and was confirmed with effect from August 8, 1976.
Thus, these direct recruits were confirmed within a period of one year and four months after their appointment, though the normal period of probation is two years.
On the issuance of the Notification dated August 25, 1976, petitioner 1 addressed a representation to the High Court stating that he was officiating in the Superior Judicial Service with effect from November 12, 1969 and asking that he should be confirmed in the post which became available from December 23, 1972.
He complained against the date of confirmation, February 3, 1975, allotted to him as arbitrary.
Rule 12 of the Rules was thereafter amended by the Governor of Punjab by a Notification dated December 31, 1976 which was given retrospective effect from April 9, 1976.
By that amendment, Seniority was to be determined by the length of continuous service on a post in the service, irrespective of the date of confirmation.
The direct recruits, respondents 4 to 9, addressed a representation to the High Court contending that their seniority as fixed by the High 1045 Court 's Notification dated August 23, 1976, with reference to the respective dates of their confirmation, ought not to be disturbed.
They also challenged the validity of rule 12.
For the purpose of considering those conflicting claims of promotees and direct recruits, the High Court constituted a sub committee consisting of three Judges, section section Sandhawalia (now Chief Justice), Bhopinder Singh Dhillon and Gurnam Singh, JJ.
The Committee gave an oral hearing on February 7, 1979 to the representatives of the promotees and direct recruits.
The High Court, however, has not readjusted the seniority of the promotees and direct recruits in the light of amended rule 12.
It is interesting that before the Sub Committee heard the representatives of the promotees and direct recruits, a Full Bench of five Judges of the High Court of Punjab and Haryana, delivered its judgment on December 13, 1977 in Civil Writ 100 of 1977 which was filed by Shri N. section Rao, who is respondent 3 in the Haryana petition.
By the aforesaid judgment which is reported in AIR 1978 (P and H) 234, the High Court rejected the plea of Shri Rao that the rules not only required the application of a rule of quota at the time of appointment but they also required the application of a rule of rotation at the time of confirmation.
At page 240 of the report appears the conclusion of the High Court to the effect that rules 8 and 12 were independent of each other, that rotational system could not be implicitly read in the quota rule provided for by rule 8 and that members of the Superior Judicial Service were entitled to claim seniority strictly in accordance with the provisions of rule 12.
The grievance of the promotees is that this decision which was rendered by the High Court in the exercise of its judicial functions is not being followed by the High Court in the discharge of its administrative duties.
After the amendment of rule 12 by the Notification dated December 31, 1976, two vacancies of District and Sessions Judges arose and on each of these occasions the High Court promoted a direct recruit, treating the date of his confirmation as the criterion of seniority.
In the quarterly Gradation and Distribution list of officers of the Judicial Department which the High Court publishes, the inter se seniority has been shown according to the dates of confirmation and not in accordance with the amended rule 12.
One of the grievances of the promotees is that the High Court amended the quarterly Gradation List in compliance with the amendments made by the Governor of Haryana in rule 12 but it did not amend the Gradation List of the Punjab Officers in compliance with the amended rule 12.
1046 This, according to the petitioners, has deeply affected their sense of security, contentment and well being.
It is said that eight more vacancies arose within the quota of promotees after the High Court issued the Notification dated August 25, 1976 but the promotees, who were officiating for a period of more than three years, have not yet been confirmed in those posts.
One of the other grievances of the petitioners is that the High Court acted upon the amendment made by the Governor of Punjab on December 31, 1976 in the definition of 'cadre post ' by appointing direct recruits to temporary posts in the Superior Judicial Service.
It however ignored the other amendment effected by the same Notification, namely, amendment to rule 12, under which continuous officiation is the test of seniority.
Being aggrieved by the Gradation List prepared by the High Court, the promotees in Punjab have filed Writ Petition 266 of 1979 in this Court claiming the following reliefs: (i) an appropriate writ or direction quashing the impugned notification dated 25th August, 1976; (ii) a writ of mandamus directing the High Court to discharge its constitutional obligation to redetermine the, seniority inter se of all the members of the Punjab Superior Judicial Service in accordance with the provisions of rule 12, as amended by the notification dated December 31, 1976 and to make corrections in the Gradation and Distribution Lists, accordingly; (iii) an appropriate writ, directing the State Government and the High Court to confirm the petitioners with effect from the dates that the vacancies arose and became available in their quota without applying the rule of rotation; (iv) an appropriate writ directing the High Court to consider afresh the matter of filling up four vacancies of District and Sessions Judges which occurred after 9 4 1976 and to readjust the seniority and respective dates of confirmation of the petitioners and respondents 3 to 11 in accordance with the amended rule 12; (v) a writ of prohibition restraining the State of Punjab and the High Court from acting upon the seniority fixed prior to the amendment of rule 12, for any purpose whatsoever, including further promotions within the Service; and (vi) a writ of certiorari quashing rule 11 of the Rules as being violative of the fundamental rights of the petitioners guaranteed under Articles 14 and 16 of the Constitution.
1047 These then are the respective grievances and demands of the promotees and direct recruits in the Superior Judicial Services of Punjab and Haryana.
In so far as the High Court is concerned, its point of view may best be stated in the language of the report dated May 2, 1978 which was submitted by the Sub Committee consisting of its three learned Judges.
After setting out the background of the controversy, the report says: "It is in the aforesaid context that the question pointedly and squarely arises, whether the determination of seniority of the members of the Service is a matter which is within the exclusive jurisdiction of the High Court as a necessary consequence of the control vested in it by virtue of Article 235 of the Constitution of India.
If that be so, then it is plain that any intrusion into the field of this control by any agency other than the High Court would be unwarranted and therefore, unconstitutional.
We are of the firm view that both on principle and logic and in view of the trend of the present authorities, it appears to be plain that the Seniority of the members of the judicial Service is so integral and vital to the control of the High Court over them, that any erosion thereof would both be violative of Article 235 of the Constitution and equally run counter to the settled concept of the independence of judiciary which is now coming to be recognised as the basic feature of the Constitution. it follows a fortiori that if seniority of the members of Superior Judicial Service is once deemed to be not within the control of the High Court under Article 235, then, in fact, it could be determined by the State Governments by making rules without even reference or consultation with the High Court.
Such a position would be utterly anomalous and wholly destructive of the exclusive control over the district courts and courts subordinate thereto vested in the High Court by article 235.
It appears to be well settled both on principle and precedents that the power of determining the seniority of the members of the Service cannot possibly be vested in an authority other than the High Court.
For example, it cannot on the existing provisions be vested in the Governor or the State Government.
Therefore, it appears to us that what the State Government cannot do directly, it cannot be allowed to do indirectly by framing rules even by the exercise of executive power vested in it by virtue of Article 309 and without even consulting or informing the High Court.
It is, however, well settled that article 309 is subject to the other provisions of the Constitution.
Therefore, the control over the subordinate judiciary vested in the High Court 1048 by Article 235 must necessarily override Article 309 wherever the two happen to conflict at all.
Consequently, if seniority is exclusively within the ambit of the control of the High Court, then it cannot be surreptitiously intruded upon either directly or by devious method of framing rules under Article 309 without even reference or consultation with the High Court." "The true rationale underlying the ratio of N. section Rao 's case and the subsequent decisions of Their Lordships of the Supreme Court to which a reference would follow appears to be that in the field of control over the district courts and courts subordinate thereto under article 235, there cannot be a duality.
There cannot exist control by the High Court on the one hand and by the State Government or the Governor on the other.
Therefore, the situation that seniority must be determined by the State Government without reference or consultation with the High Court cannot be countenanced in principle.
To our mind this would be a patent example of a duality of control against which the final Court has firmly set its face." "On principle, therefore we are of the view that the seniority of the members of the Superior Judicial Service is exclusively within the control of the High Court under Article 235 and the State Government is, therefore, not competent to frame or alter rules with regard thereto".
After examining the decisions of this Court and of various High Courts, the report concludes thus: "Both on principle and precedents we are of the view that the Seniority of the members of higher Judicial Service being vested entirely under the control of the High Court cannot be intruded upon by the framing and re framing of rules by the State Government, which it is not competent to make and consequently rule 12 is ultra vires of Article 235 of the Constitution." "Once we arrive at that finding, it is obvious that till the vires of the said rule are authoritatively pronounced upon on the judicial side, no firm basis can exist for determining the individual seniority inter se of the members of the Service both direct recruits and promotees whose innumerable representations are before the Committee.
The High Court has earlier taken action on the basis of some of the earlier amendments to the rules and on the administrative side it would be obviously inept to take up a contradictory position now.
Even otherwise it does not appear appropriate to us in the present case to act 1049 administratively in violation of the purported promulgation of statutory rules on the point.
There is thus no choice but to place the matter squarely for a binding and authoritative decision on the judicial side forthwith." "The High Court inevitably is the guardian of the independence and integrity of the subordinate judicial service, whose control is constitutionally vested in it.
As an institution, it is fundamentally interested in the maintenance of these traits.
We are of the view that it would be invidious to push a private litigant or any one of the affected members of the judicial service to a court of law to seek the necessary decision.
This burden, therefore, must also be carried by the High Court.
We would consequently recommend that the Registrar be directed to immediately initiate necessary proceedings under Article 226 of the Constitution of India on behalf of the High Court." "Once it is settled that the determination of seniority of the members of the Superior Judicial Service vests exclusively in the High Court, then there is no manner of doubt that such control inevitably implies the power of framing rules to make the exercise of such control feasible, convenient and effective.
This has been recently settled in the Constitution Bench judgment reported in State of U.P. vs Tripathi, AIR 1978 (Vol. 2) S.C. Cases page 102.
We have no doubt in our mind that rules for the determination of the seniority inter se of the members of the Superior Judicial Service can be framed to the satisfaction of both the wings of the promotees and direct recruits".
The Haryana Writ Petition was filed in this Court by the promotees in July 1978 and the Punjab Writ Petition was filed in February 1979.
The High Court was thereby spared the need to have a Writ Petition filed under Article 226 before itself and the embarrassment of being required to decide it.
The arguments advanced before us by the learned counsel for the promotees, direct recruits, the High Court of Punjab and Haryana, the Government of Punjab and the Government of Haryana cover a wide range but on a careful analysis of those arguments, the questions raised by the counsel resolve themselves into two issues.
They are: (1) whether the power to frame rules of seniority of District and Session Judges vests in the Governor or in the High Court and (2) whether the High Court, basing itself on the rule of quota, is justified in applying the rule of rotation at the time of the confirmation of promotees and direct recruits as District and Session Judges.
1050 The decision of the first question depends on the scope, meaning and purpose of the provisions contained in Article 309 and Article 235 of the Constitution.
Article 309 reads thus: "309.
Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act".
Article 235 reads thus: "235.
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 the conditions of his service prescribed under such law.
" It is urged by Shri V. M. Tarkunde who appears on behalf of the promotees in Haryana that if the two parts of Article 235 are read together, it will be obvious that the control which the High Court is entitled to exercise over District Courts and courts subordinate thereto does not include the power to make rules regulating the conditions of service of judicial officers.
According to the learned counsel, the power which the Constitution has conferred on the Governor by the proviso to Article 309 is a legislative and not an executive power; and since the Governor exercises a legislative power while making rules under the proviso to Article 309, the principle of the independence of the judiciary is not in any manner violated thereby.
Judicial independence, says the Counsel, means freedom from executive interference, not freedom from laws.
1051 Shri A. K. Sen, Shri section N. Kackkar, Dr. Y. section Chitale, Shri F. section Nariman and Shri B. R. Tuli supported the argument of Shri Tarkunde by citing various decisions of this Court and of the High Courts, the connected provisions of the Constitution and the debates of the Constituent Assembly.
On the other hand, it was contended by the learned Solicitor General, Shri Sorabji, who appears on behalf of the High Court that the paramount object of Article 235 is to secure the independence of the judiciary by insulating it from executive interference, which postulates that once an appointment of a judicial officer is made, his subsequent career should be under the control of the High Court.
He should not be exposed to the possibility of any improper executive pressure in the course of his judicial career.
The control over the subordinate judiciary, which is vested in the High Court by Article 235, is exclusive in nature, comprehensive in extent and effective in operation.
There can be no duality in these matters, says the Solicitor General, and therefore the power to frame rules in regard to seniority of judicial officers must reside in the High Court and not in the Governor.
That, according to the Solicitor General, is a necessary consequence of the control over the subordinate courts which is vested in the High Court.
There is no direct decision on the question whether the Governor, in the exercise of power conferred by the proviso to Article 309, has the power to frame rules regulating the seniority of judicial officers of the State.
The reason for the absence of precedent on this point, when law reports are overflowing with constitutional decisions, probably is that during the last thirty years of the working of our Constitution, no one ever disputed the power of the Governor to frame rules governing seniority of judicial officers.
In several States such rules are in force in the absence of a law passed by the State legislature on the subject and High Courts have been applying those rules from time to time and case to case without demur.
It is also significant that hardly any High Court has framed rules of its own for determining the seniority of its judicial officers.
Even the High Court of Punjab and Haryana, which disputes the right of the Governor so to frame rules, has not made any rules of its own to occupy that field.
All this, which is stark history, cannot be dismissed by saying that the absence of a precedent is no authority for holding that what has not been challenged is lawful.
It is true that the novelty of a contention cannot be its infirmity and indeed law would have remained static and stagnant if it had not been allowed to grow from 1052 case to case.
But the point of the matter is that there has been no unconcerned acquiescence by High Courts and judicial officers in rules framed by the Governors.
In Haryana itself, respondent 3, Shri N. section Rao, challenged the Governor 's power to override the order of his confirmation which was passed by the High Court.
And he won.
Whenever there was the semblance of a justification for doing so, either one or the other party motivated by personal interest or out of the broader consideration that the High Court 's controlling jurisdiction must remain inviolate has challenged the rules framed by the Governor as being excessive.
But there is a good reason why the rules of seniority framed by the Governor have been acquiesced in, all over the country, over all these years.
The reason is as follows: On a plain reading of Articles 235 and 309 of the Constitution, it is clear that the power to frame rules regarding seniority of officers in the judicial service of the State is vested in the Governor and not in the High Court.
The first part of Article 235 vests the control over district courts and courts subordinate thereto in the High Court.
But the second part of that article says that nothing in the article shall be construed as taking away from any person belonging to the judicial service of the State 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 the conditions of his service prescribed under such law.
Thus, Article 235 itself defines the outer limits of the High Court 's power of control over the district courts and courts subordinate thereto.
In the first place, in the exercise of its control over the district courts and subordinate courts, it is not open to the High Court to deny to a member of the subordinate judicial service of the State the right of appeal given to him by the law which regulates the conditions of his service.
Secondly, the High Court cannot, in the exercise of its power of control, deal with such person otherwise than in accordance with the conditions of his service which are prescribed by such law.
Who has the power to pass such a law? Obviously not the High Court because, there is no power in the High Court to pass a law, though rules made by the High Court in the exercise of power conferred upon it in that behalf may have the force of law.
There is a distinction between the power to pass a law and the power to make rules, which by law, have the force of law.
Besides, "law" which the second part of article 235 speaks of, is law made by the legislature because, if it were not so, there was no purpose in saying that the High Court 's power of control will not be construed as taking away certain rights of certain persons under a law regulating their conditions of service.
It could not have been possibly intended to be 1053 provided that the High Court 's power of control will be subject to the conditions of service prescribed by it.
The clear meaning, therefore, of the second part of Article 235 is that the power of control vested in the High Court by the first part will not deprive a judicial officer or the rights conferred upon him by a law made by the legislation regulating him conditions of service.
Article 235 does not confer upon the High Courts the power to make rules relating to conditions of service of judicial officers attached to district courts and the courts subordinate thereto.
Whenever, it was intended to confer on any authority the power to make any special provisions or rules, including rules relating to conditions of service, the Constitution has stated so in express terms.
See, for example Articles 15(4), 16(4), 77(3), 87(2), 118, 145(1), 146(1), and 2(148)(5), 166(3), 176(2), 187(3), 208, 225, 227(2) and (3), 229(1) and (2), 234, 237 and 283(1) and (2).
Out of this fasciculus of Articles, the provisions contained in Articles 225, 227(2) and (3) and 229(1) and (2) bear relevance on the question, because these Articles confer power on the High Court to frame rules for certain specific purposes.
Article 229(2) which is directly in point provides in express terms that subject to the provisions of any law made by the legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by the rules made by the Chief Justice or by some other Judge or Officer of the Court authorised by the Chief Justice to make rules for the purposes.
With this particular provision before them, the framers of the Constitution would not have failed to incorporate a similar provision in Article 235 if it was intended that the High Courts shall have the power to make rules regulating the conditions of service of judicial officers attached to district courts and courts subordinate thereto.
Having seen that the Constitution does not confer upon the High Court the power to make rules regulating the conditions of service of judicial officers of the district courts and the courts subordinate thereto, we must proceed to consider: who, then, possesses that power? Article 309 furnishes the answer.
It provides that Acts of the appropriate legislature may regulate the recruitment and conditions of service of persons appointed to posts in connection with the affairs of the Union or of any State.
Article 248(3), read with Entry 41 in List II of the Seventh Schedule, confers upon the State legislatures the power to pass laws with respect to "State public services" which must include the judicial services of the State.
The power of control vested in the High Court by article 235 is thus expressly, by the terms of that Article itself, made subject to the law which the State legislature may pass for regulating the recruitment 1054 and service conditions of judicial officers of the State.
The power to pass such a law was evidently not considered by the Constitution makers as an encroachment on the "control jurisdiction" of the High Courts under the first part of Article 235.
The control over the district courts and subordinate courts is vested in the High Court in order to safeguard the independence of the judiciary.
It is the High Court, not the executive, which possesses control over the State judiciary.
But, what is important to bear in mind is that the Constitution which has taken the greatest care to preserve the independence of the judiciary did not regard the power of the State legislature to pass laws regulating the recruitment and conditions of service of judicial officers as an infringement of that independence.
The mere power to pass such a law is not violative of the control vested in the High Court over the State Judiciary.
It is in this context that the proviso to article 309 assumes relevance and importance.
The State legislature has the power to pass laws regulating the recruitment and conditions of service of judicial officers of the State.
But it was necessary to make a suitable provision enabling the exercise of that power until the passing of the law by the legislature on that subject.
The Constitution furnishes by its provisions ample evidence that it abhors a vacuum.
It has therefore made provisions to deal with situations which arise on account of the ultimate repository of a power not exercising that power.
The proviso to article 309 provides, in so far as material, that until the State legislature passes a law on the particular subject, it shall be competent to the Governor of the State to make rules regulating the recruitment and the conditions of service of the judicial officers of the State.
The Governor thus steps in when the legislature does not act.
The power exercised by the Governor under the proviso is thus a power which the legislature is competent to exercise but has in fact not yet exercised.
It partakes of the characteristics of the legislative, not executive, power.
It is legislative power.
That the Governor possesses legislative power under our Constitution is incontrovertible and, therefore, there is nothing unique about the Governor 's power under the proviso to Article 309 being in the nature of a legislative power.
By Article 168, the Governor of a State is a part of the legislature of the State.
And the most obvious exercise of legislative power by the Governor is the power given to him by article 213 to promulgate ordinances when the legislature is not in session.
Under that Article, he exercises a power of the same kind which the legislature normally exercises : the power to make laws.
The heading of Chapter IV of Part VI of the Constitution, in which article 213 occurs, is significant: "Legislative Power of 1055 the Governor".
The power of the Governor under the proviso to Article 309 to make appropriate rules is of the same kind.
It is legislative power.
Under Article 213, he substitutes for the legislature because the legislature is in recess.
Under the proviso to Article 309, he substitutes for the legislature because the legislature has not yet exercised its power to pass an appropriate law on the subject.
It is true that the power conferred by Article 309 is "subject to" the provisions of the Constitution.
But it is fallacious for that reason to contend that the Governor cannot frame rules regulating the recruitment and conditions of service of the judicial officers of the State.
In the first place, the power of control conferred upon High Courts by the first part of Article 235 is expressly made subject, by the second part of that Article, to laws regulating conditions of service of its judicial officers.
The first part of Article 235 is, as it were, subject to a proviso which carves out an exception from the area covered by it.
Secondly, the Governor, in terms equally express, is given the power by the proviso to Article 309 to frame rules on the subject.
A combined reading of Articles 235 and 309 will yield the result that though the control over Subordinate Courts is vested in the High Court, the appropriate legislature, and until that legislature acts, the Governor of the State, has the power to make rules regulating the recruitment and the conditions of service of judicial officers of the State.
The power of the legislature or of the Governor thus to legislate is subject to all other provisions of the Constitution like, for example, Articles 14 and 16.
The question raised before us is primarily one of the location of the power, not of its extent.
The second part of Article 235 recognises the legislative power to provide for recruitment and the conditions of service of the judicial officers of the State.
The substantive provision of Article 309, including its proviso, fixes the location of the power.
The opening words of Article 309 limit the amplitude of that power.
We entertain no doubt that seniority is a condition of service and an important one at that.
The control vested in the High Court by the first part of Article 235 is therefore subject to any law regulating seniority as envisaged by the second part of that article.
The power to make such law is vested by Article 309 in the legislature, and until it acts, in the Governor.
Whether it is the legislature which passes an Act or the Governor who makes rules regulating seniority, the end product is 'law ' within the meaning of the second part of Article 235.
The legislatures of Punjab and Haryana not having passed an Act regulating seniority of the respective State judicial officers, the Governors of the two States have the power to frame rules for that purpose under the proviso to Article 309 of the 1056 Constitution.
Such rules are, of course, subject to the provisions of the Constitution and to the provisions of any Act which the appropriate legislature may pass on the subject.
As we have said earlier, the mere power to pass a law or to make rules having the force of law regulating seniority does not impinge upon the control vested in the High Court over the district courts and the courts subordinate thereto by Article 235.
Such law or the rules, as the case may be, can provide for general or abstract rules of seniority, leaving it to the High Court to apply them to each individual case as and when the occasion arises.
The power to legislate on seniority being subject to all other provisions of the Constitution, cannot be exercised in a manner which will affect or be detrimental to the control vested in the High Court by Article 235.
To take an easy example, the State legislature or the Governor cannot provide by law or by rules governing seniority that the State Government in the concerned department will determine the seniority of judicial officers of the State by the actual application of the rules of seniority to each individual case.
Thereby, the High Court 's control over the State judiciary shall have been significantly impaired.
The opening words of Article 309, "Subject to the provisions of this Constitution" do not exclude the provision contained in the first part of Article 235.
It follows that though the legislature or the Governor has the power to regulate seniority of judicial officers by laying down rules of general application, that power cannot be exercised in a manner which will lead to interference with the control vested in the High Court by the first part of Article 235.
In a word, the application of law governing seniority must be left to the High Court.
The determination of seniority of each individual judicial officer is a matter which indubitably falls within the area of control of the High Court over the district courts and the courts subordinate thereto.
For the same reason, though rules of recruitment can provide for a period of probation, the question whether a particular judicial officer has satisfactorily completed his probation or not is a matter which is exclusively in the domain of the High Court to decide.
That explains partly why in High Court of Punjab & Haryana vs State of Haryana(1) this Court held that the power to confirm a judicial officer is vested in the High Court and not in the Governor.
The error of the High Court 's point of view, like the error of the report dated May 2, 1978 of its Sub Committee, consists in the assumption that the Governor, while acting in the exercise of power conferred by the proviso to Article 309, exercises an executive function.
That is why it felt so greatly exercised that the independence 1057 of the judiciary was being eroded.
That independence has to be preserved at all costs but, as Constitutional realists, we cannot deprive the legislature or the Governor of their legitimate legislative powers under Article 309.
That power is subject to all other provisions of the Constitution which means that the power cannot be exercised in a manner which will lead, for example, to the violation of Articles 14, 16 or the pervasive ambit of the first part of Article 235.
Since the power conferred by Article 309 is not absolute or untrammeled, it will be wrong to test the validity of that power on the anvil of its possible abuse.
The various constitutional safeguards are an insurance against its abuse.
Numerous decisions were cited before us to highlight the importance of insulating the judiciary from executive interference.
It was urged by the learned Solicitor General on behalf of the High Court that the paramount object of Article 235 is to secure the independence of the judiciary by ensuring that the subordinate judiciary is insulated from executive interference and once the appointment of a judicial officer is made, his subsequent career should be under the control of the High Court and he should not be exposed to the possibility of any improper executive pressure (Union of India vs Justice section H. Sheth(1), that the control over the subordinate judiciary vested in the High Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation; and that there can be no "duality" in the matter of control over the district courts and the courts subordinate thereto (A. P. High Court vs Krishnamurthy(2).
The short answer to these submissions is that the power conferred by Article 309 is a legislative, not executive, power and that the power is subject to all the provisions of the Constitution.
If despite this position, the Governor 's rule making power is likely to create a magnetic field wherein the executive will be the focal point of attraction, it is not the Constitution that is to blame.
As is often said, the danger to judicial independence springs more from within than from without.
Before parting with this point, we would like to refer to a decision of this Court in State of Bihar vs Madan Mohan Prasad(3).
Sarkaria J., speaking for the Court, observed in that case that in 1058 determining the seniority of the Bihar Superior Judicial Service the High Court was bound to act in accordance with the rules validly made by the Governor under the proviso to article 309 of the Constitution.
The judgment does not discuss the question any further which makes it unnecessary to analyse it in detail.
For these reasons, we reject the contention that the Governor has no power to make rules of seniority of the District and Sessions Judges.
That takes us to the second question which is, whether the rotation method devised by the High Court in applying the relevant service rules in the matter of confirmation and consequent fixation of seniority of the petitioners vis a vis the direct recruits suffers from any legal or constitutional infirmity.
The main thrust of the argument of the promotees, who have filed the two sets of Writ Petitions before us, is that the method of rotation applied by the High Court at the time of confirmation is violative of their fundamental rights under Articles 14 and 16 of the Constitution.
In the Punjab Writ Petition, the petitioners have taken an alternative plea that their seniority should be fixed in accordance with the amendment made by the Governor of Punjab by the Notification dated December 31, 1976, effective from April 9, 1976.
By that amendment, length of continuous service in a cadre irrespective of the date of confirmation is the governing criterion of seniority.
In so far as the power of the Governor to amend the rules is concerned, that question must be deemed to have been set at rest by the preceding part of our judgment in which we have upheld the Governor 's power to frame rules of seniority.
To recapitulate briefly, the Superior Judicial Service Rules, 1963, which are currently in force in Haryana, are identical with the rules which were in force in Punjab before the amendment dated December 31, 1976.
The Governor of Haryana had introduced amendments similar to those which are now in force in Punjab, but those amendments were subsequently withdrawn and the original position as it obtained under the Rules of 1963 was restored.
Under the rules now in force in Haryana, which were in force in Punjab prior to the aforesaid amendment dated December 31, 1976, 'cadre post ' by rule 2(2) means a permanent post in the Service.
Under rule 8(2), two third of the total number of cadre posts have to be manned by promoted officers and one third by direct recruits.
Under rule 10(1), direct recruits have to remain on probation for two years provided that the Government may, in exceptional circumstances of any case, reduce the period of probation in consultation 1059 with the High Court.
The probation can be extended by the Governor beyond the period of two years in consultation with the High Court but not so as to exceed a total period of three years.
Rule 10 (2) gives to the Governor the power in consultation with the High Court to confirm a direct recruit on a cadre post with effect from a date not earlier than the date on which he completes the period of probation.
Rule 12 now in force in Haryana and which was in force in Punjab prior to the amendment dated December 31, 1976, provides that the seniority of direct recruits and promoted officers shall be determined with reference to the respective dates of their confirmation.
The proviso to rule 12 deals with three kinds of cases in which substantive members of the Service have the same date of confirmation.
In regard to the third category of such cases, the proviso says that in the case of promoted officers and direct recruits having the same date of confirmation, the older in age shall be senior to the younger.
Under the amendment effected in Punjab by the Notification dated December 31, 1976, which is given retrospective effect from April 9, 1976, 'cadre post ' means a permanent as well as a temporary post in the Service.
In so far as the rule of seniority is concerned, under the aforesaid amendment the inter se seniority of the members of the Service is to be determined by the length of continuous service on a post in the Service irrespective of the date of confirmation.
It may be recalled that in High Court of Punjab and Haryana vs State of Haryana (supra), it was held by this Court that rule 10, in so far as it confers the power of confirmation on the Governor, is bad because the power of confirmation is a part of the control of the High Court which is vested in it by Article 235 of the Constitution.
Therefore, the High Court alone had the power to confirm a District & Sessions Judge.
As a result of that judgment, respondent 3 came back into the service as a confirmed District & Sessions Judge.
It is necessary to bear in mind that the only provision of which the validity was assailed by respondent 3 in the aforesaid case was the one contained in rule 10(2) which conferred a right on the Governor to confirm a direct recruit.
No challenge was made therein to that part of sub rule (2) which requires that the confirmation shall be made from a date not earlier than the date on which the direct recruit satisfactorily completes his period of probation.
That part of sub rule (2) still holds the field.
It must also be mentioned that no opinion was expressed by this Court on the validity of rule 12 of the Haryana Superior Judicial Service Rules as it then stood, which was in material respects identical with rule 12 of the Punjab Rules as it exists now under the amendment of 1976.
1060 Dr. Chitale, who appears on behalf of the promotees in the Punjab Writ Petition, contends that the promotees are not being confirmed by the High Court in the Superior Judicial Service even though vacancies occur within their two third quota, which is prescribed by rule 8(2).
The argument of the learned counsel is that the quota of 2/3: 1/3, which is provided for by rule 8 is applicable at the time of initial recruitment only.
There is therefore no warrant, according to counsel, for extending the application of that rule at the time of confirmation.
In support of this argument, reliance is placed on a unanimous decision dated December 13, 1977 of a Bench of five learned Judges of the Punjab and Haryana in Narender Singh Rao vs State of Haryana(1).
The High Court held in that case that rule 8 which provides for quota and rule 12 which contains a rule of seniority, are independent of each other, that the rule of rotation cannot implicitly be read into the quota rule and that every member of the Superior Judicial Service is entitled to claim seniority strictly in accordance with the provisions of rule 12.
The promotees have made a very strong and emphatic grievance that in spite of the fact that the Punjab Rules prior to the 1976 amendment were in material respects similar to the rules applicable in Haryana, the High Court has been persistently refusing to follow, in the exercise of its administrative functions, the decision which was rendered by it in the exercise of its judicial powers.
The promotees contend that the judgment of the five Judge Bench which held that there is no scope for the application of the rule of rotation at the time of confirmation is binding on the High Court as an administrative body and that therefore the seniority of the promotees and direct recruits must be fixed without applying the rule of rotation at the time of confirmation.
In order to demonstrate the hardship caused to the promotees, Dr. Chitale has drawn our attention to Annexure P I to the Writ Petition which has been further elaborated in Annexure II to his written submissions.
These Annexures show, and that is not disputed, that the direct recruits have been assigned a date of confirmation which is a day or so earlier than the date of confirmation allotted to the promotees.
Our attention is also drawn to the relevant order passed by the High Court in the case of Haryana officers whereby the date of confirmation allotted to the direct recruit, Shri N. section Rao, is only one day prior to the dates of confirmation allotted to the three promotees, even though the latter were officiating for a much longer period in the Superior Judicial Service than respondent 3.
The promotees have assailed both the legality and propriety of the High Court 's Notification dated August 25, 1976, under which eight direct 1061 recruits and eight promotees in Punjab were confirmed by applying the method of rotation, and the direct recruits were confirmed with effect from dates which are a little earlier than the dates assigned to the promotees.
The grievance of the promotees is accentuated by the circumstance that respondents 6 to 8 had not even completed their normal period of probation and yet they were confirmed by the High Court after reducing the period of their probation to approximately a year and four months, without there being any exceptional circumstances for adopting such a course.
Besides, the power to reduce the probationary period is vested in the Governor under the proviso to rule 10(1).
And if that provision is unconstitutional for reasons similar to those for which it was held by this Court in Shri N. section Rao 's(1) case that the Governor had no power of confirmation, there is no provision under which the High Court can claim the power to reduce the period of probation.
The High Court has submitted in its written brief that we should decide upon the scope of Article 235, including the question as to who has the power to frame the rules of seniority, and leave the other questions to be decided by it administratively.
Representations of both sides are still pending before it and if we were to pronounce upon the validity of the impugned notifications, numerous practical complications may arise rendering the High Court 's task of fixing seniority difficult.
In Haryana, we are concerned with two officers only: Shri B. section Yadav, a promotee, and Shri N. section Rao, a direct recruit, since petitioners 2 and 3 have been compulsorily retired during the pendency of these writ petitions.
But the High Court says that our decision on the other issues will have a far reaching impact in Punjab where the conflicting claims of several members of the Superior Judicial Service require consideration.
The High Court justifies the method adopted by it for determining the seniority of promotees vis a vis the direct recruits by the application of the rule of rotation at the time of confirmation.
It contends that persons recruited from these two sources have to be merged in such a manner so as not only to maintain a proper ratio amongst them in the service but also to so deal with them as to have due regard to their promotional prospects, in the over all context of the maintenance of highest standards of Administration of Justice by the members of the service.
Translated in concrete terms, it means that members of the subordinate judiciary who are promoted to the Superior Judicial Service and those who are recruited from amongst the members of the Bar should have an equal chance of promotion to the Selection Grade as also of elevation to the High Court Bench.
When recruitment to the Superior Judicial Service is from two sources, 1062 it becomes imperative to ensure proper blending of the members of the service and it is for that reason that the quota rule (whenever direct recruits are available) has to be applied even at the time of confirmation.
It will not be in the interest of the service if it were otherwise since, according to the High Court, if direct recruits are confirmed and assigned seniority in a block, that will adversely affect the chances of further promotion of the promotees assigned seniority below them.
Direct recruits when recruited are much younger than the promotees, when promoted.
It is for this reason that, wherever possible, the High Court claims to have assigned seniority to direct recruits by interposing two promotees between two direct recruits.
Promotees, on the other hand, have been confirmed and assigned seniority one after the other, in numbers exceeding two, when there were no direct recruits.
In order to explain and justify its point of view, the High Court has annexed four annexures to its written brief, Annexures 'A ' to 'D '.
Annexure 'A ' shows seniority of the members of the service as fixed and determined by the High Court from 1 11 1966, up to and including August 1976.
The direct recruits are placed therein at serial Nos. 4, 5, 10, 21, 24, 27, 38, 41, 44, 47, 50 and 53.
The rest are promotees.
Not only, says the High Court, did it confirm a large number of promotees between each group of direct recruits but it interposed two promotees between the direct recruits.
Annexure 'B ' shows the likely seniority of members of the service with reference to the dates of the availability of posts in accordance with the quota rule.
This depicts the position of direct recruits if they are assigned seniority with effect from the dates when they complete their period of probation.
Annexure 'C ' is the same as Annexure 'B ' with the modification that it depicts the position of direct recruits if seniority is assigned to them with effect from the date from which they joined service.
Annexure 'D ' shows the position of the members of the service in accordance with the dates of their continuous officiation a such members.
These statements, the High Court says, will show that it has assigned seniority to promotees and direct recruits in a manner designed to secure the interests of both the classes.
Whereas the promotees complain that they have been discriminated against and the High Court replies that it has held the scales of justice even between the two classes of officers, the direct recruits contend that it is in fact they who have suffered injustice under the notification of seniority issued by the High Court on August 25, 1976.
Respondents 3 to 5 in the Punjab Writ Petition complain that they were not confirmed by the High Court on the due dates, that is, on their completing the period of probation satisfactorily.
1063 The High Court confirmed ten promotees in between Shri section section Sodhi, who is at present the Registrar of the High Court, and respondents 3 to 5, thereby giving to the promotees the benefit of their officiation in vacancies meant for direct recruits.
According to the direct recruits, the quota rule will lose its relevance unless the rule of rotation is applied at the time of confirmation.
They assail the validity of the amended rule 12, which is in force in Punjab, on the ground that the rule that seniority must depend upon the date of continuous officiation in any post is neither just nor reasonable.
They also challenge the notification issued by the Governor of Punjab on December 31, 1976 on the ground that it was given retrospective effect from April 9, 1976 arbitrarily, with a view only to superseding the notification of seniority issued by the High Court on August 25, 1976.
It is contended by them, in the alternative, that if the period of their probation has to be weighed against the period of officiation of the promotees, it should be reckoned from the date on which the promotee officer begins to officiate against a permanent vacancy available in his quota.
In the light of these contentions, the question for determination is whether the method of confirmation adopted by the High Court by the rotation of promotees and direct recruits in the ratio of 2:1 is justified on a proper interpretation of the relevant rules.
Is the operation of rule 8 confined to the stage of initial recruitment to the service by promotion and by direct appointment? Or, can that rule be superimposed on rules 10 and 12 so as to justify its application at the stage of confirmation also? These are the questions which are posed for our consideration.
Rule 8, as its very heading shows, provides for a distinct condition of service with reference to a specific point of time, namely: 'Recruitment to Service '.
The words "to be filled up by direct recruitment" which occur in the proviso to sub rule (2) of rule 8 also point in the direction that the operation of this sub rule is confined to the stage of initial recruitment to the service either by promotion or by direct appointment from the Bar.
Rules 10, 11 and 12 provide for the regulation of probation, reversion of promoted officers and seniority, which conditions of service are distinct and separate from 'Recruitment to Service ' dealt with in rule 8.
In other words, rule 8 only fixes the respective quota of recruits from the two sources specified in clauses (i) and (ii) of sub rule (1).
Such reservation is intended to be made at the stage of initial appointments only, by reserving 2/3rd of the total number of posts in the cadre for promotees and 1/3rd for direct recruits.
It seems 1064 to us evident that a post which falls vacant in the quota of promotees cannot be filled by the confirmation of a direct recruit therein nor indeed can a promotee be confirmed in a post which is within the quota of direct recruits.
If this be the true construction of rule 8, the method of confirmation by rotation of direct recruits and promotees, regardless of whether the vacancy assigned to the particular officer falls within the quota of the class to which he belongs will be in contravention of that rule.
It was held by this Court in Punjab and Haryana High Court vs State of Haryana (Supra) that 'appointment ' is not a continuous process, that the process of appointment is complete as soon as a person is initially recruited to the service either by promotion or by direct recruitment and that confirmation is not a part of the process of appointment.
The necessity of treating 'Recruitment to the Service ' and 'confirmation ' as two distinct and separate matters can be appreciated if only it is realised that 'Recruitment to the Service ' is a matter which falls within the power of the Governor under Article 233 while 'confirmation ' is a matter of 'control ' vesting in the High Court under Article 235.
The superimposition of rule 8, which fixes the quota at the stage of recruitment, on the rules relating to confirmation and seniority is therefore contrary to the basic constitutional concepts governing judicial service.
This apart, the application of Rota system at the stage of confirmation is beset with practical difficulties.
For example, if vacancies in the quota of direct recruits cannot be filled for 2 or 3 years for the not uncommon reason that direct recruits are not available, and during that period several vacancies occur in the quota of promotees who have been officiating continuously for two or three years, can the postponement of the confirmation of such promotees against vacant posts in their quota, until the direct recruits are appointed and become eligible for confirmation on completing the prescribed period of probation, be justified on any reasonable ground? Is it proper and fair to defer the confirmation of the promotees merely because direct recruits are not available at that point of time so as to enable the High Court to make confirmations from both the sources by rotation? This, precisely, is what the High Court has done by the impugned notification dated 25 8 1976 and that is the reason why it has not confirmed ten more promotees in Punjab, for whom vacancies are available within the quota of promotees.
In A. K. Subraman vs Union of India,(1) the contention of the respondents that there is an implied rotational system involved in the 1065 quota rule and that therefore the quota rule must also be applied at the stage of confirmation was rejected by this Court.
It is true that it was observed in that case that when recruitment is from two or more sources, there is no inherent invalidity in introducing the quota system and working it out by the rule of rotation.
But that is not the question which we have to consider in the writ petitions before us.
What is relevant is the decision of the Court (page 994) that the quota rule will be enforced at the time of initial recruitment and not at the time of confirmation.
The Court observed that the tests to be applied for the purposes of promotion and confirmation are entirely different since there is a well recognised distinction between 'promotion ' and 'confirmation '.
In N. K. Chauhan vs State of Gujarat,(1) it was reiterated (pages 1051 1053) that having regard to the recent decisions of this Court, it could not be held that 'quota ' is so interlocked with 'rota ' that where the former is expressly prescribed the latter is impliedly inscribed.
One of us, Krishna Iyer, J., while summarising the conclusions of the Court said: "The quota rule does not, inevitably, invoke the application of the rota rule.
The impact of this position is that if sufficient number of direct recruits have not been forthcoming in the years since 1960 to fill in the ratio due to them and those deficient vacancies have been filled up by promotees, later direct recruits cannot claim 'deemed ' dates of appointment for seniority in service with effect from the time, according to the rota or turn, the direct recruits ' vacancies arose".
Seniority of promotees, according to this decision, could not be upset by later arrivals from the open market, save to the extent to which any excess promotees have to be pushed down.
In Paramjit Singh Sandhu vs Ram Rakha,(2) it was held by this Court on a harmonious reading of rules 3, 4, 6, 8 and 10 of the Punjab Police Rules, 1959 that the quota rule was operative both at the time of initial recruitment and at the time of confirmation.
We would like to clarify that this case is not an authority for the proposition that whenever Service Rules provide for quota, the rule of rota must be read into the rule of quota.
We are not laying down that the rules of quota and rota cannot coexist.
Service Rules may so provide or they may yield to such an interpretation.
In that event, their validity may have to be tested in the total setting of 1066 facts.
Therefore, whether the quota system has to be observed not only at the stage of initial recruitment but also at the stage of confirmation is not a matter of abstract law but will depend on the wording of the rules and the scheme of the rules under consideration.
Any dogmatic assertion, one way or the other, is wrong to make.
On a review of these authorities, all that we would like to say is that on a proper interpretation of the rules governing the Punjab and Haryana Superior Judicial Service, the rule of rota cannot be read into the rule of quota.
In other words, the ratio of 2:1 shall have to be applied at the stage of recruitment but cannot, on the language of the relevant rules, be applied at the stage of confirmation.
In our opinion, therefore, the High Court was not justified in applying the rule of rotation at the time of confirmation of the members of the Superior Judicial Service who were appointed to that Service by promotion and by direct recruitment.
In fact, we would like to remind that a special Bench of five learned Judges of the High Court of Punjab and Haryana had itself held on December 13, 1977 in N. section Rao vs State of Haryana, (supra) that the rule of rota cannot be read into the rule of quota prescribed by rule 8 of the Punjab Superior Judicial Service Rules.
It was observed by the Special Bench in paragraph 14 of its judgment that a plain reading of rule 8 shows that the intention of the framers of the Rules was only to provide for quota and that no indication at all has been given that the rotational system also had to be followed at the time of confirmation or for the purpose of fixing seniority.
In coming to this conclusion, the High Court placed reliance on the decisions of this Court in A. K. Subraman and N. K. Chauhan to which we have already referred.
The High Court expressed its conclusion in paragraph 22 of the judgment by saying that rules 8 and 22 are independent of each other, that the rotational system cannot impliedly be read into the quota rule prescribed by rule 8 and that the members of the Superior Judicial Service are entitled to claim seniority, strictly in accordance with the provisions of rule 12.
We are unable to understand how, in the discharge of its administrative functions.
the High Court could have failed to follow a judgment of its own special Bench consisting of five learned Judges.
We are of the opinion that the aforesaid judgment has taken a correct view of the matter on a combined reading of rules 8 and 12.
We would like to say at the cost of repetition that we are not dealing with the abstract question as to whether the rule of quota necessarily excludes the rule of rotation.
We are only concerned to point out that it is not correct to say that the rule of rota must 1067 necessarily be read into the rule of quota.
We have to decide in those cases the narrow question as to whether, on a true interpretation of rules 8 and 12 of the Superior Judicial Service Rules of Punjab and Haryana, the quota rule prescribed by rule 8 justifies, without more, its extension at the time of confirmation so that, after every two promotees are confirmed one direct recruit has to be confirmed and until that is done, promotees cannot be confirmed even if vacancies are available within their quota in which they can be confirmed.
We are of the opinion, on a proper interpretation of the rules, that promotees are entitled to be confirmed in the vacancies which are available within their quota of 2/3rd, whether or not 1/3rd of the vacancies are occupied by confirmed direct recruits.
And similarly, direct recruits are entitled to be confirmed in vacancies which are available within their quota of 1/3rd, whether or not 2/3rd of the vacancies are occupied by confirmed promotees.
What we find lacking in justification is the refusal of the High Court to confirm the promotees even if vacancies are available in their quota in which they can be confirmed merely because, by doing so, more than two promotees may have to be confirmed at one time, without the confirmation of a proportionate number of direct recruits.
The fairness which Articles 14 and 16 postulates is that if a promotee is otherwise fit for confirmation and a vacancy falling within the quota of promotees is available in which he can be confirmed, his confirmation ought not to be postponed until a direct recruit, whether yet appointed or not, completes his period of probation and thereupon becomes eligible for confirmation.
The adoption of this principle in the matter of confirmation, will not, in practice, give any undue advantage to the promotees.
The facts and figures supplied by the High Court in Annexure R 4 to its counter affidavit in W. P. 266 of 1979 show that vacancies in the quota of promotees do not generally become available before the promotees have put in two to five years ' service as officiating District and Sessions Judges.
In so far as the confirmation of respondents 6, 7 and 8 is concerned, the facts set out by the Registrar of the High Court in his counter affidavit do not, in our opinion, constitute "exceptional circumstances" such as to justify their confirmation long before they had completed the normal period of their probation.
It may be recalled that they were confirmed after they had each completed a period of probation of approximately a year and four months.
In the absence of exceptional circumstances justifying the reduction of their normal probationary period of two years, we find ourselves unable to uphold the order of the High Court by which these three respondents were confirmed before they were normally due for 1068 confirmation.
The order is in clear violation of the guarantee of equal opportunity, by which the petitioners are prejudiced, and must for that reason be set aside.
The High Court will be at liberty now to confirm them with effect from the date or dates on which they completed their normal period of probation, to the satisfaction of the High Court.
This is apart from the question as to whether the High Court can exercise the power which was conferred by the proviso to rule 10(1) on the Governor.
The power conferred by the proviso on the Governor is ex facie bad because such a power directly impinges upon the control vested in the High Court by Article 235 of the Constitution.
If at all any authority could exercise such a power, it is the High Court and not the Governor.
We are assuming for the limited purpose of these petitions that the High Court may, in exceptional circumstances, reduce the period of probation of a direct recruit.
The rules must now be understood to mean that the High Court and not the Governor has the power of confirmation, that the normal period of probation of direct recruits is two years and that unless there are exceptional circumstances attaching to each individual case, a direct recruit cannot be confirmed from a date earlier than the date on which he has satisfactorily completed his probation of to years.
The High Court is not free to fix any period of probation as it likes or to reduce the period of two years at its will and pleasure.
The amended rule 12, as in force in Punjab, lays down the length of continuous service in a cadre post as the guiding criterion for fixing seniority.
That rule was notified by the Governor on December 31, 1976 and was given retrospective effect from April 9, 1976.
Since the Governor exercises a Legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision.
But the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case.
No such nexus is shown in the present case on behalf of the State Government.
On the contrary, it appears to us that the retrospective effect was given to the rules from April 9, 1976 for the mere reason that on August 25, 1976 the High Court had issued a notification fixing seniority of the promotees and direct recruits appointed to the Superior Judicial Service of Punjab.
The notification issued by the Governor on December 31, 1976 will, therefore, operate on future appointments or promotions made after that date and not on 1069 appointments or promotions made before that date.
The seniority of all officers appointed or promoted to the Superior Judicial Service, Punjab, before December 31, 1976 will be determined by the High Court according to the criterion of the dates of confirmation, without applying the rule of rotation.
The seniority of those promoted or appointed after December 31, 1976 will be determined in accordance with the rules promulgated under the notification of that date.
In so far as we see, Judicial officers from Serial No. 1 to 36 mentioned in Annexure P I to the Punjab Writ Petition, that is, beginning with Shri J. section Chatha and ending with Sri Hardev Singh were appointed or promoted prior to December 31, 1976.
Those from serial No. 37 to serial No. 43, that is beginning with Shri G. section Kalra and ending with Shri H. L. Garg, were appointed or promoted after December 31, 1976.
The validity of the notification dated December 31, 1976 was not seriously challenged before us, apart from its retrospectivity.
We do not also see any constitutional or legal objection to the test of continuous officiation introduced thereby.
In so far as the Haryana writ petitions are concerned, they involve a question of seniority really between two officers only, namely, Shri B. section Yadav, who is a promotee and Shri N. section Rao, who is a direct recruit.
The other two promotees, namely, petitioners 2 and 3, have been compulsorily retired during the pendency of the Writ Petitions in this Court.
Rule 12, which is not in force in Haryana, is similar to rule 12 which was in force in Punjab prior to its amendment on December 31, 1976.
Rule 12, as it originally existed, was amended by the Governor of Haryana, on April 21, 1972 with retrospective effect from April 1, 1970.
However, on September 2, 1977 the Governor superseded that amendment, again with effect from April 1, 1970, and restored the rule of seniority as it existed originally in the 1963 Rules.
In Haryana, therefore, the seniority of the members of the Superior Judicial Service will be determined with reference to the dates of confirmation, without applying the rule or rotation.
We must express our concern at the manner in which the Rules of the Superior Judicial Service have been amended by the Governor of Punjab and, particularly, by the Governor of Haryana.
In Punjab, the High Court was never consulted on the question whether the amendments made on December 31, 1976 should be given retrospective effect and, if so, from what date.
The amendments were made despite the opposition of the High Court.
In Haryana, the amendment of April 21, 1972 was made just in order to spite a single judicial officer who is a direct recruit.
Fortunately, that amendment was withdrawn by the successor Government on September 2, 1977.
A 1070 long retrospective effect was given to that amendment from April 1, 1970 because the amendment of April 21, 1972 was given retrospective effect from April 1, 1970 and that amendment had to be effectively superseded.
We do hope that the State Governments will apply their mind more closely to the need to amend the Service Rules of the Superior Judiciary and that the Rules will not be tinkered with too often.
It should also be realised that giving retrospective effect the rules creates frustration and discontentment since the just expectations of the officers are falsified.
Settled seniority is thereby unsettled, giving rise to long drawn out litigation between the promotees and direct appointees.
That breeds indiscipline and draws the High Court into the arena, which is to be deprecated.
Punjab and Haryana have a peculiar problem since they have a common High Court.
But they are blessed, not cursed, with a common High Court.
Today we find the strange spectacle of the High Court being called upon to determine the seniority of officers in one State by one test and that of officers in the other State by an opposite test.
In Punjab, continuous officiation on a post in the Service is the criterion of seniority.
In Haryana, the date of confirmation is the governing factor.
Can the two Governors not come together and take a joint decision applying a uniform test of seniority to their judicial officers who are under one common High Court? And though that is not the requirement of the proviso to Article 309 of the Constitution, we hope that whatever amendments are going to be made hereafter to the Rules will be made in consultation with the High Court.
Nothing will be lost thereby and there is so much to gain: Goodwill, expert advice and the benefit of the experience of a body which has to administer the Rules since the control over the Subordinate Courts is vested in it by Article 235.
It is sad that the promotees and direct recruits have to dissipate their time and energy in litigation which they can ill afford and which arises largely because of the lack of co ordination between the High Court and the State Governments.
It is time enough now to turn a new leaf.
In the result, we partly allow Writ Petition 266 of 1979, quash the impugned orders including (i) the order dated August 25, 1976 of the High Court, published in the Punjab Government Gazette dated September 3, 1976; (ii) the order whereby Respondents 6, 7 and 8 were confirmed by reducing their period of probation; and (iii) all subsequent orders of the High Court confirming the promotees and direct recruits by rotation.
We direct that: (a) The High Court will revise and refix the respective dates of confirmation of the petitioners and respondents 3 to 11, without applying the rule of rotation; 1071 (i) The petitioners, if they are otherwise fit for confirmation, shall be confirmed with effect from the dates on which vacancies became available to them in the quota of promotees; (ii) Respondents 3 to 11 shall be confirmed against vacancies falling within the quota of direct recruits, with effect from dates on which they successfully completed their two years ' probation.
Since, the normal period of probation cannot be reduced unless the High Court is satisfied in each individual case that there are "exceptional circumstances" justifying the reduction of that period, and since the High Court had not given such reasons while reducing the probationary period of some of the respondents, respondents 3 to 11 will be confirmed as stated above without reducing the period of their probation.
(b) The High Court will re draw the inter se seniority (i) of such of the petitioners and respondents as were promoted or appointed to the Superior Judicial Service prior to December 31, 1976, on the basis of the respective dates of confirmation allotted to them in compliance with the aforesaid direction (a); and (ii) of such of the petitioners, respondents and others who were appointed to a post in the service on or after December 31, 1976 in accordance with the amended rule 12.
(c) The High Court will review and reconsider promotions to the Selection Grade and other allied orders made by it, having regard to these directions and the seniority to be fixed on the basis thereof.
The High Court will make necessary adjustments and alterations therein, in the light of the action to be taken in compliance with the aforesaid directions (a) and (b).
The confirmations, promotions and other orders passed by the High Court during the pendency of these Writ Petitions are, according to the interim order passed by this Court, subject to the result of these Writ Petitions.
Writ Petitions 4228 to 4230 of 1978 are also allowed partly, to the same extent as Writ Petition No. 266 of 1979.
The High Court will readjust the seniority of the petitioners and respondent No. 3 therein by the application of the aforesaid principles and in accordance with the Haryana Superior Judicial Service Rules, 1963 1072 as in force on, or as given effect to from April 1, 1970.
The seniority list will be drawn by the High Court on the basis of the dates of confirmation without applying the rule of rotation and in the light of the directions given by us in the Punjab Writ Petition, in so far as relevant.
The High Court will also comply with the other directions therein given regarding the review of the promotions to Selection Grade and the consequential orders.
These directions in the aforesaid Writ Petitions from Punjab and Haryana shall be complied with as soon as possible, preferably within a period of three months from to day.
Parties will pay and bear their own costs.
P. B. R. Petitions allowed in part.
| IN-Abs | Exercising power under the proviso to article 309 of the Constitution (which empowers the Governor to make rules regulating the recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the State) the Governor of Punjab, in consultation with the Punjab High Court, framed the Punjab Superior Judicial Service Rules, 1963.
The rules provide for the direct recruitment as well as appointment by promotion from the Punjab Civil Service (Judicial branch).
Under rule 8(2), two third of the total number of cadre posts have to be manned by promoted officers and one third by direct recruits.
Under rule 10(1) direct recruits have to remain on probation for two years provided that the Government may, in exceptional circumstances, reduce the period of probation in consultation with the High Court.
The period of probation of an officer can be extended by the Governor beyond the period of two years in consultation with the High Court but not so as to exceed a total period of three years.
Rule 10(2) empowers the Governor to confirm in consultation with the High Court a direct recruit on a cadre post with effect from a date not earlier than the date on which he completes the period of probation.
Rule 12 (now in force in Haryana) provides that the seniority of direct recruits and promoted officers shall be determined with reference to the respective dates of their confirmation.
Under the Punjab Rules as amended retrospectively with effect from April 9, 1976 'cadre post ' means a permanent as well as a temporary post in the service.
The inter se seniority of the members of the service is to be deter mined by the length of continuous service on a post in the service irrespective of the date of confirmation.
The three petitioners in the Haryana writ petitions were selected for recruitment to the Punjab Civil Service (Judicial Branch) in a competitive examination and after the formation of the State of Haryana, they were promoted in an officiating capacity to the Haryana Superior Judicial Service in 1967 and 1968.
Respondent No. 3 who was a direct recruit to the Haryana Superior Judicial Service was appointed as a District and Sessions Judge on July 7, 1025 1970 and was confirmed in that post on July 7, 1972 on the completion of A two year probationary period.
The three petitioners were confirmed as District and Sessions Judges with effect from July 8, 1972.
In the case of judicial officers of Punjab, although there were ten vacancies in the quota of promoted officers and an equal number of promoted officers were officiating for more than three years as Additional District and Sessions Judges, the High Court did not confirm the promotees in those vacancies but confirmed the promotees and the direct recruits by applying the rule of rotational Six direct recruits were given prior dates of confirmation in comparison with the promotees, as a result of which the confirmation of eight promotees was postponed.
In the case of some direct recruits confirmation was given within a period of one year and four months though the period of probation was two years.
Rule 12 was amended retrospectively from April 9, 1976 by which seniority was to be determined by the length of continuous service on a post in the service irrespective of the date of confirmation Rejecting the plea of one of the direct recruits that the rules not only required the application of a rule of quota at the time of appointment but also required the application of a rule of rotation at the time of confirmation, the High Court held that rules 8 and 12 were independent of each other, that rotational system could not be implicitly read in the quota rule provided for by rule 8 and that members of the Superior Judicial Service were entitled to claim seniority strictly in accordance with the provisions of rule 12.
The promotees complained that this decision rendered by the High Court in its judicial capacity was not being followed by the High Court in the discharge of its administrative duties and that seniority of the promotees and direct recruits must be fixed without applying the rule of rotation at the time of confirmation.
It was also stated that after the amendment of rule 12 in 1976 although two vacancies of District and Sessions Judges arose on each of these occasions the High Court promoted a direct recruit treating the date of his confirmation as the criterion of seniority.
It was contended on behalf of the promotees in Haryana that the control which the High Court exercises under article 235 over the subordinate judiciary does not include the power to make rules regulating the condition of service of judicial officers but that since the power conferred on the Governor under the proviso to article 309 to make rules is legislative in nature the principle of independence of judiciary is not in any manner violated when the Governor makes the rules.
On the other hand it was contended on behalf of the High Court that the control over the subordinate judiciary vested in the High Court by article 235 being exclusive in nature, the power to frame rules in regard to the seniority of judicial officers must reside in the High Court and not in the Governor.
It was contended on behalf of the promotees that the quota of 2: 1 provided for by rule 8 is applicable only at the time of initial recruitment and that there was no warrant for extending the application of that rule at the time of confirmation.
Partly allowing the Petitions; ^ HELD: There is no force in the contention that the Governor has no power to make rules of seniority of District and Sessions Judges.
[1058B] 1026 On a plain reading of articles 235 and 309 of the Constitution it is clear that the power to frame rules regarding seniority of officers in the judicial service of the State is vested in the Governor and not in the High Court.
The first part of article 235 vests the control over District Courts and courts subordinate thereto in the High Court.
But the second part of that Article says that nothing in the article shall be construed as taking away from any person belonging to the judicial service of the State 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 the conditions of his service prescribed under such law.
Thus, article 235 itself defines the outer limits of the High Court 's power of control over the District Courts and courts subordinate thereto.
In the first place, in the exercise of its control over the District Courts and subordinate courts it is not open to the High Court to deny to a member of the subordinate judicial service of the State the right of appeal given to him by the law which regulates the conditions of his service.
Secondly, the High Court cannot, in the exercise of its power of control, deal with such person otherwise than in accordance with the conditions of his service which are prescribed by such law.
[1052C] There is no power in the High Court to pass a law though rules made by the High Court in the exercise of power conferred upon it in that behalf may have the force of law.
Law which the second part of article 235 speaks of is law made by the Legislature.
The clear meaning, therefore, of the second part of article 235 is that the power of control vested in the High Court by the first part will not deprive a judicial officer of the rights conferred upon him by a law made by the Legislature regulating his conditions of service.
[1052G H] Article 235 does not confer upon the High Courts the power to make rules relating to conditions of service of judicial officers attached to District Courts and the courts subordinate thereto.
Whenever it was intended to confer on any authority the power to make any special provision or rules including rules relating to conditions of service, the Constitution has stated so in express terms.
For example the provisions contained in Articles 225, 227(2) & (3) and 229(1) & (2) confer powers on the High Court to frame rules for certain specific purposes.
article 229(2) which is directly in point provides that subject to the provisions of any law made by Legislature of the State the conditions of service of officers of a High Court shall be made by the High Court.
The framers of the Constitution would not have failed to incorporate a similar provision in article 235 if it was intended that the High Courts should have the power to make rules regulating the conditions of service of judicial officers in the subordinate judiciary.
[1053B F] The power of control vested in the High Court by article 235 is expressly made subject to the law which the State Legislature may pass for regulating the recruitment and service conditions of judicial officers of the State.
The framers of the Constitution did not regard the power of the State Legislature to pass laws regulating the recruitment and conditions of service of judicial officers as an infringement of the independence of the judiciary.
The mere powers to pass such a law is not violative of the control vested in the High Court over the State judiciary.
[1053H; 1054C] In order that there may be no vacuum until the passing of a law by the Legislature on the subject, the Constitution has made provision under the proviso to article 309 that until the State Legislature passes a law on the 1027 particular subject, it shall be competent to the Governor of the State to A make rules regulating the recruitment and conditions of service of the judicial officers of the State.
The power exercised by the Governor under the proviso is thus a power which the Legislature is competent to exercise but has in fact not yet exercised.
It partakes of the characteristics of the legislative, not executive, power.
It is legislative power.
[1054D F] That the Governor possesses legislative power under the Constitution is incontrovertible.
Just as under article 213 the Governor substitutes tor the Legislature because the Legislature is in recess so under the proviso to article 309 he substitutes for the Legislature because the Legislature has not yet exercised its power to pass an appropriate law on the subject.
[1054G and 1055B C] It is true that the power conferred by Article 309 is subject to the provisions of the Constitution but it is fallacious for that reason to contend that the Governor cannot frame rules regulating the recruitment and conditions of service of the Judicial officers of the State.
Firstly, the power of control conferred upon High Courts by the first part of Article 235 is expressly made subject, by the second part of that Article, to laws regulating conditions of service of its Judicial officers.
Secondly, the Governor, in terms equally express, is given the power by the proviso to Article 309 to frame rules on the subject.
[1055B C] A combined reading of articles 235 and 309 will yield the result that though the control over the subordinate courts is vested in the High Court the appropriate Legislature and until that Legislature acts the Governor of the State has the power to make rules regulating the recruitment and the conditions of service of judicial officers of the State.
The power of the Legislature or of the Governor thus to legislate is subject to all other provisions of the Constitution like articles 14 and 16.
[1055D E] The second part of article 235 recognises the legislative power to provide for recruitment and the conditions of service of the judicial officers of the State.
The substantive provision of article 309, including its proviso, fixes the location of the power.
The opening words of article 309 limit the amplitude of that power.
[1055F] Seniority is undoubtedly an important condition of service.
The control vested in the High Court by the first part of article 235 is, therefore subject to any law regulating seniority as envisaged by the second part of that article.
The power to make such law is vested by article 309 in the Legislature and until it acts, in the Governor.
Whether it is the Legislature which passes an Act or the Governor who makes rules regulating seniority, the end product is law within the meaning of second part of article 235.
The Legislatures of Punjab and Haryana not having passed an Act regulating seniority of the respective State judicial officers, the Governors of the two States have the power to frame rules for that purpose under the proviso to article 309 of the Constitution Such rules are subject to the provisions of the Constitution and to the provisions of any Act which the appropriate Legislature may pass on the subject.
[1055G H] The law passed by the Legislature or the rules made by the Governor can provide for general or abstract rules of seniority leaving it to the High Court to apply them to each individual case as and when the occasion arises.
The power to legislate on seniority being subject to all other provisions of the Constitution cannot be exercised in a manner which will affect or be detrimental to the control vested in the High Court by article 235.
[1056B C] 1028 Though the Legislature or the Governor has the power to regulate seniority of judicial officers by laying down rules of general application, that power cannot be exercised in a manner which will lead to interference with the control vested in the High Court by the first part of article 235.
In a word, the application of law governing seniority must be left to the High Court.
The determination of seniority of each individual judicial officer is a matter which indubitably falls within the area of control of the High Court over the district courts and the courts subordinate thereto.
For the same reason, though rules of recruitment can provide for a period of probation, the question whether a particular judicial officer has satisfactorily completed his probation or not is a matter which is exclusively in the domain or the High Court to decide.
[1056E F]] The independence of the judiciary has to be preserved.
at all costs.
But at the same time the Legislature or the Governor cannot be deprived of their legitimate legislative powers under article 309.
That power is subject to all other provisions of the Constitution which means that the power cannot be exercised in a manner which will lead to the violation of articles 14 or 16 or the pervasive ambit of the first part of article 235.
Since the power conferred by article 309 is not absolute or untrammeled it will be wrong to test the validity of that power on the anvil of its possible abuse.
[1057 A B] High Court of Punjab and Haryana vs State of Haryana, , Union of India vs Justice section H. Sheth, ; , A. P. High Court vs Krishnamurthy, & State of Bihar vs Madan Mohan Prasad, ; , referred to.
Rule 8 as its very heading shows, provides for a distinct condition of ser vice with reference to a specific point of time, namely "recruitment to service".
The language of the rule also indicates that the operation of this rule is confined to the stage of initial recruitment to the service either by promotion or by direct appointment from the Bar.
[1063F] The reservation contemplated by rule 8 is intended to be made at the stage of initial appointment only by reserving two third of the total number of posts in the cadre for promotees and one third for direct recruits.
A post which falls vacant in the quota of promotees cannot be filed by the confirmation of a direct recruit therein nor indeed can a promotee be confirmed in a post which is within the quota of direct recruits.
[1063H] If this be the true construction of rule 8 the method of confirmation by rotation of direct recruits and promotees, regardless of whether the vacancy assigned to the particular officer falls within the quota of the class to which he belongs will be in contravention of that rule.
[1064B] 'Appointment ' is not a continuous process.
The process of appointment is complete as soon as a person is initially recruited to the service either by promotion or by direct recruitment and confirmation is not a part of the process of appointment.
"Recruitment to the service" is a matter which falls within the power of the Governor under article 233 while "confirmation" is a matter of 'control ' vesting in the High Court under article 235.
The superimposition of rule 8, which fixes the quota at the stage of recruitment on the rules relating to confirmation and seniority is, therefore, contrary to the basic constitutional concepts governing judicial service.
[1064C D] 1029 The rule of rota cannot be read into the rule of quota.
In other words the ratio of 2: 1 shall have to be applied at the stage of recruitment but cannot on the language of the relevant rules be applied at the stage of confirmation.
[1066B] A K. Subraman vs Union of India, [1975] 2 SCR 979, N.K. Chauhan vs State of Gujarat, ; referred to.
Paramjit Singh Sandhu vs Ram Rakha, ; held inapplicable.
The High Court was not justified in applying tho rule of rotation at the time of confirmation of the members of the superior judicial service who were appointed to that service by promotion and by direct recruitment.
In the discharge of its administrative functions the High Court could not have failed to follow a judgment of its own special bench consisting of five Judges.
[1066C D] High Court of Punjab and Haryana vs State of Haryana, ; , referred to.
On a proper interpretation of the rules, promotees are entitled to be confirmed in the vacancies which are available within their quota of two third, whether or not one third of the vacancies are occupied by confirmed direct recruits.
Similarly direct recruits are entitled to be confirmed in vacancies which are available within their quota of one third whether or not two third of the vacancies are occupied by confirmed promotees.
[1067D E] The fairness which articles 14 and 16 postulate is that it a promotee is otherwise fit for confirmation and a vacancy falling within the quota of promotees is available in which he can be confirmed, his confirmation ought not to be postponed until a direct recruit, whether yet appointed or not, completes his period of probation and thereupon becomes eligible for confirmation.
The adoption of this principle in the matter of confirmation will not, in practice, give any undue advantage to the promotees.
[1067D E].
In so far as the confirmation of respondents 6, 7 and 8 is concerned, in the absence of exceptional circumstances justifying the reduction of their normal probationary period of two years, the order of the High Court confirming he three respondents before they were normally due for confirmation cannot be upheld.
The order is in clear violation of the guarantee of equal opportunity, by the petitioners were prejudiced and must for that reason be sel aside.
[1067G H] The power conferred by the proviso to rule 10(1) on the Governor is ex facie bad because such a power directly impinges upon the control vested in the High Court by article 235 of the Constitution.
If at all any authority could exercise such a power, it is the High Court and not the Governor.
The rules must now be understood to mean that the High Court and not the Governor has the power of confirmation, that the normal period of probation of direct recruits is two years and that unless there are exceptional circumstances in regard to each individual case, a direct recruit cannot be confirmed from a date earlier than the date on which he has satisfactorily completed his probation of two years.
The High Court is not free to fix any period of probation as it likes or to reduce the period of two years at its will and pleasure.
[1068B E] As regards The power of the Governor to amend a rule with retrospective effect, since he exercises a legislative power under proviso to article 309 it is open to him to give retrospective effect to the rules made under that provision.
But the date from which the rules are made to operate must be shown to bear 1030 either from the face of the rules or by extrinsic evidence reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period.
In the instant case rule 12 which was amended retrospectively from April 9, 1976 by a notification dated December 31, 1976 is invalid because no such nexus is shown to exist.
[1068F H]
|
Civil Appeal Nos.
1584 1588 of 1973.
Appeals by Special Leave from the Judgment and Order dated 6th August, 1973 of the Madras High Court in Writ Appeal Nos.
13 to 17 of 1973.
AND 158 Writ Petition Nos.
357 of 1979 and 4367 of 1978.
(Under Article 32 of the Constitution) K. Parasaran, Soli.
General, N. Nettar and Miss A. Subhashini for the Appellants in all appeals.
T.S. Krishnamurthy Iyer, H. B. Dattar, A. K.Srivastava and T. P. Sunderarajan for the Petitioners in WPs.
4367 of 1978 & 357 of 1979.
T.S. Krishnamurthy Iyer, Vineet Kumar and A.K. Srivastava for the Respondents.
The Judgment of the Court was delivered by PATHAK, J.
These appeals, by special leave, raise the question whether the respondents are entitled to claim fixation of their seniority in the Subordinate Accounts Service after taking into account their length of service as Upper Division Clerks.
The respondents entered service in the Office of the Accountant General, Tamil Nadu as Upper Division Clerks.
They appeared in the Subordinate Accounts Service Examination but it was only after a number of attempts that they succeeded in passing.
They passed the examination held in November, 1969 and were promoted shortly thereafter.
They claimed seniority on the basis that their length of service in the inferior post should be taken into account, and rested their claim on paragraph 143 of the Manual of Standing Orders issued by the Comptroller and Auditor General as it stood before its amendment by a correction slip of 27th July, 1956.
The correction slip removed the factor of weightage on the basis of length of service in the determination of seniority.
The claim was rejected by the Comptroller and Auditor General.
A writ petition filed by them in the High Court of Madras was allowed by a learned Single Judge, and his judgment was affirmed by an appellate Bench, of the High Court.
Against the judgment of the appellate Bench, the Accountant General, Tamil Nadu and the Comptroller and Auditor General have appealed to this Court, and those appeals are pending as Civil Appeals Nos. 1584 to 1588 of 1973.
During the pendency of those appeals the President enacted the Indian Audit and Accounts Department (Subordinate Accounts Service & Subordinate Railway Audit Service) Service Rules, 1974 (referred to hereinafter as "the Rules of 1974").
The Rules of 1974 purport to give statutory recognition to the amendment of paragraph 143 by the Comptroller and Auditor General.
The validity of the Rules of 1974 and the amendment made in paragraph 143 are assailed by the respondents in the instant appeals.
159 The Rules of 1974 have been enacted by the President.
They are deemed to have come into force on 27th July, 1956, which has been defined, for the purposes of the Rules as the "appointed day".
The Subordinate Accounts Service (the "Service") includes members appointed to it before the appointed day as well as persons recruited to it in or before that day.
Rule 5 provides that recruitment shall be made by direct recruitment in accordance with, the orders or directions issued by the Comptroller and Auditor General from time to time and also by promotion.
Rule 6 provides: "6.
Appointments: Appointments to the Service shall be made from the list prepared in accordance with the orders and instructions issued by the Comptroller and Auditor General from time to time and applicable at the time of appointment to the Service.
" Rule 7 deals with seniority, and declares: "7.
Seniority: (1) The seniority inter se of the persons appointed to the service before the appointed day shall be regulated by the orders or instructions issued by the Comptroller and Auditor General as were in force at the relevant time before such day.
(2) The seniority inter se of the persons appointed to the Service on or after the appointed day shall be in the order in which the appointments are made to the service in accordance with rule 6.
Provided that a direct recruit shall on appointment to the Service rank senior to all officiating persons in the service (excluding a direct recruit) passing in the same departmental examination or subsequent departmental examinations.
Provided further that the seniority of a person who had declined the appointment to the Service but who is subsequently appointed to the Service shall be determined with reference to the date on which he assumed charge of the post in the cadre.
" By virtue of Rule 9, in matters not specifically provided for in the Rules, every person appointed to the Service is governed by the rules, regulations, orders or instructions made or issued in respect of the Central Civil Services as applicable to the Indian Audit and Accounts 160 Department.
Rule 10 empowers the Comptroller and Auditor General to issue, from time to time, such general or special instructions or orders as he may consider necessary or expedient for the purpose of giving, effect to the Rules.
The respondents have raised two contentions.
The first is that the Rules are invalid as clause (5) of article 148 to which alone, it is said, they must be ascribed, does not permit the retrospective enactment of rules made thereunder.
The other contention is that the specific rules affecting the seniority of the respondents are in valid be cause in entrusting power to the Comptroller and Auditor General to issue orders and instructions in his discretion the doctrine against excessive delegation of legislative power has been violated Taking the first contention first, it may be noted that the Rules of 1974 purport, according to the recital in the Notification dated 4th November, 1974 publishing them, to have been made by the President "in exercise of the powers conferred by the proviso to article 309 and clause (5) of article 148 of the Constitution and after consultation with the Comptroller and Auditor General of India".
The respondents say that the only provision of the Constitution under which those Rules could be made is clause (5) of article 148, and we should ignore reference to the proviso to article 309.
If that is done, they urge, there will be no justification for holding that the Rules of 1974 can be given retrospective operation.
Unlike the proviso to article 309, it is pointed out, clause (5) of article 148 does not permit the enactment of retrospectively operating rules.
We think that the respondents are right.
Article 309 provides for legislation by the appropriate Legislature 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 any State, and the proviso to article 309 declares that until such legislation is enacted by the appropriate Legislature the President is empowered in the case of services and posts in connection with the affairs of the Union, and the Governor of a State in the case of services and posts in connection with the affairs of a State, to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts.
There is a clear dichotomy in the power conferred by article 309, a division of power between the Parliament or President, as the case may be, on the one side and the State Legislature or Governor on the other.
The division is marked by the circumstance that under Art 309, services and posts in connection with the affairs of the Union are dealt with by a separate authority from the services and 161 posts in connection with the affairs of a State.
That dichotomy it seems, is not possible in the power employed for appointing persons in the Indian Audit and Accounts Department and for prescribing their conditions of service.
The Comptroller and Auditor General of India, who is the head of that department, is a constitutional functionary holding a special position under the Constitution.
Under article 149, he performs duties and exercises powers in relation to the accounts of the Union and also of the States.
Clause (1) of article 151 requires him to submit a report relating to the accounts of the Union to the President, who causes them to be laid before each House of Parliament.
Likewise, clause (2) of article 151 requires him to submit a report relating to the accounts of a State to the Governor of the State, who causes them to be laid before the Legislature of the State.
It cannot be said, in the circumstances, that the persons serving in the Indian Audit and Accounts Department are holding office in connection with the affairs of the Union exclusively.
It may be pointed out that when the Constitutional Adviser prepared the Draft Constitution for consideration by the Constituent Assembly the document contained separate provisions for the appointment of the Auditor General of the Federation and Auditors General for the Provinces.
The Auditor General for the Federation was to be appointed by the President and his functions extended to the accounts of the Federation as well as of the Provinces.
But it was open to a Provincial Legislature to provide by law for the appointment of an Auditor General for the Province and the appointment to that office was to be made by the Governor.
The Expert Committee on the financial provisions of the Union Constitution favoured the continuance of a single Auditor General for the Government of India as well as for the Provincial Governments and hoped that the Provincial Governments would refrain from using their power of appointing separate Auditors General of their own.
When the matter came before the Drafting Committee, it decided that the persons performing the functions of the Auditor General in a State should be designated Auditor in Chief in order to distinguish him from the Auditor General of India, and that the salaries and allowances of the staff of these officers should be fixed by the Auditor General of India and the Auditor in Chief in consultation with the President and the Governor respectively.
Thereafter, the Drafting Committee reconsidered the desirability of permitting a multiplicity of audit authorities, one for the Union and one for each State.
On 1st August, 1949 Shri T.T. Krishnamachari moved an amendment deleting the draft articles enabling the State Legislatures to create their own Auditors in Chief.
He pointed out that since the Constituent Assembly had already adopted articles whereby the auditing and accounting would become "one institution, so to say, under the authority of the 162 Comptroller and Auditor General", it was not necessary to have separate provision for the States.
Accordingly, he proposed the addition of a new article now clause (2) of article 151] about the Comptroller and Auditor General, requiring him to submit the reports of the accounts of a State to the Governor for being laid before the State Legislature.
These amendments were adopted by the Constituent Assembly.
It is evident that the authority vested in the Comptroller and Auditor General ranges over functions associated with the affairs of the Union as well as over functions associated with the affairs of the States.
It is a single office, and the Indian Audit and Accounts Department, which it heads, is a single department.
They cannot be said to be concerned with the affairs of the Union exclusively.
Consequently, the regulation of the recruitment and conditions of service of persons serving in the Indian Audit and Accounts Department cannot be regarded as a matter falling with the domain of the President within the terms of the proviso to article 309.
A special provision was necessary to entrust the President with that power, and that provision is clause (5) of Art, 148.
The power contained in clause (5) of article 148 is not related to the power under the proviso to article 309.
The two powers are separate and distinct from each other and are not complementary to one another.
In our opinion, the reference to the proviso under article 309 in the recital of the Notification publishing the Rules of 1974 is meaningless and must be ignored.
The next question is whether clause (5) of article 148 permits the enactment of rules having retrospective operation.
It is settled law that unless a statute conferring the power to make rules provides for the making of rules with retrospective operation, the rules made pursuant to that power can have prospective operation only.
An exception, however, is the proviso to article 309.
In B. section Vadera vs Union of India & Ors.
this Court held that the rules framed under the proviso to article 309 of the Constitution could have retrospective operation.
The conclusion followed from the circumstance that the power conferred under the porviso to article 309 was intended to fill a hiatus that is to say, until Parliament or a State Legislature enacted a law on the subject matter of article 309.
The rules framed under the proviso to article 309 were transient in character and were to do duty only until legislation was enacted.
As interim substitutes for such legislation it was clearly intended that the rules should have the same range of operation as an Act 163 of Parliament or of the State Legislature.
The intent was reinforced by the declaration in the proviso to article 309 that "any rules so made shall have effect subject to the provisions of any such Act".
Those features are absent in clause (5) of article 148.
There is nothing in the language of that clause to indicate that the rules framed therein were intended to serve until Parliamentary legislation was enacted.
All that the clause says is that the rules framed would be subject to the provisions of the Constitution and of any law made by Parliament.
We are satisfied that clause (5) of article 148 confers power on the President to frame rules operating prospectively only.
Clearly then.
the rules of 1974 cannot have retrospective operation, and therefore sub rule (2) of rule 1, which declares that they will be deemed to have come into force on 27th July, 1956 must be held ultra vires.
If the Rules of 1974 do not cover the case of the respondents then admittedly the only question which remains in regard to them is whether the amendment intended by the Comptroller and Auditor General in 1956 to paragraph 143 of the Manual of Standing Orders results in amending that paragraph.
The amendment is in the form of a correction slip which, it is not disputed, possesses the status of an administrative instruction.
The contention on behalf of the respondents is that paragraph 143 possesses the status of a statutory rule and, therefore, the amendment attempted by the correction slip has no legal effect on it.
The High Court held that paragraph 143 was a statutory rule and it proceeded to hold so on the basis of affidavits filed before it.
But the matter has been more carefully researched since, and the relevant material is now set out in the special leave petition, which has given rise to this appeal.
It appears that in 1921 the Auditor General, as the administrative head of the Indian Audit Department, inserted article 1666A by a circular No. 1757 E/1129 dated 18th April, 1921 giving weight to the length of service in the fixation of seniority.
In the Audit Code prepared subsequently, Art, 1666A appeared as article 52.
Thereafter, in the Manual of Standing Orders issued by the Auditor General in 1938, article 52 found expression as paragraph 143.
The provision never acquired statutory force under the Government of India Act, 1919.
Learned counsel for the respondents urges that it acquired statutory force under sub section
(2) of section 252.
Government of India Act, 1935.
Sub sections
(1) and (2) of section 252 provide: "252.
(1) All persons who immediately before the commencement of Part III of this Act were members of the staff of the High Commissioner for India, or members of the staff of the Auditor of the accounts of the Secretary 164 of State in Council, shall continue to be, or shall become, members of the staff of the High Commissioner for India or, as the case may be, of the Auditor of Indian Home Accounts.
(2) All such persons aforesaid shall hold their offices or posts subject to like conditions of service as to remuneration, pensions or otherwise, as therefore, or not less favourable conditions, and shall be entitled to reckon for purposes of pension any service which they would have been, entitled to reckon if this Act had not been passed.
* * * * *" Sub section
(2) of section 252 does not help the respondents.
Firstly, the guarantee conferred by it covered those persons who held offices or posts on the staff of the Auditor of the accounts of the Secretary of State in Council and on the staff of the Indian Home Accounts immediately before the commencement of Part III of the Act.
The respondents are clearly not such persons.
Secondly, even if it be assumed that the benefit of sub section
(2) can be extended to the respondents, sub section
(2) merely protects the conditions of service enjoyed by them as they existed before.
The sub section does not enlarge or improve on the quality of those conditions of service.
If seniority was determined by a departmental instruction, sub section
(2) did not give that provision the higher status of a statutory rule.
It remained what it always was, a departmental instruction.
We were also referred to article 313 of the Constitution, but that provision also does not result in converting a departmental instruction into a statutory rule.
Plainly, paragraph 143 in the Manual of Standing Orders remained throughout a departmental instruction and, therefore, could be amended by the departmental instruction contained in the correction slip issued by the Comptroller and Auditor General in 1956.
On that conclusion being reached, the claim of the respondents must fail.
The appeals have to be allowed.
In the connected writ petition No. 357 of 1979 there are 15 petitioners.
The first ten passed the Subordinate Accounts Service Examination and were promoted to the service after 1956 and before the enactment of the Rules of 1974.
They will be governed by the legal position enunciated in the aforesaid appeals.
The eleventh, twelfth and thirteenth petitioners passed the examination immediately before the enactment of the Rules of 1974 but were promoted after the Rules were enacted.
The remaining petitioners appeared at the examination and were promoted after the enactment of the Rules.
In the case of the last two categories the Rules of 165 1974 will apply.
Having regard to the provision determining the fixation of seniority under the Rules of 1974 and the position obtaining thereafter, none of the petitioners can claim the benefit of weigtage on the basis of length of service.
But these petitioners rely on the second of the two contentions concerning the validity of the Rules of 1974.
They assail specifically the validity of Rule 7(2) which provides for fixation of seniority.
The argument is that the fixation of seniority has been made by Rule 7(2) to depend on the order in which appointments to the service are made under Rule 6, and that, it is pointed out, depends on an arbitrary power conferred on the Comptroller and Auditor General to pass orders and instructions.
We see no force in the contention.
The Comptroller and Auditor General is a high ranking constitutional authority, and can be expected to act according to the needs of the service and without arbitrariness.
He is the constitutional head of one of the most important departments of the State, and is expected to know what the department requires and how best to fulfil those requirements.
We are unable to hold that the power conferred on him under the Rules violates the principle against excessive delegation.
The writ petition No. 4367 of 1978 must also be treated on the basis that the petitioners are not, in the fixation of their seniority, entitled to weightage with reference to their length of service.
Both writ petitions must, therefore, be dismissed.
Civil Appeals Nos.
1584 1588 of 1973 are allowed, the judgment and order of the Madras High Court is set aside and the writ petition is dismissed.
Writ Petition Nos.
357 of 1979 and 4367 of 1978 are also dismissed.
In the circumstances, there is no order as to costs.
N.V.K. Appeals allowed and Petitions dismissed.
| IN-Abs | In 1921 the Auditor General, as the administrative head of the Indian Audit Department, inserted Article 1666A by a circular No. 1757 E/1129 dated 18th April 1921 giving weight to the length of service as Upper Division Clerks in the fixation of seniority in the Subordinate Accounts Service.
In the Audit Code prepared subsequently, Article 1666A appeared as Article 52.
Thereafter, in the Manual of Standing Orders issued by the Auditor General in 1938, Article 52 found expression as paragraph 143.
By a correction slip dated 27th July, 1956, the Comptroller and Auditor General removed the factor of weightage on the basis of length of service in the determination of seniority.
The respondents in the appeals, who had entered service in the Office of the Accountant General, as Upper Division Clerks, appeared in the Subordinate Accounts Service Examination and passed the examination held in November 1969, and were promoted shortly thereafter.
They claimed seniority on the basis that their length of service in the inferior post should be taken into account, and rested their claim on paragraph 143 of the Manual of Standing Orders as it stood prior to its amendment by the correction slip of 27th July 1956.
The claim was rejected by the Comptroller and Auditor General A writ petition filed by them in the High Court was allowed by a Single Judge and the judgment was affirmed by the Appellate Bench of the High Court.
The Accountant General and the Comptroller and Auditor General appealed to this Court.
During the pendency of the appeals, the President enacted 156 the Indian Audit and Accounts Department (Subordinate Accounts Service & Subordinate Railway Audit Service) Service Rules, 1974.
They were deemed to have come into force on 27th July, 1956.
These rules purported to give statutory recognition to the amendment of paragraph 143 by the Comptroller and Auditor General.
Rule 6 provided for appointments to the service and Rule 7 dealt with seniority.
Rule 9 provided that in matters not specifically provided for the rules, regulations, orders or instructions of the Central Civil Services as applicable to the Indian Audit and Accounts Department would be applicable.
Rule 10 empowered the Comptroller and Auditor General to issue general or special instructions for giving effect to the Rules.
In the appeals, the respondents assailed the validity of the Rules of 1974 and the amendment made in paragraph 143, contending that the Rules are invalid as clause (5) of Article 148 does not permit the retrospective enactment of rules made thereunder, that the specific rules affecting the seniority of the respondents are invalid because in entrusting power to the Comptroller and Auditor General to issue orders and instructions in his discretion the doctrine against excessive delegation of legislative power has been violated, and that paragraph 143 possesses the status of a statutory rule and, therefore, the amendment attempted by the correction slip has no legal effect upon it.
In the connected writ petitions, the petitioners who had passed the Subordinate Accounts Service Examination were promoted to the Service after 1956 some before the enactment of the Rules of 1974 and some thereafter.
It was contended on their behalf that the fixation of seniority having been made by Rule 7(2) to depend on the order in which appointments to the service were made under Rule 6 depends on an arbitrary power conferred on the Comptroller and Auditor General to pass orders and instructions.
On the question whether the respondents are entitled to claim fixation of their seniority in the Subordinate Accounts Service after taking into account their length of service as Upper Division Clerks.
Allowing the appeals and dismissing the writ petitions, ^ HELD: 1.
There is nothing in the language of clause (5) of Article 148, to indicate that the rules framed therein were intended to serve until Parliamentary legislation was enacted.
All that the clause says is that the rules framed would be subject to the provisions of the Constitution and of any law made by Parliament.
Clause (5) of Article 148 confers power on the President to frame rules operating prospectively only.
The rules of 1974 cannot have retrospective operation.
Sub rule (2) of rule 1, which declares that they will be deemed to have come into force on 27th July, 1956 is therefore ultra vires.
[163B C] B.S. Vadera vs Union of India & Ors.
[1968] 3 S.C.R. 575 referred to. 2.
The Comptroller and Auditor General is a high ranking constitutional authority, and can be expected to act according to the needs of the service and without arbitrariness.
He is the constitutional head of one of the most important departments of the State, and is expected to know what the depart 157 ment requires and how best to fulfil those requirements.
The power conferred on him under the Rules does not violate the principle against excessive delegation.
[165C D] 3.
Paragraph 143 in the Manual of Standing Orders remained throughout a departmental instruction and, therefore, could be amended by the departmental instruction contained in the correction slip issued by the Comptroller and Auditor General in 1956.
[164F] 4.
There is a clear dichotomy in the power conferred by Article 309, a division of power between the Parliament or President, as the case may be, on the one side and the State Legislature or Governor on the other.
The division is marked by the circumstance that under Article 309 services and posts in connection with the affairs of the Union are dealt with by a separate authority from the services and posts in connection with the affairs of a State.
That dichotomy is not possible in the power employed for appointing persons in the Indian Audit and Accounts Department and for prescribing their conditions of service.
[160H 161A] 5.
The authority vested in the Comptroller and Auditor General ranges over functions associated with the affairs of the States.
It is a single office, and the Indian Audit and Accounts Department, which it heads, is a single department.
They cannot be said to be concerned with the affairs of the Union exclusively.
Consequently, the regulation of the recruitment and conditions of service of persons serving in the Indian Audit and Accounts Department cannot be regarded as a matter falling within the domain of the President within the terms of the proviso to Article 309.
[162 C] B. Shiva Rao, "The Framing of India 's Constitution: A Study" [1968] Chap.
12, pp.
414 417 referred to.
It cannot be said that persons serving in the Indian Audit and Accounts Department are holding office in connection with the affairs of the Union exclusively.
[161 C] 7.
The power contained in clause (5) of Article 148 is not related to the power under the proviso to Article 309.
The two powers are separate and distinct from each other and are not complementary to one another.
The reference to the proviso under Article 309 in the recital of the Notification publishing the Rules of 1974 is meaningless and must be ignored.
[162D E] 8.
Having regard to the provision determining the fixation of seniority under the Rules of 1974 and the position obtaining thereafter, none of the petitioners in the writ petitions can claim the benefit of weightage on the basis of length of service.
[165A]
|
Appeal No. 144 of 1955.
Appeal by special leave from the judgment and order dated September 25, 1953, of the Labour Appellate Tribunal of India, Calcutta in Miscellaneous Case No. C 112 of 1953.
C. K. Daphtary, Solicitor General of India, A. B. N. Sinha and B. P. Maheshwari, for the appellant.
section P. Sinha, R. Patnaik and A. D. Mathur, for the respondents.
801 1956.
October 11.
The Judgment of the Court was delivered by section K. DAS J.
, This is an appeal by special leave from a decision of the Labour Appellate Tribunal, Calcutta, dated the 25th September, 1953.
The relevant facts lie within a narrow compass.
On the 4th of May 1953 the appellant, the Rohtas Industries Limited, Dalmianagar, made an application to the said Labour Appellate Tribunal under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950 (XLVIII of 1950), hereinafter referred to as the Act, for permission to discharge ninety six temporary employees in the following circumstances.
The appellant company have a number of factories at Dalmianagar including a cement factory, power house, pulp mill, paper factory, chemical factory, factory for the manufacture of certain acids and an asbestos cement factory.
The company had a number of temporary employees who were engaged temporarily in connection with certain erection works for the extension and enlargement of those factories.
The terms of employment of these employees were embodied in a temporary appointment form which was signed by the employees as well as the management.
The said terms stated, inter alia, that "the company could discharge the employee at any time without notice, compensation and giving any reason therefor, whether on completion of the work on which the employee was engaged or earlier"; the terms also made it clear that whether the employee was on the same job or some other job, in the same department or some other, either on temporary work or permanent work, he would remain a temporary employee until the Works Manager issued a written letter expressly making him a permanent employee.
As and when the various erection works were completed, the temporary employees were first put on a list of spare men and then discharged.
Some time prior to the 3rd of July 1952, sixty nine of these temporary employees were spared for being discharged.
The names of these sixty nine employees were given in two lists, Appendix 802 A and Appendix B.
It was alleged that on the 3rd of July 1952, a number of these employees headed by one Brij Nandan Pandey entered the office of Shri L. C. Jain, Manager of the Cement Factory, and Brij Nandan Pandey assaulted the Manager.
A serious situation resulted from that 'incident and the company stopped the sixty nine temporary employees from coming to their factories or to their Labour Office and issued a notice to them stating that the company were applying to the Industrial Tribunal for permission to terminate their services.
At that time an industrial dispute relating to, among other things, the payment of bonus to the employees was pending adjudication in the Court of the Industrial Tribunal, Bihar.
On the 5th of July 1952, the appellant company made an application to the said Tribu nal for permission to discharge the sixty nine employees.
The application was made under section 33 of the .
On the 12th of July 1952, forty nine out of the said sixty nine employees made an application, under section 33 A of the , to the Chairman, Industrial Tribunal, Bihar, on the allegation that the appellant company had discharged sixty nine employees on the 5th July 1952 and had thereby contravened section 33 of the .
On the 20th of August 1952, thirty six more temporary employees were put on the spare list and an application was made to the Industrial Tribunal Bihar, for including these thirty six persons also in the application which had been made for permission to discharge the temporary men; thus, all told, the application related to one hundred and five temporary men.
The case of the appellant company was that the completion of the erection works for which these temporary men were originally employed was a gradual process and so far as the Cement Factory erection work was concerned, it was completed by the end of March 1952 except for certain minor additions and alterations.
Therefore, the appellant company no longer required the services of the temporary employees and they were put on the spare list as and 803 when their services were no longer required.
The two applications which had been made to the Industrial Tribunal, Bihar, the one under section 33 of the and the other under section 33 A of the said Act, remained pending with the Industrial Tribunal till the 17th of December 1952 on which date the application under section 33 A filed by forty nine of the sixty nine temporary employees, was dismissed.
On the 3rd of January 1953, the Chairman of the Industrial Tribunal, Bihar, intimated to the appellant company that the Tribunal was no longer competent to pass any orders on the application under section 33 of the , as the adjudication proceedings on the main reference had already concluded.
Two appeals were taken to the Labour Appellate Tribunal, one from the award made on the main adjudication and the other from the order made on the application under section 33 A of the .
On the 20th May 1953, the appeal from the order under section 33 A was dismissed.
As we are not concerned with that appeal in any way, nothing further need be said about it in this judgment.
The appeal from the main award was pending on the 4th of May 1953 on which date the appellant company made their application under section 22 of the Act to the Labour Appellate Tribunal for permission to discharge ninety six of the temporary employees.
Though there were one hundred and five temporary employees originally, with regard to whom an application had been made to the Industrial Tribunal, Bihar, nine out of them voluntarily left the service of the company; therefore, the number of temporary employees regarding whom the application under section 22 of the Act was made was ninety.
six only.
, The application was contested by forty two of the temporary employees, and in their affidavit they denied that any of the sixty nine workmen were originally recruited as temporary workmen and they further denied that they were involved in the incident relating to the assault on Shri L.C. Jain on the 3rd of July 1952.
They said that in effect they were 804 permanent employees and enjoyed all the benefits of permanent employees.
They further stated.
: "The erection work of the cement plants of the petitioners was completed towards the end of 1950 and it is therefore patently false to suggest that we became redundant as a result of the completion of the erection of the cement plants.
It is significant to note that a large number of workmen who had worked on the job of erecting the cement plants were discharged shortly after the completion of the said work on the ground that they were surplus.
The cement plants started to Work in full swing from about the first quarter of 1951 and we were working in the said cement plant producing cement from the very beginning.
right up to 5th July 1952, when we were informed that we were surplus.
In fact the real reason for the proposed retrenchment is the petitioner 's desire to increase the rate of exploitation of its workmen by increasing the workload".
With regard to the terms embodied in the appointment form, it was alleged that on or about the 3rd of December 1948 the employees of the appellant company were forced to go on strike on account of an industrial dispute; towards the end of the strike the workmen became exhausted and drifted back to work.
The strike was ultimately called off and the appellant company taking full advantage of their victory compelled a section of the workmen, who did not return to work until the strike was called off, to sign the ap pointment form with the purpose of humiliating and terrorising them.
The Labour Appellate Tribunal gave its decision on the 25th September 1953 which is the decision under appeal.
It dismissed the application of the appellant.
company on a finding which the Tribunal expressed in the following words: "It is thus clear that these 96 workmen had been working in the production departments from as far back as the beginning of the year 1951 and so the completion of the erection work cannot be put forward as the ground for their retrenchment".
805 Referring to the Directors ' Report dated the 10th of July 1951, the Tribunal came to the conclusion that the workmen 's version that the erection works had been completed by the end of 1950 was supported by the said report.
In other words, the decision of the Labour Appellate Tribunal was primarily based on the finding that the erection works were completed by the end of 1950 and therefore there was no ground for discharging the ninety six temporary men.
Learned counsel for the appellant has contended before us that (1) the Appellate Tribunal did not correctly appreciate the true scope and effect of section 22 of the Act; (2) the Appellate Tribunal gave attention to only one point, namely, the completion of erection works, and did not consider the other circumstances put forward on behalf of the appellant in support of their application; (3) instead of considering the real point which arose for determination on an application under section 22 of the Act, the Appellate Tribunal confined its attention to a point which was not decisive of the question before it; and (4) by reason of its failure to consider the real point for determination, the order of the Appellate Tribunal has resulted in manifest injustice.
In our opinion, these contentions are correct and should be upheld.
It was pointed out in The Automobile Products of India Ltd. vs Rukmaji Bala(1) that section 22 of the Act confers on the Appellate Tribunal a special jurisdiction which is in the nature of original jurisdiction and the Tribunal being an authority of limited jurisdiction must be confined to the exercise of such functions and powers as are actually conferred on it.
With regard to the scope of section 22 of the Act, it was observed: "The object of section 22 of the 1950 Act like that of section 33 of the 1947 Act as amended is to protect the workmen concerned in disputes which form the subject matter of pending proceedings against victimisation by the employer on account of their having raised industrial disputes or their continuing the (1) ; 105 105 806 pending proceedings.
It is further the object of the two sections to ensure that proceedings in connection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere and that no employer should during the pendency of those proceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exacerbate the already strained relation between the employer and the workmen.
To achieve this object a ban has been imposed upon the ordinary right which the employer has under the ordinary law governing a contract of employment.
Section 22 of the 1950 Act and section 33 of the 1947 Act which impose the ban also provide for the removal of that ban by the granting of express permission in writing in appropriate cases by the authority mentioned therein.
The purpose of these two sections being to determine whether the ban should be re moved or not, all that is required of the authority exercising jurisdiction under these sections is to accord or withhold permission".
The earlier decision of this Court in Atherton West & Co. Ltd. vs Suti Mill Mazdoor Union(1) dealt with clause 23 of the U. P. Government Notification dated the 10th March 1948 made in exercise of the powers conferred by sections 3 and 8 of the U. P. , and it was there observed that the scope of the enquiry was to come to a conclusion whether there was a prima facie case made out for the discharge or dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman.
That being the scope of the enquiry on an application under section 22 of the Act, what the Labour Appellate Tribunal had to decide in the present case was whether the appellant company had made out a Prima facie,case for the proposed discharge and whether they were resorting to any unfair practice or victimisation in the matter of the proposed discharge.
(1) ; 807 Instead of doing that, the Labour Appellate Tribunal dismissed the application of the appellant company on the only ground that the version of the workmen that the erection works had been completed by the end of 1950 was supported by the Report of the Directors dated the 10th July 1951.
Learned counsel for the appellant has rightly pointed out that even in respect of the completion of erection works the conclusion of the Appellate Tribunal is a complete non sequitur.
First of all, the Directors ' Report was dated the 10th July 1951 though the balance sheet of the company with which the report was dealing related to the period ending on the 31st October 1950 The report naturally referred to such works as were completed on or before the 10th of July 1951.
It should be obvious that the completion of erection works must be a gradual process, and while some of the erection works might have been completed by the end of 1950 or July 1951, some were still in the process of completion.
Under their terms of employment, temporary employees could be moved from one work to the other and the mere circumstance, that they were employed in a production department for some time, even if true, did not make them permanent employees; nor did the circumstance that they enjoyed some of the benefits of permanent employees make them permanent.
These are circumstances which have been completely ignored by the Labour Appellate Tribunal.
It is worthy of note that in their application dated the 12th of July 1952, the forty nine workmen admitted: "though most of us were originally recruited for erection work in the Cement Factory, many of us were later on transferred as permanent workers to sugar and paper factories and some of us were absorbed as permanent workers in the maintenance section of the Cement Factory".
(Vide paragraph 3 of the application).
In the joint affidavit filed on the 12th August, 1953, in reply to the appellant 's application under section 22 of the Act, the said workmen denied however that 808 they were at any time engaged temporarily for temporary work vide paragraphs 3 and 6 of the affidavit.
Obviously, they were shifting from the position which they had originally taken up.
No evidence was given that the men who were employed temporarily were afterwards made permanent.
They filed a schedule, marked 'A ', to their affidavit wherein they showed their period of service and the name of the factory or plant from where their duties stopped.
On an ex amination of the schedule (Annexure A) it appears that a number of them were put on the spare list when the erection work was completed some time in 1952. 'Annexure 'A ' therefore supports the case of the appellant company that the completion of the erection works was a gradual process, some were completed in 1950, some in 1951 and some in 1952.
The first batch of sixty nine employees with whom we are concerned were put on the spare list between March and July 1952 and the second batch were put on the spare list in August 1952 when the relevant erection works were completed.
The finding of the Labour Appellate Tribunal with regard to the completion of erection works was vitiated by reason of the failure to take into consideration the circumstances stated above.
With regard to the terms of employment embodied in the temporary appointment form, the respondents ' case was that the appointment forms were signed as a result of the strike in 1948; it was never suggested that these forms were never signed at all and the comment of learned counsel for the respondents that the appellant company have not produced the appointment forms has very little force.
The respondents gave no evidence in support of the allegation that the appointment forms were taken from them for the purpose of humiliating or terrorising them, nor did the Appellate Tribunal come to any such finding.
None of the affidavits filed on behalf of the respondents suggested, even in a remote way, that the appellant company were resorting to any unfair practice or victimisation in the matter of the pro posed discharge.
809 Learned counsel for the respondents has contended before us that the finding of the Labour Appellate Tribunal is a finding on a question of fact, namely, whether the respondents were temporary or permanent employees.
He has argued that this Court should not interfere even though the finding is based on reasons which may not appear convincing to us.
We have, however, pointed out that the Labour Appellate Tribunal gave no finding on the question whether the respondents were temporary employees or not.
The only finding which the Tribunal gave related to a different matter, namely, the completion of erection works.
Secondly, learned counsel for the respondents has contended that under section 22 of the Act the Appellate Tribunal had a discretion either to lift the ban or not to lift it and in a matter of discretion this Court should not interfere.
It is true that this Court does not sit upon the decisions of Industrial Tribunals like an ordinary Court of appeal, and there must be special circumstances to justify the exercise of our special power under article 136 of the Constitution.
In our opinion, such special circumstances exist in the present case where the Labour Appellate Tribunal has not directed its mind to the real question to be decided on an application under section 22 of the Act and has passed an order on the basis of a somewhat irrelevant finding which has resulted in manifest injustice.
The discretion which an Industrial Tribunal has must be exercised in accordance with well recognised principles.
There is undoubtedly a distinction between commercial and industrial arbitration.
As has been pointed out by Ludwig Teller (Labour Disputes and Collective Bargaining) Vol. 1, page 536: "Industrial arbitration may involve the extension of an existing agreement, or the making of a new one, or in general the creation of new obligations or modifications of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements".
810 A Court of law proceeds on the footing that no power exists in the courts to make contracts for people; and the parties must make their own contracts.
The courts reach their limit of power when they enforce contracts which the parties have made.
An Industrial Tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimisation.
We cannot, however, accept the extreme position canvassed before us that an Industrial Tribunal can ignore altogether an existing agreement or existing obligations for no rhyme or reason whatsoever.
It has been necessary for us to go into the facts and circumstances of this case in greater detail than is usual with this Court, because the Labour Appellate Tribunal did not do so.
The Act under which the Appellate Tribunal purported to pass its order has now been repealed by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956.
A question of some nicety as to the correct interpretation of section 33 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 might have arisen if we had thought fit to remand this case.
We do not, however, think it necessary to pass an order of remand in this case and therefore abstain from expressing any opinion as to the correct position in law under subsection (2) of section 33 of that Act.
No new facts need investigation in this case.
Learned counsel for the parties have taken us through all the affidavits filed and the facts necessary for an enquiry under section 22 of the Act clearly emerge from those affidavits.
We are satisfied Prima facie that the respondents were temporary employees and were put on the spare list as and when the erection works were gradually completed.
The appellant company have made out a prima facie case for the permission which they have asked for and there is no suggestion even of any unfair practice or victimisation.
In these circumstances, we would allow the appeal, set aside the decision of the Labour Appellate Tribunal dated the 25th September 1953 and pass the order 811 Which that Tribunal should have passed in this case, namely, that permission be granted to the appellant to discharge ninety six temporary workmen.
In the circumstances of this case, we think that the parties must bear their own costs throughout.
Appeal allowed.
| IN-Abs | The scope of an enquiry under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, is whether there is a prima facie case made out for the proposed discharge of the workman and the employer has not resorted to any unfair practice or victimisation.
Though an Industrial Tribunal can create new obligations or modify contracts in the.
interests of industrial peace or to prevent unfair practice or victimisation, its discretion has to be exercised in accordance with well recognised principles and it cannot ignore altogether an existing agreement or existing obligations.
The Automobile Products of India Ltd. vs Rukmaji Bala ([1955] 1 S.C.R. 1241) and Atherton West & Co. Ltd. vs Suti Mill Mazdoor Union, ([1953] S.C.R. 780), relied on.
Where, as in the present case, the Labour Appellate Tribunal did not direct its mind to the real question to be decided on an application under section 22 of the Act for permission to discharge the temporary employees and without deciding whether the workmen were temporary employees or not, passed an order dismissing the application on the basis of a finding which was not determinative of the real point or question at issue, held that the decision must be set aside and the proper order passed.
|
ition No. 3050 of 1980.
(Under Article 32 of the Constitution) A. section Sohal and M. C. Dhingra for the Petitioner.
M. M. Abdul Khader, N. Nettar and M. N. Shroff for the Respondents.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Who will police the police ? Is freedom of movement unreasonably fettered if policemen are given power of externment for public peace? These twin problems of disturbing import, thrown up by this bizarre case, deserve serious examination.
The former is as important as the latter, especially when we view it in the strange police setting painted by the petitioner.
The constitutional question, which we will state presently and discuss briefly, has become largely otiose so far as the present petitioner is concerned because counsel for the State has assured the court that they will drop police surveillance or any action by way of externment as proposed earlier.
The police methodology, with sinister potential to human liberty described by the petitioner, if true, deserves strong disapproval and constitutional counter action by this Court.
But before committing ourselves to any course, we must set out the factual matrix from which the present case springs.
The statutory starting point of the criminal saga of Shri Prem Chand Paniwala, the petitioner, now threatened with externment proceedings, is the .
Sections 47 and 50 of the said Act clothe the Commissioner of Police with externment powers necessary for keeping the capital city crime free.
One such power relates to the removal of persons about to commit offences.
The procedural prescriptions and substantive directions, in this behalf, are laid down in the above provisions.
The Deputy Commissioner of Police (the DCP for short) in exercise of the said power, 1264 initiated proceedings against the petitioner and directed him to show cause why he should not be externed from the Union Territory of Delhi.
Paniwala who, from humble beginning as vendor of aerated water near a cinema theatre, had spiralled up into a prosperous dealer in Vasant Vihar, when confronted by this Police notice, decided upon a constitutional show down and came to this Court challenging the vires of the externment proceedings as arbitrary and unreasonable restrictions of his freedom of movement and, therefore, contrary to articles 14 and 19 and 21 of the Constitution.
The validity of the action, assuming the vires of the Act, involves also a consideration of the mala fides imputed by the petitioner to the DCP.
The blow of deportation may fall heavy on his fundamental rights admits of no doubt.
A flourishing businessman, happy with his wife and children, and settled in a comfortable locality in Delhi, if transported traumatically outside the Union Territory would surely suffer not merely financial mayhem, but also social, domestic and physical deprivation virtually amounting to economic harakiri an psychic distress.
Nevertheless, the Act permits externment, provided the action is bona fide.
All power, including police power, must be informed by fairness if it is to survive judicial scrutiny.
Cases are legion which leave one ill no doubt that mala fides is fatal, if it is made out.
From this angle, Prem Chand Paniwala has turned the focus on police malpractice vis a vis his own career; and even if a fragment of what he has said be true, the higher officers of the Delhi Police will need to look into the goings on at the lower level.
Here comes the relevance of autobiographical revelations made by the petitioner in more than one affidavit.
Certain facts emerge as fairly probable from the affidavits of both sides.
Prem Chand made a living as a paniwala or vendor of soft drinks near Delite Cinema even as a teenager, which shows that he had very poor beginnings.
How did he fall into the thraldom of the local police? He explains it in his affidavit: "He had a few mobile carts which were used for refrigerating water.
These carts used to be parked by the petitioner on the road side due to the indulgence of the police.
He was in his teens when he started his avocation and continued for a very long time.
Thus, he acquired an alias i.e. Prem Chand Paniwala.
Due to close association with Police and their connivance and indulgence, the petitioner thrived.
In this process, the petitioner became a prey and pawn in the hands of the police.
He was persuaded to be their perpetual stooge and stock witness.
1265 The Petitioner in the year 1965, when he was 25 years old was involved in a gambling case by the police and to mould him a permanent stock witness and lest he should be militant to defy them.
Despite his hesitation and unwillingness he was forced to become a permanent pawn of the police.
This is how, the petitioner landed himself in the web of the police; he had no alternative than to be like that as his livelihood was dependent upon the mercy and indulgence of the police".
The version of the petitioner is that once he yielded to the pressure of the Police to give false testimony disclosing a rubberised conscience and unveracious readiness to forswear himself, there was escalation of demands upon him and he became a regular pedlar of perjury "on police service".
Indeed, counsel for the petitioner argued that his client was a 'stock witness ' because he had to keep the Police in good humour and obliged them with tailored testimony in around 3,000 cases because the alternative was police wrath.
We were flabbergasted at this bizarre confession but to lend credence to his assertion counsel produced a Few hundred summonses where the petitioner was cited as a witness.
Were he not omnipresent how could he testify in so many cases save by a versatile genius for loyal unveracity? For sure, the consternation of the community at this flood of perjury will shake its faith in the veracity of Police investigation and the validity of the judicial verdict.
We have no doubt that the petitioner, who has given particulars of a large number of cases where he had been cited as witness, is speaking the truth even assuming that 3,000 cases may be an exaggeration.
In Justice, Justices and Justicing and likewise in the Police and Policing, the peril to the judicial process is best left to imagination if professional perjurers like the self confessed Paniwala are kept captive by the Police, to P be pressed into service for proving "cases".
Courts, trusting the Police may act on apparently veracious testimony and sentence people into prison.
The community, satisfied with such convictions, may well believe that all is well with law and order.
We condemn, in the strongest terms, the systematic pollution of the judicial process and the consequent threat to human rights of innocent persons.
We hope that the higher authorities in the Department who, apparently, are not aware of the nefarious goings on at the lesser levels will immediately take measures to stamp out this unscrupulous menace.
The reason why the petitioner has divulged his role as professional perjurer for the Police is simple and credible, at this price, the favours of the Police who allowed him to carry on his soft drinks business on the public street near a cinema house, not otherwise 1266 permissible under the law.
The Police blinked at the breach, the petitioner made good profits and by this mutual benefit pact, the prosecution got readymade evidence and Paniwala joined the nouveu riche.
He became respectable when he became rich and when he became respectable he became reluctant to play 'stock witness '.
For "the more things a man is ashamed of the more respectable he is" (Bernard Shaw).
Whenever he resisted the demand for giving false evidence the Police implicated him in some case or other and when he yielded, the case was allowed to lapse.
Indeed, it is surprising that the petitioner himself admits that he was "dubbed as a stock witness and often disbelieved by the courts.
Despite severe strictures passed by the courts, the Police did not give him up.
" Various details are furnished by the petitioner about his deposing on prosecutions for the survival of his business.
In the bargain, the petitioner acquired two houses in important localities and built up a lucrative fruit juice business.
There are more uncomplimentary revelations made in the petition but we do not think it necessary to set them out.
However, the crisis came when he declined to oblige with perjury since he felt his wealthy station in life and the character building stage of his children warranted giving up the profession of stock witness.
The Police avenged themselves by initiating externment which would inflict mortal economic injury, if carried out.
This version of the petitioner has been, in a way, denied.
It is also true that the Assistant Commissioner, in his affidavit in reply, has indicated that witnesses have been examined in support and in opposition of the allegations justifying externment and a final order has been made by the DCP directing the petitioner "to show good conduct for a period of three months only".
It is also stated that the witnesses were examined in camera, that the DCP had consideration for the materials placed before him "including education of his children etc.
and the assurance given by him".
An intelligent reading of the affidavit of the Assistant Commissioner, along with the vagueness in his denials regarding material particulars in the petitioner 's affidavits, leave us in grave doubt about the validity of the Police proceedings.
It is significant to notice that among the allegations against the petitioner are such vague statements as your activities in the area of Police Station Connaught Place and other area adjoining to the Police Station Connaught Place are causing and are calculated to cause harm, alarm and danger to the residents of the said localities and areas.
While we do not delve into details, it is useful to mention that the Police allegations are again vague in respect of the remaining imputations namely: 1267 "That you keep knife with you for unlawful purpose and threaten the persons residing in the area with dire consequences and further deter them from making report to police.
That you have engaged yourself in commission of offences against person and property attended with force and violence for which the following cases were registered against you by the Police. ".
The petitioner 's reply affidavit makes startling disclosures about the police methods of implicating innocent people.
However, the version of the petitioner can hardly be swallowed since he is a self confessed perjurer.
Nevertheless, it is not too much to ask Government to take effective measures to prevent Police methods straying into vice.
We hopefully remind the State about what Justice Brandieis once observed : "Crime is contagious.
If the government becomes a law breaker, it breeds contempt for law." . "TO declare that in the administration of the criminal law the end justifies the means to declare that the government may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution.
Against that pernicious doctrine this court must resolutely set its face.
" In the same American decision we have just mentioned Justice Holmes observed; "We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.
" The provisions of the statute ostensibly have a benign purpose and in the context of escalation of crime, may be restrictions which, in normal times might appear unreasonable, may have to be clamped down on individuals.
We are conscious of the difficulties of detection and proof and the strain on the police in tracking down criminals.
But fundamental rights are fundamental and personal liberty cannot be put at the mercy of the Police.
Therefore, Ss. 47 and 50 have to be read strictly.
Any police apprehension is not enough.
Some ground or other is not adequate.
There must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence.
Likewise, there must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in Delhi or any part thereof is hazardous to the community and its safety.
We are clear that the easy possibility 1268 of abuse of this power to the detriment of the fundamental freedoms of the citizen persuades us to insist that a stringent test must be applied.
We are further clear that natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of article 14, 19 and 21 of the Constitution as expounded by this Court in Maneka Gandhi.
We do not go deep into this question for two reasons: there is another petition where the constitutionality of these identical provisions is in issue.
Secondly, the counsel for the State has fairly conceded that no action will now be taken even by way of surveillance against the petitioner.
In an age when electronic surveillance and mid night rappings at the door of ordinary citizens remind us of despotic omens, we have to look at the problem as fraught with peril to constitutional values and not with lexical Laxity or literal liberality.
Having made these observations, we leave the question of vires open for final investigation, if necessary, in other cases pending before this Court.
We think counsel for the State was right in representing that no further action would be taken against the petitioner.
We dispose of the petition as calling no longer for directions but emphasise the need of the State to issue clear orders to the Police Department to free the processes of investigation and prosecution from the contamination of concoction through the expediency of stockpiling of stock witnesses.
To police persons who get rich quick by methods not easily or licitly understandable, is perhaps a social service.
Among the list of wanted persons must be not only the poor suspects but the dubious rich.
To keep an eye on their activities without close shadowing and surveillance may, perhaps, lead to criminal discoveries, if they are not too influential for the police.
By this judgment what we mean is not to tell the Police to fold up their hands and remain inactive when anti social elements suddenly grow in wealth but to be activist and intelligent enough to track down those who hold the nation 's health, wealth, peace and security in jeopardy.
The only insistence is that the means must also be as good as the ends.
P.B.R. Petition allowed.
| IN-Abs | Exercising power under sections 47 and SO of the (which clothe the Commissioner of Police with externment powers for keeping the capital city free of crime) the Deputy Commissioner of Police Delhi directed the appellant to show cause why he should not be externed from the Union Territory of Delhi.
The allegations against him were that his activities in the area of police station Connaught Place and the areas adjoining the police station were causing and were calculated to cause harm, alarm and danger to the residents of the said localities and areas that he kept a knife with him for unlawful purposes and threatened residents of that area with dire consequences and deterred them from reporting to the police and that he had engaged himself in the commission of offences against persons and property with force and violence.
In his petition under Article 32 of the Constitution challenging the vires of the externment proceedings as arbitrary and unreasonable restrictions on his freedom of movement, the petitioner stated that over the past 25 years with the indulgence of the local police he used to park his mobile refrigerated water carts on the road side in front of a cinema theatre in Delhi and that in return for the indulgence shown to him by the police and to keep them in good humour he yielded to their pressure and gave false testimony in as many as 3000 cases.
Even though Courts had dubbed him as a stock witness and passed severe strictures and disbelieved his testimony, the police did not give him up; that he had to continue to act as a tool in their hands for the survival of his business and that lately when he declined to oblige them because he felt that his wealthy station in life and the character building stage of his children warranted giving up the profession of stock witness, the police avenged themselves by threatening externment which would inflict mortal economic injury to him if the threat was carried out.
The Assistant Commissioner of Police in reply had stated that before the externment order was passed witnesses had been examined in camera in support and in opposition of the allegations justifying externment and that on a consideration of the materials placed before the Deputy Commissioner of Police, including the education of his children and the assurance given by the petitioner, final order had been passed directing him to show good conduct for a period of 3 months.
Allowing the petition, ^ HELD: The permits externment provided the action is bona fide.
All power, including police power, must be informed by fairness, if it is to survice judicial scrutiny.
Mala fides is fatal if it is made out.
[1164 D E] 1263 Sections 47 and 50 of the Act have to be read strictly; any police apprehension is not enough; some ground or other is not adequate; there must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence.
Like wise there must be sufficient reason to believe that the person proceeded against is so dangerous that his mere presence in Delhi or any part thereof is hazardous to the community and its safety.
A stringent test must be applied by Courts in order that this power is not abused to the detriment of the citizen Natural justice must be fairly complied with and vague allegations such as those levelled against the petitioner and secret hearings are gross violations of Articles 14, 19 and 21.
[1267 G H,
|
tition Nos.
1304, 1262, 1119, 1118, 1574 75, 1373 74, 1244 45, 1230, 1494 97, 1566 67, 1143, 1440, 1586, 1420 23, 1441 43, 1389, 1144, 1461, 1437 39, 1431, 1268, 1145, 1263 and 1331 of 1979.
(Under Article 32 of the Constitution) Anil Dev Singh, Lalit Kumar Gupta, Subhash Sharma, C. P. Pandey and section K. Sabharwal for the Petitioners in W.PS.
1389, 1437 39, 1262, 1497, 1586, 1230 and 1263 of 1979.
Y. section Chitale, P. N. Duda, V. K. Pandita, R. Satish and E. C. Agarwala for the Petitioners in W.P. Nos.
1241 43, 1495 96, 1566 67, 1423, 1143 44,1118 19,1494, 1145 and 1331 of 1979.
section K. Bisiaria for the Petitioner in W.P. 1461/79.
Rishi Kesh and B. Datta for the Petitioner in W.Ps.
1373 74, 1304 and 1431/79.
Y. section Chitale, D. N. Tiku, E. C. Agarwala, M. Mudgal, Ashok Kaul and Vineet Kumar for the Petitioners in W.Ps.
1244 45, 1420 22 and 1440/79.
S.S. Khanduja for the Petitioners in W.Ps.
1268, 1574 75/79.
section N. Kacker and Altaf Ahmed for the appearing Respondents.
85 The Judgment of the Court was delivered by BHAGWATI, J.
These writ petitions under Article 32 of the Constitution challenge the validity of the admissions made to the Regional Engineering College, Srinagar for the academic year 1979 80.
The Regional Engineering College, Srinagar (hereinafter referred to as the College) is one of the fifteen Engineering Colleges in the country sponsored by the Government of India.
The College is established and its administration and management are carried on by a Society registered under the Jammu and Kashmir Registration of Societies Act, 1898.
The Memorandum of Association of the Society in clause 3 sets out the objects for which the Society is incorporated and they include amongst other things establishment of the college with a view to providing instruction and research in such branches of engineering and technology as the college may think fit and for the advancement of learning and knowledge in such branches.
Vide subclause (i).
The Society is empowered by clause 3 sub clause (ii) of the Memorandum of Association to make rules for the conduct of the affairs of the Society and to add to, amend, vary or rescind them from time to time with the approval of the Government of Jammu and Kashmir State (hereinafter referred to as the State Government) and the Central Government.
Clause 3 sub clause (iii) of the Memorandum of Association confers power on the Society to acquire and hold property in the name of the State Government.
Sub clause (v) of clause 3 of the Memorandum of Association contemplates that monies for running the college would be provided by the State and Central Governments and sub clause (vi) requires the Society to deposit all monies credited to its fund in such banks or to invest them in such manner as the Society may, with the approval of the State Government decide.
The accounts of the Society as certified by a duly appointed auditor are mandatorily required by sub clause (ix) of clause 3 of the Memorandum of Association to be forwarded annually to the State and Central Governments.
Clause 6 of the Memorandum of Association empowers the State Government to appoint one or more persons to review the working and progress of the Society, or the college and to hold inquiries into the affairs thereof and to make a report and on receipt of any such report, the State Government has power, with the approval of the Central Government, to take such action and issue such directions as it may consider necessary in respect of any of the matters dealt with in the report and the Society or the College, as the case may be, is bound to comply with such directions.
There is a provision made in clause 7 of the Memorandum of Association that in case the Society or the college is not functioning properly, the State Government will have the power to take over the 86 administration and assets of the college with the prior approval of the Central Government.
The founding members of the Society are enumerated in clause 9 of the Memorandum of Association and they are the Chairman to be appointed by the State Government with the approval of the Central Government, two representatives of the State Government, one representative of the Central Government, two representatives of the All India Council for Technical Education to be nominated by the northern Regional Committee, one representative of the University of Jammu and Kashmir, one non official representative of each of the Punjab, Rajasthan, U.P. and Jammu and Kashmir States to be appointed by the respective Governments in consultation with the Central Government and the Principal who shall also be the ex officio Secretary.
The Rules of the Society are also important as they throw light on the nature of the Society.
Rule 3 clause (i) reiterates the composition of the Society as set out in clause 9 of the Memorandum of Association and clause (ii) of that Rule provides that the State and the Central Governments may by mutual consultation at any time appoint any other person or persons to be member or members of the Society.
Rule 6 vests the general superintendence, direction and control of the affairs and its income and property in the governing body of the Society which is called the Board of Governors.
Rule 7 lays down the constitution of the Board of Governors by providing that it shall consist of the Chief Minister of the State Government as Chairman and the following as members : Three nominees of the State Government, three nominees of the Central Government, one representative of the All India Council for Technical Education, Vice Chancellor of the University of Jammu and Kashmir, two industrialists/technologists in the region to be nominated by the State Government, one nominee of the Indian Institute of Technology in the region, one nominee of the University Grants Commission two representatives of the Faculty of the College and the Principal of the college as ex officio member Secretary.
The State Government is empowered by rule 10 to remove any member of the Society other than a member representing the State or Central Government from the membership of the Society with the approval of the Central Government.
Clause (iv) of Rule 15 confers power on the Board to make bye laws for admission of students to various courses and clause (xiv) of that Rule empowers the Board to delegate to a committee or to the Chairman such of its powers for the conduct of its business as it may deem fit, subject to the condition that the action taken by the committee of the Chairman shall be reported for confirmation at the next meeting of the Board.
Clause (xv) of Rule 15 provides that the Board shall 87 have power to consider and pass resolution on the annual report, the annual accounts and other financial estimates of the college, but the annual report and the annual accounts together with the resolution passed thereon are required to be submitted to the State and the Central Governments.
The Society is empowered by Rule 24, clause (i) to alter, extend or abridge any purpose or purposes for which it is established, subject to the prior approval of the State and the Central Governments and clause (ii) of Rule 24 provides that the Rules may be altered by a Resolution passed by a majority of 2/3rd of the members present at the meeting of the Society, but such alteration shall be with the approval of the State and the Central Governments.
Pursuant to clause (iv) of Rule 15 of the Rules, the Board of Governors laid down the procedure for admission of students to various courses in the college by a Resolution dated 4th June, 1974.
We are not directly concerned with the admission procedure laid down by this Resolution save and except that under this Resolution admissions to the candidates belonging to the State of Jammu and Kashmir were to be given on the basis of comparative merit to be determined by holding a written entrance test and a viva voce examination and the marks allocated for the written test in the subjects of English, Physics, Chemistry and Mathematics were 100, while for viva voce examination, the marks allocated were 50 divided as follows: (i) General Knowledge and Awareness 15; (ii) Broad understanding of Specific Phenomenon 15; (iii) Extra curricular activities 10 and (iv) General Personality Trait 10, making up in the aggregate 50.
The admissions to the college were governed by the procedure laid down in this Resolution until the academic year 197980, when the procedure was slightly changed and it was decided that out of 250 seats, which were available for admission, 50% of the seats shall be reserved for candidates belonging to the Jammu & Kashmir State and the remaining 50% for candidates belonging to other States including 15 seats reserved for certain categories of students.
So far as the seats reserved for candidates belonging to States other than Jammu & Kashmir were concerned, certain reservations were made for candidates belonging to Scheduled Castes and Scheduled Tribes and sons and wards of defence personnel killed or disabled during hostilities and it was provided that "inter se merit will be determined on the basis of marks secured in the subjects of English, Physics, Chemistry and Mathematics only".
The provision made with regard to seats reserved for candidates belonging to Jammu & Kashmir State was that "apart from 2 seats reserved for the sons and daughters of the permanent college employees, reservations shall be made in accordance with the 88 Orders of Jammu and Kashmir Government for admission to technical institutions and the seats shall be filled up on the basis of comparative merit as determined under the following scheme, both for seats to be filled on open merit and for reserved seats in each category separately; (1) marks for written test 100 and (2) marks for viva voce examination 50, marking up in the aggregate 150.
It was not mentioned expressly that the marks for the written test shall be in the subjects of Physics, English, Chemistry and Mathematics nor were the factors to be taken into account in the viva voce examination and the allocation of marks for such factors indicated specifically in the admission procedure laid down for the academic year 1979 80, but we were told and this was not disputed on behalf of the petitioners in any of the writ petitions, that the subjects in which the written test was held were English, Physics, Chemistry and Mathematics and the marks at the viva voce examination were allocated under the same four heads and in the same manner as in the case of admissions under the procedure laid down in the Resolution dated 4th June, 1974.
In or about April 1979, the college issued a notice inviting applications for admission to the first semester of the B.E. course in various branches of engineering and the notice set out the above admission procedure to be followed in granting admissions for the academic year 1979 80.
The petitioners in the writ petitions before us applied for admission to the first semester of the B.E. course in one or the other branch of engineering and they appeared in the written test which was held on 16th and 17th June, 1979.
The petitioners were thereafter required to appear before a Committee consisting of three persons for viva voce test and they were interviewed by the Committee.
The case of the petitioners was that the interview of each of them did not last for more than 2 or 3 minutes per candidate on an average and the only questions which were asked to them were formal questions relating to their parentage and residence and hardly any question was asked which would be relevant to any of the four factors for which marks were allocated at the viva voce examination.
When the admissions were announced, the petitioners found that though they had obtained very good marks in the qualifying examination, they had not been able to secure admission to the college because the marks awarded to them at the viva voce examination were very low and candidates who had much less marks at the qualifying examination, had succeeded in obtaining very high marks at the viva voce examination and there by managed to secure admission in preference to the petitioners.
The petitioners filed before us a chart showing by way of comparison the marks obtained by the petitioners on the one hand and some of the successful candidates on the other at the qualifying examination, in the written test and at the viva voce exami 89 nation.
This chart shows beyond doubt that the successful candidates whose marks are given in the chart had obtained fairly low marks at the qualifying examination as also in the written test, but they had been able to score over the petitioners only on account of very high marks obtained by them at the viva voce examination.
The petitioners feeling aggrieved by this mode of selection filed the present writ petitions challenging the validity of the admissions made to the college on various grounds.
Some of these grounds stand concluded by the recent decision of this Court in Miss Nishi Maghu vs State of Jammu & Kasmir & Ors.
and they were therefore not pressed before us.
Of the other grounds, only one was canvassed before us and we shall examine it in some detail.
But before we proceed to consider the merits of this ground of challenge, we must dispose of a preliminary objection raised on behalf of the respondents against the maintainability of the writ petition.
The respondents contended that the college is run by society which is not a corporation created by a statute but is a society registered under the Jammu & Kashmir Societies Registration Act, 1898 and it is therefore not an 'authority ' within the meaning of article 12 of the Constitution and no writ petition can be maintained against it, nor can any complaint be made that it has acted arbitrarily in the matter of granting admissions and violated the equality clause of the Constitution.
Now it is obvious that the only ground on which the validity of the admissions to the college can be assailed is that the society adopted an arbitrary procedure for selecting candidates for admission to the college and this resulted in denial of equality to the petitioners in the matter of admission violative of article 14 of the Constitution.
It would appear that prima facie protection against infraction of article 14 is available only against the State and complaint of arbitrariness and denial of equality can therefore be sustained against the society only if the society can be shown to be State for the purpose of article 14.
Now 'State ' is defined in article 12 to include inter alia the Government of India and the Government 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 and the question therefore is whether the Society can be said to be 'State ' within the meaning of this definition.
Obviously the Society cannot be equated with the Government of India or the Government of any State nor can it be said to be a local authority and therefore, it must come within the expression "other authorities" if it is to fall within the definition of 'State '.
That immediately leads us to a consideration of the question as to what are the "other authorities" contemplated in the definition of 'State ' in article 13.
90 While considering this question it is necessary to bear in mind that an authority falling within the expression "other authorities" is, by reason of its inclusion within the definition of 'State ' in Article 12, subject to the same constitutional limitations as the Government and is equally bound by the basic obligation to obey the constitutional mandate of the Fundamental Rights enshrined in Part III of the Constitution.
We must therefore give such an interpretation to the expression "other authorities" as will not stultify the operation and reach of the fundamental rights by enabling the Government to its obligation in relation to the Fundamental Rights by setting up an authority to act as its instrumentality or agency for carrying out its functions.
Where constitutional fundamentals vital to the maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form.
Now it is obvious that the Government may act through the instrumentality or agency of natural persons or it may employ the instrumentality or agency of juridical persons to carry out its functions.
In the early days when the Government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions which were of traditional vintage.
But as the tasks of the Government multiplied with the advent of the welfare State, it began to be increasingly felt that the frame work of civil service was not sufficient to handle the new tasks which were often specialised and highly technical in character and which called for flexibility of approach and quick decision making.
The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to forge a new instrumentality or administrative device for handing these new problems.
It was in these circumstances and with a view to supplying this administrative need that the corporation came into being as the third arm of the Government and over the years it has been increasingly utilised by the Government for setting, up and running public enterprises and carrying out other public functions.
Today with increasing assumption by the Government of commercial ventures and economic projects, the corporation has become an effective legal contrivance in the hands of the Government for carrying out its activities, for it is found that this legal facility of corporate instrument provides considerable flexibility and elasticity and facilitates proper and efficient management with professional skills and on business principles and it is blissfully free from "departmental rigidity, slow motion procedure and hierarchy of officers".
The Government in many of its commercial ventures and public enterprises is resorting to more and more frequently to this resourceful legal contrivance of a corporation because it has many practical advantages and at the 91 same time does not involve the slightest diminution in its ownership and control of the undertaking.
In such cases "the true owner is the State, the real operator is the State and the effective controllorate is the State and accountability for its actions to the community and to Parliament is of the State.
" It is undoubtedly true that the corporation is a distinct juristic entity with a corporate structure of its own and it carries on its functions on business principles with a certain amount of autonomy which is necessary as well as useful from the point of view of effective business management, but behind the formal ownership which is cast in the corporate mould, the reality is very much the deeply pervasive presence of the Government.
It is really the Government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the Government.
Now it is obvious that if a corporation is an instrumentality or agency of the Government, it must be subject to the same limitations in the field of constitutional law as the Government itself, though in the eye of the law it would be a distinct and independent legal entity.
If the Government acting through its officers is subject to certain constitutional limitations, it must follow a fortiorari that the Government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations.
If such a corporation were to be free from the basic obligation to obey the Fundamental Rights, it would lead to considerable erosion of the efficiency of the Fundamental Rights, for in that event the Government would be enabled to over ride the Fundamental Rights by adopting the stratagem of carrying out its functions through the instrumentality or agency of a corporation, while retaining control over it.
The Fundamental Rights would then be reduced to little more than an idle dream or a promise of unreality.
It must be remembered that the Fundamental Rights are constitutional guarantees given to the people of India and are not merely paper hopes or fleeting promises and so long as they find a place in the Constitution, they should not be allowed to be emasculated in their application by a narrow and constricted judicial interpretation.
The courts should be anxious to enlarge the scope and width of the Fundamental Rights by bringing within their sweep every authority which is an instrumentality or agency of the Government or through the corporate personality of which the Government is acting, so as to subject the Government in all its myriad activities, whether through natural persons or through corporate entities, to the basic obligation of the Fundamental Rights.
The constitutional philosophy of a democratic socialist republic requires 92 the Government to undertake a multitude of socioeconomic operations and the Government, having regard to the practical advantages of functioning through the legal device of a corporation, embarks on myriad commercial and economic activities by resorting to the instrumentality or agency of a corporation, but this contrivance of carrying on such activities through a corporation cannot exonerate the Government from implicit obedience to the Fundamental Rights.
To use the corporate methodology is not to liberate the Government from its basic obligation to respect the Fundamental Rights and not to over ride them.
The mantle of a corporation may be adopted in order to free the Government from the inevitable constraints of red tapism and slow motion but by doing so, the Government cannot be allowed to play truant with the basic human rights.
Otherwise it would be the easiest thing for the government to assign to a plurality of corporations almost every State business such as Post and Telegraph, TV and Radio, Rail Road and Telephones in short every economic activity and there by cheat the people of India out of the Fundamental Rights guaranteed to them.
That would be a mockery of the Constitution and nothing short of treachery and breach of faith with the people of India, because, though apparently the corporation will be carrying out these functions, it will in truth and reality be the Government which will be controlling the corporation and carrying out these functions through the instrumentality or agency of the corporation.
We cannot by a process of judicial construction allow the Fundamental Rights to be rendered futile and meaningless and thereby wipe out Chapter III from the Constitution.
That would be contrary to the constitutional faith of the post Menaka Gandhi era.
It is the Fundamental Rights which along with the Directive Principles constitute the life force of the Constitution and they must be quickened into effective action by meaningful and purposive interpretation.
If a corporation is found to be a mere agency or surrogate of the Government, "in fact owned by the Government, in truth controlled by the government and in effect an incarnation of the government," the court must not allow the enforcement of Fundamental Rights to be frustrated by taking the view that it is not the government and therefore not subject to the constitutional limitations.
We are clearly of the view that where a corporation is an instrumentality or agency of the government, it must be held to be an 'authority ' within the meaning of article 12 and hence subject to the same basic obligation to obey the Fundamental Rights as the government.
We may point out that this very question as to when a corporation can be regarded as an 'authority ' within the meaning of article 12 arose for consideration before this Court in R. D. Shetty vs The International 93 Airport Authority of India & Ores.
There, in a unanimous judgment of three Judges delivered by one of us (Bhagwati, J) this Court pointed out: "So far as India is concerned, the genesis of the emergence of corporations as instrumentalities or agencies of Government is to be found in the Government of India Resolution on Industrial Policy dated 6th April, 1948 where it was stated inter alia that "management of State enterprises will as a rule be through the medium of public corporation under the statutory control of the Central Government who will assume such powers as may be necessary to ensure this.
" It was in pursuance of the policy envisaged in this and sub sequent resolutions on Industrial policy that corporations were created by Government for setting up and management of public enterprises and carrying out other public functions.
Ordinarily these functions could have been carried out by Government departmentally through its service personnel but the instrumentality or agency of the corporation was resorted to in these cases having regard to the nature of the task to be performed.
The corporations acting as instrumentality or agency of Government would obviously be subject to the same limitations in the field of constitutional and administrative law as Government itself, though in the eye of the law, they would be distinct and independent legal entities.
If Government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that Government acting through instrumentality or agency of corporations should equally be subject to the same limitations.
" The Court then addressed itself to the question as to how to determine whether a corporation is acting as an instrumentality or agency of the Government and dealing with that question, observed: "A corporation may be created in one of two ways.
It may be either established by statute or incorporated under a law such as the or the .
Where a Corporation is wholly controlled by Government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government.
But ordinarily where a corporation 94 is established by statute, it is autonomous in its working, subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters.
So also a corporation incorporated under law is managed by a board of directors or committee of management in accordance with the provisions of the statute under which it is in corporated.
When does such a corporation become an instrumentality or agency of Government? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition there should be a certain amount of direct control exercised by Government and, if so what should be the nature of such control? Should the functions which the Corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial? Now, one thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.
But, as is quite often the case, a corporation established by statute may have no shares or shareholders, in which case it would be a relevant factor to consider whether the administration is in the hands of a board of directors appointed by Government though this consideration also may not be determinative, because even where the directors are appointed by Government, they may be completely free from governmental control in the discharge of their functions.
What then are tests to determine whether a corporation established by statute or incorporated under law is an instrumentality or agency of Government ? It is not possible to formulate an inclusive or exhaustive test which would adequately answer this question.
There is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not." The Court then proceeded to indicate the different tests, apart from ownership of the entire share capital: " . if extensive and unusual financial assistance is given and the purpose of the Government in giving such assistance coincides with the purpose for which the corporation is expected to use the assistance and such purpose is of 95 public character, it may be a relevant circumstance supporting an inference that the corporation is an instrumentality or agency of Government. .
It may therefore be possible to say that where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character . .
But a finding of State financial support plus an unusual degree of control over the management and policies might lead one to characterise an operation as State action Vide Sukhdev vs Bhagatram ; at 658.
So also the existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.
It may also be a relevant factor to consider whether the corporation enjoys monopoly status which is State conferred or State protected.
There can be little doubt that State conferred or State protected monopoly status would be highly relevant in assessing the aggregate weight of the corporation 's ties to the State." "There is also another factor which may be regarded as having a bearing on this issue and it is whether the operation of the corporation is an important public function.
It has been held in the United States in a number of cases that the concept of private action must yield to a conception of State action where public functions are being performed.
Vide Arthur section Miller: "The Constitutional Law of the Security State" (10) Stanford Law Review 620 at 664)." "It may be noted that besides the so called traditional functions, the modern state operates as multitude of public enterprises and discharges a host of other public functions.
If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
This is precisely what was pointed out by Mathew, J., in Sukhdev vs Bhagatram (supra) where the learned Judge said that "institutions engaged in matters of high public interest of performing public functions are by virtue of the nature of the functions performed government agencies.
Activities which are too fundamental to the society are by definition too important not to be considered government functions.
" 96 The court however proceeded to point out with reference to the last functional test: ". . the decisions show that even this test of public or governmental character of the function is not easy of application and does not invariably lead to the correct inference because the range of governmental activity is broad and varied and merely because an activity may be such as may legitimately be carried on by Government, it does not mean that a corporation, which is otherwise a private entity, would be an instrumentality or agency of Government by reason of carrying on such activity.
In fact, it is difficult to distinguish between governmental functions and non governmental functions.
Perhaps the distinction between governmental and non governmental functions is not valid any more in a social welfare State where the laissez faire is an outmoded concept and Herbert Spencer 's social statics has no place.
The contrast is rather between governmental activities which are private and private activities which are governmental.
[Mathew, J. Sukhdev vs Bhagatram (supra) at p. 652].
But the public nature of the function, if impregnated with governmental character or "tied or entwined with Government" or fortified by some other additional factor, may render the corporation an instrumentality or agency of Government.
Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of the inference.
" These observations of the court in the International Airport Authority 's case (supra) have our full approval.
The tests for determining as to when a corporation can be said to be a instrumentality or agency of Government may now be called out from the judgment in the International Airport Authority 's case.
These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression "other authorities", it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression.
A wide enlargement of the meaning must be tempered by a wise limitation.
We may summarise the relevant tests gathered from the decision in the International Airport Authority 's case as follows (1) "One thing is clear that if the entire share capital of the corporation is held by Government it would go a long 97 way towards indicating that the corporation is an instrumentality or agency of Government." (2) "Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character." (3) "It may also be a relevant factor. .whether the corporation enjoys monopoly status which is the State conferred or State protected." (4) "Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality." (5) "If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government." (6) "Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.
" If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the International Airport Authority 's case, be an 'authority ' and, therefore, 'State ' within the meaning of the expression in Article 12.
We find that the same view has been taken by Chinnappa Reddy, J. in a subsequent decision of this court in the U. P. Warehousing Corporation vs Vijay Narain and the observations made by the learned Judge in that case strongly reinforced the view we are taking particularly in the matrix of our constitutional system.
We may point out that it is immaterial for this purpose whether the corporation is created by a statute or under a statute.
The test is whether it is an instrumentality or agency of the Government and not as to how it is created.
The inquiry has to be not as to how the juristic person is born but why it has been brought into existence.
The corporation may be a statutory corporation created by a statute or it may be a Government Company or a company formed under the or it may be a society registered under the or any other similar statute.
Whatever be its genetical origin, it would be an "authority" within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would 98 have to be decided on a proper assessment of the facts in the light of the relevant factors.
The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression "authority" in Article 12.
It is also necessary to add that merely because a juristic entity may be an "authority" and therefore "State" within the meaning of Article 12, it may not be elevated to the position of "State" for the purpose of Articles 309, 310 and 311 which find a place in The definition of "State" in Article 12 which includes an "authority" within the territory of India or under the control of the Government of India is limited in its application only to and by virtue of Article 36, to it does not extend to the other provisions of the Constitution and hence a juristic entity which may be "State" for the purpose of Parts III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution.
That is why the decisions of this Court in section L. Aggarwal vs Hindustan Steel Ltd. and other cases involving the applicability of Article 311 have no relevance to the issue before us.
The learned counsel appearing on behalf of the respondents Nos.
6 to 8, however, relied strongly on the decision in Sabhajit Tewary vs Union of India & Ors(2) and contended that this decision laid down in no uncertain terms that a society registered under the can never be regarded as an "authority" within the meaning of Article 12.
This being a decision given by a Bench of five Judges of this Court is undoubtedly binding upon us but we do not think it lays down any such proposition as is contended on behalf of the respondents.
The question which arose in this case was as to whether the Council of Scientific and Industrial Research which was juridically a society registered under the was an "authority" within the meaning of Article 12.
The test which the Court applied for determining this question was the same as the one laid down in the International Airport Authority 's case and approved by us, namely, whether the Council was an instrumentality or agency of the Government.
The Court implicitly assented to the proposition that if the Council were an agency of the Government, it would undoubtedly be an "authority".
But, having regard to the various 99 features enumerated in the judgment, the Court held that the Council was not an agency of the Government and hence could not be regarded as an "authority".
The Court did not rest its conclusion on the ground that the Council was a society registered under the , but proceeded to consider various other features of the Council for arriving at the conclusion that it was not an agency of the Government and therefore not an "authority".
This would have been totally unnecessary if the view of the Court were that a society registered under the can never be an "authority" within the meaning of Article 12.
The decision in Sukhdev Singh vs Bhagat Ram ; was also strongly relied upon by the learned counsel for respondents Nos.
6 to 8 but we fail to see how this decision can assist the respondents in repelling the reasoning in the International Airport Authority 's case or contending that a company or society formed under a statute can never come within the meaning of the expression "authority" in Article 12.
That was a case relating to three juristic bodies, namely, the Oil and Natural Gas Commission, the Industrial Finance Corporation and the Life Insurance Corporation and the question was whether they were "State" under Article 12.
Each of these three juristic bodies was a corporation created by a statute and the Court by majority held that they were "authorities" and therefore "State" within the meaning of Article 12.
The Court in this case was not concerned with the question whether a company or society formed under a statute can be an "authority" or not and this decision does not therefore contain anything which might even remotely suggest that such a company or society can never be an "authority".
On the contrary, the thrust of the logic in the decision, far from being restrictive, applies to all juristic persons alike, irrespective whether they are created by a statute or formed under a statute.
It is in the light of this discussion that we must now proceed to examine whether the Society in the present case is an "authority" falling within the definition of "State" in Article 12.
Is it an instrumentality or agency of the Government? The answer must obviously be in the affirmative if we have regard to the Memorandum of Association and the Rules of the Society.
The composition of the Society is dominated by the representatives appointed by the Central Government and the Governments of Jammu & Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government.
The monies required for running the college are provided entirely by the Central Government and the Government of Jammu & Kashmir and even if any other monies are to be received by the 100 Society, it can be done only with the approval of the State and the Central Governments.
The Rules to be made by the Society are also required to have the prior approval of the State and the Central Governments and the accounts of the Society have also to be submitted to both the Governments for their scrutiny and satisfaction.
The Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee.
The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the Society can be disposed of in any manner without the approval of both the Governments.
The State and the Central Governments have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State or the Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government.
The Board of Governors, which is in charge of general superintendence, direction and control of the affairs of Society and of its income and property is also largely controlled by nominees of the State and the Central Governments.
It will thus be seen that the State Government and by reason of the provision for approval, the Central Government also, have full control of the working of the Society and it would not be incorrect to say that the Society is merely a projection of the State and the Central Governments and to use the words of Ray, C.J. in Sukhdev Singh 's case (supra), the voice is that of the State and the Central Governments and the hands are also of the State and the Central Governments.
We must, therefore, hold that the Society is an instrumentality or agency of the State and the Central Governments and it is an 'authority ' within the meaning of article 12.
If the Society is an "authority" and therefore "State" within the meaning of Article 12, it must follow that it is subject to the constitutional obligation under Article 14.
The true scope and ambit of Article 14 has been the subject matter of numerous decisions and it is not necessary to make any detailed reference to them.
It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification.
Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things 101 that are grouped together from others left out of the group; and (ii) that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action.
It was for the first time in E.P. Royappa vs State of Tamil Nadu that this Court laid bare a new dimension of Article 14 and pointed out that Article has highly activist magnitude and it embodies a guarantee against arbitrariness.
This Court speaking through one of us (Bhagwati, J.) said : "The basic principle which therefore informs both Articles 14 and 16 is equality and inhibition against discrimination.
Now, what is the content and reach of this great equalising principle ? It is a founding faith, to use the words of Bose, J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach.
We cannot countenance any attempt to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude.
Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbled, cabined and confined" within traditional and doctrinaire limits.
From a positivistic point of view, equality is antithetic to arbitrariness.
In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of article 14, and if it affects any matter relating to public employment, it is also violative of article 16.
Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment." This vital and dynamic aspect which was till then lying latent and submerged in the few simple but pregnant words of Article 14 was explored and brought to light in Royappa 's case and it was reaffirmed and elaborated by this Court in Maneka Gandhi vs Union of India where this Court again speaking through one of us (Bhagwati, J.) observed : "Now the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated is this article ? There can be no doubt that it is a founding faith of the 102 Constitution.
It is indeed the pillar on which rests securely the foundation of our democratic republic.
And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach.
No attempt should be made to truncate its all embracing scope and meaning for, to do so would be to violate its activist magnitude.
Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. . .
Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment.
The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence.
" This was again reiterated by this Court in International Airport Authority 's case (supra) at page 1042 of the Report.
It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary, must necessarily involve negation of equality.
The doctrine of classification which is evolved by the courts is not para phrase of Article 14 nor is it the objective and end of that Article.
It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality.
If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached.
Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of "authority" under Article 12, Article 14 immediately springs into action and strikes down such State action.
In fact, the concept of reasonableness and non arbitrariness pervades the entire constitutional scheme and is a golden thread which runs though the whole of the fabric of the Constitution.
We may now turn to the merits of the controversy between the parties.
Though several contentions were urged in the writ petitions, challenging the validity of the admissions made to the college, they were not all pressed before us and the principal contention that was advanced was that the society acted arbitrarily in the matter of granting of admissions, first by ignoring the marks obtained by the candidates at the qualifying examination; secondly by relying on viva voce examination as a test for determining comparative merit of the candidates; thirdly by allocating as many as 50 marks for the viva voce examination as against 100 marks allocated for the written test and 103 lastly, by holding superficial interviews lasting only 2 or 3 minutes on an average and asking questions which had no relevance to assessment of the suitability of the candidates with reference to the four factors required to be considered at the viva voce examination.
Now so far as the challenge on the first count is concerned, we do not think it is at all well founded.
It is difficult to appreciate how a procedure for admission which does not take into account the marks obtained at the qualifying examination, but prefers to test the comparative merit of the candidates by insisting on an entrance examination can ever be said to be arbitrary.
It has been pointed out in the counter affidavit filed by H. L. Chowdhury on behalf of the college that there are two universities on two different dates and the examination by the Board of Secondary Education for Jammu is also held on a different date than the examination by the Board of Secondary Education for Kashmir and the results of these examinations are not always declared before the admissions to the college can be decided.
The College being the only institution for education in engineering courses in the State of Jammu & Kashmir has to cater to the needs of both the regions and it has, therefore, found it necessary and expedient to regulate admissions by holding an entrance test, so that the admission process may not be held up on account of late declaration of results of the qualifying examination in either of the two regions.
The entrance test also facilitates the assessment of the comparative talent of the candidates by application of a uniform standard and is always preferable to evaluation of comparative merit on the basis of marks obtained at the qualifying examination, when the qualifying examination is held by two or more different authorities, because lack of uniformity is bound to creep into the assessment of candidates by different authorities with different modes of examination.
We would not, therefore, regard the procedure adopted by the society as arbitrary merely because it refused to take into account the marks obtained by the candidates at the qualifying examination, but chose to regulate the admissions by relying on the entrance test.
The second ground of challenge questioned the validity of viva voce examination as a permissible test for selection of candidates for admission to a college.
The contention of the petitioners under this ground of challenge was that viva voce examination does not afford a proper criterion for assessment of the suitability of the candidates for admission and it is a highly subjective and impressionistic test where the result is likely to be influenced by many uncertain and imponderable factors such as predelictions and prejudices of the interviewers, his attitudes and approaches, his pre conceived notions and idiosyncrasies and it is also capable of abuse because it leaves scope 104 for discrimination, manipulation and nepotism which can remain undetected under the cover of an interview and moreover it is not possible to assess the capacity and calibre of a candidate in the course of an interview lasting only for a few minutes and, therefore, selections made on the basis of oral interview must be regarded as arbitrary and hence violative of article 14.
Now this criticism cannot be said to be wholly unfounded and it reflects a point of view which has certainly some validity.
We may quote the following passage from the book on "Public Administration in Theory and Practice" by M. P. Sharma which voices a far and balanced criticism of the oral interview method : "The oral test of the interview has been much criticised on the ground of its subjectivity and uncertainty.
Different interviews have their own notions of good personality.
For some, it consists more in attractive physical appearance and dress rather than anything else, and with them the breezy and shiny type of candidate scores highly while the rough uncut diamonds may go unappreciated.
The atmosphere of the interview is artificial and prevents some candidates from appearing at their best.
Its duration is short, the few questions of the hit or miss type, which are put, may fail to reveal the real worth of the candidate.
It has been said that God takes a whole life time to judge a man 's worth while interviewers have to do it in a quarter of an hour.
Even at it 's best, the common sort of interview reveals but the superficial aspects of the candidate 's personality like appearance, speaking power, and general address.
Deeper traits of leadership, tact, forcefulness, etc.
go largely undetected.
The interview is often in the nature of desultory conversation.
Marking differs greatly from examiner to examiner.
An analysis of the interview results show that the marks awarded to candidates who competed more than once for the same service vary surprisingly.
All this shows that there is a great element of chance in the interview test.
This becomes a serious matter when the marks assigned to oral test constitute a high proportion of the total marks in the competition.
01 Glenn Stahl points out in his book on "Public Personnel Administration" that there are three disadvantages from which the oral test method suffers, namely, "(1) the difficulty of developing valid and reliable oral tests; (2) the difficulty of securing a reviewable record on an oral test; and (3) public suspicion of the oral test as a channel 105 for the exertion of political influence" and we may add, other corrupt, nepotistic or extraneous considerations.
The learned author then proceeds to add in a highly perceptive and critical passage : "The oral examination has failed in the past in direct proportion to the extent of its misuse.
It is a delicate instrument and, in inexpert hands, a dangerous one.
The first condition of its successful use is the full recognition of its limitations.
One of the most prolific sources of error in the oral has been the failure on the part of examiners to understand the nature of evidence and to discriminate between that which was relevant, material and reliable and that which was not.
It also must be remembered that the best oral interview provides opportunity for analysis of only a very small part of a person 's total behaviour.
Generalizations from a single interview regarding an individual 's total personality pattern have been proved repeatedly to be wrong.
" But, despite all this criticism, the oral interview method continues to be very much in vogue as a supplementary test for assessing the suitability of candidates wherever test of personal traits is considered essential.
Its relevance as a test for determining suitability based on personal characteristics has been recognised in a number of decisions of this Court which are binding upon us.
In the first case on the point which came before this Court, namely, R. Chitra Lekha and Others vs State of Mysore and Others this Court pointed out : "In the field of education there are divergent views as regards 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 tests etc.
Obviously we are not in a position to judge which method is preferable or which test is the correct one. . . . . . . . . .
The scheme of selection, however, perfect it may be on paper, may be abused in practice.
That it is capable of abuse is not a ground for quashing it.
So long as the order lays down relevant objective criteria and entrusts the business of selection to quali 106 fied persons, this Court cannot obviously have any say in the matter.
and on this view refused to hold the oral interview test as irrelevant or arbitrary.
It was also pointed out by this Court in A. Peeriakaruppan vs State of Tamil Nadu & Ors : "In most cases, the first impression need not necessarily be the past impression, but under the existing conditions, we are unable to accede to the contentions of the petitioners that the system of interview as in vogue in this country is so defective as to make it useless.
" It is therefore not possible to accept the contentions of the petitioners that the oral interview test is so defective that selecting candidates for admission on the basis of oral interview in addition to written test must be regarded as arbitrary.
The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test for measuring personal characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse.
We would, however, like to point out that in the matter of admission to college or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification.
So far as the third ground of challenge is concerned, we do not think it can be dismissed as unsubstantial.
The argument of the petitioners under this head of challenge was that even if oral interview may be regarded in principle as a valid test for selection of candidates for admission to a college, it was in the present case arbitrary and unreasonable since the marks allocated for the oral interview were very much on the higher side as compared with the marks allocated for the written test.
The marks allocated for the oral interview were 50 as against 100 allocated for the written test, so that the marks allocated for the oral interview came to 33 1/3% of the total number of marks taken into account for the purpose of making the selection.
This, contended the petitioners, was beyond all reasonable proportion and rendered the selection of the candidates arbitrary and violative of the equality clause of the Constitution.
Now there can be no doubt that, 107 having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test, cannot be accepted by the Court as free from the vice of arbitrariness.
It may be pointed out that even in Peeriakaruppan 's case (supra), where 75 marks out of a total of 275 marks were allocated for the oral interview, this Court observed that the marks allocated for interview were on the high side.
This Court also observed in Miss Nishi Maghu 's case (supra): "Reserving 50 marks for interview out of a total of 150. does seem excessive, especially when the time spent was not more than 4 minutes on each candidate".
There can be no doubt that allocating 33 1/3 of the total marks for oral interview is plainly arbitrary and unreasonable.
It is significant to note that even for selection of candidates for the Indian Administrative Service, the Indian Foreign Service and the Indian Police Service, where the personality of the candidate and his personal characteristics and traits are extremely relevant for the purpose of selection, the marks allocated for oral interview are 250 as against 1800 marks for the written examination, constituting only 12.2% of the total marks taken into consideration for the purpose of making the selection.
We must, therefore, regard the allocation of as high a percentage as 33 1/3 of the total marks for the oral interview as infecting the admission procedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure cannot be sustained.
But we do not think we would be justified in the exercise of our discretion in setting aside the selections made for the academic year 1979 80 after the lapse of a period of about 18 months, since to do so would be to cause immense hardship to those students in whose case the validity of the selection cannot otherwise be questioned and who have nearly completed three semesters and, moreover, even if the petitioners are ultimately found to be deserving of selection on the application of the proper test, it would not be possible to restore them to the position as if they were admitted for the academic year 1979 80, which has run out long since.
It is true there is an allegation of mala fides against the Committee which interviewed the candidates and we may concede that if this allegation were established, we might have been inclined to interfere with the selections even after the lapse of a period of 18 months, because the writ petitions were filed as early as October November, 1979 and merely because the Court could not take up the hearing of the writ petitions for such a long time should be no ground for denying relief to the petitioners, if they are otherwise so entitled.
But we do not think that on the material placed before us we can 108 sustain the allegation of mala fides against the Committee.
It is true, and this is a rather disturbing feature of the present cases, that a large number of successful candidates succeeded in obtaining admission to the college by virtue of very high marks obtained by them at the viva voce examination tilted the balance in their favour, though the marks secured by them at the qualifying examination were much less than those obtained by the petitioners and even in the written test, they had fared much worse than the petitioners.
It is clear from the chart submitted to us on behalf of the petitioners that the marks awarded at the interview are by and large in inverse proportion to the marks obtained by the candidates at the qualifying examination and are also, in a large number of cases, not commensurate with the marks obtained in the written test.
The chart does create a strong suspicion in our mind that the marks awarded at the viva voce examination might have been manipulated with a view to favouring the candidates who ultimately came to be selected, but suspicion cannot take the place of proof and we cannot hold the plea of mala fides to be established.
We need much more cogent material before we can hold that the Committee deliberately manipulated the marks at the viva voce examination with a view to favouring certain candidates as against the petitioners.
We cannot, however, fail to mention that this is a matter which required to be looked into very carefully and not only the State Government, but also the Central Government which is equally responsible for the proper running of the college, must take care to see that proper persons are appointed on the interviewing committees and there is no executive interference with their decision making process.
We may also caution the authorities that though, in the present case, for reasons which we have already given, we are not interfering with the selection for the academic year 1979 80, the selections made for the subsequent academic years would run the risk of invalidation if such a high percentage of marks is allocated for the oral interview.
We are of the view that, under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid.
The petitioners, arguing under the last ground of challenge, urged that the oral interview as conducted in the present case was a mere pretence or farce, as it did not last for more than 2 or 3 minutes per candidate on an average and the questions which were asked were formal questions relating to parentage and residence of the candidate and hardly any question was asked which had relevance to assessment of the suitability of the candidate with reference to any of the four factors required to be considered by the Committee.
When the time spent on each candidate was not more 2 or 3 minutes on an average, 109 contended the petitioners, how could the suitability of the candidate be assessed on a consideration of the relevant factors by holding such an interview and how could the Committee possibly judge the merit of the candidate with reference to these factors when no questions bearing on these factors were asked to the candidate.
Now there can be no doubt that if the interview did not take more than 2 or 3 minutes on an average and the questions asked had no bearing on the factors required to be taken into account, the oral interview test would be vitiated, because it would be impossible in such an interview to assess the merit of a candidate with reference to these factors.
This allegation of the petitioners has been denied in the affidavit in reply filed by H. L. Chowdhury on behalf of the college and it has been stated that each candidate was interviewed for 6 to 8 minutes and "only the relevant questions on the aforesaid subjects were asked".
If this statement of H. L. Chowdhury is correct, we cannot find much fault with the oral interview test held by the Committee.
But we do not think we can act on this statement made by H. L. Chowdhury, because there is nothing to show that he was present at the interviews and none of the three Committee members has come forward to make an affidavit denying the allegation of the petitioners and stating that each candidate was interviewed for 6 to 8 minutes and only relevant questions were asked.
We must therefore, proceed on the basis that the interview of each candidate did not last for more than 2 or 3 minutes on an average and hardly any questions were asked having bearing on the relevant factors.
If that be so, the oral interview test must be held to be vitiated and the selection made on the basis of such test must be held to be arbitrary.
We are, however, not inclined for reasons already given, to set aside the selection made for the academic year 1979 80, though we may caution the State Government and the Society that for the future academic years, selections may be made on the basis of observation made by us in this judgment lest they might run the risk of being struck down.
We may point out that, in our opinion, if the marks allocated for the oral interview do not exceed 15% of the total marks and the candidates are properly interviewed and relevant questions are asked with a view to assessing their suitability with reference to the factors required to be taken into consideration, the oral interview test would satisfy the criterion of reasonableness and non arbitrariness.
We think that it would also be desirable if the interview of the candidates is tape recorded, for in that event there will be contemporaneous evidence to show what were the questions asked to the candidates by the interviewing committee and what were the answers given and that will eliminate a lot of unnecessary controversy besides acting as a check on the possible arbitrariness of the interviewing committee.
110 We may point out that the State Government, the Society and the College have agreed before us that the best fifty students, out of those who applied for admission for the academic year 1979 80 and who have failed to secure admission so far, will be granted admission for the academic year 1981 82 and the seats allocated to them will be in addition to the normal intake of students in the College.
We order accordingly.
Subject to the above direction, the writ petitions are dismissed, but having regard to the facts and circumstances of the present cases, we think that a fair order of costs would be that each party should bear and pay its own costs of the writ petitions.
S.R. Petitions dismissed.
| IN-Abs | Dismissing the writ petitions, the Court ^ HELD : (1).
Having regard to the Memorandum of Association and the Rules of the Society, the respondent college is a State within the meaning of Article 12.
The composition of the Society is dominated by the representatives appointed by the Central Government and the Governments of Jammu & Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government.
The monies required for running the college are provided entirely by the Central Government and the Government of Jammu & Kashmir and even if any other monies are to be received by the Society, it can be done only with the approval of the State and the Central Governments.
The Rules to be made by the Society are also required to have the prior approval of the State and the Central Governments and the accounts of the Society have also to be submitted to both the Governments for their scrutiny and satisfaction.
The Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee.
The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the Society can be disposed of in any manner without the approval of both the Governments.
The State and the Central Governments have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State or the Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government.
The Board of Governors, which is incharge of general superintendence, direction and control of the affairs of the Society and of its income and property is also largely controlled by nominees of the State and the Central Governments.
The State Government and by reason of the provision for approval, the Central Government also thus have full control of the work 80 ing of the Society and therefore, the Society is merely a projection of the State and the Central Governments.
The voice is that of the State and the Central Governments.
The Society is an instrumentality or the agency of the State and the Central Governments and it is an "authority" within the meaning of Article 12.
If the Society is, an "authority" and, therefore, the "State" within the meaning of Article 12, it must follow that it is subject to the constitutional obligation under Article 14.
[99F H, 100 K F] (2) The expression "other authorities", in Article 12 must be given an interpretation where constitutional fundamentals vital to the maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form.
The Government may act through the instrumentality or agency of juridical persons to carry out its functions, since, with the advent of the welfare State its new task have increased manifold.
[90B D] It is, undoubtedly, true that the corporation is a distinct juristic entity with a corporate structure of its own and it carries on its functions on business principles with a certain amount of autonomy which is necessary as well as useful from the point of view of effective business management, but behind the formal ownership which is cast in the corporate mould, the reality is very much the deeply pervasive presence of the Government.
It is really the Government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the Government.
It is clear that if a corporation is an instrumentality or agency of the Government, it must be subject to the same limitations in the field of constitutional law as the Government itself, though in the eye of the law it would be a distinct and independent legal entity.
If the Government acting through its officers is subject to certain constitutional limitations, it must follow a fortiorari that the Government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations.
If such a corporation were to be free from the basic obligation to obey the Fundamental Rights, it would lead to considerable erosion of the efficiency of the Fundamental Rights, for in that event the Government would be enabled to override the Fundamental Rights by adopting the stratagem of carrying out its functions through the instrumentality or agency of a corporation, while retaining control over it.
The Fundamental Rights would then be reduced to little more than an idle dream or a promise of unreality.
[91B F] The Courts should be anxious to enlarge the scope and width of the Fundamental Rights by bringing within their sweep every authority which is an instrumentality or agency of the Government or through the corporate personality of which the Government is acting, so as to subject the Government in all its myriad activities, whether through natural persons or through corporate entities, to the basic obligation of the Fundamental Rights.
The constitutional philosophy of a democratic socialist republic requires the Government to under take a multitude of socioeconomic operations and the Government, having regard to the practical advantages of functioning through the legal device of a corporation, embarks on myriad commercial and economic activities by resorting to the instrumentality or agency of a corporation, but this contrivance of carrying on such activities through a corporation cannot exonerate the Government from implicit obedience to the Fundamental Rights.
To use the 81 corporate methodology is not to liberate the Government from its basic obligation to respect the Fundamental Rights and not to override them.
The mantle of a corporation may be adopted in order to free the Government from the inevitable constraints of red tapism and slow motion but by doing so, the Government cannot be allowed to play truant with the basic human rights, otherwise it would be the easiest thing for the government to assign to a plurality of corporations almost every State business such as Post and Telegraph, TV, Radio, Rail, Road and Telephones in short every economic activity and thereby cheat the people of India out of the Fundamental Rights guaranteed to them.
That would be a mockery of the Constitution and nothing short of treachery and breach of faith with the people of India, because though apparently the corporation will be carrying out these functions, it will in truth and reality be the Government which will be controlling the corporation and carrying out these functions through the instrumentality or agency of the corporation.
Courts cannot by a process of judicial construction allow the Fundamental Rights to be rendered futile and meaningless and there by wipe out Chapter III from the Constitution.
That would be contrary to the constitutional faith of the post Menaka Gandhi era.
It is the Fundamental Rights which along with the Directive Principles constitute the life force of the Constitution and they must be quickened into effective action by meaningful and purposive interpretation.
If a corporation is found to be a mere agency or surrogate of the Government, "in fact owned by the Government, in truth controlled by the government and in effect an incarnation of the government," the court must not allow the enforcement of Fundamental Rights to be frustrated by taking the view that it is not the government and, therefore, not subject to the constitutional limitations.
Therefore, where a corporation is an instrumentality or agency of the Government, it is an authority within the meaning of Article 12 and, hence, subject to the same basic obligation to obey the Fundamental Rights as the government.
[91G H, 92A G] R. D. Shetty vs The International Airport Authority of India & Ors., and U.P. Warehousing Corporation vs Vijay Narain, ; , followed.
(3) The test for determining as to when a corporation can be said to be an instrumentality or agency of Government may be culled out from the judgment in the International Airport Authority 's case.
They are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression "other authorities", it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government with the sweep of the expression.
A wide enlargement of the meaning must be tempered by a wise limitation.
The relevant tests gathered from the decision in the International Airport Authority 's case may be summarized as: (i) "One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the Corporation is an instrumentality or agency of Government.
(ii) 'Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. ' (iii) 'It may also be a relevant factor. whether the corporation enjoys monopoly status which is the State conferred or State protected. ' (iv) 'Existence of 'deep and pervasive State control may afford an indication that the Corporation is a state 82 agency or instrumentality. ' (v) 'If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation an instrumentality or agency of Government. ' (vi) 'Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference" of the corporation being an instrumentality or agency of Government.
"[96F H, 97A D] It is immaterial for this purpose whether the corporation is created by a statute or under a statute.
The test is whether it is an instrumentality or agency of the Government and not as to how it is created.
The enquiry has to be not as to how the juristic person is born but why it has been brought into existence.
The corporation may be a statutory corporation created by a statute or it may be a Government company or a company formed under the or it may be a society registered under the or any other similar statute.
Whatever be its genetical origin, it would be an "authority" within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors.
The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression "authority" in Article 12.
[97F H, 98A B] (4) Merely because a juristic entity may be an "authority" and, therefore, "State" within the meaning of Article 12, it may not be elevated to the position of "State" for the purpose of Articles 309, 310 and 311 which find a place in The definition of "State" in Article 12 which includes an "authority" within the territory of India or under the control of the Government of India is limited in its application only to and by virtue of Article 36, to and it does not extend to the other provisions of the Constitution and, hence, a juristic entity which may be "State" for the purpose of Parts III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution.
[98B D] section L. Aggarwal vs Hindustan Steel Ltd., [1970] 3 S.C.R. 365; Sabhajit Tewary vs Union of India & Ors., and Sukhdev Singh vs Bhagat Ram, [1975] 3 S.C.R. 619, explained and distinguished.
(5) Article 14 must not be identified with the doctrine of classification.
What Article 14 strikes at is arbitrariness because any action that is arbitrary, must necessarily involve negation of equality.
The doctrine of classification which is evolved by the courts is not para phrase of Article 14 nor is it the objective and end of that Article.
It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality.
If the classification is not reasonable and does not satisfy the two conditions, namely, (1) that the classification is founded on an intelligible differentia and (2) that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action, the impugned legislative or executive action, would plainly be arbitrary and the guarantee of equality under Article 14 would be breached.
Wherever, therefore, there is arbitrariness in State action whether it be the 83 legislature or of the executive or of an "authority" under Article 12, Article 14 immediately springs into action and strikes down such State action.
In fact, the concept of reasonableness and non arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution.
[100G, 102D F] E.P. Royappa vs State of Tamil Nadu, [1974] 2 S.C.R. 348; Maneka Gandhi vs Union of India, [1978] 2 S.R. 621 and R. D. Shetty vs The International Airport, Authority of India, & Ors., , applied.
(6) The procedure adopted by the respondent Society cannot be regard as arbitrary merely because it refused to take into account the marks obtained by the candidates at the qualifying examination but chose to regulate the admissions by relying on the entrance test.
The entrance test facilitates the assessment of the comparative talent of the candidates by application of a uniform standard and is always preferable to evaluation of comparative merit on the basis of marks obtained at the qualifying examination, when the qualifying examination is held by two or more different authorities, because lack of uniformity is bound to creep into the assessment of candidates by different authorities with different modes of examination.
[103A B, D F] (7) The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test for measuring personal characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse.
In the matter of admission to college or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification.
[106C E] R.Chitra Lakha and Others vs State of Mysore and Others, ; , followed.
(8) Having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test, is not free from the vice of arbitrariness.
The allocation of as high a percentage as 33 1/3 of the total marks for oral interview suffers from the vice of arbitrariness.
[107A D] The court, however, to avoid immense hardship being caused to those students in whose case the validity of the selection cannot otherwise be questioned and who have nearly completed three semesters and taking into consideration the fact that even if the petitioners are ultimately found to be deserving of selection on the application of the proper test, it would not be possible to restore them to the position as if they were admitted for the academic year 1979 80, which has run out long since declined to set aside the selection made.
The Court was, however, of the view that under the existing circumstances.
84 allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable.
[107G H, 108A F] A. Peeriakaruppan vs State of Tamil Nadu, [1971] 2 S.C.R. 430; Miss Nishi Meghu vs State of Jammu & Kashmir & Ors., [1980] 3 S.C.R. p. 1253, applied.
(9) There can be no doubt that if the interview did not last for more than two or three minutes on an average and the questions asked had no bearing on the factors required to be taken into account the oral interview test would be vitiated, because it would be impossible in such an interview to assess the merit of a candidate with reference to these factors.
Here the absence of proper affidavit by the members of the committee to the contrary leads to the only conclusion that the selection made on the basis of such test must be held to be arbitrary.
However, if the marks allocated for the oral interview do not exceed 15% of the total marks and the candidates are properly interviewed and relevant questions are asked with a view to assessing their suitability with reference to the factors required to be taken into consideration, the oral interview test would satisfy the criterion of reasonableness and non arbitrariness.
Further it would be desirable if the interview of the candidates is tape recorded, for in that event there will be contemporaneous evidence to show what were the questions asked to the candidates by the interviewing committee and what were the answers given and that will eliminate a lot of unnecessary controversy besides acting as a check on the possible arbitrariness of the interviewing committee.
[109A B, D E, F H]
|
Civil Appeal No. 1632 of 1973 and 167 of 1974.
From the Judgment and Order dated 29th April, 1972 of the Judicial Commissioner, Goa, Daman and Diu at Panaji in Special Civil Application No. 60 of 1970.
R. V. Patel and Mrs. Ali Verma for the Appellants in CA No. 1632/73 and for the Respondent in CA 107/74.
V. section Desai, B. B. Ahuja and M. N. Shroff for the Appellants in CA 107/74 and for the Respondent in CA.
1632/73.
The Judgment of the Court was delivered by BHAGWATI, J.
These two appeals by special leave are directed against a judgment of the Judicial Commissioner, Goa, Daman and Diu, partly allowing a writ petition filed by Chowgule & Co. Pvt.
Ltd. (hereinafter referred to as the assessee) for quashing an order of the Lieutenant Governor, Goa, Daman and Diu dated 22nd August 1970.
The question which arises for determination in these two appeals is a short one but in order to appreciate the arguments bearing upon it, it is necessary to state a few facts giving rise to the controversy between the parties.
The assessee is a private limited company carrying on business of mining iron ore and selling it in the export market after dressing, washing, screening and blending it.
The assessee owns mines at Sirigao, Pale and various other places in the territory of Goa.
The extraction of ore from the mines at Sirigao and Pale is carried on by mechanised process while the extraction of ore from the other mines is done by manual labour.
When the ore is extracted from the mines it 275 is carried to the dressing plant where it is washed, screened and dressed and then it is stacked at the mining site from where it is carried by conveyor belts to the river side for being carried by barges to the Marmagoa harbour.
Before the ore is carried from the mining site to the river side, its chemical as well as physical composition is ascertained by taking samples and testing them in the laboratories at each major mine and this process is carried on every day round the clock in order to ascertain the chemical and physical composition of the ore which comes to Marmagoa, harbour.
Since the chemical and physical composition of the ore varies from mine to mine and even within the same mine itself, intra mine blending of the ore is carried out at the mining site with a view to arriving at a certain specified chemical and physical composition.
When the ore carried by barges arrives at the Marmagoa harbour, it is stacked in different stockpiles according to its chemical and physical composition.
Since the assessee sells the ore only in the export market, it has to supply ore to the foreign buyers in accordance with the specifications required by them and therefore it is required to carry out blending of the ore mined by it in such a manner as to produce ore of the required chemical and physical composition.
This operation of blending is carried out by the assessee, not before the loading of the ore into the ship, but in the process of loading itself through the mechanical ore handling plant.
What is done is to draw different quantities of ore from different stock piles and put them together in the mechanical ore handling plant so that they get blended in the process of loading and the blended ore which is actually loaded into the ship is ore of the contractual chemical and physical composition.
The mechanical ore handling plant thus performs a dual function, namely, blending of ore from different stock piles containing ore of different chemical and physical composition and loading of the blended ore into the ship for delivery to the foreign buyers.
It will thus be seen that the entire activity of the assessee is broadly divisible into seven different operations, one following upon the other, namely, (i) extraction of ore from the mine; (ii) conveying the ore to the dressing plant; (iii) washing, screening and dressing the ore; (iv) conveying of the ore from the mine site to the river side; (v) transport of the ore from the river side to the harbour by means of barges; (vi) stacking of the ore at the harbour in different stock piles according to its physical and chemical composition, and (vii) blending of the ore from different stock piles with a view to producing ore of the required specifications and loading it into the ship by means of the mechanised ore handling plant.
The question is whether goods purchased by the assessee for use in the above operations could be said 276 to be goods purchased for use "in the manufacture or processing of goods for sale or in mining" so as to attract the lower rate of sales tax under section 8(1)(b) of the .
It would be convenient at this stage to set out the relevant provisions of the (hereinafter referred to as the Act) which have a bearing on the question before us.
Section 6 provides that, subject to the other provisions contained in the Act, every dealer shall be liable to pay tax under the Act on all sales of goods other than electrical energy effected by him in the course of interstate trade or commerce during any year.
Section 7 provides for registration of dealers and sub section (1) of this section states that every dealer liable to pay tax under the Act shall make an application for registration to such authority in the appropriate State as the Central Government may specify and every such application shall contain such particulars as may be prescribed.
Sub section (3) of section 7 enacts that if the authority to whom an application under sub section (1) is made is satisfied that the application is in conformity with the provisions of the Act and the Rules made thereunder, he shall register the applicant and grant to him a certificate of registration in the prescribed form which shall specify the class or classes of goods for the purposes of sub section (1) of section 8.
Section 8 provides inter alia as under and we are setting out here the relevant part of the section as it stood at the material time: "Sec.
8(1): Every dealer, who is in the course of inter State trade or commerce (a) sells to the Government any goods; or (b) sells to a registered dealer other than the Government goods of the description referred to in sub section (3), shall be liable to pay tax under this Act, which shall be 3 per cent of his turn over.
(3) The goods referred to in clause (b) of sub sec.(1) (b) x x x are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being in tended for re sale by him or subject to any rules made by the Central Government in this behalf, for use by him in the manufacture or processing of 277 goods for sale or in mining, or in the generation or h distribution of electricity or any other form of power.
Section 13 confers rule making authority on the Central Government and by clause (e) of sub section (1) of that section, the Central Government is authorised to make rules providing for "the enumeration of goods or class of goods used in the manufacture or processing of goods for sale or in mining or in the generation or distribution of electricity or any other form of power.
" Pursuant to the authority conferred by this provision, the Central Government has made Rule 13 which at the material time was in the following terms: Rule 13: The goods referred to in clause (b) of sub sec.(3) of section 8, which a registered dealer may purchase, shall be goods intended for use by him as raw materials, processing materials, machinery plant, equipment, tools, stores, spare parts, accessories, fuel or lubricants, in the manufacture or processing of goods for sale or in mining, or in the generation of distribution of electricity or any other form of power." " The assessee made an application to the Sales Tax Officer on 14th September 1967 for inclusion of 36 items of goods in the certificate of registration on the ground that these items of goods were being purchased by it for use in mining ore and processing it for sale in the export market, and hence they were goods falling within section 8(3) (b) and Rule 13.
It is obvious that if this application were granted and the items of goods mentioned in the application were specified in the certificate of registration, the dealer selling these goods to the assessee in the course of inter State trade or commerce would be liable to pay sales tax only at the rate of 3 per cent of the turnover of these sales and the assessee in its turn would have to reimburse the selling dealer only at the rate of 3 per cent of the sale price, where as otherwise the amount payable would be at a much higher rate.
The assessee therefore pressed this application before the Sales Tax Officer with a certain amount of vehemence, but the Sales Tax Officer by his order dated 4th March 1968 granted specification only in respect of 11 items and disallowed the remaining 25 items.
The view taken by the Sales Tax Officer was that the blending of ore which was done in the course of loading through the Mechanical Ore Handling Plant did not amount to manufacture or processing of ore and, therefore, the only goods in respect of which specification could be claimed by the assessee in the certificate of registration were goods purchased for use in mining and since the process of mining came to an end when ore was extracted from the mines and washed, screened 2 57 SCI/81 278 and dressed in the dressing plant and stacked at the mining site, the goods purchased by the assessee for use only in these operations were eligible for being specified in the Certificate of Registration and no the goods purchased for use in any of the subsequent operations including bending and loading through the Mechanical Ore Handling Plant.
The Sales Tax Officer held that only l l items of goods could be regarded as goods purchased for use in mining and the remaining 2 I ems of goods did not fall within this description and hence were not includable in the Certificate of Registration.
The assessee preferred a revision application, but the Assistant Commissioner of Sales Tax who heard the revision application, took the same view as the Sales Tax Officer in regard to me nature of the operations carried on by the assessee and holding that the assessee was entitled to inclusion in the Certificate of Registration of only those items of goods which were purchased for use in the process of mining (which ended with the stacking of the ore at the mining site after extraction, washing, screening and dressing), he examined the 25 items disallowed by the Sales Tax Officer with reference to this criterion and came to the conclusion that 6 out of these 25 items were eligible for inclusion in the Certificate of Registration and he accordingly allowed the revision application in respect of these 6 items and rejected it in respect of the remaining 19 items.
The assessee thereupon carried the matter further in revision to the Government of Goa, Daman and Diu, but the Lieutenant Governor on behalf of the Government agreed with the view taken by the Assistant Commissioner of Sales Tax and rejected the revision application by an order dated 22nd August 1970.
This led to the filing of a writ petition by the assessee in the Court of the Judicial Commissioner for quashing the Order of the Government and .
directing inclusion of the remaining 19 items in the Certificate of Registration.
The Judicial Commissioner took the same view as the Sales Tax Authorities in regard to the nature of the operations carried on by the assessee, but gave relief to the assessee in respect of 4 items of goods on the ground that they were goods purchased for use in the process of mining and were therefore liable to be included in the Certificate of Registration.
The result was that 15 items of goods ultimately remained unincluded in the Certificate of Registration.
It is not necessary to reproduce here these 15 items of good in respect of which the application of the assessee was disallowed but it is sufficient to state that they were items Nos. 1, 2, 3, 5, 6, 8, 9, 10, 12, 14, 15, 16, 17, 19 and 20 in the list exhibit No. 6.
The assessee being aggrieved by the disallowance of these 15 items preferred Appeal No. 1632 of 1973 after obtaining certificate from the Court of the Judicial Commissioner.
Item 9 which consisted of "Safety Boards and 279 Posters" was not pressed at the hearing of the appeal and hence the controversy between the parties before us centred round the remaining 14 items of goods only and the question is whether these 14 items of goods were eligible for inclusion in the Certificate of Registration.
The Union of India also felt aggrieved by the Order of the Judicial Commissioner allowing 4 items of goods to be included in the Certificate of Registration and hence it preferred Appeal No. 107 of 1974 against the Order of the Judicial Commissioner to the extent to which it was adverse against it.
There are two questions which primarily arise for consideration in these appeals.
One is whether the blending of ore whilst loading it in the ship by means of the Mechanical Ore Handling Plant constituted manufacture or processing of ore for sale within the meaning of sec.8(3)(b) and Rule 13 and the other is whether the process of mining, conveying the mined ore from the mining site to the river side, carrying it by barges to the Marmagoa harbour and then blending and loading it into the ship through the Mechanical Ore Handling Plant constituted one integrated process of mining and manufacture or processing of ore for sale, so that the items of goods purchased for use in every phase of this integrated operations could be said to be goods purchased for use in mining and manufacturing or processing of ore for sale falling within the scope and ambit of section 8(3) (b) and Rule 13.
We shall begin with the consideration of the first question, not because it has been formulated as a first question by us, but because on the answer to it depends to a large extent the decision of the second question.
The point which arises for consideration under the first question is as to whether blending of ore in the course of loading it into the ship through the Mechanical Ore Handling Plant constituted manufacture or processing of ore.
Now it is well settled as a result of several decisions of this Court, the latest being the decision given on 9th May, 1980 in Civil Appeal No. 2398 of 1978 The Deputy Commissioner of Sales Tax vs M/s Pio Food Packers that the test for determining whether manufacture can be said to have taken place is whether the commodity which is subjected to the process of manufacture can no longer be regarded as the original commodity, but is recognised in the trade as a new and distinct commodity.
This Court speaking through one of us (Pathak, J.) pointed out: "Commonly manufacture is the end result of one or more processes through which the original com 280 modity 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 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.
" The test that is required to be applied is; does the processing of the original commodity bring into existence a commercially different and distinct commodity? On an application of this test, it is clear that the blending of different qualities of ore processing differing chemical and physical composition so as to produce ore of the contractual specifications cannot be said to involve the process of manufacture, since the ore that is produced cannot be regarded as a commercially new and distinct commodity from the ore of different specifications blended together.
What is produced as a result of blending is commercially the same article, namely, ore, though with different specifications than the ore which is blended and hence it cannot be said that any process of manufacture is involved in blending of ore.
It still remains to consider whether the ore blended in the course of loading through the Mechanical Ore Handling Plant can be said to undergo processing when it is blended.
The answer to this question depends upon what is the true meaning and connotation of the word "processing" in sec.8(3)(b) and Rule 13.
The word has not been defined in the Act and it must therefore be interpreted according to its plain natural meaning.
Websters ' Dictionary gives the following meaning of the word "process", "to subject to some special process or treatment, to subject (especially raw material) to a process of manufacture, development or preparation for the market etc., to convert into marketable form as live stock by slaughtering, grain by milling, cotton by spinning, milk by pasteurizing fruits and vegetables by sorting and repacking.
" Where therefore any commodity is subjected to a process or treatment with a view to its "development or preparation for the market", as, for example, by sorting and repacking fruits and vegetables, it would amount to processing of the commodity within the meaning of sec.8(3) (b) and Rule 13.
The nature and extent of processing may vary from case to case; in one case the processing may be slight and in another it may be extensive; but with each process suffered, the commodity would experience a change.
Wherever a commodity undergoes a change as a result of some operation performed on it or in regard to it, such operation would amount to processing of the commodity.
The nature and extent of the change is not mate 281 rial.
It may be that camphor powder may just be compressed into camphor cubes by application of mechanical force or pressure without addition or admixture of any other material and yet the operation may amount to processing of camphor powder as held by the Calcutta High Court in Om Parkash Gupta vs Commissioner of Commercial Taxes, What is necessary in order to characterise an operation as "processing" is that the commodity must, as a result of the operation, experience some change.
Here, in the present case, diverse quantities of ore possessing different chemical and physical compositions are blended together to produce ore of the requisite chemical and physical composition demanded by the foreign purchaser and obviously as a result of this blending, the quantities of ore mixed together in the course of loading through the Mechanical Ore Handling Plant experience change in their respective chemical and physical compositions, because what is produced by such blending is ore of a different chemical and physical composition.
When the chemical and physical composition of each kind of ore which goes into the blending is changed, there can be no doubt that the operation of blending would amount to 'processing ' of ore within the meaning of sec.
8(3) (b) and Rule 13.
It is no doubt true that the blending of ore of diverse physical and chemical compositions is carried out by the simple act of physically mixing different quantities of such ore on the conveyor belt of the Mechanical Ore Handling Plant.
But to our mind it is immaterial as to how the blending is done and what process is utilised for the purpose of blending.
What is material to consider is whether the different quantities of ore which are blended together in the course of loading through the Mechanical Ore Handling Plant undergo any change in their physical and chemical composition as a result of blending and so far as this aspect of the question is concerned, it is impossible to argue that they do not suffer any change in their respective chemical and physical compositions.
The Revenue however relied on the decision of the Bombay High Court in Nilgiri Ceylon Tea Supplying Co. vs State of Bombay.
The assessees in this case were registered dealers in tea under the Bombay Sales Tax Act, 1953 and they purchased in bulk diverse brands of tea and without the application of any mechanical or chemical process, blended these brands of different qualities according to a certain formula evolved by them and sold the tea mixture in the market.
The question arose before the Sales Tax Authorities whether the different brands of tea purchased and blended by the assessees for the 282 purpose of producing the tea mixture could be said to have been 'processed ' after the purchase within the meaning of the proviso to sec.
8(a), so as to preclude the assessees from being entitled to deduct from their turn over under section 8(a) the value of the tea purchased by them.
The High Court of Bombay held that the different brands of tea purchased by the assessees could not be regarded as 'processed ' within the meaning of the proviso to clause (a) of sec. 8, because there was "not even application of mechanical force so as to subject the commodity to a process, manufacture, development or preparation" and the commodity remained in the same condition.
The argument of the Revenue before us was that this decision of the Bombay High Court was on all fours with the present case and if the blending of different brands of tea for the purpose of producing a tea mixture in accordance with a formula evolved by the assessees could not be regarded as 'processing ' of tea, equally on a parity of reasoning, blending of ore of different chemical and physical compositions could not be held to constitute 'processing ' of the ore.
Now undoubtedly there is a close analogy between the facts of Nilgiri Tea Company 's case and the facts of the present case, but we do not think we can accept the decision of the Bombay High Court in the Nilgiri Tea Company 's case as laying down the correct law.
When different brands of tea were mixed by the assessees in Nilgiri 's Tea Company 's case for the purpose of producing a tea mixture of a different kind and quality according to a formula evolved by them, there was plainly and indubitably processing of the different brands of tea, because these brands of tea experienced, as a result of mixing qualitative change, in that the tea mixture which came into existence was of different quality and flavour than the different brands of tea which went into the mixture.
There are it is true, some observations in the judgment of the Bombay High Court which seem to suggest that if instead of manual application of energy in mixing the different brands of tea, there had been application of mechanical force in producing the tea mixture, the Court might have come to a different conclusion and these observations were relied upon by the assessee, since in the present case the lending was done by application of mechanical force, but we do not think that is the correct test to be applied for the purpose of determining whether there is 'processing '.
The question is not whether there is manual application of energy or there is application of mechanical force.
Whatever be the means employed for the purpose of carrying out the operation, it is the effect of the operation on the commodity that is material for the purpose of determining whether the operational constitutes 'processing '.
We are clearly of the view that the blending of ore in the course of loading through the Mechanical Ore Handling Plant amounted to 'processing ' of ore within the 283 meaning of sec.
8(3) (b) and Rule 13 and the Mechanical Ore Handling Plant fell within the description of "machinery, plant, equipment" used in the processing of ore for sale.
It must therefore follow as a necessary corollary that if any items of goods were purchased by the assessee as being intended for use as "machinery, plant, equipment, tools, spare parts, stores, accessories, fuel or lubricants" for the Mechanical Ore Handling Plant, they would be eligible for inclusion in the Certificate of Registration of the assessee.
The question which then arises is as to whether items of goods purchased by the assessee for use in carrying the ore from mining site to the river side and from the river side to the Marmagoa harbour could be said to be goods purchased for use in mining or in processing of ore for sale.
Now there can be no doubt, and indeed this could not be seriously disputed that the process of mining comes to an end when ore is extracted from the mines, washed, screened and dressed in the dressing plant and stacked at the mining site and the goods purchased by the assessee for use in the subsequent operations could not therefore be regarded as goods purchased for use 'in mining '.
The requirement of sec.
8(3) (b) and Rule 13 is that the goods must be purchased for use 'in mining ' and not use 'in the business of mining '.
It is only the items of goods purchased by the assessee for use in the actual mining operation which are eligible for inclusion in the certificate of registration under this head and these would not include goods purchased by the assessee for use in the operations subsequent to the stacking of the ore at the mining site.
This view finds support from the decision of this Court in Indian Copper Corporation Limited vs The Commissioner of Commercial Taxes.
But the claim of the assessee for including in the Certificate of Registration items of goods purchased for use in carrying ore from mining site to the river side and from river side to the Marmagoa harbour was not based solely on the ground that these items of goods are purchased for use `in mining '.
The alternative contention of the assessee was that these items of goods are purchased for use in processing of ore for sale.
The assessee submitted that mining of ore and processing it for the purpose of sale by carrying out blending through the Mechanical Ore Handling Plant constitute one integrated process and carrying the ore from the mining site to the river side and from the river side to the Marmagoa harbour where the processing is being done, is part of this integrated process and hence the items of goods purchased for use in this latter operation are eligible for inclusion in the Certificate of Registration.
We think there is great force in this submission of the 284 assessee.
Where a dealer is engaged both in mining operation as also in processing the mined ore for sale, the two processes being interdependent, it would be essential for carrying on the operation of processing that the ore should be carried from the mining site mined ore for sale, the two processes being inter dependent, it would be essential for carrying on the operation of processing that the ore should be carried from the mining site where the mining operation comes to end to the place where the processing is carried on and that would clearly be an integral part of the operation of processing and if any machinery, vehicles, barges and other items of goods are used for carrying the ore from the mining site to the place of processing, they would clearly be goods used in processing of ore for sale.
It is obvious that, in the present case, the mining of ore is done by the assessee with a view to processing the mined ore through the Mechanical Ore Handling Plant at the Marmagoa harbour and the entire operation of mining ore and processing the mined ore is one integrated process of which transportation of the mined ore from the mining site to the Marmagoa harbour is an essential part and, in the circumstances, it is difficult to see how the machinery, vehicles, barges and other items of goods used for transporting the mined ore from the mining site to the Marmagoa harbour can be excluded from consideration on the ground that they are not goods used in processing of ore for sale.
The decision of this Court in Indian Copper Corporation case (supra) is directly in point and completely supports this conclusion which we are inclined to reach on principle.
The assessee in that case was a company which mined copper and iron ore from its own mines, transported the ore to its factory and manufactured finished products from the ore for sale.
There were several questions which arose for consideration, before the Court in regard to the assessees ' claim for inclusion of certain items of goods in its certificate of registration and one of them was whether the locomotives and motor vehicles used for removing ore from the place where the mining operations were concluded to the factory where the manufacturing process was going on, could be said to be goods intended for use in the manufacture or processing of goods for sale within the meaning of sec.
8(3) (b) and Rule 13.
This Court held that they were goods falling within this description so as to be entitled to inclusion in the Certificate of Registration of the assessee and Shah, J. speaking on behalf of the Court gave the following reasons for taking this view "We are also of the opinion that in a case where a dealer is engaged both in mining operations and in the manufacturing process the two processes being inter dependent it would be impossible to exclude vehicles which are used for 285 removing from the place where the mining operations are concluded to the factory where the manufacturing process starts.
It appears that the process of mining ore and manufacture with the aid of ore copper goods is an integrated process and there would be no ground for exclusion from the vehicles those which are used for removing goods to the factory after the mining operations are concluded.
Nor is there any ground for excluding locomotives and motor vehicles used in carrying finished products from the factory.
The expression "goods intended for use in the manufacturing or processing of goods for sale" may ordinarily include such vehicles as are intended to be used for removal of processed goods from the factory to the place of storage.
If this be the correct view, the restrictions imposed by the High Court in respect of the vehicles and also the spare parts, tyres and tubes would not be justifiable.
" These reasons apply with equal force in the present case and strongly support the conclusion that the machinery, vehicles, barges and other items of goods purchased by the assessee for use in carrying the mined ore from the mining site to the river side and from the river side to the Marmagoa harbour fall within the description of goods intended for use in processing of ore for sale within the meaning of sec.
8(3) (b) and Rule 13.
If any of these items of goods are purchased by the assessee as being intended for use as "machinery, plant, equipment, tools, spare parts, stores, accessories, fuel or lubricants" in carrying the mined ore from the mining site to the river side and from the river side to the Marmagoa harbour, they would qualify for inclusion in the Certificate of Registration.
It is in the light of this discussion that the question whether the 14 items of goods disallowed by the Sales Tax Authorities and the Judicial Commissioner are eligible for inclusion in the Certificate of Registration has to be decided.
We do not however think any useful purpose will be served by ourselves examining each of these 14 items for the purpose of deciding whether, according to the principles enunciated by us, any of them qualifies for being included in the Certificate of Registration.
That is a matter which can appropriately be decided by the Sales Tax Officer in the light of the principles laid down by us and it need not occupy our time here.
We accordingly allow the appeal of the assessee and direct the Sales Tax Officer to examine these 14 items of goods and determine in the light of the principles laid down in this judgment whether any of these 14 items of goods is liable to be included in the Certificate of Registration.
So far as the 286 appeal of the Union of India is concerned, we do not think that the Judicial Commissioner was in error in giving relief to the assessee in respect of 4 items of goods, since these items of goods were clearly goods intended for use in the process of mining and were rightly directed to be included in the Certificate of Registration.
The appeal of the Union of India will accordingly stand dismissed.
Since the assessee has substantially succeeded, the fair order of costs would be that the Revenue must pay the costs of the assessee throughout.
| IN-Abs | The assessee is a Private Limited Company, carrying on business of mining iron ore and selling it in the export market after dressing, washing, screening and blending it.
The extraction of iron ore in some of the mines is carried on by mechanised process and at others by manual labour.
The entire activity of the assessee consisted of seven different operations, one following upon the other, namely.
(i) extraction of ore from the mine; (ii) conveying the ore to the dressing plant; (iii) washing, screening and dressing the ore; (iv) conveying of the ore from the mine site, to the river side; (v) transport of the ore from the river side to the harbour by means of barges; (vi) stacking of the ore at the harbour in different stock piles according to its physical and chemical composition; and (vii) blending of the ore from different stock piles with a view to producing ore of the required specifications and loading it into the ship by means of the Mechanised Ore Handling Plant.
Under Section 8(1)(b) of the the assessee would be liable to pay, in respect of goods purchased for use "in the manufacture or processing of goods for sale in mining", a lower rate of sales tax at 3% of his turnover, if it is granted, under section 7(3), a Certificate of Registration by Sales Tax Officer specifying the class or classes of goods for the purpose of sub section (1) of section 8 read with Rule 13.
The assessee, therefore, made an application to the Sales Tax Officer for inclusion of 36 items of goods in the certificate of registration on the ground that these items of goods were being purchased by it for use in mining ore and processing it for sale in the export market, and hence they were goods falling within section 8(3)(b) of the Act and Rule 13.
The Sales Tax Officer granted certificate only in respect of 11 items and disallowed 25 items.
In revision, the Assistant Commissioner, Sales Tax, took the same view of the Sales Tax 272 A Officer, reviewed all the 25 items disallowed and found that six more items to be eligible for certification.
The further revision before the Government carried by the assessee failed.
Thereupon the assessee filed a writ petition in the court of Judicial Commissioner, Goa.
The Judicial Commissioner agreed with the views of the Sales Tax Authorities but on his scrutiny found that 4 more items, out of 19 items rejected, to be eligible for certification.
Hence, the appeals by special leave, one by the assessee in respect of all the 15 items and another by the Union of India regarding the 4 items found to be in order by the Judicial Commissioner.
Allowing the appeal of the assessee, dismissing the appeal of Union of India and remitting the matter to the Tax Authorities for further scrutiny of the 14 items pressed by the assessee, the Court ^ HELD: (I) Applying the test laid down in M/s. Pio Food Packers [1980] 3 SCR p. 1271, namely, "Does the processing of the original commodity bring into existence a commercially different and distinct commodity ?", it is clear that the blending of different qualities of ore possessing different chemical and physical composition so as to produce ore of the contractual specifications cannot be said to involve the process of manufacture, since the ore that is produced cannot be regarded as a commercially new and distinct commodity from the ore of different specifications blended together.
What is produced as a result of blending is commercially the same article, namely, ore, though with different specifications than the ore which is blended and hence it cannot be said that any process of manufacture is involved in blending of c re.
[279G, 280B D] The Deputy Commissioner of Sales Tax vs
Pio Food Packers, [1980] 3 SCR p. 1271, applied.
(2) Where any commodity is subjected to a process or treatment with a view to its "development of preparation for the market".
it would amount to processing of the commodity within the meaning of sec.
8(3)(b) and Rule 13.
The nature and extent of processing may vary from case to case; in one case the processing may be slight and in another it may be extensive; but with each process suffered, the commodity would experience a change.
What is necessary in order characterize an operation as "processing" is that the commodity must, as a result of the operation, experience some change.
In this sense word "processing" in section 8(3) (b) and Rule 13 should be understood as it has not been defined in the Act.
[280E, G H, 281A B] Om Prakash Gupta vs Commissioner of Commercial Taxes, 16 Sales Tax Cases 935 (Cal.), approved.
(3) The blending of ore in the course of loading through the Mechanical Ore Handling Plant amounted to "processing" of ore within the meaning o section 8(3)(b) and Rule 13 and the Mechanical Ore Handling Plant fell within the description of "machinery, plant, equipment" used in the processing of ore for sale.
Therefore, if any items of goods were purchased by the assessee as being intended for use as "machinery, plant, equipment.
tools, spare parts, stores, accessories, fuel or lubricants" for the Mechanical Ore Handling Plant, they would be eligible for inclusion in the Certificate of Registration of the assessee.
[282X 283A B] 273 Diverse quantities of ore possessing different chemical and physical compositions are blended together to produce ore of the requisite chemical and physical composition demanded by the foreign purchaser and obviously as a result of this blending, the quantities of ore mixed together in the course of loading through the Mechanical Ore Handling Plant experience change in their respective chemical and physical compositions, because what is produced by such blending is ore of a different chemical and physical composition.
When the chemical and physical composition of each kind of ore which goes into the blending is changed, there can be no doubt that the operation of blending would amount to "processing" of ore within the meaning of sec.
8(3)(b) and Rule 13.
It is no doubt true that the blending of ore of diverse physical and chemical composition is carried out by the simple act of physically mixing different quantities of such ore on the conveyor belt of the Mechanical Ore Handling Plant.
But it is immaterial as to how the blending is done and what process is utilised for the purpose of blending.
What is material to consider is whether the different quantities of ore which are blended together in the course of loading through the Mechanical Ore Handling Plant undergo any change in their physical and chemical composition as a result of blending.
Whatever be the means employed for the purpose of carrying out the operation, it is the effect of the operation on the commodity that is material for the purpose of determining whether the operation constitutes "processing".
[281B E, 212G H] Nilgiri Ceylon Tea Supplying Co. vs State of Bombay, 10 Sales Tax Cases 500 (Bom.) overruled.
The machinery, vehicles, barges and other items of goods purchased by the assessee for use in carrying the mined ore from the mining site to the river side and from the river side to the Marmagoa harbour fall within the description of goods intended for use in processing of ore for sale within the meaning of sec.
8(3)(b) and Rule 13.
If any of these items of goods are purchased by the assessee as being intended for use as "machinery, plant, equipment, tools, spare parts, stores, accessories, fuel or lubricants" in carrying the mined ore from the mining site to the river side and from the river side to the Marmagoa harbour, they would qualify for inclusion in the Certificate of Registration.
[285D E] F The process of mining comes to an end when ore is extracted from the mines, washed, screened and dressed in the dressing plant and stacked at the mining site and the goods purchased by the assessee for use in the subsequent operations could not therefore be regarded as goods purchased for use "in mining".
The requirement of sec.
8(3) (b) and Rule 13 is that the goods must be purchased for use "in mining" and not use "in the business of mining".
It is only the items of goods purchased by the assessee for use in the actual mining operation which are eligible for inclusion in the certificate of registration under this head and these would not include good purchased by the assessee for use in the operations subsequent to the stacking of the ore at the mining site.
[283C E] Where a dealer is engaged both in mining operation as also in processing the mined ore for sale, the two processes being inter dependent, it would be essential for carrying on the operation of processing that the ore should 274 be carried from the mining site, mined ore for sale, the two processes being inter dependent, it would be essential for carrying on the operation of processing that the ore should be carried from the mining site where the mining operation comes to an end to the place where the processing is carried on and that would clearly be an integral part of the operation of processing and if any machinery, vehicles, barges and other items of goods are used for carrying the ore from the mining site to the place of processing, they would clearly be goods used in processing of ore for sale.
In the present case, the mining of ore is done by the assessee with a view to processing the milled ore through the Mechanical Ore Handling Plant at the Marmagoa harbour and the entire operation of mining ore and processing the mined ore is one integrated process of which transportation of the mined ore from the mining site to the Marmagoa harbour is an essential part.
[284A D] Indian Copper Corporation Ltd. vs Commissioner of Commercial Taxes, 15 STC 259 (SC), followed.
|
ivil Appeal No. 707 of 1978.
Appeal by Special Leave from the Judgment and Order dated 20/21st March, 1978 of the Bombay High Court in SCA No.2868/76.
V. N. Ganpule and Mrs. Veena Devi Khanna, for the Appellant.
V. section Desai and M. N. Shroff for Respondents 1 to 4.
Mrs. Jayashree Wad for Respondent No. 5.
The Judgment of the Court was delivered by PATHAK, J.
This Appeal by special leave is directed against the judgment of the Bombay High Court maintaining an order of the District Court, Poona by which the appellant 's election as President of the Bhor Municipal Council was set aside on an election petition filed by the respondent.
The appellant stood for election to the office of President of the Bhor Municipal Council.
He filed his nomination paper on 21st October, 1974, and the election was held on 17th November, 1974.
The appellant was declared elected the next day and the result of the 268 election was published in the Government Gazette on 25th November, 1974.
The first respondent filed an election petition before the District Court, Poona challenging the appellant 's election.
He alleged that the appellant had been convicted on 26th December, 1973 by the Judicial Magistrate, Bhor under section 16 of the and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 200/ .
Accordingly, he said, by virtue of section 51(2) read with section 16(1)(a) of the Maharashtra Municipalities Act, 1965, the appellant was not qualified for election as President of the Municipal Council.
During the pendency of the election petition the Maharashtra Government made an order under cl.
(a) of sub s.(l) of section 16, Maharashtra Municipalities Act,1965 ("the Act") declaring: "In exercise of the powers conferred by clause (a) of sub section (1) of Section 16 of the Maharashtra Municipalities Act, 1965, the Government is pleased to order that the disqualification incurred by Shri Amrutlal Chunilal Raval, resident of Bhor, Tehsil Bhor, District Poona, should remain in force for a period of six months only from his release on 26th December, 1973.
By order and in the name of the Governor of Maharashtra.
sd/ M. N. Tadkod, Desk Officer.
" The election petition was allowed and the election of the appellant was set aside.
The appellant filed a writ petition in the Bombay High Court against the order setting aside his election, but the writ petition was dismissed by the High Court on 21st March, 1978.
In this appeal, the only point pressed by the petitioner before us is that the order dated 20th November, 1975 made by the State Government was retrospective in operation and consequently removed the disqualification imposed on the appellant on the date he filed his nomination paper.
Sub s.(2) of section 51 of the Act provides that every person qualified to be elected as a Councillor under section 15 shall be qualified for election as President.
Sub s.(1) of s.l5 of the Act provides that every person, whose name is included in the list of voters maintained under s.11 and who is not disqualified for being elected a Councillor under this 269 Act or any other law for the time being in force, shall be qualified, A and every person whose name is not included in the list or who is so qualified, to be elected as a Councillor at any election.
Section 16(1) (a) of the Act provides: "16.
(1) No person shall be qualified to become a Councillor whether by election, co option or nomination, who (a) has been convicted by a Court in India of any offence the maximum punishment for which (with or with out any other punishment) is imprisonment for a term of two years or more and sentenced to imprisonment for any term, unless a period of five years, or such lesser period as the State Government may allow in any particular, has elapsed since his release; or xx xx xx xx xx " The appellant was convicted on 26th December, 1973 for an offence under the of Food Adulteration Act, which.
it is not disputed, fell within the terms of cl.(a) of sub s.(l) of s.16.
He was sentenced to imprisonment until the rising of the court.
Because of the conviction and sentence he suffers the disqualification contemplated by cl.(a), and the disqualification enures for a period of five years from the date of his release from imprisonment.
But, by virtue of the same clause? the State Government has been empowered to substitute a shorter period ,of disqualification.
In other words.
the ordinary run of the clause may be altered by the State Government.
A modification of the normal operation of the statute is contemplated.
Such a modification, to be retrospective.
must indicate clearly that it is so.
There is nothing in the order dated 20th November, 1975 from which it can be inferred that it has retrospective operation.
What it says merely is that the disqualification incurred by the appellant shall remain in force for a period of six months only from his release on 26th December.
The disqualification was incurred by the appellant on 26th December, 1973 and the disqualification was in force when he stood for election.
The date when the disqualification for five years was incurred is the relevant date; the subsequent operation is merely the consequence of the incurring of the disqualification.
In the order was to be beneficial to the appellant, it should have been made retrospective from the date when the disqualification was incurred.
On the plain language.
it must be read as an order reducing the period of disqualification to six months, but to be applied to a disqualification arising after the date when the order was made.
270 A In our opinion, the appellant does not benefit from the order the State Government insofar as his election as President in 1974 is concerned.
In the circumstances, we consider it unnecessary to go into the question whether the State Government has the power under cl.
(a) to make an order with retrospective effect.
l[n the result, the appeal is dismissed with costs to the fifth respondent.
N.V.K. Appeal dismissed.
| IN-Abs | The Maharashtra Municipalities Act, 1965 by sub section (2) of section 51 provides that every person qualified to, be elected as a Councillor under section 15 shall be qualified for election as President.
Section 16(1)(a) provides that no person shall be qualified to become a Councillor whether by election, co option or nomination, if he had been convicted by a Court for any offence the maximum punishment for which is imprisonment for a term of two years or more and sentenced to imprisonment for any term, unless a period of five years, or such lesser period as the Sate Government may allow, has elapsed since his release.
The appellant stood for election to the office of President of the Municipal Council, filed his nomination paper on 21st October 1974, and was declared elected at the election held on 17th November, 1974.
The first respondent filed an election petition before the District Judge challenging the election alleging that the appellant had been convicted on 26th December, 1973 nuder section 16 of the and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 200/ and that by virtue of section 51(2) read with section 16(1)(a) of the Act the appellant was not qualified for election as President of the Municipal Council.
During the pendency of the election petition the Sate Government made an order dated 20th November 1975 under clause (a) of sub section (1) of section 16, declaring that the disqualification incurred by the appellant 'should remain in force for a period of six months only from his release on 26th December, 1973 '.
The District Judge allowed the election petition and the election of the appellant was set aside.
The appellant filed a writ petition, which was dismissed by the High Court.
In the appeal to this Court, it was contended that the order dated 20th November, 1975 made by the State Government was retrospective in operation and consequently removed the disqualification imposed on the appellant on the date he filed his nomination paper.
267 Dismissing the appeal ^ HELD: ( 1 ) The appellant does not benefit from the order of the State Government insofar as his election as President in 1974 is concerned.
[270 A] (2) By virtue of clause (a) of sub section (1) of section 16, the State Government had been empowered to substitute a shorter period of disqualification.
A modification of the normal operation of the statute by the State Government is contemplated.
Such Q modification to be retrospective must indicate clearly that it is so.
[269 E F] In the instant case, disqualification was incurred by the appellant on 26th December, 1973 when he was convicted and sentenced, and the disqualification was in force when he stood for election.
The date when the disqualification for five years was incurred is the relevant date, the subsequent operation is the consequence of the incurring of the disqualification.
If the order was to be beneficial to the appellant, it should have been made retrospective from the date when the disqualification was incurred.
On the plain language, it must be read as an order reducing the period of disqualification to six months, due to be applied to a disqualification arising after the date when the order was made.
[296 G H]
|
tition Nos.
1041 1044 of 1980.
(Under Article 32 of the Constitution) Shanti Bhushan, K. K. Venugopal, A. T. M. Sampath, P. N Ramalingam and R. Satish for the Petitioner.
Lal Narain Sinha, Att.
General of India, M. K. Banerjee, Addl.
and Miss A. Subhashini for Respondents Nos.
P. R. Mridul, P. H. Parekh, C. B. Singh, B. L. Verma, Rajan Karanjawal and Miss Vineeta Caprihan for the Intervener.
K. B. Rohtagi and Praveen Jain for the Intervener.
R. K. Garg and P. K. Jain for the Intervener.
section K. Bagga for the Intervener.
Altaf Ahmed for the Intervener.
section Balakrishnan for the Intervener.
P. H. Parekh for Respondent No. 6 in W.P. No. 1042/79.
The following judgments were delivered: KRISHNA IYER.
The Root Thought The abolition of slavery has gone on for a long time.
Rome abolished slavery, America abolished it, and we did, but only the words were abolished not the thing.
This agonising gap between hortative hopes and human dupes vis a vis that serf like sector of Indian society, strangely described as Scheduled Castes and Scheduled Tribes (SCs and STs, for short), and the administrative exercises to bridge this big hiatus by processes like reservations and other concessions in the field of public employment is the broad issue that demands constitutional examination in the Indian setting of competitive equality before the law and tearful inequality in life.
A fasciculus of directions of the Railway Board has been attacked as ultra vires and the court has to pronounce on it, not philosophically but pragmatically.
"The philosophers have only interpreted the world in various ways; the point is to change it" this was the founding fathers ' fighting faith and serves as perspective setter for the judicial censor.
193 The Backdrop The social backdrop to the forensic problem raised in this litigation is best projected by lines of poetry quoted in Nehru 's Autobiography: Bowed by the weight of centuries he leans Upon his hoe and gazes on the ground, The emptiness of ages on his face, And on his back the burden of the world.
The Problem The dynamics and dialectics of social justice vis a vis the special provisions of the Constitution calculated to accelerate the prospects of employment of the harijans and the girijans in the civil services with particular emphasis on promotions of these categories in the Indian Railways that, in all these cases, is the cynosure of judicial scrutiny, from the angle of constitutionality in the context of the guarantee of caste free equality to every person.
Petitioners ' Challenge The gravamen of the constitutional accusation levelled in this bunch of quasi class actions under article 32 of the Constitution and argued by a battery of counsel led by Shri Shanti Bhushan, with heat and light, passion and reason, is the heartless discrimination shown against vast numbers of members employed by the Railway Administration through its policy directives, by bestowal of unconscionably 'pampering ' concessions, at promotion levels, on these social brackets belonging to the historically suppressed SCs & STs, heedless of over all administrative efficiency in the Indian Railways and frustrating the promotional hopes of the larger human segments of economically downtrodden senior members.
The fall out of this 'benign discrimination ' of helping out the weakest sections has been to blow up, out of all proportion to the social realities, the 'backwardness ' syndrome so as embrace many politically powerful castes disguised as Backward Classes.
This constitutional amulet, rooted largely in caste, the petitioners lament, has been misused and applied in educational and employment fields on an escalating scale.
The perverted result is that a caste riven nation is a spectre that haunts the land, pushing back the patriotic prospect of a homogenised Indian Society of casteless equality and projecting instead the divisive alternative of a heterogeneous caste map of Bharat.
The fundamental failure of this sterile scheme of reservation wise circumvention of the fundamental right to equality, ideologically and pragmatically speaking, has deepened the pathological condition of communalism besetting the Indian polity 194 and split the have nots into snarling camps a consummation disastrously contrary to the constitutional design of abolition of socioeconomic inequality through activist stratagem of equalisation geared to actual attainment of integrated equality.
Logically, the argument leads to the formulation that each caste and community is bargaining politically for bigger bites of the educational and employment cake so much so merit becomes irrelevant or takes a back seat and 'backward ' birth brings a boon.
The constitutional stultification of an integrated India through misuse of 'reservation ' power provided for in articles 15 and 16 meant for the direct 'dalits ' the pollution, by the political Executive, of our founding creed of an egalitarian order by playing casteification politics and the morbid dilution of 'backwardness ' marring the dream of a secular republic by the nightmare of a feudal vivisection of the people if this picture drawn by some counsel be true, even in part, the basic task of transforming the economic order through social justice will be baulked through destructive communal disputes among the masses.
Maybe, this may weaken the social revolution, leave an indelible stain and incurable wound on the body politic and justify the censure by history of the engineers of our political power and electoral processes.
Hearing the arguments of the petitioners one wonders, "Is caste the largest political party ?" Has protective discrimination, so necessary in an insufferably unequal society, created a Frankenstein 's monster ? Have we no dynamic measures to drown social, economic and educational backwardness of whole masses except the traditional self perpetuating quasi apartheidisation called 'reservation ' ? Surely, our democratic, secular socialist republic is no wane moon but a creative power rooted in equal manhood, an egalitarian reservoir of vast human potential, a demographic distribution of talent benumbed by brahman centuries of social injustice but now seeking human expression under a new dispensation where 'chill penury ' shall no longer 'repress their noble rage '.
Caste, undoubtedly, in a deep seated pathology to eradicate which the Constitution took care to forbid discrimination based on caste, especially in the field of education and services under the State.
The rulings of this court, interpreting the relevant Articles, have hammered home the point that it is not constitutional to base identification of backward classes on caste alone qua caste.
If a large number of castes masquerade as backward classes and perpetuate that division in educational campuses and public offices, the whole process of a caste free society will be reversed.
We are not directly concerned with backward classes as such, but with the provisions ameliorative of the 195 Scheduled Castes and the Scheduled Tribes.
Nevertheless, we have to consider seriously the social consequences of our interpretation of article 16 in the light of the submission of counsel that a vested interest in the caste system is being created and perpetuated by over indulgent concessions, even at promotional levels, to the Scheduled Castes and the Scheduled Tribes, which are only a species of castes.
"Each according to his ability" is being substituted by "each according to his caste", argue the writ petitioners and underscore the unrighteous march of the officials belonging to the SCs & STs over the humiliated heads of their senior and more meritorious brothers in service.
The after math of the caste based operation of promotional preferences is stated to be deterioration in the over all efficiency and frustration in the ranks of members not fortunate enough to be born SCs & STs.
Indeed, the 'inefficiency ' bogie was so luridly presented that even the railway accidents and other operational calamities and managerial failures were attributed to the only villain of the piece viz., the policy of reservation in promotions.
A constitutionally progressive policy of advantage in educational and official career based upon economic rather than social backwardness was commended before us by counsel as more in keeping with the anti caste, pro egalitarian tryst with our constitutional destiny.
And, Shri Shanti Bhushan, at one stage, helped the court realise the consequences of its verdict if it upheld the pampering package of promotional preferences by warning us of running battles in the streets, a sort of caste war, against birth based 'privileges ' for the harijan girijan millions.
Our Approach Of course, judicial independence has one dimension, not fully realised by some friends of freedom.
Threats of mob hysteria shall not deflect the court from its true accountability to the Constitution, its spirit and text belighted by all the sanctioned materials The other invisible sacrifice of judicial independence relevant to this case is the unwitting surrender to "the spirit of the group in which the accidents of birth or education or occupation or fellowship have given us (judges) a place.
No effort or revolution of the mind will overthrow utterly and at all times the empire of these subconscious loyalties.
" We quote what the great Justice Cardozo has courageously confessed : I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments.
Even these forces are seldom fully in consciousness.
They lie so near the surface, however, that their existence and 196 influence are not likely to be disclaimed.
But the subject is not exhausted with the recognition of their power.
Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man whether he be litigant or judge.
The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by. . .
We shall never be able to flatter ourselves, in any system of judicial interpretation, that we have eliminated altogether the personal measures of the interpreter.
In the moral sciences, there is no method or procedure which entirely supplants that subjective reason.
We may figure the task of the judge, if we please, as the task of a translator, the reading of signs and symbols given from without.
None the less, we will not set men to such a task, unless they have absorbed the spirit, and have filled themselves with a love, of the language they must read.
The British echo of this judicial weakness is heard in Prof. Griffith 's words: These judges have by their education and training and the pursuit of their profession as barristers, acquired a strikingly homogeneous collection of attitudes, beliefs and principles, which to them represents the public interest.
The emphasis on the subtle invasions from within upon functional autonomy and forensic objectivity mentioned by Cardozo will be evident when we turn to the pathetic saga of the depressed classes, even today, painted by the other side.
The learned Attorney General, less militant but not less firm in his submissions, called all this a caricature of the poignant facts of life and called upon us to assess the facts with cold objectivity and warm humanity casting aside possible sympathies suggested by Justice Cardozo and Prof. Griffith.
We, as judges dealing with a socially charged issue of constitutional law, must never forget that the Indian Constitution is a National Charter pregnant with social revolution, not a Legal Parchment barren of militant values to usher in a democratic, secular, socialist society which belongs equally to the masses including the harijan girijan millions hungering for a humane deal after feudal colonial history 's long night.
Granville Austin quotes profusely from the Constituent Assembly proceedings to prove the goal of the Indian Constitution to be 197 social revolution.
Radhakrishnan, representing the broad consensus, said that India must have a 'socioeconomic revolution ' designed not only to bring about the real satisfaction of the fundamental needs of the common man, but to go much deeper and bring about 'a fundamental change in the structure of Indian society '.
The Cultural Core of the Constitutional Protection: Let us get some glimpses of history to get a hang of the problem. 'In thy book record their groans ' may be the right quote to begin with.
We cannot blink at the agony of the depressed classes over the centuries condemned by all social reformers as rank irreligion and social injustice.
Swami Vivekananda, for instance, stung by glaring social injustice, argued(2): The same power is in every man, to the one manifesting more, the other less.
Where is the claim to privilege.
All knowledge is in every soul, even in the most ignorant, he has not manifested it, but, perhaps he has not had the opportunity the environments were not, perhaps, suitable to him.
When he gets the opportunity he will manifest it.
The idea that one man is born superior to another has no meaning in Vedanta; that between two nations one is superior and the other inferior has no meaning whatsoever. .
Men will be born differentiated; some will have more power than others.
We cannot stop that. but that on account of this power to acquire wealth they should tyrannies and ride roughshod over those, who cannot acquire so much wealth, is not a part of the law, and the fight has been against that.
The enjoyment of advantage over another is privilege, and throughout ages the aim of morality has been its destruction. . .
Our aristocratic ancestors went on treading the common masses of our country under foot till they became helpless, till under this torment the poor, poor, people nearly forgot that they were human beings.
They have been compelled to be merely hewers of wood and drawers of water for centuries, so much so, that they are made to believe that they are born 198 as slaves, born as hewers of wood and drawers of water.
With all our boasted education of modern times, if anybody says a kind word for them, I often find our men shrink at once from the duty of lifting them up, these poor downtrodden people.
Not only so, but I also find that all sorts of most demoniacal and brutal arguments, culled from the crude ideas of hereditary transmission, and other such gibberish from the western world are brought forward in order to brutalise and tyrannies over the poor, all the more.
Aye, Brahmins, if the Brahmin has more aptitude for learning on the ground of heredity than the Pariah, spend no more money on the Brahmin 's education, but spend all on the Pariah.
Give to the weak, for there all the gift is needed.
Our poor people, these down trodden masses of India, therefore, require to hear and to know what they really are.
Aye, let every man and woman and child, without respect of caste or birth, weakness and strength, hear and learn that behind the strong and the weak, behind the high and the low, behind everyone, there is that Infinite Soul, assuring that infinite possibility and the infinite capacity of all to become great and good.
Let us proclaim to every soul 'Arise, awake and stop not till the goal is reached.
Arise, awake ! Awake from the hyprotism of weakness.
None is really weak; the soul is infinite, omnipotent and omniscient.
Stand up, assert yourself, proclaim the God within you, do not deny Him ! Too much of inactivity, too much of weakness, too much of hypnotism has been and is upon our race. .
Power will come, glory will come, goodness will come, purity will come, and everything that is excellent will come, when this sleeping soul is roused to self conscious activity. .
Our proletariat are doing their duty. . is there no heroism in it ? Many turn out to be heroes, when they have some great task to perform.
Even a coward easily gives up his life, and the most selfish man behaves disinterestedly when there is a multitude, to cheer them on but blessed indeed is he who manifests the same unselfishness and devotion to duty in the smallest of acts.
unnoticed by all and it is you who are actually doing this, ye ever trampled labouring classes of India ! I bow to you.
There was the Everest presence of Mahatma Gandhi, the Father of the Nation, who staked his life for the harijan cause.
There was Baba 199 Saheb Ambedkar a mahar by birth and fighter to his last breath against the himalayan injustice to the harijan fellow millions stigmatised by their genetic handicap who was the Chairman of the drafting committee of the Constituent Assembly.
There was Nehru, one of the foremost architects of Free India, who stood four square between caste suppression by the upper castes and the socialist egalitarianism implicit in secular democracy.
These forces nurtured the roots of our constitutional values among which must be found the fighting faith in a casteless society, not by obliterating the label but by advancement of the backward, particularly that pathetic segment described colourlessly as Scheduled Castes and Scheduled Tribes.
To recognise these poignant realities of social history and so to interpret the Constitution as to fulfil itself, not eruditely to undermine its substance through the tyranny of literality, is the task of judicial patriotism so relevant in Third World conditions to make liberation a living fact.
The learned Attorney General drew our attention to the yawning gap between the legitimate expectations of the socially depressed SC & ST and their utter under representation in the Public Services except in such mean jobs as of scavengers and sweepers where no other caste was forthcoming.
Equality of opportunity would be absent so long as equalisation strategy was not put into action, and the State, stage by stage and with great care and experimental eye, took steps to secure the ends of articles 16(1) and 16(4), read in the light of the Preambular promise of equality, fraternity and dignity, the Part IV directive of promotion of educational and economic interests of the SC & ST and the Special Chapter, especially article 336, devoted to better representation of the SC & ST in the services and posts in connection with the affairs of the Union and States.
We could not apprehend the social dimension of the stark squalour of SC&ST by viewing article 16 (4) through a narrow legal aperture but only by an apercu of the broader demands of social democracy, without which the Republic would cease to be a reality to one fifth of Indian humanity.
The final address to the Constituent Assembly by Dr. Ambedkar drives home this point, not to interpret but to illumine the scheme of the equality code and the casteless society plea : The third thing we must do is not to be content with mere political democracy.
We must make our political democracy a social democracy as well.
Political democracy can 200 not last unless there lies at the base of it social democracy.
What does social democracy mean ? It means a way of life which recognises liberty, equality and fraternity as the principles of life.
These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity.
They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy.
Liberty cannot be divorced from equality, equality cannot be divorced from liberty.
Nor can liberty and equality be divorced from fraternity.
Without fraternity, liberty and equality could not become a natural course of things.
It would require a constable to enforce them.
We must begin by acknowledging the fact that there is complete absence of two things in Indian society.
One of these is equality.
On the social plane, we have in India a society based on the principles of graded inequality which means elevation of some and degradation for others.
On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty.
On the 26th January 1950, we are going to enter into a life of contradictions.
In politics we will have equality and in social and economic life we will have inequality.
In politics we will be recognizing the principle of one man one vote and one vote one value.
In our social and economic structure, continue to deny the principle of one man one value.
How long shall we continue to live this life of contradictions ? How long shall be continue to deny equality in our social and economic life ? If we continue to deny it for long, we will do so only by putting our political democracy in peril.
We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure or political democracy which this Assembly has so laboriously built up (emphasis added).
Indeed from another angle of vision, article 16(4) serves to correct a gross social distortion and denial of human rights to whole groups ostracised by feudal history.
A holistic concept of human rights includes among its components socioeconomic rights for, without basic conditions of social justice, survival with human dignity is an impossibility.
Thus, a great socioeconomic plan to uplift the harijan girijan groups is a must for living equality, proclaimed by articles 14 to 16, to become an active reality.
It must be stated that the petitioners did not contest the need for State action to raise the lot of these backward most social sectors but objected, its widespread 201 erosion of the right to basic equality which belongs to the have nots in the country.
Where do we draw the line ? These are the disturbing issues going to the root of progressive nationalism raised by the writ petitioners and turned against them by the State, but we are not inclined or entitled to venture into the political wisdom of governmental policies vis a vis 'backward ' community, calculus save where constitutionality, falling within the judicial jurisdiction, confronts us.
We must therefore confine the forensic focus to the specific issue of profound import projected by the aggrieved petitioners whose chief attack is against being passed over, seniority and superior merit notwithstanding, in favour of alleged neophytes or nitwits merely because, by birth, the latter belong to the SC&ST species, trampling underfoot, in the process, the fundamental rights of equal opportunity entrenched in articles 14 and 16(1) of the Constitution.
The dimensions of the problem, the human numbers involved and the agitational potential said to be simmering in the civil services were vividly drawn at the bar by one side.
The tragic tale of die hard decades of inequality even after Freedom, the socioeconomic miles to go ' and the constitutional 'promises to keep ' (over which judges will not legally sleep) before the dalit brethren may break their chains and become at least distant neighbours to the less socially handicapped sector, were highlighted pragmatically, statistically, hierarchically, even desperately, by the proponents of the impugned circulars (Annexures F to O covered by Prayers I to X).
These submissions serve as poignant background but the decision on the vires of the Railway Board 's directives will depend on constitutional interpretation applied to Indian actualities, not to idealised abstractions or theoretical possibilities.
True, the politicisation of casteism its infiltration into unsuspected human territories and the injection of caste consciousness in schools and colleges via backward class reservation are a canker in the rose of secularism.
More positive measures of levelling up by constructive strategies may be the developmental needs.
But the judicial process while considering constitutional questions, must keep politics and administrative alternatives as out of bounds except to the extent economics, sociology and other disciplines bear scientifically upon the proposition demanding court pronouncement.
Here the sole issue, spread out into the validity of the supposed sinful circulars (Annexures F to O covered by Prayers I to X) is whether article 16, in its sweep and savings, does permit State action in favour of socially and economically backward classes, especially the constitutionally favoured category called the SC & ST, to the point of liberal concessions slurring over 202 'age ', 'merit ' and the like, not merely at the initial entrance gate but even at the higher promotional docks.
Whether alternative policies should have been chosen by Government or would have served better to remove the handicaps of the SC & STs, whether the advantages conferred on these classes are too generous and overly compassionate and whether the considerable numbers of the economically destitute receive the same sympathy as social have nots categorised as SC & ST these and other speculative maybes, are beyond the courts orbit save where article 16 is hit by these omissions and commissions.
Nor is it the court 's province to question the conscionableness or propriety of constitutional provisions which display ultra concern for members of the SC & ST.
The court functions under the Constitution, not over it, interprets the Constitution, not amends it, implements its provisions, not dilutes it through personal philosophy projected as constitutional construction.
Objective tuned to constitutional wavelengths is our function and if only if constitutional guarantees have clearly been violated will the court declare as non est such governmental projects as go beyond the mandates of Part III read in harmony with Part IV.
If, on a reasonable construction, the Administration 's special provisions under article 16(4) exceed constitutional limits, it is the duty of the court to strike dead such project.
Even so, while viewing the legal issues we must not forget what is elementary that law cannot go it alone but must function as a member of the sociological ensemble of disciplines.
If one out of a few reasonably tenable constructions of the constitutional provisions vis a vis the impugned executive directives may sustain the latter, the court should and would refrain from using the judicial guillotine.
There is a comity of coordinate constitutional instrumentalities geared to shared constitutional goals which persuades the judicature to sustain rather than slay, save where the breach is brazen, the transgression is plain or the effective co existence of the fundamental right and the administrative scheme is illusory.
This Court has, on former occasions, upheld executive and legislative action hovering "perilously near" but not plunging into unconstitutionality (see In re: Kerala Education Bill (1959 SCR 995 at 1064).
It is a constant guideline which we must vigilantly remember, as we have stated earlier, that our Constitution is a dynamic document with destination social revolution.
It is not anaemic nor neutral but vigorously purposeful and value laden as they very descriptive adjectives of our Republic proclaim.
Where ancient social injustice freezes the 'genial current of the soul ' for whole human segments our Constitution is not non aligned.
Activist equalisation, as a realistic strategy of 203 producing human equality, is not legal anathema for articles 14 and 16.
To hold otherwise is constitutional obscurantism and legal literalism, allergic to sociologically intelligent interpretation.
The Preamble which promises justice, liberty and equality of status and opportunity within the framework of Secular, Socialist Republic projects a holistic perspective.
article 16 which guarantees equal opportunity for all citizens in matters of State Service inherently implies equalisation as a process towards equality but also hastens to harmonize the realistic need to jack up 'depressed ' classes to overcome initial handicaps and join the national race towards progress on an equal footing and devotes article 16(4) for this specific purpose.
In a given situation of large social categories being submerged for long, the guarantee of equality with the rest is myth, not reality, unless it is combined with affirmative State action for equalisation geared to promotion of eventual equality.
Article 16(4) is not a jarring note but auxiliary to fair fulfillment of article 16(1).
The prescription of article 16(1) needs, in the living conditions of India, the concrete sanction of article 16(4) so that those wallowing in the social quagmire are enabled to rise to levels of equality with the rest and march together with their brethren whom history had not so harshly hamstrung.
To bury this truth is to sloganise article 16(1) and sacrifice the facts of life.
This is not mere harmonious statutory construction of article 16(1) and (4) but insightful perception of our constitutional culture, reflecting the current of resurgent India bent on making, out of a sick and stratified society of inequality and poverty, a brave new Bharat.
If freedom, justice and equal opportunity to unfold one 's own personality, belong alike to bhangi and brahmin, prince and pauper, if the panchama proletariat is to feel the social transformation article 16(4) promises, the State must apply equalising techniques which will enlarge their opportunities and thereby progressively diminish the need for props.
The success of State action under article 16(4) consists in the speed with which result oriented reservation withers away as, no longer a need, not in the everwidening and everlasting operation of an exception [article 16(4)] as if it were a super fundamental right to continue backward all the time.
To lend immortality to the reservation policy is to defeat its raison de 'etre; to politicise this provision for communal support and Party ends is to subvert the solemn undertaking of article 16(1), to costeify 'reservation ' even beyond the dismal groups of backward most people, euphemistically described as SC & ST, is to run a grave constitutional risk.
Caste, ipso facto, is not class in a secular State.
204 The authentic voice of our culture, voiced by all the great builders of modern India, stood for abolition of the hardships of the pariah, the mlecha, the bonded labour, the hungry, hard working half slave, whose liberation was integral to our Independence.
To interpret the Constitution rightly we must understand the people for whom it is made the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the principled solution of social disabilities.
This synthesis of ends and means, of life 's maladies and law 's remedies is a part of the know how of constitutional interpretation if alienation from the people were not to afflict the justicing process.
A statute rarely stands alone.
Back of Minerva was the brain of Jove, and behind Venus was the spume of the ocean.
These broader observations are necessary to set our sights right, to appreciate that our Constitution lays the gravestone on the old unjust order and the cornerstone of the new humane order.
This constitutional consciousness is basic to interpretative wisdom.
We may now start with the facts of the case and spell out the particular problems demanding our consideration.
Constitutional questions cannot be viewed in vacuo but must be answered in the social milieu which gives it living meaning.
After all, the world of facts enlivens the world of words.
And logomachy is not law but a fatal, though fascinating, futility if alienated from the facts of life.
So, before pronouncing on the legality of the impugned ten orders we must sketch the social setting in which they were issued and the socioeconomic facts which clothe article 16(4) with flesh and blood. 'The wisest in council, the ablest in debate and the most agreeable companion in the commerce of human life, is that man who has assimilated to his understanding the greatest number of facts. ' The facts The Indian Railways, with an impressive record of expansion, employs colossal numbers of servants in various typically hierarchical classes and grades.
While the Indian Railways Act, 1890, substantially regulates many of the functions of the railway administration in India, the Railway Board is constituted under the , with a view more effectively to control the administration of railways.
The Central Government is statutorily empowered 205 to invest the Railway Board with all or any of the powers and functions of the Central Government under the Indian Railways Act, 1890.
Power is also given by section 2 to vest in the Railway Board the capacity to make general rules for railways administered by the Government.
Of course, the investment of powers upon the Railway Board is, broadly speaking, subject to the condition that the Central Government retains the ultimate authority in all matters connected with the Railway Administration.
The Ministry of Home Affairs, in the Government of India, deals usually with all matters of personnel, conditions of service of the Central Government staff and the like.
Policy decisions regarding matters covered by article 16(4) apparently originate from the Ministry of Home Affairs and emanate to the various institutions like the Railway Board which responsively implement them.
In the present case, ten directives were issued by the Railway Board on different occasions, which disclosed 'benign discrimination ' in favour of Scheduled Castes and Scheduled Tribes and are challenged by the petitioners as 'reverse discrimination ', if we may use that expression popularised in American legalese.
These directives were designed to protect and promote the interests of members of the SC & ST in the matter of their employment under the Indian Railway Administration and they specially related to the softer criteria for promotion.
The Railway Board acted, as is discernible from the relevant orders, in obedience to the policy decisions of the Ministry of Home Affairs.
Some argument was addressed on the validity of the Railway Board 's orders on procedural and other technical grounds.
We see no substance in them.
The Board was bound to carry out the Central Government 's directives under article 16(4) and did it.
The broader issue of 'benign discrimination ' deserves close study.
The meat of the matter, to put it that way, is the gross discrimination alleged to be implicit in the several Circulars of the Railway Board and the non applicability of article 16(4) to save these circulars.
The focus of this litigation must primarily turn on that issue and the court must navigate towards egalitarian justice at the level of promotion posts in the public services, keeping the land mark rulings of this Court as mariner 's compass.
The disturbing perpetuation of socioeconomic suppression of a whole fifth of Indian manhood the dalits and the righteous resistance to prolonged 'reverse casteism ' resulting in deepening demoralization of the economically oppressed the soshits have been projected by counsel on the forensic screen as a conflict between equalisation and equality.
Our founding fathers, familiar with social dialectics and socialist enlightenment, surely would have intended to bring both these have not categories together as a 206 broad brotherhood against the die hard Establishment and would never have contemplated a fratricidal strategy which would blind and divide brothers in distress the dalits and the soshits and harm the integration of the nation and its developmental march.
Unless by dialectical approach sociologists lay bare this false dilema of dalits versus soshits, the growing distrust in democracy will deepen, the jurisprudence of constitutional revolution and egalitarian justice will fade in the books and the founding hopes of January 26, 1950, will sour into cynical dupes of the masses, decades after! Wider perspectives must, therefore, inform our study of the equality code (articles 14 to 16) to rid it of social contradictions and read into it the need for a dalit soshit partnership in demanding social justice.
Felix Frankfurter set the judicial function when he said :(1) A Judge should be compounded of the faculties that are demanded of the historian and the philosopher and the prophet.
The last demand upon him to make some forecast of the consequences of his action is perhaps the heaviest.
To pierce the curtain of the future, to give shape and visage to mysteries still in the womb of time, is the gift of the imagination.
It requires poetic sensibilities with which judges are rarely endowed and which their education does not normally develop.
These judges must have something of the creative artist in them; they must have antennae registering feeling and judgment beyond logical, let alone quantitative, proof.
Be that as it may, the court must go to the constitutional basics for guidance, decode the articles indifferent to agitational portents and ideological speculations, but responsive to the urgent implementation of article 38 into the reality of Indian life.
Article 38 reads: 38(1).
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.
(2) The State shall in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
(emphasis added) 207 The learned Attorney General, while emphasising the egalitarian commitment of the Constitution over the whole range of public services throughout their career, defended the impugned orders by law and logic, pragmatics and statistics, and countered the hypotheticals of the petitioners by the actual furnished by official facts and figures.
He also relied on a few precedents, in particular, Rangachari 's case(1) and Thomas 's case(2) both of which bind this Bench.
He also sought to explain away the effect of Balaji 's case(3) and Devadason 's case(4) on which the other side had heavily relied to nullify some of the circulars.
The Union of India placed before us its case that notwithstanding measures for bringing the gap in the matter of gross under representation in the Administration, no adequate improvement had been registered and, and so, more dynamic State action, to fulfil its constitutional tryst with the frustrated fifth of the people described as SC & ST, became necessitous.
The raw reality of meagre harijan and girijan presence in the public services conscientised the Administration into taking a series of cautions steps to catalyse the prospects of these categories entering the many Departments of Government not merely at the initial stage but also at promotional points and in appointments to supervisory posts so as to become members of the higher echelons.
The learned Attorney General contended that such affirmative actions, slurring over fanatical and financial insistence on so called merit and seniority, was in conformity with article 16(1) itself and, in any case, was protected by Art.16(4).
Maybe, the human numbers outside the SC & ST honestly suffer some meyhem in their career especially at the higher notches of promotion after long stagnation and are bitter that the shudra or panchama steals a march over him now, although the poignant pages of earlier history have been a negation of personhood then for millions of the dregs of society, desperately driving Dr. Ambedkar to vow "I shall not die a Hindu".
But the synthesis of article 16, not the antithesis between article 16(1) and article 16(4), gives the clue to creative constitutional construction.
The learned Attorney General 's plea was that in a society of chronic inequality and scarcity of employment, actual equality could never be midwifed without birth pangs, and discriminatory unconstitutionality could not vitiate programmes meant to achieve real life 208 equality, unless we took a pragmatic view.
This approach is permissible if we follow Chief Justice Warren: Our judges are not monks or scientists, but participants in the living stream of our national life, steering the law between the dangers of rigidity on the one hand and of formlessness on the other.
Our system faces no theoretical dilemma but a single continuous problem: how to apply to ever changing conditions the never changing principles of freedom.
Let us draw the precise battle lines to contain the constitutional conflict within the actual limits.
Equality of opportunity in matters of State employment is a constitutional guarantee and no citizen can be discriminated against on the score only of sex, caste, descent, place of birth or residence.
So, one point pressed before us is that Scheduled Castes cannot be a favoured class in the public services because they are 'castes ' and cannot claim preference qua castes unless specially saved by article 16(4).
And article 16(4) speaks of class, not caste and the two are different, however, politically convenient the confusion may be.
Another vital contention put forward by counsel for the petitioners was that article 16(4) could not apply to promotional levels.
A third basic plea was that efficiency of administration was a constitutional consideration under article 335 and could not be a sacrificial goat to propitiate the backward class Kali.
The impugned circulars offended against efficiency, both by fomenting frustration among the Civil Services indirectly producing inefficiency and by manning higher posts which demand higher skills with men of lower competitive calibre and less experience in service thus posting 'efficiency risks ' in strategic positions violating article 335.
The contentious issue is now clear.
Are SC & ST mere castes within the sense of article 16(2) ? If so, can article 16(4) help these castes through rule of promotional partiality ? And, in any case, can article 16(4) rescue rules of benign discrimination if the impact thereof is generation of gross inefficiency in administration ? Is not economic 'have notism ' a better yardstick of backwardness in secular India? A brief resume of the structure of the Railway Services may help understand the rival arguments in their precise setting.
The pyramid begins, at the base, with Class IV posts and rises to the apex, by stages, through Class III, Class II and Class I. True to our hierarchical culture, pervasive in Indian Services, there are further sub divisions, consisting of many categories in each class and many grades in each category.
The agencies for recruitment are the Union Public Service 209 Commission, the Railway Service Commission and the top officers authorised by the Railway Board in this behalf.
Ordinarily the first entry into each category is filled by direct recruitment, if we may use language loosely.
Thereafter, appointments to higher grades/categories are usually by promotion.
The promotional processes are traditionally two fold, viz., (a) by departmental selection based on merit cum seniority, and (b) by escalation, in the order of seniority, from the lower to the higher grade/category, subject, of course to being weeded out if found unfit.
Candidates belonging to SC&ST receive certain pronounced advantages both at the stage of initial recruitment and later at the promotion stage.
The Indian Railway Establishment Manual a compendious collection of rules and directions bearing on the conditions of employment of railway personnel, sets out all the information.
Speaking population wise and in approximate terms, the Scheduled Castes constitute about 15% and the Scheduled Tribes 7 1/2%.
Broadly based on the ratio of the strength of SC&ST to the whole population, the Railway Administration provided for reservation for candidates belonging to the SC&ST.
This percentage of reservation applied to Class IV, Class III, Class II and, in a limited way, to Class I posts.
The reservation is worked out by the method known as 40 point roster.
These special provisions notwithstanding the intake of these communities, stagnating at the bottom of the Indian policy, continued to be chronically niggardly.
To increase the rate of absorption of SC&ST into the services, further facilities, concessions and relaxations were offered from time to time.
Despite these seemingly attractive employment opportunities the dismal backwardness in the matter of representation in administration from among the SC&ST was such that the vacancies reserved for them remained, in many cases, unfilled by SC & ST candidates.
Lest the overall representation of the members of the SC&ST should continue deplorably negligible Government adopted a policy of "carry forward", for upto three recruitment years, of reserved vacancies if enough number of candidates from the said groups did not get selected.
The "carry forward" rule was calculated to keep open reserved vacancies for at least three years so that the under representation could be made up at least in part.
Homogenisation of the dalits into the national mainstream was regarded as vital to our democracy by the State and these positive strategies of special opportunities vis a vis SC&ST had, as its raison d 'etre, only the imperative need to exercise the haunting spectre of the socially and economically suppressed species and to abolish the utter squalour of SC&ST so that the community at large could march ahead without haggard groups dragging their feet.
Social conscience considers balanced democratic development as the humane justification for selective discrimination.
210 With this backdrop, we may epitomise the ten 'tainted ' directives and scan them for their unconstitutionality.
Special provisions for depressed classes and even other castes have a pre constitution history.
After the Constitution was enacted the legality of old rules based on caste became moot and the Central Government revised its policy.
The post Constitution re incarnation of the communal G.O. concentrated not on caste orientation but on elimination of socioeconomic suppression and the diverse ways to achieve this objective.
We must remember, in this context, not merely the four classes of Service but also the broad division of the staff into selection and non selection posts.
The first policy statement of the Union of India on the issue of better representation of SC&ST in Government Service begins with Resolution No. 42/21/49 NG 8 of September 13, 1950.
To understand the functional compulsions, purpose, orientation and constitutional parameters relevant to such a policy formulation we have to refer to a few articles of the Constitution.
Articles 14 to 16 form a code by themselves and embody the distilled essence of the Constitution 's casteless and classless egalitarianism.
Nevertheless, our founding fathers were realists, and so did not declare the proposition of equality in its bald universality but subjected it to certain special provisions, not contradicting the soul of equality, but adapting that never changing principle to the ever changing social milieu.
That is how articles 15(4) and 16(4) have to be read together with articles 15(1) and 16(1).
The first sub article speaks of equality and the second sub article amplifies its content by expressly interdicting caste as a ground of discrimination.
Article 16(4) imparts to the seemingly static equality embedded in article 16(1) a dynamic quality by importing equalisation strategies geared to the eventual achievement of equality as permissible State action, viewed as an amplification of article 16(1) or as an exception to it.
The same observation will hold good for the sub articles of article 15.
Thus we have a constitutional fundamental guarantee in articles 14 to 16; but it is a notorious fact of our cultural heritage that the Scheduled Castes and the Scheduled Tribes have been in unfree Indian nearly dehumanised, and a facet of the struggle for Freedom has been the restoration of full personhood to them together with the right to share in the social and economic development of the country.
Article 46 is a Directive Principle contained in Part IV.
Every Directive Principle is fundamental in the governance of the country and it shall be the duty of 211 the State to apply that principle in making law.
Article 46, in emphatic terms, obligates the State. "to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
Reading article 46 together with article 16(4) the luscent intent of the Constitution framers emerges that the exploited lot of the harijan girijan groups in the past shall be extirpated with special care by the State.
The inference is obvious that administrative participation by SC&ST shall be promoted with special care by the State.
Of course reservations under article 16(4) and promotional strategies envisaged by article 46 may be important but shall not run berserk and imperil administrative efficiency in the name of concessions to backward classes.
Article 335 enters a caveat in this behalf: 335.
The claims of the members of the scheduled Castes and the Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
The positive accent of this Article is that the claims of SC&ST to equalisation of representation in services under the State, having regard to their sunken social status and impotence in the power system, shall be taken into consideration.
The negative element, which is part of the Article, is that measures taken by the State, pursuant to the mandate of articles 16(4), 46 and 335, shall be consistent with and not subversive of "the maintenance of efficiency of administration".
Within this broad constitutional framework the Central Government worked out its policy, way back in 1950, and made subsequent alterations in keeping with the needs of the situation, the poor progress registered, the militant impatience of the affected SC&ST and the improved tactics to hasten abolition of the depressed status of these groups by effective equalisation with the rest.
Even here, it may be noticed that the Constitution has given a special position for the Scheduled Castes and the Scheduled Tribes.
Article 341 makes it clear that a 'Scheduled Caste ' need not be a 'caste ' in the conventional sense and, therefore, may not be a caste within the meaning of articles 15(2) or 16(2).
Scheduled Castes become such only if the President specifies any castes, races or tribes or 212 parts or groups within castes, races or tribes for the purpose of the Constitution.
So, a group or a section of a group, which need not be a caste and may even be a hotchpotch of many castes or tribes or even races, may still be a Scheduled Caste under article 341.
Likewise, races or tribal communities or parts thereof or part or parts of groups within them may still be Scheduled Tribes (article 342) for the purpose of the Constitution.
Under this definition, one group in a caste may be a Scheduled Caste and another from the same caste may not be.
It is the socioeconomic backwardness of a social bracket, not mere birth in a caste, that is decisive.
Conceptual errors creep in when traditional obsessions obfuscate the vision.
This aspect has been referred to in the State of Kerala vs N. M. Thomas by me, and dealt with at more length by Ray, C.J.: Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste.
In Bhaiyalal vs Hari kishan Singh and Ors.(2) this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a Scheduled Caste and his declaration that he belonged to the Chamar caste which was a Scheduled Caste could not be permitted because of the provisions contained in Article 341.
No Court can come to a finding that any Caste or any tribe is a Scheduled Caste or Scheduled Tribe.
Scheduled Caste is a caste as notified under Article 366(25).
A notification is issued by the President under Article 361 as a result of an elaborate enquiry.
The object of Article 341 is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer.
The President notifies Scheduled Castes not with reference to any caste characteristics but their abysmal backwardness, as is evident from the scheme of Part XVI.
He appoints, under article 338, a Special Officer whose duty is to investigate into all matters relating to safeguards for the SC&ST.
The Constitution provides not merely for adequate representation of SC&ST to services and posts under the Union and States, but also provides for reservation of seats for SC&ST in the Legislatures.
The cursory study of the Articles relating to the status and safeguards of SC&ST puts it beyond doubt that the founding fathers have assigned to them a special place and shown towards them special concern and charged the State with special mandates to redeem 213 these handicapped human sectors from their grossly retarded situation.
Indeed, they are not merely backward, but are the backwardmost and cannot be equated with just any other caste in the Hindu fold.
It is, therefore, problematic whether article 16(2) when it refers to equality among castes deals with the Scheduled Castes which, as shown above, may even be made of a plurality of castes or groups or races and may vary from State to State.
Also, a caste, subjected qua caste, to the most humiliating handicaps may be a backward class although the Court will hesitate to equate caste with class except where the degree of dismalness is dreadful.
The relevance of this point will be clear when we deal with the legal submissions of counsel.
We will now state, in an abbreviated form, the various measures of the Railway Board (in response to decisions of the Ministry of Home Affairs) for reservation in services of SC&ST.
After noting the policy of communal representation in the Services before the Constitution and the constitutional ban on discrimination by way of reservation on the ground of caste save in the case of SC&ST (and in some cases Anglo Indians with whom we are unconcerned here) the Home Ministry proceeded to spell out the new stance: Pending the determination of the figures of population at the Census of 1951 the Government of India have decided to make the following reservations in recruitment to posts and services under them: (a) Scheduled Castes: The existing reservation of 12 1/2 % of vacancies filled by direct recruitment in favour of the Scheduled Castes will continue in the case of recruitment of posts and services made, on an all India basis by open competition, i.e. through the Union Public Service Commission or by means of open competitive test held by any other authority.
Where recruitment is made otherwise than by open competition the reservation for Scheduled Castes will be 16 2/3 as at present.
(b) Scheduled Tribes: Both in recruitment by open competition and in recruitment made otherwise than by open competition there will be a reservation in favour of members of Scheduled Tribes of 5% of the vacancies filled by direct recruitment.
Under the Constitution all citizens of India are eligible for consideration for appointment to posts and services under the Central Government irrespective of their 214 domicile or place of birth and there can be no recruitment to any Central Service which is confined by rule to the inhabitants of any specified area.
In practice however recruitment to class I and II services and posts is likely to attract candidates from all over India and will be on a truly all India basis, while for the majority of Class III services & posts which are filled otherwise than through the Union Public Service Commission only those residing in the area or locality in which the Office is located are likely to apply.
In the latter class of cases the percentages of reservations for Scheduled Castes and Scheduled Tribes will be fixed by Government taking into account the population of the Scheduled Castes and Scheduled Tribes in that area.
Reservations were excluded for promotions and minimum qualifications were a 'must '.
But age relaxation by 3 years (from the maximum fixed for others) was allowed.
This policy is not challenged as unconstitutional and rightly so.
However, this special provision showed only minimal concessions to SC&ST, being the first cautious, conservative, post constitutional measure under article 16(4).
But law is what law does.
Did this reluctant relaxation only on a few grounds work? Constant monitoring of law in action, with an eye on the end result, is social engineering.
The goal here was to awaken the sleeping soul and harness the harijan resource by mainstreaming techniques constitutionally sanctioned.
The policy proved non viable and a change of strategy was called for and by Annexure D the Railway Board altered the rules "with a view to securing increased representation of Scheduled Castes and Scheduled Tribes in the Railway Services".
At the instance of the Home Ministry the Railway Board decided on 5 10 1955 that more realistic relaxations were needed and authorised recruiting bodies to slur over low places obtained by the SC&ST candidates: . .except where such authority considers that the minimum standard necessary for the maintenance of efficiency of the administration has not been reached.
Whenever candidates are selected in this manner, the appointing authorities will make necessary arrangements to give additional training and coaching to the recruits so that they might come up to the standard of other recruits appointed along with them.
The anxiety to level up the lowly human layers by special training so as to maintain administrative efficiency is evident in this directive.
215 Likewise, where direct recruitment, otherwise than by examination was provided for, taking of SC&ST candidates '. . fulfilling a lower standard of suitability than from other communities, was permitted so long as the candidates have the prescribed minimum education and technical qualifications and the appointing authorities are satisfied that the lowering of standards will not unduly affect the maintenance of the efficiency of administration. ' Here again, obsession with 'efficiency ' is manifest.
Then comes what is called the 'carry forward ' rule: (3)(a) if a sufficient number of candidates considered suitable by the recruiting authorities, are not available for the communities for whom reservations are made in a particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates.
The number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be reserved in the following year in the normal course, and to the extent to which approved candidates are not available in that year against this additional quota, a corresponding addition should be made to the number of reserved vacancies in the second following year.
* * * * (b) In the event of suitable Scheduled Caste candidate not being available, a Scheduled Tribe candidate can be appointed in the subsequent reserved vacancy and vice versa subject to adjustment in the subsequent points of the roster.
The quota for two years, if carried forward, would not materially affect the stream of 'merit worthy ' candidates, nor substantially diminish the prospects of non SC&ST candidates in a given year.
So the Railway Board introduced the principle consistently with article 335.
Government moved further because real power could be shared by the weakest sections only if the doors of the higher decks were pened to them.
The higher echelons are the real controllerates, not the menial levels, hierarchically structured as our society is.
Obviously, article 16(4) was not designed to get more harijans into Government as scavengers and sweepers but as 'officers ' and 'bosses ', so that administrative power may become the common property of the high and low, homogenised and integrated into one community.
Social stratification, 216 the bane of the caste system, could be undone and vertical mobility won not by hortative exercises but by experience of shared power.
Viewed thus, the 'open sesame ' strategy for entry into superior cadres could only be by extending concessions at higher levels of 'promotions '.
Annexure D did not make reservations for SC&ST for promotion posts, but merely asked for sympathy on the part of promoting authorities.
Lachrymal exercises, even in government directives, are in practice, little more than skin deep; and elitist alibis, when the ancient anguish of the lowliest & the lost besieges the citadels of the status quo, readily checkmate ameliorative moves.
The harijan lot, in administrative services at the promotional levels, remained a paper hope, a teasing illusion and a promise of unreality.
Article 46, whether we like it or not, ordains that the State shall 'with special care ' promote the interests of the SC&ST.
And so long as the harijan girijan remained an alien to the Civil Service and the janitors for the higher chambers of Administration were themselves non harijan girijan gentlemen, he would be a naive sociologist who thought that mere plea for more sympathy made in official orders would work magic.
Government, on a performance audit of its policy of 'no reservation ' for promotion posts, discovered that the harijan could hardly reach higher positions.
More effective methods were needed.
A radical change in policy was effected by the Railway Board through Annexure F of April 27, 1959. 'Merit ', sanctified by tradition, lost the battle. 'Tradition is a great retarding force, the vis inertiae of history; ' and so, heroic measures of progressive thrust, the Railway Board realised, alone could effect the break through and bring the harijan girijan groups into the higher brackets of Administration Annexure was promulgated providing for reservation in promotions.
This has been challenged before us.
The tepid provision opening up promotion posts for 'reserved ' categories was first confined to Class III and Class II, Class I being too sacrosanct to be soiled by meritless members.
Annexure F reads: Sub: Reservation for members of Scheduled Castes and Scheduled Tribes in posts filled by promotion in Railways.
Reference is invited to Board 's letter No. E55CMI/3 dated 5 10 55.
The Railway Board have, in partial modification of para IV of the above letter, decided as follows: (a) Promotion from Class IV to Class III and from Class III to Class II.
217 The Railway Board have decided that promotions from Class IV to Class III and from Class III to Class II service are of the nature of direct recruitment and the prescribed quota of reservation for Scheduled Castes and Scheduled Tribes should be provided as in direct recruitment.
The field of eligibility in the case of Scheduled Castes and Scheduled Tribes candidates should be four times the number of posts reserved without any condition of qualifying period of service in their case, subject to the condition that such consideration should not normally extend to staff beyond two grades immediately below the grade for which the selection is held.
This reservation was confined to 'selection posts ' and the circular was explicit that "there will be no quota for Scheduled Castes and Scheduled Tribes candidates in respect of promotion to "non selection" posts.
For "general posts" of certain types in Class III, it was laid down: (c) "General Posts" in Class III.
There are certain other types of posts on Railways such as Passenger Guides, Welfare Inspectors, Safety Inspectors Platform Inspectors, Publicity Inspectors, Vigilance Inspectors, etc., which are ex cadre posts filled by drawing staff from more than one branch.
Filling of these posts is in the nature of direct recruitment and the reservation for Scheduled Castes and Scheduled Tribes as applicable to direct recruitment should be applied.
" More chances to pass tests, additional training and coaching to raise the standard of the sub standard were also provided for in the Board 's order.
Homage was thus paid to the 'administrative efficiency ' component of article 335.
This departure regarding reservation at the promotion tier for selection posts was challenged before this Court but upheld in Rangachari 's case.
We will dwell at some length on that ruling later but we may merely mention than an appeal was made to us by counsel for the petitioners that we should reconsider, by reference to a larger bench, the ratio of Rangachari which has been approvingly referred to for nearly two decades by this Court, acted upon by Government throughout and enjoys, if we may say so with great respect, our full concurrence.
Constitutional propositions on which a whole nation directs its destiny are not like Olympic records to be 218 periodically challenge and broken by fresh exercises in excellence but solemn sanctions, with judicial seal set thereon, for the country to navigate towards the haven of human development for everyone.
To play cross word puzzle with constitutional construction is to profane it, unless, of course, a serious set back to the progress of human rights or surprise reversal of constitutional fundamentals has happened.
We find the question discussed, decided and consistently followed since Rangachari and see no reason to open the Pandora 's box.
So it was that we rejected the plea for reconsideration.
Even so, the alternative method of containing Art, 16(4) within the contours of Rangachari was open to counsel and that has been done in argument as will be evident from the discussion on the vires of the subsequent orders of the Board.
All the fire was turned by petitioners ' counsel on promotion 'excesses ' through Railway Board circulars.
Annexure H of August 27, 1979 is one such: Annexure H The Railway Board have now revised their policy in regard to reservation and other concessions to Scheduled Castes and Scheduled Tribes in posts filled by promotion.
The particular concessions are concretised thus: (B) Promotion by selection method (i) Class II appointments: In promotion by selection from Class III to Class II, as a measure of improving representation of Scheduled Castes/ Scheduled Tribes, it has now been decided that, if they are within the zone of eligibility the Scheduled Caste and Scheduled Tribe employees will be given, by the Selection/Departmental promotion Committee, one grading higher than the grading otherwise assignable to them on the basis of their record of service i.e. if any Scheduled Caste or Scheduled Tribe employee has been categorised by the Committee, on the basis of his record of service as "Good", he should be recategorised by the Committee as "Very Good".
Likewise, if any Scheduled Caste or Scheduled Tribe employee is grades as "Very Good" on the basis of his record of service, he will be recategorised by the Committee as "Outstanding".
Of course, if any Scheduled Caste or Scheduled Tribe employee has already been categorised by the Committee as "Outstanding" on the basis of his record of service, no recategorisation will be needed in his case.
This recategorisation will then 219 form the basis of allotment of marks in respect of 'Record of service '.
The above concession would be confined to only 25 per cent of the total number of vacancies in a particular grade or post filled in a year.
In the matter of selection to Class III and Class IV posts the concession runs thus: There will be reservation of 12 per cent and 5 per cent of the vacancies for Scheduled Castes and Scheduled Tribes respectively in promotions made by selection in or to Class III and Class IV posts, in grades or services in which the element of direct recruitment, if any, does not exceed 50 per cent.
Promotion against reserved vacancies will continue to be subject to the candidates satisfying the prescribed minimum qualifications and standards of fitness.
It has also been decided that in respect of promotions to selection posts in Class III where safety aspect is not involved, the qualifying marks under "Professional ability" in respect of Scheduled Caste and Scheduled Tribe candidates should be 25 out of 50 instead of 30 out of 50 as applicable to the candidates belonging to the unreserved groups.
Similarly, qualifying marks in aggregate in respect of Scheduled Castes and Scheduled Tribes should be 50 out of 100 instead of 60 out of 100 for others.
It must be noticed that while grading has been modified and qualifying marks reduced as indicated above, for SC&ST, care has also been taken to exclude from these concessions, posts which involve "safety aspects" and not to relax prescribed minima of qualifications and standards of fitness.
Article 335 has been honoured, making a margin on merit inevitable when choosing the second best.
The next Order assailed by counsel is that of 20th April 1970 (Annexure I) and its highlights are revealed by relevant excerpts: ANNEXURE I The policy of the Government of India in regard to reservations for Scheduled Castes and Scheduled Tribes in posts and services under the Government of India was laid down in the Ministry of Home Affairs Resolution No. 42/21/49/NGS dated 13th September, 1950 circulated with Railway Board 's letter No. E47CMI/49/3 dated 23rd December, 1950.
The question of revising the percentages 220 of reservation for Scheduled Castes and Scheduled Tribes in post and services under the Government of India in the light of the population of these communities as shown in the 1961 census has been under consideration of the Government for some time.
It has now been decided in modification of the decisions contained in paras 2 and 4(1) of the Ministry of Home Affairs ' Resolution dated 13th September 1950, that the following reservations will hereafter be made for the Scheduled Castes and Scheduled Tribes in posts and services which are filled by direct recruitment; What are they? 12% and 5% are raised to 15% and 7% respectively for SCs and STs, consequent on the census picture and population ratio.
Likewise, in local or regional recruitments (presumably, they are inferior posts) the population ratio prevalent in the concerned States was to be the basis for reservation quota for SC&ST.
By the same order, the "carry forward" rule was carried a little further forward by increasing it, in the absence of suitable candidates from SC&ST, from 2 to 3 years.
It was also provided that the reserved vacancies, if candidates were available (and vice versa) could well be filled by them, instead of being thrown open to the general community.
The Board 's letter dated April 29, 1970 made a further change by revising the roster.
Positions Nos. 1, 4, 8, 14, 17, 22, 28, 36 were to go to SC/ST candidates.
The Note takes care to avoid total deprivation of changes for a particular year for general candidates when the vacancies are few: NOTE: If there are only two vacancies to be filled in a particular year, not more than one may be treated as reserved and if there be only one vacancy, it should be treated as unreserved.
If on this account, a reserved point is treated as unreserved the reservation may be carried forward to the subsequent three recruitment years.
Similar provisions, though somewhat different in detail, were made for posts filled by direct recruitment otherwise than by open competition.
A big break with the past was next made by the Board 's proceedings of 11 1 1973 (Annexure K) which hurt the lower classes of employees whose promotion was regulated by seniority cum suitability (i.e., non selection posts, according to official jargon).
That directive states: 221 ANNEXURE K After careful consideration the Board have now decided that a quota of 15% and 7 1/2% for Scheduled Castes and Scheduled Tribes respectively may also be provided in promotion to the categories and posts in Class I, II, III and IV filled on the basis of seniority cum suitability provided the element of direct recruitment to those grades, if any, does not exceed 50%.
The number of reserved vacancies in a recruitment year (viz., financial year on the Railways) should be determined under Board 's letter No. E(SCT) 70CM15/10 dated 20 4 70. . .
In the case of reserved community candidates equal to the number of reserved vacancies are not found suitable for promotion even with relaxed standard, the reserved vacancies may be dereserved after following the procedure prescribed for dereservation as in the case of selection categories.
The quota so dereserved will be carried forward to three subsequent recruitment years; the year in which no panel is formed is not to be taken into account for this purpose.
This order has been fiercely attached as unconstitutional.
The order attached in Rangachari 's case (supra) related to selection posts at the promotion level but Annexure K (11 1 1973) covers promotion to non selection posts.
The whole gamut of promotions in Classes II, III and IV areas thus comes under the reservation formula.
Annexure I extended the principle of reservation to lower ranks of Class I services (i.e. Junior Class I scale).
The 'carry forward ' project, calculated to ensure adequate representation by broadening the time zone to three years, was applicable to all cases of reservations in promotion posts.
One of the major broadside attacks made on the validity of the Railway Board 's circulars was the serious peril to administrative efficiency, a non negotiable value under article 335.
The hazards to railway travel, it was urged, would so increase because of the harijan component and its sub standard performance that rail road accidents would escalate and threaten human life! We must, by way of antidote to this caricature, notice, however, that provisions for special training and coaching where the recruit was somewhat sub standard, was specially insisted on and this, at least partially, overcame the 222 'awesome ' deficiency.
No factual material to blame all the ills of the Indian Railways on the reservation policy was placed before us except a hunch in a Report to be referred to later.
If harijans were excluded would railway accidents have a long holiday ? Courts are not credulity in robes ! A comprehensive programme of balancing administrative competency with adequacy of SC&ST representation was attempted by the Railway Board in Annexure M which provided for in service training for candidates who were below standard.
This letter of the Board dated 31st August 1974 recalled the earlier letter of 27 4 1959 which provided: While filling the posts on promotion, however, candidates of three communities should be judged in a sympathetic manner and arrangements made where necessary to give to such staff additional training and coaching, to bring them upto the standard of others.
In the light of actual experience and the complex of considerations implied in articles 16(4), 46 and 335 the Board directed, with disturbing concern for the continued exclusion of SC&ST candidates, as follows: The matter has been further considered by the Board and it has been decided that if, during the selection proceedings it is found, that the requisite number of Scheduled Caste and Scheduled Tribe candidates are not available for being placed on the panel in spite of the various relaxations, already granted, the best among them i.e. who secure highest marks, should be earmarked for being placed on the panel to the extent vacancies have been reserved in their favour.
The panel excluding the names of such persons may also be declared provisionally.
Thereafter the Scheduled Caste and Scheduled Tribe candidates who have been so earmarked may be promoted ad hoc for a period of six months against the vacancies reserved for them.
During the said six months period, the Administration should give them all facilities for improving their knowledge and coming upto the requisite standard, if necessary by organising special coaching classes.
At the end of the six months period, a special report should be obtained on the working of these candidates and the case put up by the Department concerned to the General Manager through SPO(RP) for a review.
The continuance of the Scheduled Caste and Scheduled Tribe candidates in the 223 higher grades would depend upon this review.
If the candidates are found to have come upto the requisite standard, their names would be included in the panel and the vacancies dereserved and filled in the usual manner by candidates from other communities.
The procedure indicated in the preceding para would also apply to promotion to the posts filled on the basis of seniority cum suitability, with the only difference that the Review at the end of the six months period would be carried out by the authority competent to approve the Select List.
This directive takes good care of harijan girijan obtuseness, if any.
We move on to Annexure N of February 21, 1976 which relates to carrying forward of reserved vacancies remaining unfilled.
We need not go into its details except to state that further facilities are offered to SC&ST promotees, on account of unsatisfactory intake as a fact.
Although on paper what might appear to be pampering concessions were offered to SC&ST candidates, the painful reality, according to the Union of India, was alarming under representation and utter inadequacy of SC&ST personnel in the Railway Services.
Arithmetical manipulations and national concessions incorporated in government proceedings did not impact on the raw life of depressed classes unless activist tactics of upgrading the competence and awareness of those human sectors were fruitfully carried out in a result oriented manner.
The Union of India and the Railway Board apparently pinned their faith on increasing the percentage hoping that thereby more harijans would be attracted.
The twin reservations of 15% and 7 1/2% for the SCs and STs to be filled by promotion in Class I, II, III and IV services, whereby seniority cum suitability or selection on the strength of competitive examinations, had all along been limited in such manner as not to exceed 50%, even on the application of the 'carry forward ' formulae.
Since this did not ensure fair representation, a change was contemplated by Annexure O: The question of enlarging the scope of the existing scheme of reservation for Scheduled Castes and Scheduled Tribes in the aforesaid cases has been under the consideration of the Government of India for some time past and in partial modification of the instructions contained in the above letters it has now been decided that henceforth the reservations in posts filled by promotion under the existing scheme as indicated above would be applicable to all grades or services where 224 the element of direct recruitment, if any, does not exceed 66 2/3% as against 50 per cent as at present.
What was done was to raise the maximum from 50% to 66 2/3% its vice, writ on its face according to counsel 's argument being promotion of inefficiency along with promotion of SC&ST appointees.
The furious charges of inefficiency in Administration, injected by incompetence imported through SC&ST candidates and by frustration and demoralisation of the non SC&ST members who were passed over by their less competent juniors, was sought to be supported by reliance on the Report of the Railway Accidents Enquiry Committee 1968.
There was reference in it to discontent among supervisors inter alia on account of the procedure of reservation of posts for SC&ST.
It is true that the Report has a slant against the SC&ST promotion policy notwithstanding the assurance given by the Railway Board to the Committee that instructions had been issued not to relax standards in favour of SC&ST members where safety was involved.
We need hardly say that it is straining judicial gullibility to breaking point to go that far.
This is an argumentum an absurdum though urged by petitioners with hopeful ingenuity.
Nor are we concerned with certain newspaper items and representations about frustration and stagnation.
On the other hand, the plea, forcefully put forward that economic backwardness should be the touchstone of any reservation policy in a secular, socialist republic may merit better examination.
Surely, extraneous factors, however passionately projected, cannot shake or shape judicial conclusions which must be founded on constitutional criteria and relevant facts only.
What then is the defence of the Union to the charge of departure from equal treatment for all citizens alike ? What is the principle derivable from the precedents on the points raised ? A technical point is taken in the counter affidavit that the 1st petitioner is an unrecognised association and that, therefore, the petitioner to that extent, is not sustainable.
It has to be overruled.
Whether the petitioners belong to a recognised union or not, the fact remains that a large body of persons with a common grievance exists and they have approached this Court under article 32.
Our current processual jurisprudence is not of individualistic Anglo Indian mould.
It is broad based and people oriented, and envisions access to justice through 'class actions ', 'public interest litigation ', and 'representative proceedings '.
Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy.
We have no hesitation in holding that the narrow concept 225 of 'cause of action ' and 'person aggrieved ' and individual litigation is becoming obsolescent in some jurisdictions.
It must fairly be stated that the learned Attorney General has taken no objection to a non recognised association maintaining the writ petitions.
The case of the Union of India is that articles 46, 335, 16(1) and 16(4) must be taken as a constitutional package and not read in isolation.
In that view, the policy of reservation is geared to equalisation of opportunities for employment and, therefore, a fulfillment of article 16(1).
Reading the two sub articles as complementary to each other and giving a wider connotation to the expression "appointment", the learned Attorney General sought to include in its semantic circle appointments by way of promotion, deputation, transfer and on contract.
On this footing, it was urged that article 16(4) completely protected the various directives regarding appointments by promotion.
It is the case of the Government that SC&ST have all along suffered social and economic deprivation and utter under representation in the Government service.
Naturally, reservation to boost the chances of the SC&ST in Government services had to be resorted to as a pragmatic policy of levelling up.
Having regard to administrative efficiency and other social factors, Government had been reviewing the position from time to time and had tailored its reservation policy to fit the needs of a given service or state of affairs.
The stand of the State is that . once the Government have decided after reviewing the overall position of representation of Scheduled Castes/Scheduled Tribes in Government Services that the reservation principles should continue in certain types of appointments, the reservation of a certain number of vacancies have to be provided, irrespective of whether Scheduled Castes/Scheduled Tribes are already duly represented or not in specific cadres of the Services.
Although Rangachari 's case covered only selection posts, the Union of India took the view that the same principle held good for nonelection posts also.
In fact, if at all the prospects of SC&STs in Government Service were to be improved, it had to begin with non selection posts.
They are the lower categories where the members of the SC&ST have a chance.
Provision of reservation in Class I services would be theoretically attractive to SC&STs but not so much in practice.
. reservation in promotional appointments made by means of seniority cum suitability is necessary because the 226 Scheduled Castes/Scheduled Tribes who generally occupy the lower positions in the recruitment/promotional panels cannot get further promotion at all or as per the requisite percentage alongwith other employees because of their very low position in the seniority list The submission of the Central Government is that not with standing the extension of the principle of reservation, the presence of harijans and girijans is sparse.
In this connection, an extract from the half yearly report of the Ministry of Railways for the period ending 31 3 1978 showing the representation of the Scheduled Castes and Scheduled Tribes in the various Railway Services presented to the Parliament by the Government is reproduced below.
The table furnished as in 1978 shows that Scheduled Castes have in Class I around 7% representation, in Class II 9.5%, in Class III 11.1% and even in Class IV (excluding safaiwalas) only 18%.
Safaiwalas, who are menials like scavengers and sweepers, are mostly drawn from harijans since other communities consider such jobs infra dig.
So, there is 83% representation of SCs among safaiwalas.
This is not because of representation but because no one else is forthcoming for such 'untouchable ' jobs.
The Scheduled Tribes have a more pathetic tale to tell.
In Class I services they have 1% representation, in Class II, 1.8%, in Class III, 2.2% and in Class IV (excluding safaiwalas) 5.1% and even among safaiwalas only 1.5%.
On the basis of these statistics the Railway Board 's case is that adequacy of representation for SC&STs even according to their population (forgetting centuries of total exclusion) is a long way off.
These official figures culled from the Reports of the Commissioner for Scheduled Castes and Scheduled Tribes are for employment in Central Govt.
not confirmed to the Railways, and reveal how a square deal to SCs and STs may take centuries, observing the current snail 's pace in the intake.
Social realists will read these pessimistic figure of the last ten years which prove the myth and negate the neurotic rhetoric about the SC&ST communities having cornered all the posts in the Central Government from Chaprasi to Secretary, accelerating there by the impending calamity of administrative collapse due to the disproportionate presence of the 'inefficient ' social components! A mere formula of reservation is not the factum of recruitment.
That is 227 morbid fancy.
The truth is that more aggressive policies than paper reservations are the need if equality and excellence are the creed.
Reservation is but one strategy and historically has established itself.
More must be done by a complex of processes by which harijans/girijans will get boosted in 'capabilities ', and mainstreamed to share in the Civil Service cake.
The poor annual assimilation into the public employment sector of the weakest social segments makes a tragic mockery of the statistical jugglery of harijan monopoly.
Any theory or formula is best tested by how it works, not by how it is worded.
Nikita Kruschev once remarked: ". a theory isolated from practice, is dead, and practice which is not illumined by . theory is blind".
The theoretical attack on over representation flowing from the reservation rule must be tried out in practice, as the figures for the last 10 years show; and the justification for more facilities and higher percentage in public employment must be validated by the thesis of social justice.
Assertions either way end in a blind alley.
That is why we have been at pains to project the constitutional theory and resultant representation of SC and ST reservations under article 16(4).
Percentage of reservations made in favour of Scheduled Castes (SC) and Scheduled Tribes (ST).
Class I Class II Class III Class IV As on SC ST SC ST SC ST SC ST 1 1 70 .
2.36 0.40 3.84 0.37 9.27 1.47 18.09 3.59 1 1 71 .
2.58 0.41 4.06 0.43 9.89 1.70 18.37 3.65 1 1 72 .
2.99 0.50 4.13 0.44 9.77 1.72 18.61 3.82 1 1 73 .
3.14 0.50 4.52 0.49 10.05 1.95 18.37 3.92 1 1 74 .
3.25 0.57 4.59 0.49 10.33 2.13 18.53 3.84 1 1 75 .
3.43 0.62 4.98 0.59 10.71 2.27 18.64 3.99 1 1 76 .
3.46 0.68 5.41 0.74 11.31 2.51 18.75 3.93 1 1 77 .
4.16 0.77 6.77 0.77 11.84 2.78 19.07 4.35 1 1 78 .
4.50 0.85 6.44 0.88 12.22 2.86 19.13 4.66 1 1 79 .
4.75 0.94 7.37 1.03 12.55 3.11 19.32 5.19 The facts, in the statement we have digested from the Reports of the Commissioner for Scheduled Castes and Scheduled Tribes, 228 conclusively show the long distance to travel before the SC&ST members in the civil services can be said to have and a fair or at least a proportional deal.
Classes II and III for the whole of the central services have a range of 3.84% to 7.37% and 9.27% to 12.55% for Scheduled Castes and 0.37% to 1.03% and 1.47% to 3.11% for Scheduled Tribes while their eligibility is of the order of 15% and 7 1/2% respectively.
What a grievous beeway after 33 long years may be the acid comment of the victim sector (i.e. the harijans and the girijans).
The Central Government has countered the submission of the petitioners, presented persuasively by Shri Venogopal, that reservation compounded by the carry forward rule has ended up almost in cent per cent reservation to SC&STs (thus wholly excluding others from job opportunities).
The counter affidavit states thus: I do not admit that the Government is giving 100% reservation to the Scheduled Castes and Scheduled Tribes.
I submit that normally only 15% and 7 1/2% of the vacancies by means of a roster mechanism are reserved for the Schedule Castes and Scheduled Tribes respectively.
However, in the following cases, it may look as if 100% of the available vacancies are being given to the Scheduled Castes/Scheduled Tribes.
Of course, based on Rangachari (supra) the State contends that entry even at the promotional points is constitutionally permitted and protected.
The grievance that junior harijans steal a march over other senior members of service is exceptional rather than general, according to the Railway Board, and, in any case, is inevitable where reservation is permissible.
Furthermore the Ministry of Railways, having regard to article 335 had taken special care to give training, coaching and the like, to prevent inefficiency and to promote competency of SC&ST members in service.
The deponent on behalf of the Union of India has explained the position thus: I submit that the Ministry of Railways, in 1974 after reviewing the position of intake of Scheduled Castes and Scheduled Tribes in groups of posts filled by promotion in Railway Services, and on the basis of a recommendation made by the Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes, introduced a scheme of training of the Scheduled Castes/Scheduled Tribes employees on the jobs of the posts to which they are to be promoted.
According to this scheme, if, during selection proceedings, it is found that the Scheduled Castes/ 229 Scheduled Tribes of requisite standards are not available for being placed on the panel, the best among them numbering to the extent of reserved vacancies i.e. who secure the highest marks, are provided with in service training.
For this purpose, such candidates are promoted an ad hoc basis for a period of six months to the grade of the post on the jobs of which they are to receive training.
During the said six months ' period, the administration give them all facilities for improving their knowledge and coming upto the requisite standard, if necessary by organising special coaching classes.
At the end of six months ' period, a special report is obtained on the working of such candidate which is reviewed by the General Manager or other competent authority.
If, as a result of this review, they are found to have come upto the requisite standard of fitness to hold the post on regular basis, they are included in the panel and are promoted to the grade regularly.
If, however, the said review reveals that such candidates, even after receiving the training on the jobs to which they are to be promoted regularly, have not come upto requisite standard of suitability, such candidates are immediately reverted to the grade from which they were given ad hoc promotion for the purpose of training.
A further plea is taken that temporary promotions on ad hoc basis are sometimes given to SC&ST members purely for short duration "for the purpose of imparting them with in service training on the jobs of the post to which they aspire for promotion".
This had to be treated as a training period rather than an unconstitutional promotion over the heads of seniors.
In short, the factual submission of massive infiltration of incompetent harijans/girijans into the Railway Service vertically all along the line is refuted by facts and figures.
Secondly, the legal contentions of the petitioners have also been contested by the Union of India (given earlier).
In this background, we may formulate the following points round which arguments have ranged and then deal with some mini submissions and technical objections put forward before us.
(1) Does article 16(1) insist on absolute equality or permit realistic and rational classification of unequal classes and treatment of such classes differently ? (2) Do SC&STs stand in a different class from the rest of the Indian community? 230 (3) Are SC&ST castes, within the scope of article 16(2) ? If so, does article 16(4) save special provisions in their favour in matters promotion and allied matters ? (4) Do the directives under attack impair administrative efficiency to a degree that it is violative of article 335 ? (5) Do the ten circulars reduce the fundamental right under article 16(1) to a husk or cipherise it altogether ? We must state certain constitutional fundamentals and societal elementals before we make a dialectical study of the basic issues thrown up by these cases.
Most of the submissions made by counsel for petitioners cannot survive Rangachari and Thomas (supra) and our task is simplified by abiding by the propositions laid down therein, because these twin rulings bind us being of benches of five and seven judges.
Even though we would, we could not and even though we could, we would, not depart from the holdings in these twin land mark cases which set the gravestone on many of the contentions.
What are the constitutional fundamentals bearing on egalite vis a vis backward classes, especially the SC&STs ? What are the social essentials afflicting the life style of the SCs&STs ? What is economic backwardness as distinct from social injustice and how does the Constitution strike the path of remedial jurisprudence harmonising the demands of both categories? A luminous preface to the constitutional values nullified by social realities is found in Dr. Ambedkar 's address to the Constituent Assembly earlier extracted, which draws poignant attention to the life of contradictions between the explosive social and economic inequalities and the processes of political democracy.
"How long shall we continue to live this life of contradictions ? How long shall we continue to deny equality in our social and economic life?" Was the interrogation before the framers of the Constitution and they wanted to enforce the principle of 'one man, one value '.
This perspective must inform the code of equality contained in articles 14 to 16.
Equality being a dynamic concept with flexible import this Court has read into articles 14 to 16 the pragmatic doctrine of classification and equal treatment to all who fall within each class.
But care must be taken to see that classification is not pushed to such an extreme point as to make the fundamental right to equality cave in and collapse.
(See observations in Triloki Nath Khosa and Ors.
vs State of Jammu and Kashmir 231 Ray, C.J. in Kerala vs Thomas epitomised the position in a few passages: Articles 14, 15 and 16 from part of a string of constitutionally guaranteed rights.
These rights supplement each other.
Article 16 which ensures to all citizens equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14.
Article 16(1) gives effect to Article 14.
Both Articles 14 and 16(1) permit reasonable classification having a nexus to be the object to be achieved.
Discrimination is the essence of classification.
Classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved.
There is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured.
Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection.
State of Mysore vs V. P. Narasinga Rao.
This equality of opportunity need not be confused with absolute equality.
Under Article 16(1) equality of opportunity of employment means equality as between members of the same class of employees and not equality between members of separate, independent class.
The rule of parity is the equal treatment of equals in equal circumstances.
The rule of differentiation in enacting laws differentiating between different persons or things in different circumstances.
The circumstances which govern one set of persons or objects may not necessarily be the same as governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances.
A classification in order to be constitutional must rest upon distinctions that are substantial and not merely illusory.
The test is whether it has a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category.
232 The learned Chief Justice relied upon earlier decisions to substantiate this proposition.
In Triloki Nath Khosa vs State of J & K(1) this Court had held that the State may make rules guided by realities just as the legislature "is free to recognise degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be the clearest." Thus we arrive at the constitutional truism that the State may classify, based upon substantial differentia, groups or classes and this process does not necessarily spell violation of articles 14 to 16 Therefore, in the present case if the SC&STs stand on a substantially different footing they may be classified group wise and treated separately since there is a Great Divide between the SC&STs on the one hand and the rest of the Indian community on the other.
This is no matter of speculation or investigation because the Constitution itself has recognised the direst socioeconomic backward status of these species of humanity.
We may quote Ray, C.J. where he observed: The Constitution makes a classification of Scheduled Castes and Scheduled Tribes in numerous provisions and gives a mandate to the State to accord special or favoured treatment to them.
Article 46 contains a Directive Principle of State Policy fundamental in the governance of the country enjoining the State to promote with special care educational and economic interests of the Scheduled Castes and Scheduled Tribes and to protect them from any special injustice and exploitation.
Article 335 enjoins that the claims of the members the Scheduled Castes and Scheduled Tribes to the services and posts in the Union and the States shall be taken into consideration.
Article 338 provides for appointment by the President of a Special Officer for the Scheduled Castes and Scheduled Tribes to investigate all matters relating to the safeguards provided for them under the Constitution.
Article 341 enables the President by public notification to specify castes, races or tribes which shall be deemed to be Scheduled Castes in the States and the Union Territories.
Article 342 contains provision for similar notification in respect of Scheduled Tribes.
Article 366(24) and (25) defines Scheduled Castes and Scheduled Tribes.
The classification by the impugned rule and the order is with a view to securing adequate representa 233 tion to Scheduled Castes and Scheduled Tribes in the services of the State as otherwise they would stagnate in the lowest rung of the State services.
Article 335 of the Constitution states that claims of members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in the making of appointments to the services and posts in connection with affairs of the State consistent with the maintenance of efficiency of administration.
I had made similar observations in the same case: The Directive Principles of State Policy, fundamental in the governance of the country, enjoin on the State the promotion 'with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes. and protect them from social injustice '.
To neglect this obligation is to play truant with article 46.
Undoubtedly, economic interests of a group as also social justice to it are tied up with its place in the services under the State.
Our history, unlike that of some other countries, has found a zealous pursuit of government jobs as a mark of share in State power and economic position.
Moreover, the biggest and expanding, with considerable State undertaking, employer is Government, Central and State, much so appointments in the public services matter increasingly in the prosperity of backward segments.
The Scheduled Castes and Scheduled Tribes have earned special mention in article 46 and other weaker section ' in this context means not every 'backward class ' but those dismally depressed categories comparable economically and educationally to Scheduled Castes and Scheduled Tribes.
Proceeding on this footing, the fundamental right of equality of opportunity has to be read as justifying the categorization of SC&STs separately for the purpose of "adequate representation" in the service under the State.
The object is constitutionally sanctioned in terms, as articles 16(4) and 46 specificate.
The classification is just and reasonable.
We may, however, have to test whether the means used to reach the end are reasonable and do not outrun the purposes of the classification.
Thus the scope of the case is narrowed down.
234 Of course, apart from article 16(1), article 16(2) expressly forbids discrimination on the ground of caste and here the question arises as to whether the Scheduled Castes and Tribes are castes within the meaning of article 16(2).
Even assuming that there is discrimination, article 16(2) cannot be invoked unless it is predicated that the Scheduled Castes are 'castes '.
Terminological similarities are an illusory guide and we cannot go by verbal verisimilitude.
It is very doubtful whether the expression caste will apply to Scheduled Castes.
At any rate, Scheduled Tribes are identified by their tribal denomination.
A tribe cannot be equated with a caste.
As stated earlier, there are sufficient indications in the Constitution to suggest that the Scheduled Castes are not mere castes.
They may be something less or some thing more and the time badge is not the fact that the members belong to a caste but the circumstance that they belong to an indescribably backward human group.
Ray, C.J. in Kerala vs Thomas (supra) made certain observations which have been extracted earlier to make out that "Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste".
Since a contrary view is possible and has been taken by some judges a verdict need not be rested on the view that SCs are not castes.
Even assuming they are, classification, if permitted, will validate the differential rules for promotion.
Moreover, article 16(4) is an exception to article 16(2) also.
The constitutional enquiry is whether the harijan/girijan fold is so sharply marked off from the rest of the Indian human family as to justify classification for considerate treatment in the field of public employment ? Let us be sure of the social facts.
Mark Twain cynically remarked once: "Get your facts first, and them you can distort them as much as you please.
" By that token, let us scan the status of the SC&STs, the result of reservations in habilitating them into State services and the depressment impact on efficiency by supersession of meritorious seniors.
It is a fact of our social history and a blot on our cultural heritage that 135 million men and women, described as SC&STs, have been suffering as "suppressed classes", denied human dignity and languishing as de facto bonded labour.
They still are, in several places, "worse than the serf and the slave" and "their social standard is lower than the social standard of ordinary human beings" (Ambedkar).
Tortured, violated and even murdered, the saga of the SC&STs is not only one of economic exploitation but of social ostracisation.
Referring to the sorrows of the suppressed shudras (what I 235 prefer to call the panchama proletariat) Swami Vivekananda demanded shudra raj and refuted the incapabilities of the groaning untouchables: "Aye, Brahmins, if the Brahmin has more aptitude for learning on the ground of heredity than the Pariah, spend no more money on the Brahmin 's education but spend all on the Pariah.
Give to the weak, for there all the gift is needed.
Our poor people, these downtrodden masses of India, therefore, require to hear and to know what they really are.
Aye, let every man and woman and child, with out respect of caste or birth, weakness and strength, hear and learn that behind the strong and the weak, behind the high and the low, behind everyone, there is that Infinite Soul, assuring that infinite possibility and the infinite capacity of all to become great and good.
Let us proclaim to every soul 'Arise, awake and stop not till the goal is reached. ' Arise, awake! To make democracy functional and the republic real the social and economic personality of these backwardmost sections had to be restored.
From this angle, the ancient injustice on the shudras among the shudras has to be liquidated by effective equalising measures.
Power, material power, is the key to socioeconomic salvation and the State being the nidus of power the framers of the Constitution have made provision for representation of these weaker sections both in the legislature and the executive.
More poignant is the fact that all the welfare programmes have been only on paper, not in practical life.
With all the 'pampering ' complained of, we find that these downtrodden millions remain at the bottom of the socioeconomic scale and totter in the administrative services surviving with difficulty and securing some promotion here or there amidst a hostile milieu.
If the concessions, reservations, relaxations and other partisan provisions had actually brought into the Services a considerable percentage at least commensurate with their population, maybe, the grievance voiced may ring true.
But as late as 1971, a former Minister, B. section Murthy, in his book "Depressed and Oppressed (Forever in Agony)" has given a sombre picture of the actual plight of the harijans of India and the figures of employment in Government Services of Scheduled Castes and Tribes as on 1 1 1970 (20 years after the Constitution) furnished by him (p. 74) are tell tale.
In Class I services percentage wise these castes which constitute 22.5% of India 's population had 0.40% in Class II, 0.40, in 236 Class III, 1.47 and in Class IV, 3.41.
This was socioeconomic democracy in reverse gear and a callous picture of under representation in administration as if harijans and girijans were still untouchable and unapproachable, vis a vis Services under the State.
Once we realise with John Tyndall that "It is as fatal as it cowardly to blink facts because they are not to our taste", the wind is taken out of the sails of the case of the petitioners.
For, in truth and actual life whatever the Railway Board 's orders may say the representation of the SC&STs remains substantially below the sanctioned level although fair representation, at least in proportion to their population is what is demographically just, ignoring for the moment the neutralisation of the iniquitions past.
We must remember that article 14 speaks of equality before the law and article 16 vouchsafes equality of opportunity.
The social dynamics of equality involve the strategy of equalisation in a society of stratification through casteification.
One of us did observe : "In a spacious sense, 'equal opportunity ' for members of a hierarchical society makes sense only if a strategy by which the under privileged have environmental facilities for developing their full human potential.
This consummation is accomplished only when the utterly depressed groups can claim a fair share in public life and economic activity, including employment under the State, or when a classless and casteless society blossoms as a result of positive State action.
To help the lagging social segments, by special care, is a step towards and not against a larger and stabler equality. .
It is a statistically proved social reality in India that the depressed employment position of harijans is the master problem in the battle against generations of retardation, and 'reservation ' and other solutions have made no significant impact on their employment in public services.
In such an unjust situation, to maintain mechanical equality is to perpetuate actual inequality.
A battery of several programmes to fight down this fell backwardness must be tried out by the State." Subha Rao, J. in Devadasan 's case brought out the need for equalisation to produce stable equality in society by a telling imagery.
Although he was in a minority on one point in that case, that did not detract from the validity or force of the general observations: 237 Article 14 lays down the general rule of equality.
Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the State.
It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
If it stood alone, all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only an utopian conception unless a practical content was given to it.
Its strict enforcement brings about the very situation it seek to avoid.
To make my point clear, take the illustration of a horse race one is a first class race horse and the other an ordinary one.
Both are made to run from the same starting point.
Though theoretically they are given equal opportunity to run the race, in practice the ordinary horse is not given an equal opportunity to compete with the race horse.
Indeed, that is denied to it.
So a handicap may be given either in the nature of extra weight or a start from a longer distance.
By doing so, what would otherwise has been a force of a competition would be made a real one.
The same difficulty had confronted the makers of the Constitution at the time it was made.
Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom.
It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case.
They would not have any chance if they were made to enter the open field of competition without Adventitious aids till such time when they could stand on their own legs.
A strikingly similar strain of justice thinking has been developed in other jurisdictions in the field of equal protection and benign discrimination by Polyvos G. Polyviou in his book "The Equal Protection of the Laws".
It may be meaningful to notice the argument : ". focuses on the concepts of equal treatment and equal opportunity, professes to construe them realistically, and declares that '(t) he minority applicant does not have an opportunity "equal" to the white 's because the discriminatory denial of educational, professional and cultural opportunities for generations past has severely handicapped him in any contest of early intellectual attainment '.
As Professor Cox has well put the question, '(d) we achieve 238 equality by putting each individual on the same starting line today or by giving minority applicants head starts designed to offset the probable consequences of past discrimination and injustice against the group with which the applicant is identified ? The same author deals with 'reverse discrimination ' in school admissions and refers to Prof. Dworkin 's socio jural defense of preferences: Nor should it be forgotten in this connection that, at least in terms of traditional theory, rights to equal treatment and to freedom from discrimination, as normally conceived, are personal and individual, and that '(e)qual protection is not achieved through (the) indiscriminate imposition of inequalities for the alleged benefit of groups, however disadvantaged.
Benevolent quotas and reverse discrimination on this view, fatally offend fundamental notions of individualism inherent in the notion of equality.
In answer, it may be said that to regard the concept of equality simply from this (traditionally) individualistic point of view is to take an unduly restrictive view of its social function and to ignore its allegedly multifaceted character.
Or, to adopt a somewhat different strategy, one may read the right to equal treatment (both the more general right to equality and the right enshrined in the constitutional guarantee of equal protection) in a particularly abstract way and formulate it in such a manner that it is not necessarily violated by the adoption of benign racial classifications.
In this way, Professor Dworkin distinguishes between two 'different sorts of rights ' which individuals may be said to have.
The first is the right to equal treatment, which is the right to an equal distribution of some opportunity or resource, and the second is the right to treatment as an equal, 'which is the right, not to receive the same distribution of some burden or benefit, but to be treated with the same respect and concern as anyone else '.
For Dworkin it is the right to treatment as an equal that is fundamental, whilst the right to equal treatment is only derivable, and it is the former that, as a general matter, is given 'constitutional standing ' by the Equal Protection Clause.
In other words, white applicants for admission to Law School who may have been turned away because of the reservation of some places for members of disadvantaged minority groups cannot (in a case like the one set out above) successfully complain, the reason being that they 239 do not have a right to equal treatment in the assignment of places, but they do have the right to be treated as equals, that is, with equal respect, concern and sympathy, in the making of decisions as to which admissions standards should be used.
More specifically, this right is viewed by Dworkin as meaning that each candidate for admission has a right that his interests should be looked at 'as fully and sympathetically ' as the interests of any others when decisions are being taken as to which of the many possible criteria for admission to elevate to the status of the pertinent ones.
But if this condition is satisfied, rejected white applicants will fail in their contention that the particular admissions program was unfair and unconstitutional (even if they had been effectively excluded from consideration as a result of the adoption of racial criteria in determining the allocation of some of the available places).
The simple question Dworkin would ask in these cases is whether the particular admissions program serves a proper policy that respects the right of all members of the community to be treated as equals, but not otherwise.
No debate is needed to uphold reservation in promotions as such.
Not only has Rangachari sustained it in regard to selection posts, Thomas 's case decided by a Bench of seven Judges, has expressly approved Rangachari.
The only question bearing on reservation vis a vis promotion is as to whether it is unconstitutional if it is extended to non selection posts while it is constitutional in regard to selection posts.
Anyway, Annexure F, one of the circulars sought to be quashed by the petitioners relates only to selection posts and has been expressly upheld in Rangachari 's case.
The quantum of reservation is not excessive; the field of eligibility is not too unreasonable, the operation of the reservation is limited to selection posts and no relaxation of qualifications is written into the circular except that candidates of the SC&ST communities "should be judged in a sympathetic manner".
Moreover, administrative efficiency is secure because there is a direction "to give such staff additional training and coaching, to bring them up to the standard of others".
The rejection of the invalidatory contention of the petitioners is inevitable.
Annexure H is bad for unconstitutionality according to the petitioners for many reasons.
For one thing, an SC/ST employee gets one grading higher than otherwise assignable to him on the record of his service.
So much so, if he is 'good ' he will be categorised as 'very 240 good '.
This fiction or fraud in grading is said to be a vice rendering the promotional prospects unreasonable.
We do not agree.
Superficially viewed, this clumsy process of reclassifying ability may strike one as disingenuous.
Of course, this concession is confined to only 25% of the total number of vacancies in a particular grade or post filled in a year.
So there is no rampant vice of every harijan or girijan jumping over the heads of others.
More importantly, we think this is only an administrative device of showing a concession or furtherance of prospects of selection.
Even as under article 15(4) and article 16(4) lesser marks are prescribed as sufficient for SC&STs or extra marks are added to give them an advantage the re grading is one more method of boosting the chances of selection of these depressed classes.
There is nothing shady about it.
If there is advancement of prospects of SC&ST by addition of marks or prescribing lesser minimum marks or by relaxing other qualifications, I see no particular outrage in re categorisation which is but a different mode of conferring an advantage for the plain and understandable reason that SC&STs do need some extra help.
It is important to note that the prescribed minimum qualifications and standards of fitness are continued even for SC&STs under Annexure H.
The other vice pointed out against Annexure H is that the qualifying marks in respect of SC&ST candidates is somewhat less than is applicable to candidates of unreserved groups.
There is no merit in this objection and no good ground exists which militates against the constitutionality of Annexure H. Annexure I is also unexceptionable since all that it does: is to readjust the proportion of reservation in conformity with the latest Census.
Posts for which recruitment, realistically speaking, takes place on a regional basis are subjected to reservation taking into account the percentage of SC&ST population in the concerned State.
This is also reasonable.
Likewise, the carry forward rule being raised from 2 years to 3 years also cannot be struck down.
It must be realised that law is not an abstraction but an actual prescription in action.
So what we have to be more careful about is to scrutinise whether the carry forward rule by being increased to 3 years is going to confer a monopoly upon the SC&ST candidates and deprive others of their opportunity for appointment.
From the percentage furnished by the Railway Board we find that even if we carry forward vacancies for any number of years there is no prospect, within the reasonable future, of sufficient number of SC & ST candidates turning up to fill them.
There is a provision that if sufficient number of candidates from the SC & ST are not found, applicants from the unreserved communities will be given the appointment provisionally.
After 3 years those vacancies cease to be reserved.
Going by the actuals it is clear that no serious infraction of 241 any individual 's fundamental right under article 16(1) takes place and no monopoly is conceivably conferred on SC&ST candidates, they are not available in sufficient numbers to reach anywhere near the percentage reserved.
Even going by the majority, Devadasan 's case ( ' ) lays down the proposition that under article 16(4) "reservation of a reasonable percentage B of posts for members of the Scheduled Castes and Tribes is within the competence of the State.
What the percentage ought to be must necessarily depend upon the circumstances obtaining from time to time.
" Madholkar, J. speaking for the majority has struck down only one restriction. "In order to effectuate the guarantee each year of recruitment will have to be by itself and the representation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities.
" (emphasis added).
Unlimited reservation of appointments may be impermissible because it renders article 16(1) nugatory.
At the same time, article 16(4), calculated to promote social justice and expressive of the deep concern of the Constitution for the limping bracket of Indians, must be given full play.
That is why the only restraint imposed by Mudholkar, J. is that an exercise of power under article 16(4) "does not mean that the provision made by the State should have the effect of virtually obliterating the rest of the Article, particularly clauses (1) and (2) thereof."( ') By the three year 'carry forward ' rule one is unable to see how, in practice, the total vacancies will be gobbled up by the harijan/girijan groups "virtually obliterating" article 16(1).
The court has made it very clear that the problem of giving adequate representation to backward classes under article 16(4) is a matter for the Government to consider, bearing in mind the need for a reasonable balance between the rival claims as pointed out in Balaji 's case.(2) It is true that in Balaji 's case and Devadasans case(l) 'the carry forward ' rule for backward classes for exceeded 50% and was struck down.
We must remember that the percentage of reservation for backward classes including SC&ST was rather high in both the cases.
In Devadasan 's case the court went into the actuals, not into the hypothetical.
This is most important.
The Court actually verified the degree of deprivation of the 'equal opportunity ' right and discovered: (3 ) In the case before us 45 vacancies have actually been filled out of which 29 have gone to members of the Scheduled (1) ; at 695.
(2) [1963] Supp. 1 SCR 439.
(3) Ibid at 693 94.
242 Castes and Tribes on the basis of reservation permitted by the carry forward rule.
This comes to about 64.4% of reservation.
Such being the result of the operation of the carry for ward rule we must, on the basis of the decision in Balaji 's case hold that the rule is bad.
(emphasis added) What is striking is that the Court did not take an academic view or make a notional evaluation but checked up to satisfy itself about the seriousness of the infraction of the right.
On that footing, the petitioners have not demonstrated that in any particular year, virtually and in actual terms of promotion, there has been a substantial excess over 50% in favour of the SC&ST promotees.
Mathematical calculations, departing from realities of the case, may startle us without justification, the apprehension being misplaced.
All that we need say is that the Railway Board shall take care to issue instructions to see that in no year shall SC&ST candidates be actually appointed to substantially more than 50% of the promotional posts.
Some excess will not affect as mathematical precision is different in human affairs, but substantial excess will void the selection.
Subject to this rider or condition that the 'carry forward ' rule shall not result, in any given year, in the selection or appointments of SC&ST candidates considerably in excess of 50%, we uphold Annexure I. Heated arguments about the hurt caused by Annexure 'J ' have been addressed to us.
It deals with the 40 point roster and the posts allotted to the SC&ST allottees.
Once the fundamental premises are accepted there is nothing unreasonable or wrong in Annexures 1 and 2 to Annexure J.
It is significant that with a view to prevent total exclusion of others there is a provision that if there are only two vacancies in a given year, in more than one may be treated as reserved and if there is only one vacancy, it should be treated as unreserved.
Implementation of reservations necessarily involves practical steps like evolving a roster system.
Once the parameters of reservation are within the framework of the fundamental rights, minute scrutiny of every administrative measure and hunting for unconstitutionality is not permissible.
Far more serious is the criticism of Annexure 'K ' on the basis of which reservations were introduced even to promotion posts filled by the 'seniority cum suitability ' rule.
Some other relaxations and con cessions also are granted under it to SC/ST candidates.
But the maximum mayhem inflicted by Annexure K is in the extension of the operation of promotional reservation to non selection posts.
It was urged that Rangachari (supra) did not cover non selection posts and, there 243 fore, could not be an authority to sustain its validity.
There is no force in this submission.
The sting of the argument against reservation is that it promotes inefficiency in administration by choosing sub standards candidates in preference to those with better mettle.
Competitive skill is more relevant in higher posts, especially those where selection is made by competitive examinations.
Lesser classes of posts, where promotion is secured mechanically by virtue of seniority except where the candidate is unfit, do not require a high degree of skill as in the case of selection posts.
(See 1968 1 SCR p. 721 at 734).
It is obvious that as between selection and non selection posts the role of merit is functionally more ` relevant in the former than in the latter.
And if in Rangachari reservation has been held valid in the case of selection posts, such reservation in non selection posts is an afortiori case.
If, in selecting top officers you may reserve posts for SC/ST with lesser merit, how can you rationally argue that for the posts of peons or lower division clerks reservation will spell calamity ? The part that efficiency plays is far more in the case of higher posts than in the appointments to the lower posts.
On this approach Annexure K is beyond reproach.
One may easily sympathise with holders of non selection posts.
They are many in number in the lower stations of life.
They are economically backward and burdened with the drudgery of life.
That is why there is a ballyhoo raised by a larger number of people when some categories in far more distressing social situations enter the arena with preferential treatment.
Looking at the problem from the point of view of law and logic and the constitutional justification under article 16(4) for reservation in favour of the panchama proletariat there is nothing to strike down in Annexure K.
As between the socially, even economically depressed and the economically backward, the Constitution has emphatically cast its preference for the former.
Who are we, as Judges to question the wisdom of provisions made by Government within the parameters of article 16(4)? The answer is obvious that the writ of the court cannot quash what is not contrary to the Constitution however tearful the consequences for those who may be adversely affected.
The progressive trend must, of course, be to classify on the have not basis but the SC/ST, category is, generally speaking, not only deplorably poor but also humiliatingly pariah in their lot.
Maybe, some of the forward lines of the backward classes have the best of both the words and their electoral muscle qua caste scares away even radical parties from talking secularism to them.
We are not concerned with that II dubious brand.
In the long run, the recipe for backwardness is not creating a vested interest in backward castes but liquidation of handi 244 caps, social economic, by constructive projects.
All this is in another street and we need not walk that way now.
Trite arguments about efficiency and inefficiency are a trifle phoney because, after all, at the higher levels the harijan/girijan appointees are a microscopic percentage and even in the case of Classes III and II posts they are negligible.
The preponderant majority coming from the well reserved communities are presumably efficient and the dilution of efficiency caused by the minimal induction of a small percentage of 'reserved ' candidates cannot affect the over all administrative efficiency significantly.
Indeed, it will be gross exaggeration to visualise a collapse of the Administration because 5 to 10% of the total number of officials in the various classes happen to be sub standard.
Moreover, care has been taken to give in service training and coaching to correct the deficiency.
It is fashionable to say and there is, perhaps, some truth in it that from generation to generation there is a deterioration in efficiency in all walks of life from politics to pedagogy to officialdom and other professions.
Nevertheless, the world has been going forward and only parties whose personal interest is affected forecast a doom on account of progressive deficiency in efficiency.
We are not impressed with the misfortune predicted about governmental personnel being manned by morons merely because a sprinkling of harijans/girijans happen to find their way into the Services.
Their apathy and backwardness are such that in spite of these favourable provisions, the unfortunates have neither the awareness nor qualified members to take their rightful place in the Administration of the country.
The malady of modern India lies elsewhere, and the merit mongers are greater risks in many respects than the naive tribals and the slightly better off low castes.
Nor does the specious plea that because a few harijans are better off, therefore, the bulk at the bottom deserves no jack up provisions merit scrutiny.
A swallow does not make a summer.
Maybe, the State may, when social conditions warrant, justifiably restrict harijan benefits to the harijans among the harijans and forbid the higher harijans from robbing the lowlier brethren We have adverted to Annexure M earlier in this judgment which shows the determination of Government to impart in service training to those SC&ST candidates who are found to be below par.
Even temporary promotions on an ad hoc basis are limited to six months only to give training and experience than the spoil permanently the efficiency of the system.
The Annexure has come under attack because the reservation quota has been raised thereby from 50 to 66 2/3%.
We have earlier dis 245 cussed this aspect and pointed out that what is important is not so much the figures mentioned on paper but the facts and circumstances in real life.
We have also entered a caveat that in any particular year there shall not, as a fact, be a substantial increase upon 50% of induction of 'reserved ' candidates.
It is true that Shri Venugopal, counsel for some of the petitioners tried to demonstrate that on account of reservation percentages coupled with the carry forward rule it is perfectly within the realm of possibility that in some years a monopoly may be conferred on the SC&ST candidates for certain categories or classes of posts.
The mystic "maybe" do not scare us.
The actual "must be" will alert us.
The Constitution deals with social realities, not speculative possibilities.
I have limited the physical operation of reservation in any particular year in such a manner that there will be a real opportunity for the exercise of the right under article 16(1) for every candidate of the unreserved communities.
Certain minor attacks such as that a candidate of the SC&ST communities who has failed may still be tried if other successful candidates from those communities are not forthcoming.
This may seem strange disbelief in examinations as measure of merit.
But to read stray provisions in isolation may be unfair to the scheme.
Look at the desperate State in which Government is trying to give fair representation to harijans/girijans in Administration.
These miserables suppressed by centuries of trampling are still slumbering despite inducements to awaken.
It is a genetic calumny and unscientific assertion to castigate the SC&ST communities as possessed of less intellectual potential what with Valmiki and Vyasa to Baba Sahib Ambedkar.
The darkening and be numbing environment of ages in which shudras and panchamas have suffered their mental powers to be chained accounts for their seeming, retardation.
Once brighter atmosphere and better opportunity enliven their talent their contribution to the Indian treasury will raise the human resources and democratic status of Bharat.
A democracy of talent is an inarticulate major premise of our culture.
The fundamental question arises as to what is "merit" and "suitability".
Elitists whose sympathies with the masses have dried up are, from the standards of the Indian people, least suitable to run Government and least meritorious to handle state business, if we envision a Service State in which the millions are the consumers.
A sensitized heart and a vibrant head, tuned to the tears of the people, will speedily quicken the developmental needs of the country, including its rural stretches and slum squalour.
Sincere dedication and intellectual integrity these are some of the major components of "merit" and "suitability" not degrees from Oxford or Cambridge, Harvard or Stanford or simian, though Indian, 246 institutions.
Unfortunately, the very orientation of our selection process is distorted and those like the candidates from the SC&ST who, from their birth, have had a traumatic understanding of the conditions of agrestic India have, in one sense, more capability than those who have lived under affluent circumstances and are calIous to the human lot of the sorrowing masses.
Moreover, our examination system makes memory the master of 'merit ' and banishes creativity into exile.
We need not enter these areas where a fundamental transformation and a radical re orientation even in the assessment of the qualities needed by the personnel in the Administration and the socialist values to be possessed by the echelons in office is a consummation devoutly to be wished.
This may have to be subjected to a national debate.
The colonial hangover still clings to our selection processes with superstitious tenacity and narrower concepts of efficiency and merit are readily evolved to push out Gandhis and J.Ps, Ambedkars and Nehrus, to mention but a few who knew the heart beats of the people.
I diva gate and make these observations only to debunk the exaggerated argument about harijans and girijans being sub standard.
We may put aside this angle of vision and approach the problem traditionally because every new idea has resistance to encounter before acceptance, every original thought has been branded a hearsay.
Be that as it may, the constitutional merits of the various Board Circulars now discussed do not warrant their judicial 'execution ' subject to certain cautionary limitations already indicated.
The argument that there are rich and influential harijans who rob all the privileges leaving the serf level sufferers as suppressed as ever.
The Administration may well innovate and classify to weed out the creamy layer of SC&ST but the court cannot force the State in that behalf.
For a comparative thought we may glance at Polyviou 's 'The Equal protection of the laws ': ( ') "A third argument traditionally employed against the use of preferential discrimination is that affirmative measures of the kind discussed here may significantly curtail efficiency.
It does indeed stand to reason that the immediate result of benignity in admission and selection process will almost certainly be the selection of those who are not as competent or as able as some of those left out. 'Special admission programmes, almost by definition, operate to in sure that students are placed in schools for which they are (1) The equal protection of the laws by G. Polyviou p. 360.
247 not qualified ! The same objection applies with equal, if not more, force to the area of employment and elsewhere.
One possible answer is that the importance of efficiency must be compared with and ultimately set against the significance of integration or the prevention of discrimination, and that integration and the rectification of socially harmful deprivation are the more pressing needs.
Or one can fall back on the very different arguments that traditional admission processes are unfair because these are geared to the usual type of applicant and that preferential treatment after all only seeks to counteract such inherent bias.
There is a human problem behind these writ petitions which we clearly appreciate.
Most of the Classes II, III and IV employees are economically backward and struggle for survival what with price spirals and other tribulations.
They hope, after years of yeomen service, to get some promotion and augment their poor resources in the afternoon of their life.
Then they find another class, with which the Constitution shows ultra sympathy, elbowing them out, not on a massive scale, but minimally.
Even this marginal push hurts these species living at subsistence level and so they scream.
The economically backward and the socio economically backward truly belong to the 'have not ' camp and must jointly act to bring about a transformation of the economic order by putting sufficient pressure and make article 38 a living reality.
Estrangement between the two categories weakens the militancy of a joint operation to inject social justice in the current economic order.
The truth is that the employment market is distressingly a musical chair business and when starvation faces men their sympathy for their far weaker brethren vanishes.
The true solution for the country 's problems, as reflected in these writ petitions, is in developmental expansion involving the millions, rather than denial to the weakest sector of Indian life the morsel to which it is justly entitled.
Even Administration will do well to remember that Indian despair, after infinite patience, may augur danger unless 'the sorry scheme of things entire ' is remoulded nearer to article 38.
Even these observations are made only to emphasise that the legal content of the contentions put forward by the petitioners is less than presentable although their economic grievance may be agonisingly genuine.
The Court has its limitations unlike the Administration and can give justice only under the Constitution and not over it.
The human pressure behind these writ petitions is the chronic drought of employment opportunities despite talent enough to make 248 deserts bloom.
So long as this scarcity persists and power goes with office, the jaundiced politics of snatching the jobs going, initially or at promotion level, by hook or crook, is the only 'development ' that takes place, whatever the National Plans proclaim.
The vast human potential of the harijans and girijans, on fifth of the Indian people, goes to thistles and every communal effort to twist the politics of power for promoting chances of getting jobs becomes inevitable caste being a deeprooted pathology in our country.
Thus jobbery, politics, casteism and elections make an unholy, though invisible, alliance against national development which alone can liberate Indians from social and economic privation.
If democracy itself thus plays into the hands of hostile forces, the jurisprudence of keeping the backward as backward and perpetuation of discrimination as a vested caste right may prevail as a rule of life.
The remedy of 'reservations ' to correct inherited imbalances must not be an overkill.
Backward classes, outside the Scheduled Castes and Tribes, cannot bypass article 16(2) save where very substantial cultural and economic disparity stares at society.
The dubious obsession with 'backwardness ' and the politicking with castes labelled backward classes may, on an appropriate occasion, demand judicial examination.
The politics of power cannot sabotage the principles of one man, one value.
No sociological explanation for the flood of ruinous writ petitions regarding service conditions can be found except on this basis.
Behind the writ petitions we deal with now is caste clamour to keep all the jobs safe from being 'robbed ' by 'reserved ' communities.
It is forward caste versus backward caste, wearing the casteless caste marks! And the political process is likewise caste polluted Gunnar Myrdal writes in his Asian Drama: ( ' ) The type of appeal that can be made by politicians has also changed greatly since the liberation movement.
They can no longer put the blame for poverty and stagnation on colonial masters, but must explain why there is not great progress now that India is independent Thus a key to the understanding of the power of the political bosses is the inherited social stratification of India and, above all, its caste system.
At election times the caste groups function as political vote banks whereby the ballots of their members are joined to the candidate with a party label.
For this reason alone the local political bosses have a vested interest in preserving the social and economic status quo and exploiting it as a matrix for political action.
(1) Gunnar Myrdal, Asian Drama, Vol.
I, pp. 249 M. N. Srinivas, the noted sociologist is more than right (1) A One cannot help wondering whether the drive to political maturity is, after all, a good thing in a country which has still not had a proper social revolution.
It may well result in premature old age.
We need now, not stagnation wearing the mask of stability and scrambling acrimoniously over the same shrunken cake, but progress by the constructive process of explosive rural development and exploitation of the untapped human potential of the Scheduled Castes and Scheduled Tribes.
Sterile 'reservations ' will not help us go ahead unless, alongside of it, we have heroic national involvement of the masses in actual action, not paper logged plan exercises.
In the last analysis, privation can be banished only by production, discontent by distributive justice and litigation by socially relevant Justice.
The writ petitions are, regrettably, negative, although the driving force of penury deserves sympathy.
This, perhaps, is a materialist interpretation of 'service litigation ' and a trim foot note to these writ petitions.
D Before I conclude, I must strike a futuristic note.
Excellence and equality may cooperating fruitfully and need not compete destructively.
Ultimately harijan/girijan militancy must find fulfillment in effective main streaming and creative contribution.
While they have miles to go, they have promises to keep.
The poignant words of the Reverend Jesse Jackson come to my mind (1) "I don 't see how, we can survive as a people if we don 't have a great push for excellence now.
A lot of what we 've done in the past will be in vain if we don 't.
We can make one of the most valid contributions to Western civilization, even more of a contribution than slavery.
Because slavery was our great contribution against our will.
Now it 's time for us to make a great contribution as an act of will.
" Given the opportunity and the environment, the Indian dalits can make India great and give up crutches.
The writ petitions as well as the Special Leave Petitions cannot but be dismissed.
PATHAK, J.
My brothers Krishna Iyer and Chinnappa Reddy are agreed that the writ petitions should be dismissed.
They have held against the petitioners on the several contentions raised in the (1) M. N. Srinivas, "Changing Attitudes in India Today" Yogana, October I 1961, p. 26.
250 case.
With respect, I find myself unable to agree with all that they have said.
I intend to confine myself here to certain aspects of the case which appear to possess a fundamental importance.
Three provisions of the Constitution relate to reservations for Scheduled Castes and Scheduled Tribes.
They are article 46, article 16(4) and article 335.
The three form a single frame of reference.
article 46, a Directive Principle of State Policy, proclaims the principle that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
One of the modes in which the economic interests of the Scheduled Castes and Scheduled Tribes can be promoted is the reservation of appointments or posts in their favour in services under the State where they are not adequately represented.
article 16(4) declares that when the State intends to make such provision nothing in article 16 shall prevent it from doing so.
The equality of opportunity guaranteed to all citizens in matters relating to employment or appointment to any office under the State will not restrain the State from making such reservation.
It is now well accepted that the "equality provisions of Part III of the Constitution constitute a single code, illustrating the multi faceted character of the central concept of equality.
article 16(4) also is one facet.
It enables a backward class of citizens, by the process of reservation in Government service, to move along the road to ultimate equality with the more advanced classes.
It is part of the process of equalization.
Then follows article 335.
It provides that the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in the making of appointments to services and posts in connection with the affairs of the Union or a State, but and this is imperative such consideration must be consistent with the maintenance of efficiency of administration.
The paramount need is to maintain the efficiency of administration.
That is dictated by the common good.
It embraces the need of all, the national good, and not of a mere section of the people.
To its primacy all else is subordinate.
Therefore, whatever is done in considering the claims of the Scheduled Castes and Scheduled Tribes must be consistent with that supreme need, the maintenance of efficiency of administration.
article 335, it must be clearly stated, does not contain a positive principle, the advancement of Scheduled Castes and Scheduled Tribes, and a negative principle, the maintenance of efficiency of administration.
This analysis of the article does not 251 truly comprehend its contents.
It contains a single principle, the A advancement of Scheduled Castes and Scheduled Tribes, but through modes and avenues which must not detract from the maintenance of an efficient administration.
That limitation is imposed as a clear and positive condition.
A generally acknowledged and long established principle for securing an efficient administration is throwing open the doors to general recruitment, either directly or by promotion, where the governing criterion is excellence and the emphasis is solely on quality.
I he net of selection is spread far and wide, and the competitive best are collected, regardless of religion, race, caste, sex, descent, place of birth or residence.
However, a quota of the posts may be reserved in favour of a backward class of citizens, but the interests of an efficient administration require that at least half the total number of posts be kept open to attract the best of the nation`s talent and not more than half be made the sum of reserved quotas.
If it was otherwise, an excess of reserved quotaas would convert the State service into a collective membership predominantly of backward classes.
This, it is evident, will be inconsistent with the all important goal of maintaining the efficiency of administration.
In considering the proportion of reserved quotas in the context of college admissions, this ( 'court laid down in M. R. Balaji vs State of Mysore( ') that broadly a special provision providing for reservation should be less than 50%, .and how much less than 50% would depend upon the relevant prevailing circumstances in each case.
And, in this connection, Gajendragadkar, J. (as he then was) speaking for the Court, observed: " . when the State makes a special provision for the advancement of the weaker sections of society specified in article 15(4), it has to approach its task objectively and in a rational manner.
Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker elements; the extent of the problem must be weighed, the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant considerations." (Emphasis supplied) The Court struck down the reservation of 68% as constitutionally Invalid.
(1) [1963] Supp. 1 S.C.R. 439.
252 The principle that reserved quotas should not together exceed 50% of the vacancies available in a year was affirmed by this Court, by a majority of four learned judges to one, in T. Devadasan vs Union of India,( ') as the reason for striking down a "carry forward" rule which, for promotions in the Central Secretariat Service, permitted a carry forward for two successive years of the annual reserved quota.
It was found in that case that observance of the rule had resulted in 65%, of the vacancies of the year being filled by reserved quotas, current and carried forward.
The "carry forward" rule was held constitutionally invalid on the basis that for the purpose of article 16(1) each year of recruitment had to be considered as a distinct unit for applying the 50% rule.
Mudholkar, J., on behalf of the majority, said: "We would like to emphasize that the guarantee contained in article 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State.
This means that on every occasion for recruitment the State should see that all citizens are treated equally.
The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled.
In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities.
" It seems to me that apart from the impact that an excessive reservation in a particular year is bound to have on the general community of citizens, there is the further far reaching significance this assumes in the context of article 335.
The maintenance of efficiency of administration is bound to be adversely affected if general candidates of high merit are correspondingly excluded from recruitment because the large bulk of the vacancies, numbering anything over 50%, is allotted to the reserved quota.
In view of a maximum age limit invariably prescribed, some of such meritorious candidates may be loss to the service altogether.
Viewed in that light, a maximum of 50% for reserved quotas in their totality is a rule which appears fair and reasonable, just and equitable, and violation of which would contravene Art 335.
(1) ; 253 It has been urged by the respondents that Devadasn (supra) is A no longer good law in view of the 7 Judge decision in State of Kerala v N. M. Thomas( ').
It does appear from some of the individual Judgments delivered in the latter case that although Devadas (supra) has not been expressly overruled by a majority of the Bench there are observations by the majority of Judges which throw doubt on the validity of the principle enunciated by it and ultimately the Court has upheld the promotion of 34 Scheduled Caste and Scheduled Tribe candidates among the total promotion of 51 candidates.
It would seem then that there is an apparent conflict between Devadas (supra) and N. M. Thomas (supra).
The validity of Rule 13AA of the Kerala State and Subordinate Service Rules, 1958 was questioned in N. M. Thomas (supra).
That Rule permitted the exemption of Scheduled Caste and Scheduled Tribe members from passing the promotion tests for a specified period.
That more than 50% of the promotions went to the Scheduled Caste and Scheduled Tribe candidates was a consequence of the operation of Rule 13AA.
It is doubtful whether the petitioners ' challenge to the "carry forward" rule can avoid what has been said in N. M. Thomas (supra) and, therefore, a conclusion in their favour does not seem possible in this case.
As the position is not clear, and in any event as my learned brothers have taken a definite view in favour of the "carry forward" rule, I have confined myself to expressing these observations.
The petitioners have challenged other provisions prescribed in favour of members of the Scheduled Castes and Scheduled Tribes and have attempted to support their submissions by reference to data purporting to prove that those measures have resulted in reverse discrimination and are also inconsistent with the maintenance of efficiency of administration.
We have been taken through charts and statistics among other documentary material but the material placed before us does not clearly and definitely establish what it seeks to prove.
In the circumstances, it is not possible to record a finding in favour of the petitioners on those points.
G Accordingly, the writ petitions are dismissed but without any order as to costs.
CHINNAPPA REDDY J.
In the name of Equality (of opportunity), we are asked to deny Equality (of opportunity), in these Writ Petitions.
That we cannot do and that we will not do.
If we do that we will be subverting the spirit and the sense of the Constitution.
The (1) ; 254 petitioners claim that their Fundamental Right to Equality of Opportunity in the matter of public employment, guaranteed by article 16(1) of the Constitution has been flouted by a series of orders and circulars issued by the Railway Board reserving posts at several levels and making various concessions in favour of members of the Scheduled Castes and the Scheduled Tribes.
This has been done, it is claimed, at the cost of efficiency, though forbidden by article 335 of the Constitution.
The plain answer of the respondents is that everyone of the orders and circulars has the backing of article 16(1), 16(4) and other special provisions of the Constitution and that the alarm of inefficiency is nothing but a bogey.
My brother Krishna Iyer, J. has considered the questions raised in his own characteristic, scintillating way and in some depth.
Though respect for my brother would ordinarily prevent me from venturing to write a separate opinion, specially when I agree whole heatedly with his conclusions and the, route traversed by him, I propose to make, in this case, certain general observations because I expect the same questions to be raised repeatedly in different situations and in different forms and it is just as well that I project my own prosaic and pedestrian point of view, without going into the detail or depth already explored by my brother.
The class of people known compendiously as 'the Scheduled Castes ', recognized and described as such in the Constitution of India have been treated as 'casteless ' outcastes and untouchables and have been oppressed and subjected to every manner of depravation and discrimination for centuries upon centuries by a unique system of social and economic segregation, a system of "graded inequality" (Dr. B.R. Ambedkar), of "gradation and degradation" (Dr. C.R. Reddy) and of "gigantic cold blooded repression" ( Rabindranath Tagore).
And for centuries they were even prevented from protesting their plight.
Nor was any attempt made by the superior and elitist classes to know anything about them.
All that a Scheduled Caste parent could do was to lament: "Hush, my child; don 't cry, my treasure; Weeping is in vain, For the enemy will never Understand our pain.
For the ocean has its limits Prisons have their walls around But our suffering and our torment have no limit and no bound.
" Then, in 1950, came the Constitution rousing expectations, raising hopes, making promises and generally heralding a new, a bitter and 255 a more decent life for the underprivileged and the oppressed people of India.
While the preamble to the Constitution proclaims the resolution of the people to constitute India into a Sovereign (also. 'Socialist, Secular ', Since the 42nd Amendment) Democratic Republic and to secure to all its citizens, "Justice, Social, economic and political" and "Equality of Status and opportunity" and to promote 'Fraternity, assuring the dignity of the individual", while the Right to Equality before the Law (article 14) and Equality of Opportunity n the matter of public employment (article 16) are guaranteed as Fundamental Rights and while the State is enjoyed by the Directive Principles of State Policy to promote the welfare of the p people by securing a social order in which justice, social, economic and political shall inform all the institutions of the national life article 38(1), to endeavour to eliminate inequalities in status, facilities and opportunities article 38 (2), and, to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good article 39(b) and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment article 39(c), pursuant to the very preamble and the provisions of the Constitution, special provisions have been made.
in particular, for the protection and advancement of the Scheduled Castes and the Scheduled Tribes in recognition of their existing, low social and economic status and the consequent inability and failure on their part to avail themselves of any opportunity for self advancement.
It is recognized that the failure of the State to create a climatic situation and provide the necessary impetus for the increasing participation of the members of the Scheduled Castes and the Scheduled Tribes in the public services would tentamount to a denial to them of equal opportunity in the matter of public employment.
article 335 which is included in part XVI of the Constitution dealing with 'special provisions relating to certain classes ' expressly provides: "The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs to the Union or of a State.
" article 46, one of the Directive Principles of State Policy, enjoins: "The State shall promote with special care the educational and economic interest of the weaker sections of the 256 people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social in justice and all forms of exploitation.
" i article 16 (1) and 16 (4) which guarantee equality of opportunity in matters of public employment read as follows: "16 (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State." "16 (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State is not adequately represent in the services under the State " article 16 (2) which bars discrimination on certain rounds is as follows: "16 (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
" Now, it has been said, very rightly, a Constitutional instrument is sui generis and, obviously and necessarily, its interpretation cannot always run on the same lines as the interpretation of statutes made in exercise of the powers conferred by it.
A constitution, like ours, born of an anti imperialist struggle, influenced by Constitutional instruments, events and r evolutions elsewhere, in search of a better world and wedded to the idea of justice, economic, social and political, to all, must receive a generous interpretation so as to give all its citizens the full measure of justice so proclaimed instead of 'the austerity of tabulated legalism '(1).
And so, when the Constitutional instrument to be expounded is a constitution like the Indian Constitution, the expositors are to concern themselves not with words and mere words only, but, as much, with the philosophy or what we may call 'the spirit and the sense ' of the Constitution.
Here we do not have to venture upon a voyage of discovery to find the spirit and the sense of the Constitution; we do not have to look to any extraneous sources for inspiration and guidance; they may be sought and found in the Preamble to the Constitution, in the Directive Principles of State Policy, and other such provisions.
See Minister of Home Affairs : ; 257 Because Fundamental Rights are justiciable and Directive Principles are not, it was assumed, in the beginning, that Fundamental Rights held a superior position under the Constitution than the Directive Principles, and that the latter were only of secondary importance as compared with the Fundamental Rights.
That way of thinking is of the past and has become obsolete.
It is now universally recognised that the difference between the Fundamental Rights and Directive Principles lies in this that Fundamental Rights are primarily aimed at assuring political freedom to the citizens by protecting them against excessive State action while the Directive Principles are aimed at securing social and economic freedoms by appropriate, State action.
The Fundamental Rights are intended to foster the ideal of a political democracy and to prevent the establishment of authoritarian rule but they arc of no value unless they can be enforced by resort to Courts.
So they are made justiciable.
But, it is also evident that notwithstanding their great importance, the Directive Principles cannot in the very nature of things be enforced in a Court of law.
It is unimaginable that any Court can compel a legislature to make a law If the Court can compel Parliament to make laws then Parliamentary democracy would soon be reduced to an oligarchy of Judges.
It is in that sense that the Constitution says that the Directive Principles shall not be enforceable by Courts.
It does not mean that Directive Principles are less important than Fundamental Rights or that they are not binding on the various organs of the State.
article 37 of the Constitution emphatically states that 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.
It follows that it becomes the duty of the Court to apply the Directive Principles in interpreting the Constitution and the laws.
The Directive Principles should serve the Courts as a code of interpretation.
Fundamental Rights should thus be interpreted in the light of the Directive Principles and the later should, whenever and wherever possible, be read into the former.
Every law attacked on the ground of infringement of a Fundamental Right should, among other considerations, be examined to find out if the law does not advance one or other of the Directive Principles or if it is not in discharge of some of the undoubted obligations of the State, constitutional or otherwise, towards its citizens or sections of its citizens, flowing out of the preamble.
the Directive Principles and other provisions of the Constitution.
So, we have it that the Constitutional goal is the establishment of a Socialist Democracy which Justice, economic, social and political 258 is secure and all men are equal and have equal opportunity.
Inequality, whether of status, facility or opportunity, is to end, privilege is to cease and exploitation is to go.
The under privileged, the deprived and the exploited are to be protected and nourished so as to take their place in an egalitarian society.
State action is to be towards those ends.
It is in this context that article 16 has to be interpreted when State action is questioned as contravening article 16.
Let us now take a look at article 16(1) and Art 16(4).
article 16(1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
To the class of citizens who are economically and socially backward this guarantee will be no more than mere wishful thinking, and mere 'vanity. wind and confusion", if it is not translated into reality by necessary state action to protect and nurture such class of citizens so as to enable them to shake off the heart crushing burden of thousand years ' deprivation from their shoulders and to claim a fair proportion of participation in the Administration.
Reservation of posts and all other measures designed to promote the participation of The Scheduled Castes and the Scheduled Tribes in the Public Services at all levels are in our opinion necessary consequences flowing fro the Fundamental Right guaranteed by article 16(1)S This very idea is emphasised further by article 16(4).
article 16(4) is not in the nature of an exception to article 16(1).
It is a facet of article 16(1) which fosters and furthers the idea of equality of opportunity with special reference to an under privileged and deprived class of citizens to when egalite de droit (formal or legal equality) is not egalite de fait (practical or factual equality).
It is illustrative of what the State must do to wipe out the distinction between egalite de droit and egalite de fait.
It recognises that the right to equality of opportunity includes the right of the underprivileged to conditions comparable to or compensatory of those enjoyed by the privileged.
Equality of opportunity must be such as to yield 'Equality of Results ' and not that which simply enables people, socially and economically better placed, to win against the less fortunate, even when the competition is itself otherwise equitable.
John Rawls in 'A Theory of Justice ' demands the priority of equality in a distributive sense and the setting up of the Social System "so that no one gains or loses from his arbitrary place in the distribution of natural assets or his own initial position in society without giving or receiving compensatory advantages in return".
His basic principle of social justice is: "All social primary goods liberty and opportunity, income and wealth, and the bases of self respect are to be distributed equally unless an unequal distribution of any or all these goods is to the advantage of the least 259 favoured".
One of the essential elements of his conception of social A justice is what he calls the principle of redress: "This is the principle that undeserved inequalities call for redress; and since inequalities of birth and natural endowment are undeserved, these inequalities are somehow to be compensated for".
Society must, therefore, treat more favourably those with fewer native assets and those born into less favourable social positions.
If the statement that 'Equality of opportunity must yield Equality of Results ' and if the fulfillment of Articles 16(1) in article 16(4) ever needed a philosophical foundation it is furnished by Rawls ' Theory of Justice and the Redress Principle.
The interpretation of articles 16(1) and 16(4) came up for consideration in several cases before this Court.
Perhaps the most important of them is State of Kerala & Anv.
vs N. M. Thomas & Ors.,(1) which was decided by a Bench of seven Judges.
The question was whether a certain rule which gave a longer period of exemption to members belonging to Scheduled Castes and Scheduled Tribes than to others from passing certain departmental tests in order to be eligible for promotion from the Post of Lower Division Clerk to that of Upper Division Clerk was not violative of article 16(1) of the Constitution.
The Court by a majority of five to two upheld the rule as valid.
Ray, C. J., observed: "The rule of equality within Articles 14 and 16(1) will not be violated by a rule which will ensure equality of representation in the services for unrepresented classes after satisfying the basic needs of efficiency of administration.
Article 16(2) rules out some basis of classification including race, caste, descent, place of birth etc.
Article 16(4) clarifies and explains that classification on the basis of backwardness does not fall within Article 16(2) and is legitimate for the purposes of Article 16(1).
If preference shall be given to a particular under represented community other than a backward class or under represented State in an All India Service such a rule will contravene Article 16(2).
A similar rule giving preference to an under represented backward community is valid and will not contravene articles 14, 16(1) and 16(2).
Article 16(4) removes any doubt in this respect".
(I) ; @930 933.
260 "The classification of employees belonging to Scheduled Castes and Scheduled Tribes for allowing them an extended period of two years for passing the special tests for promotion is a just and reasonable classification having rational nexus to the object of providing equal opportunity for all citizens in matters relating to employment or appointment to public office.
" xx xx xx "The Constitution makes a classification of Scheduled Castes and Scheduled Tribes in numerous provisions and gives a mandate to the State to accord special or favoured treatment to them." xx xx xx "Article 335 of the Constitution states that claims of members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in the making of appointments to the services and posts in connection with affairs of the State consistent with the maintenance of efficiency of administration.
The impugned rule and the impugned orders are related to this constitutional mandate." "Our constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward.
The claims of members Or backward classes require adequate representation in legislative and executive bodies.
If members of Scheduled Castes and Tribes, who are said by this Court to be backward classes, can maintain minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality.
Articles 15 (4) and 16(4) bring out the position of backward classes to merit equality Special provisions are made for the advancement of backward classes and reservations of appointments and posts for them to secure adequate representation.
These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1).
The basic concept of equality is equality of opportunity for appointment.
Preferential treatment for members of backward classes with due regard to administrative efficiency alone, can mean equality of opportunity for all citizens.
Equality under 261 Article 16 could not have a different content from equality under Article 14.
Equality of opportunity for unequals can only mean aggravation of inequality Equality of opportunity admits discrimination with reason and prohibits discrimination without reason.
Discrimination with reasons means rational classification for differential treatment having n nexus to the constitutionally permissible object.
Preferential representation for the backward classes in services with due regard to administrative efficiency is permissible object and backward classes are a rational classification recognised by our Constitution.
Therefore, differential treatment in standards of selection are within the concept of equality".
xx xx xx xx "All legitimate methods are available for equality of opportunity in service under Article 16(1).
Article 16(1) is affirmative whereas Article 14 is negative in language.
Article 16(4) indicates one of the methods of achieving equality embodied in Article 16(1)".
Equally illuminating observations were made by Mathew, J., Beg.
, J., Krishna Iyer, J., and Fazal Ali, J., in their separate concurring opinions but I do not propose to extract them in the interest of space.
It is enough to mention that all five learned judges who constituted the majority were emphatic in repudiating the theory (propounded in earlier cases) that article 16(4) was in the nature of an exception to article 16(1).
All were agreed that article 16(4) was a facet, an illustration or a method of application of article 16(1).
So, it is now no longer necessary to apologetically explain laws aimed at achieving equality as permissible exceptions; it can now be boldly claimed that such laws are necessary incidents of equality.
It all began with The General Manager), Southern Railway vs Rangachari(1).
Two circulars issued by the Railway Board reserving selection (promotional) posts in Class III of the Railway Service in favour of the members of the Scheduled Castes and the Scheduled Tribes, were questioned in that case as offending article 16.
It was contended that article 16(4) applied only to reservation of posts at the stage of initial appointment and not to promotional posts.
The contention was rejected and it was held that article 16(4) applied at the stage of initial appointment as well as at the stage of promotion by selection.
It was in the case that observations were made to the (1) ; 262 effect that article 16(4) was in the nature of an exception to article 16(1), but, as we have seen such a view is no longer tenable in view of State of Kerala & Anr.
vs N. M. Thomas & Ors.
(supra).
Much of the argument of the learned counsel for the petitioners was anchored to, T. Devodasan vs Union of India(z & Anr.(1) 17 1/2% of vacancies in an establishment were reserved for members of the scheduled Castes and Scheduled Tribes.
Alongside the reservation rule, there operated what is known as "the carry forward rule" familiar to all Govt.
employees and those connected with 'service problems '.
The carry forward rule so operated in the particular case that out of 45 appointments made by the Government 29 were from among the candidates belonging to the Scheduled Castes and Scheduled Tribes.
In other words the reservation Came to 65% which was far in excess of the 177% originally contemplated by the Reservation rule.
In those circumstances, a Constitution Bench of this Court (Subba Rao, J. dissenting) declared the carry forward rule bad.
The Court did not strike down the carry forward rule on the ground that it was inherently vicious or on the hypothetical consideration that it was bound to lead to vicious results in the future if permitted to operate without inhibition.
The learned judges indicated that the repercussions of such a rule would have to be watched from year to year.
Another case upon which the petitioners placed reliance was M. R. Balaji & Ors.
vs State, of Mysore(2).
In that case the percent age of seats reserved in the Engineering and Medical colleges for the educationally and socially backward classes and Scheduled Castes and Scheduled Tribes came to 68% leaving only 32% of the seats for the merit pool.
The Court held that generally and broadly reservation should not exceed 50%.
The actual percentage was to depend upon the relevant prevailing circumstances in each case.
As the reservation in that case for exceeded what was generally and broadly permissible, the reservation was held to be bad.
There again the Court was concerned directly with the immediate, actual, practical result of the Reservation rule.
In A. Peeriakaruppan, etc.
Y. State of Tamil Nadu & Ors.
,(3) reservation of 41% of the seat in medical college in the State of (1) ; (2) [1963] Suppl.
I SCR 439.
(3) [1971] 2 SCR 430 @ 441 442. 263 Tamil Nadu for students coming from socially and educationally back ward classes was upheld.
Hegde, J., observed (at p. 441 442): "There is no basis for the contention that the reservation made for backward classes is excessive.
We were not told why it is excessive.
Undoubtedly we should not forget that it is against the immediate interest of the Nation to exclude from the portals of our medical colleges qualified and competent students but then the immediate advantages of the Nation have to be harmonised with its long range interests.
It cannot be denied that unaided many sections of the people in this country cannot compete with the advanced sections of the Nation.
Advantages secured due to historical reasons should not be considered as fundamental mental rights.
Nation 's interest will be best served taking a long range view if the backward classes are helped to march forward and take their place in line with the advanced sections of the people.
That is why in Balaqi 's case [1931] Suppl 1 SCR (439), this Court held that the total of reservations for backward classes, scheduled castes and scheduled tribes should not ordinarily exceed 50% of the available seats.
In the present case it is 41%.
On the material before us we are unable to hold that the said reservation is excessive".
In State of Punjab vs Hiralal & Ors.
,(l) a rule reserving the first out of every ten vacancies to a member of the Scheduled Castes and Scheduled Tribes and providing for 'carry forward ' of the vacancy if suitable candidate was not available was struck down by the High Court by visualising various hypothetical cases which could lead to anomalous situations in which a person getting the benefit of reservation may jump over the heads of several of his seniors not only in his own grade but even in higher grades.
This Court reversed the decision of the High Court observing: "The extent of reservation to be made is primarily a matter for the State to decide.
By this we do not mean to say that the decision of the State is not open to judicial re view.
The reservation must be only for the purpose of giving adequate representation in the service to the Scheduled Castes, Scheduled Tribes and Backward Classes".
xx xx (1) ; @ 272, 273, 274.
264 "The mere fact that the reservation made may give extensive benefits to some of the persons who have the benefit of the reservation does not by itself make the reservation bad.
The length of the leap to be provided depends upon the gap to be covered".
xx xx xx xx "There was no material before the High Court and there is no material before us from which we can conclude that the impugned order is violative of article 16(1).
Reservation of appointments under article 16(4) cannot be struck down on hypothetical grounds or on imaginary possibilities.
He who assails the reservation under that article must satisfactorily establish that there has been a violation of article 16(1)".
The report of the Commissioner for Scheduled Castes and Scheduled Tribes for 1977 78 and the 'Reports on the progress made in the intake of Scheduled castes and Scheduled Tribes against vacancies reserved for them in recruitment and promotion categories in the Rail ways ' for the half years ending March 31, 1974, March 31, 1975, September 30, 1976, March 31, 1977 and September 30, 1979 were placed before us.
they reveal how painfully slow and woefully in significant has been progress achieved by the members of the Scheduled Castes and Scheduled Tribes in the matter of their participation in the Railway administration.
My brother Krishna Iyer J has extracted some of the facts and figures.
I do not think it is necessary for me to refer to them over again.
It is sufficient to say that members of the Scheduled Castes and Scheduled Tribes far from acquiring any monopolistic or excessive representation over any category of posts (other than sweepers) are nowhere near being adequately represented.
Neither the Reservation rule nor the 'carry forward for three years ' rule has resulted in any such 'disastrous ' consequences.
The complaint of the petitioners that the circulars and orders had resulted in excessive representation of the Scheduled Castes and Scheduled Tribes is without foundation generally or with reference to any particular year.
One of the contentions vehemently submitted by the learned counsel for the petitioners was that efficiency of administration would suffer and safety of the travelling public would consequently be jeopardised if reservations were made and promotions affected in the manner sought to be done by the Railway Board.
This is claimed by the respondents to be no more than a bogey.
In the counter affidavit filed on behalf of the Railway Board it has been pointed out that minimum standards arc insisted upon for every appointment 265 and in the case of candidates wanting in requisite standards, those h with the highest marks are given special intensive training to enable them to come up to the requisite standards.
In the case of posts which involve the safety of movement of trains there is no relaxation of standards in favour of candidates belonging to Scheduled Castes and Scheduled Tribes and they are required to pass the same rigid tests as other candidates.
Therefore, we see that when posts whether at the stage of initial appointment or at the state of promotion are reserved or other preferential treatment is accorded to members of the Scheduled Castes, Scheduled Tribes and other socially and economically backward classes, it is not a concession or privilege extended to them, it is in recognition of their undoubted Fundamental Right to Equality of Opportunity and in discharge of the Constitutional obligation imposed upon the state to secure to all its citizens 'Justice, social, economic and political ' and 'Equality to status and opportunity ', to assure 'the dignity of the individual ' among all citizens, to 'promote with special D. care the educational and economic interests of the weaker section of the people ', to ensure their participation on equal basis in the administration of the affairs of the country and generally to foster the ideal of a 'Sovereign, Socialist, Secular, Democratic Republic '.
Every lawful method is permissible to secure the due representation of the Scheduled Castes and Scheduled Tribes in the public Services.
There is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of fifty percent.
There is no rigidity about the fifty percent rule which is only a convenient guideline laid down by Judges.
Every case must be decided with reference to the present practical results yielded by the application of the particular rule of preferential treatment and not with reference to hypothetical results which the application of the rule may yield in the future.
Judged in the light of this discussion I am unable to find anything illegal or unconstitutional in any one of the impugned orders and circulars.
Each order and circular has been individually discussed by my brother Krishna Iyer J with whose reasoning and conclusions I agree and to which I wish to add no more.
PBR Petitions dismissed.
| IN-Abs | In so far as the initial recruitment and later promotion to classes II, III and IV are concerned, the Railway Administration provided for reservation of certain percentage of vacancies for candidates belonging to the Scheduled Castes and Scheduled Tribes.
Since, despite the special provision the intake of these communities into the Railway Services continued to be negligible further concessions and relaxations were offered from time to time to members belonging to the Scheduled Castes and Scheduled Tribes.
Even so, in many cases the vacancies reserved for them remained unfilled.
Yet another step taken by the Railway Administration to keep open the reserved vacancies was to adopt a policy of "carry forward" of the unfilled reserved vacancies for at least three years.
In obedience to the policy decision of the Ministry of Home Affairs, the Railway Board issued certain directives designed to protect and promote the interest of members of the Scheduled Castes and Scheduled Tribes in the matter of their employment in the Railway Administration.
The policy directive of reserving certain percentage of posts in favour of these communities having not proved effective, the Railway Board altered the rules "with a view to securing increased representation of Scheduled Castes and Scheduled Tribes in the Railway Services" (Annexure D).
The Railway Board authorised the recruiting bodies to slur over low places obtained by Scheduled Castes and Scheduled Tribes candidates except where it was found that the minimum standard necessary for the maintenance of efficiency of the administration had not been reached.
The appointing authorities were directed to give additional training and coaching to the recruits so that they might come up to the standard of other recruits appointed alongwith them.
Likewise where direct recruitment, otherwise than by examination, was provided for, the Railway Board directed the selection of Scheduled Castes and Scheduled Tribes candidates fulfilling a lower standard of suitability than from other communities, so long as the candidates had the prescribed minimum educational and technical qualifications and the appointing authorities were satisfied that the lowering of standards would not unduly affect the maintenance of efficiency of administration.
In the case of selection posts the Railway Board decided that promotions from class IV to class III and from class III to class II were of the nature of direct recruitment and the prescribed quota of reservation for Scheduled Castes and Scheduled Tribes should be provided as in direct recruitment.
This reser 186 vation was confined to 'selection posts '.
In regard to filling of "general posts" in class III it was stated that they were in the nature of direct recruitment and the reservation for Scheduled Castes and Scheduled Tribes as applicable to direct recruitment should be applied.
(Annexure F).
In 1969 the Railway Board further revised their policy in regard to the reservation and other concessions to the Scheduled Castes and Scheduled Tribes candidates in posts filled by promotion (Annexure H).
The circular stated that in promotion by selection from class III to class II, if a member of the Scheduled Castes and Scheduled Tribes was within the zone of eligibility the employee would be given one grading higher than the grading otherwise assignable to him on the basis of his record of service.
In April, 1970 the percentage of vacancies to be reserved for Scheduled Castes and Scheduled Tribes was raised from 121/2% and 5% to 15% and 71/2% respectively (Annexure I).
By the same order the "carry forward" rule was altered from 2 to 3 years.
In 1973 the Railway Board issued a directive stating that the quota of 15% and 71/2% for Scheduled Castes and Scheduled Tribes may be provided promotion to the categories and posts in classes I, II, III and IV filled on the basis of the seniority cum suitability provided the element of direct recruitment to those grades does not exceed 50% (Annexure K).
In August, 1974 the Railway Board further directed that if the requisite number of Scheduled Castes and Scheduled Tribes candidates were not available for being placed on the panel in spite of the various relaxations the best among them i.e. those who secure highest marks should be earmarked for being placed on the panel to the extent vacancies had been reserved in their favour.
The Scheduled Castes and Scheduled Tribes candidates so earmarked might be promoted ad hoc for a period of six months against the vacancies reserved for them.
During the period of six months the administration was asked to give them all facilities for improving their knowledge and for coming upto the requisite standard.
The procedure was required to be applied in cases of promotion to the posts filled on the basis of seniority cum suitability (Annexure N).
A further modification to the then existing rules was made by Annexure 'O ' which stated that "reservations in posts filled by promotion under the existing scheme would be applicable to all grades or services where the element of direct recruitment, if any, does not exceed 66 2/3% as against 50% as at present".
It was contended on behalf of the petitioners that Scheduled Castes cannot be a favoured class in the public services because (i) they are "castes" and cannot claim preference qua castes unless specially saved by Article 16(4) which speaks of "class" and not "castes", (ii) that Article 16(4) could not apply to promotional levels and (iii) efficiency of administration envisaged by Article 335 had been jeopardised by the impugned circulars which fomented frustration among the civil services and produced inefficiency by placing men of lower efficiency and less experience in higher posts.
187 A preliminary objection was raised that since the first petitioner was an unrecognised union, it was not a "person aggrieved" and so its petition was unsustainable.
Dismissing the petitions [Per majority Krishna Iyer and Chinnappa Reddy, JJ, Pathak J. concurring in the result with reservation on certain questions] There is nothing illegal or unconstitutional in the impugned orders.
[Per Krishna Iyer, J] The argument that since the first petitioner was an unrecognized association the petition is not sustainable must be overruled because whether the petitioners belonged to a recognised union or not, the fact remains that a large body of persons with a common grievance exists and they approached this Court under Article 32.
Our current processual jurisprudence is broad based and people oriented and envisions access to justice through "class actions", "public interest litigation" and "representative proceedings".
The narrow concept of cause of action and person aggrieved and individual litigation is becoming obsolescent in some jurisdictions.
[224 G H] The well settled position in law is that the State may classify, based upon substantial differentia, groups or classes and this process does not necessarily spell violation of Articles 14 to 16.
Therefore, in the present case if the Scheduled Castes and Scheduled Tribes stand on a substantially different footing they may be classified groupwise and treated separately.
[232 B C] The fundamental right of equality of opportunity has to be read as justifying the categorisation of Scheduled Castes and Scheduled Tribes separately for the purpose of "adequate representation" in the services under the State.
The object is constitutionally sanctioned in terms as Article 16(4) and 46 specificate.
The classification is just and reasonable.
[233 G H] Apart from Article 16(1), Article 16(2) expressly forbids discrimination on the ground of caste and here the question arises as to whether the Scheduled Castes and Tribes are castes within the meaning of Article 16(2).
Assuming that there is discrimination, Article 16(2) cannot be invoked unless it is predicated that the Scheduled Castes are "castes".
There are sufficient indications in the Constitution to suggest that the Scheduled Castes are not mere castes.
They may be something less or something more and the time badge is not the fact that the members belong to a caste but the circumstance that they belong to an indescribably backward human group.
[234 A C] Articles 14 to 16 form a Code by themselves and contain a constitutional fundamental guarantee.
The Directive Principles which are fundamental in the governance of the country enjoin upon the State the duty to apply that principle in making laws.
Article 46 obligates the State the promote with special care the educational and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and the Scheduled Tribes.
Article 46 read with Article 16(4) makes it clear that the exploited lot of the harijan groups in the past shall be extirpated with special care by the State.
A C] 188 At the same time reservations under Article 16(4) and promotional strategies under Article 46 should not be used to imperil administrative efficiency in the name of concessions to backward classes.
The positive accent of Article 335 is that the claims of these communities to equalisation of representation in services under the State shall be taken into consideration.
The negative element of this Article is that measures taken by the State pursuant to the mandate of Articles 16(4), 46 and 335 shall be consistent with and not subversive of the maintenance of efficiency of administration.
[211 D F] Under Article 341, Scheduled Castes become such only if the President specifies any castes, races or tribes or parts or groups within castes, races or tribes for the purpose of the Constitution.
It is the socioeconomic backwardness of a social bracket that is decisive and not mere birth in a caste.
[212 A] Annexure F relates only to selection posts and has been expressly upheld in Rangachari 's case.
The quantum of reservation is not excessive; the field of eligibility is not too unreasonable; the operation of the reservation is limited to selection posts and no relaxation of qualifications is written into the circular except that candidates of the Scheduled Castes and Scheduled Tribes communities should be judged in a sympathetic manner.
Moreover administrative efficiency is secure because there is a direction to give such staff additional training and coaching, to bring them upto the standard of others.
[239 F G] There is no vice in giving one grade higher than is otherwise assignable to an employee.
based on the record of his service rendering the promotional prospects unreasonable because this concession is confined to only 25% of the total number of vacancies in a particular grade or post filled in a year and there is no rampant vice of every harijan jumping over the heads of others.
More importantly, this is only an administrative device of showing a concession or furtherance of prospects of selection.
Even as under Articles 15(4) and 16(4) lesser marks are prescribed as sufficient for these communities or extra marks are added to give them an advantage, the regrading is one more method of boosting the chances of selection of these communities.
The prescribed minimum qualification and standard of fitness are continued even for Scheduled Castes and Scheduled Tribes under Annexure H. [240 B D] Annexure I is unexceptionable since all that it does is to readjust the proportion of reservation in conformity with the latest census.
[240 E F] Similarly "carry forward" raised from two years to three years cannot be struck down.
There is no prospect, even if the vacancies are carried forward, of sufficient number of Scheduled Castes and Scheduled Tribes candidates turning out to fill them.
Moreover, there is a provision that if a sufficient number of candidates from these communities are not found, applicants from the unreserved communities would be given appointment provisionally.
After three years these vacancies cease to be reserved.
[240 G A] Even in Devadasan 's case, this Court has laid down the proposition that under Article 16(4) reservation of a reasonable percentage of posts for member of the Scheduled Castes and Scheduled Tribes is within the competence of the State.
What was struck down was that the reservations should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities.
By this rule there is no danger of the total vacancies 189 being gobbled up by the harijan/girijan groups virtually obliterating Article 16(1).
The problem of giving adequate representation to backward classes under Article 16(4) is a matter for the Government to consider, bearing in mind the need for a reasonable balance between the rival claims.
[241 B F] Subject to the condition that the carry forward rule shall not result in any given year in the selection or appointment of Scheduled Castes and Scheduled Tribes candidates considerably in excess of 50%, the Annexure I is upheld.
[242 E] There is nothing unreasonable or wrong in Annexure J.
Once the parameters of reservation are within the framework of the fundamental rights, minute scrutiny of every administrative measure is not permissible.
[242 F] Annexure K is beyond reproach.
As between selection and non selection posts the role of merit is functionally more relevant in the former than in the latter.
If in selecting top officers, posts could be reserved for Scheduled Castes and Scheduled Tribes with lesser merit it cannot rationally be argued that for the posts of peons, or lower division clerks reservation would spell calamity.
The part that efficiency plays is far more in the case of higher posts than in the appointments to the lower posts.
[243 D] Dilution of efficiency caused by the minimal induction of a small percentage of reserved candidates cannot affect the over all administrative efficiency significantly.
Moreover, care has been taken to give in service training and coaching to correct the deficiencies.
[244 B C] [Chinnappa Reddy, J concurring] The preamble to the Constitution of India proclaims the resolution of the people to secure to all its citizens justice, social, economic and political, equality of status and opportunity and to promote fraternity assuring the dignity of the individual.
The right to equality before the law and equality of opportunity in the matter of public employment are guaranteed as fundamental rights.
The State is enjoined upon by the Directive Principles to promote the welfare of the people, to endeavour to eliminate inequalities in status, facilities and opportunities and special provisions have been made, in particular, for the protection and advancement of the Scheduled Castes and Scheduled Tribes in recognition of their low social and economic status and their failure to avail themselves of any opportunity of self advancement.
In short the constitutional goal is the establishment of a socialist democracy in which justice economic, social and political is secure and all men are equal and have equal opportunity.
Inequality whether of status, facility or opportunity is to end, privilege is to cease and exploitation is to go.
The under privileged, the deprived and the exploited are to be protected and nourished so as to take their place in an egalitarian society.
State action is to be towards those ends.
It is in this context that Article 16 has to be interpreted when State action is questioned as contravening Article 16.
[255 A F] A Constitution, such as ours, must receive generous interpretation so as to give an its citizens the full measure of justice so proclaimed.
While interpreting the Constitution the expositors must concern themselves not so much with words as with the spirit and sense of the Constitution which could be found in the Preamble the Directive Principles and other such provisions.
[256 G] 190 At one time it was assumed that because the fundamental rights are enforce able in a court of law while Directive Principles are not, the former were superior to the latter, that way of thinking has become obsolete.
The current thinking is that while Fundamental Rights are primarily aimed at assuring political freedom to the citizens against excessive State action, the Directive Principles are aimed at securing social and economic freedoms by appropriate State action.
The Directive Principles are made unenforceable in a limited sense because no Court can compel a Legislature to make laws.
But that does not mean that they are less important than Fundamental Rights or that they are not binding on the various organs of the State.
They are all the same fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
The Directive Principles should serve the Courts as a Code of Interpretation.
Every law attacked on the ground of infringement of Fundamental Right should be examined to see if the impugned law does not advance one or other of the Directive Principles or if it is not in the discharge of some of the undoubted obligations of the State towards its citizens flowing out of the Preamble, the Directive Principles and other provisions of the Constitution.
[257 A G] Reservation of posts and all other measures designed to promote the participation of the Scheduled Castes and Scheduled Tribes in public services at all levels are a necessary consequence flowing from the Fundamental Rights guaranteed by Article 16(1).
This very idea is emphasized further by Article 16(4) which is not in the nature of an exception to Article 16(1) but a facet of that Article.
In the State of Kerala vs N.M. Thomas the court has repudiated the theory propounded in earlier cases that Article 16(4) is in the nature of an exception to Article 16(1).
It is no longer correct to say that laws aimed at achieving equality as permissible exceptions.
Such laws are necessary incidents of equality.
[258 D F] Minister of Home Affairs vs Fisher [1979]3 All E.R. 21, State of Kerala & Anr.
vs N.M. Thomas & Ors.
[1976] 1 S.C.R. 906 @ 930 933 and The General Manager, Southern Railway vs Rangachari [1962]2 S.C.R. 586 referred to.
The figures quoted from the report of the Commissioner of Scheduled Castes and Scheduled Tribes for the year 1977 78 reveal how slow and insignificant the progress achieved by the members of these communities in the matter of participation in the Railway Administration had been.
Far from acquiring any monopolistic or excessive representation over any category of posts these communities are nowhere near being adequately represented.
Neither the reservation rule nor the "carry forward" rule for these years has resulted in any such disastrous consequence.
Therefore, the complaint of the petitioners that the circulars had resulted in excessive representation of these communities is without foundation generally or with reference to any particular year.
[246 D G] There is no substance in the argument that efficiency of administration would suffer if the Railway Board 's directives were followed in the matter of reservations and promotions.
The Railway Board had stated that minimum standards were insisted upon for every appointment and in the case of candidates wanting in requisite standards of efficiency those with higher marks were given special intensive training to enable them to come up to the requisite standards.
In the case of posts which involved safety of movement of trains there was no 191 relaxation of standards in favour of candidates belonging to Scheduled Castes and Scheduled Tribes and they were required to pass the same rigid tests as others.[265 A B] There is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of 50% about which there is no rigidity.
Every case must be decided on its own facts.
[265 E] There is nothing illegal or unconstitutional in any one of the impugned orders and circulars.
[265 G] [Pathak J concurring in the result with reservation on certain questions.] Article 46 of the Constitution enjoins upon the State to treat with special care the educational and economic interest of the weaker sections of the people and in particular the Scheduled Castes and Scheduled Tribes.
One of the modes in which the economic interest of these communities can be promoted is by reservation of appointments or posts in their favour in services under the State where they are not adequately represented.
By virtue of Article 16(4), when the State intends to make reservation of appointments or posts in favour of these communities in services under it nothing in Article 16 prevents it from doing so.
Article 335 provides that claims of the members of these communities shall be taken into consideration in the making of appointments to services and posts in connection with the affairs of the Union or a State.
But such consideration must be consistent with the maintenance of efficiency of administration which is regarded as paramount.
It is dictated by the common good and not of a mere section of the people.
Therefore, whatever is done in considering the claims of Scheduled Castes and Scheduled Tribes must be consistent with the need for maintenance of efficiency of administration.
This Article contains a single principle, namely, the advancement of Scheduled Castes and Scheduled Tribes but through modes and avenues which must not detract from the maintenance of an efficient administration.
[250 B H] For securing an efficient administration the governing criterion in the matter of appointments to posts under the State is excellence and the emphasis is solely on quality.
The selection is made regardless of religion, race, caste, sex, descent, place of birth or residence.
However, a quota of the posts may be reserved in favour of backward citizens.
But the interests of efficient administration require that at least half the total number of posts be kept open to attract the best of the nation 's talent.
If it was otherwise an excess of the reserved quota would convert the State service into a collective membership predominantly of backward classes.
The maintenance of efficiency of administration is bound to be adversely affected if general candidates of high merit are correspondingly excluded from recruitment.
Viewed in that light the maximum of 50% for reserved quota appears fair and reasonable, just and equitable violation of which would contravene Article 335.
[251 B D] M. R Balaji vs State of Mysore [1963] Supp. 1 S.C.R. 439, 470, T. Devadasan vs Union of India [1964]4 S.C.R. 680 and State of Kerala vs N. M. Thomas [1976]1 S.C.R. 906 referred to. 192
|
Civil Appeal No. 720 of 1978.
Appeal under section 116 A of the Representation of People Act 1951 from the Judgment and Order dated 7 2 1978 of the Punjab and Haryana High Court in E.P. No. 15/77.
Hardev Singh for the Appellant.
P. P. Rao, O. P. Sharma, R. Venkataramiah and R. C. Bhatia for the Respondents.
The Judgment of the Court was delivered by SHINGHAL J.
This appeal by election petitioner Harjit Singh Mann is directed against the judgment of the Punjab and Haryana High Court dated February 7, 1978, dismissing the petition by which he had challenged the election of Umrao Singh, respondent No. 1, hereinafter referred to as the respondent, from the Nakodar constituency of the Punjab Legislative Assembly.
The result of the election was declared on June 14, 1977, according to which the respondent was declared elected as he secured the highest votes at the poll.
503 Appellant Harjit Singh Mann could not contest the election as his nomination papers were rejected by the Returning Officer on May 19, 1977, which was the date fixed for the scrutiny of the nominations.
That was taken as one of the grounds for filing the election petition, the other ground being the commission of some corrupt practices by the respondent.
The respondent traversed the allegations.
The trial court examined some of the preliminary objections and framed eight issues.
The first two issues were decided in favour of the appellant.
As regards issue No. 3, the trial court held that a part of the allegation of corrupt practice which was sought to be incorporated in the amended petition, could not be taken into consideration as the amendment was applied for after the expiry of the period of limitation; and it was therefore ordered to be deleted.
The correctness of the above findings has not been challenged before us.
In fact we are required to consider the trial court 's findings only on issues Nos. 4, 5 and 6, which have all gone against the appellant.
Issues Nos. 7 and 8 have not been pressed for our consideration.
We shall therefore concern ourselves with three issues (Nos. 4, 5 and 6) and deal with them one by one.
Issue No. 4 was to the following effect, "Whether Jit Ram proposer of the petitioner reached the office of the Returning Officer at 2.50 p.m. and filed the nomination papers of the petitioner before 3.00 p.m. on 18 5 1977 and whether the endorsement made on the nomination papers that the nomination papers were received at 3.10 p.m. was wrongly made and thereby illegally rejected the nomination papers of the petitioner on 19 5 1977 ? If so, to what effect.
" The appellant 's allegation in this respect was that although Jit Ram (P.W. 7), who had proposed his candidature, reached the office of the Returning Officer after depositing the necessary security in the bank at 2.50 p.m. on May 18, 1977, and the Returning Officer placed the nomination papers on his table, he wrongly asked Jit Ram to take back the nomination papers saying that the time for filing them had expired.
It was further alleged that the Returning Officer got annoyed when Jit Ram protested that he had filed the nomination papers in time, and that he wrongly noted down the time of presentation of the nomination papers as 15.10 hours.
As has been stated, the trial court has disbelieved the averment of the petitioner in this respect and found the issue against him.
We have gone through the statement of Jit Ram P.W. 7 who, according to the appellant 's case, presented the nomination papers to 504 the Returning Officer.
The witness has however admitted in cross examination that when he was trying to deliver the nomination papers, the Returning Officer "said that he objected to the delivery of the nomination papers as the time was over".
The witness no doubt claimed that he reached the office of the Returning Officer, after depositing the security at about 2.45 p.m. and that when the Returning Officer told him that the time for the filing of the nomination papers had expired, some four other "persons" standing in the office of the Returning Officer said that "still two minutes remained for it becoming 3 O 'clock and some said that one minute still remained".
The trial court disbelieved that version of Jit Ram.
He really could not even read the time in the clock of the trial court, for when he deposed that it was 3.19 p.m., the time accordingly to that clock was 3.6 p.m.
Jit Ram did not therefore have the capacity of reading or stating the time correctly, and it may in fact be said that what he deposed about the presentation of the nomination papers a couple of minutes or a minute before 3 p.m. was nothing but hearsay.
The trial court has examined the other evidence of the parties, including the statement of Returning Officer Manohar Singh R.W.1, and we have no doubt that its finding that the nomination papers were filed 10 minutes after 3 p.m. is fully borne out by the evidence on the record and is correct.
It has to be appreciated that it is the requirement of the law that the Returning Officer should mention the time of the presentation of the nomination papers, and that endorsement exhibit P.W.1/19 has been proved by the Returning Officer.
It shows that the nomination papers were presented on May 18, 1977 at 15.10 hours by the proposer, and the endorsement to that effect was duly signed by the Returning Officer.
There is no reason to disbelieve that evidence.
The fact of late presentation of the nomination papers was reiterated by the Returning Officer in his order of scrutiny exhibit P.W. 1/20 on May 19, 1977.
In that order he clearly stated that as the nomination papers was delivered to him on May 18, 1977 after 3 p.m. i.e. at 15.10 hours by the proposer Shri Jit Ram, he rejected it for that reason and also for the reason that the required oath or affirmation was not made by the candidate.
It may be mentioned that the form of the nomination paper prescribed by the Conduct of Election Rules, 1961, provides for the issue of a receipt for the nomination paper and the notice of scrutiny, which has to be handed over to the person presenting the nomination paper.
The serial number of the nomination paper, the name of the candidate, the name of the constituency, the date and time of presentation of the nomination paper and the date and time fixed for its scrutiny had therefore to be mentioned in that receipt, and we find from the judgment of the trial court that the 505 non production of that receipt by the appellant has rightly been taken as a circumstance against him.
On the evidence before it the trial court was justified in finding issue No. 4 against the appellant and in holding that the nomination papers were filed after the expiry of the time prescribed for them i.e. at 3.10 p.m.
An attempt was made to argue that the delay in the presentation of the nomination papers in question could not justify its rejection as it was not a defect of a substantial character within the meaning of sub section
(4) of section 36 of the Representation of the People Act, 1951, hereinafter referred to as the Act.
In order to appreciate the argument it is necessary to make a cross reference to sub s.(1) of section 33 of the Act which provides as follows, "33(1) On or before the date appointed under clause (a) of section 30 each candidate shall, either in person or by his proposer, between the hours of eleven O 'clock in the forenoon and three o 'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer".
It is therefore the requirement of that sub section that, inter alia, the nomination paper shall be delivered to the Returning Officer between the hours of eleven O 'clock in the forenoon and three O 'clock in the afternoon, so that a nomination paper delivered after three O 'clock in the afternoon cannot be said to comply with that provision of section 33.
Sub section (2) of section 36 of the Act, which provides for the examination of the nomination papers for the purpose of deciding all objections made to any nomination, requires that the Returning Officer shall reject any nomination paper on the grounds mentioned in the sub section.
We are concerned with ground No. (b) which provides as follows: "(b) that there has been a failure to comply with any of the provisions of section 33 or section 34".
So as there was failure to comply with that provision of section 33 which required the delivery of the nomination paper between the hours of eleven O 'clock in the forenoon and three O 'clock in the afternoon, the Returning Officer had really no option but to reject the nomination paper.
We have considered the argument that such a defect was not of a substantial character within the meaning of sub section
(4) of section 36 of the 506 Act, but we are unable to uphold it in the face of the clear requirement of ground (b) of sub section
(2) of section 36, referred to above.
It has to be appreciated that any other view would make the requirement for the presentation of the nomination paper before the last date for making nominations, and within the specified period of time, unworkable for it will not then be possible to draw a line upto which the delay in the delivery of the nomination papers could be condoned.
In fact if the requirement of the law in that respect is not observed, and its breach is considered to be a defect which was not of a substantial character, it may be permissible to go to the extent of arguing that the nomination paper may be filed even upto the date and time fixed for the scrutiny of the nominations.
That would not only cause administrative inconvenience but put the other candidates to a serious disadvantage for they would not be able to prepare themselves for any objection they may like to raise to the validity of the nomination at the time of the scrutiny of the nominations.
We have no hesitation therefore in taking the view that the failure to comply with the requirement that the nomination papers shall be delivered between the hours of eleven O 'clock in the forenoon and three O 'clock in the afternoon is mandatory and the Returning Officer was justified in rejecting the nomination paper in question because of its breach.
A similar provision in an election rule has been stated to be mandatory in Rogers on Elections, Volume III, twentyfirst edition, at page 74, and it has been observed that the rule must be "literally complied with".
Reference in this connection may be made to Cutting vs Windsor.
There Avory J., referred to the requirement of r. 7 in Part II of the third Schedule to the Municipal Corporations Act, 1882.
according to which the nomination paper had to be delivered before five O 'clock in the afternoon of the last day for the delivery of nomination papers, and rejected the argument that what had occurred there was a pure technicality.
He held as follows, "So far as rule 7 provided for the time within which nomination papers must be delivered at the town clerk 's office it was mandatory.
It was not within the discretion of the town clerk to receive nomination papers after the hour specified in the rule, nor was it competent to that Court to say that the delivery of a nomination paper after the prescribed time constituted a good nomination.
Mr. Windsor had never been duly nominated and his election must be declared void.
Mr. Cutting was the only other candidate and he must be declared to have been duly elected".
507 Horridge J., agreed with him saying that if Windsor had never been nominated it was impossible for the Court to say that his election was in accordance with the principles laid down in the body of the Act.
The same view has been expressed in Parker 's Conduct of Parliamentary Elections, 1970, on page 137, "The returning officer has no power to extend the time for delivery (see Howes vs Turner, , Cutting vs Windsor, 40 Times L.R. 395)".
The matter has been dealt with in Parliamentary Elections by A. Norman Schofield, second edition, on pages 149 150 under the rubic "Delivery at wrong time" and it has been held that the requirement in that respect is mandatory.
So as the provision of section 36 regarding the delivery of the nomination papers between the hours of eleven O 'clock in the forenoon and three O 'clock in the afternoon was not complied with, the Returning Officer had no option but to reject the nomination paper in question as required by section 36(2) (b) of the Act and the finding of the trial court in that respect is quite correct.
Issue No. 5 raises the question whether the appellant reached the office of the Returning Officer at 3.45 p.m. on May 18, 1977, and took oath in the presence of the Returning Officer who, however, failed to make the necessary endorsement on the nomination paper.
It is not in controversy that it was obligatory under cl.
(a) of article 173 of the Constitution for the appellant to make and subscribe, before a person authorised in that behalf by the Election Commission, an oath or affirmation according to the form set out for the purpose in the Third Schedule, and that he could not be qualified to be chosen to fill a seat in the Legislature of a State without doing so.
The importance of that requirement of the Constitution has been reiterated in sub section
(2) of section 36 of the Act for ground No. (a) thereof provides that the Returning Officer shall reject a nomination paper on the ground that on the date fixed for the scrutiny of nomination the candidate was, inter alia, not qualified to be chosen to fill the seat in the Legislative Assembly under article 173 of the Constitution.
The requirement for the making and subscribing the oath or affirmation was therefore clearly mandatory.
The appellant tried to establish the plea that he reached the office of the Returning Officer at 3.45 p.m. on May 18, 1977, and took 508 oath in the presence of the Returning Officer who, however, failed to make the necessary endorsement to that effect.
That averment was denied on behalf of the respondent, and we find that the trial court has adequately dealt with the evidence on the record in that respect.
It will be sufficient for us to mention that the Election Commission took care to point out the importance of the requirement for the making and subscribing the oath or affirmation in their "Handbook for Returning Officers", and directed that the "authorised person" before whom that was done would "forthwith give a certificate to the candidate" that he had made and subscribed the oath before him on the date and hour mentioned in the certificate.
It has been emphasised that the certificate would be given to the candidate without his applying for it, for that would avoid all controversy later on as to whether he had taken the oath or not.
Annexure VI provides for the issue of that certificate in the portion which appears just below the perforated portion of the form of oath or affirmation prescribed by the Constitution.
It may be pointed out in this connection that the appellant admitted in his statement that he was given a slip by his proposer Jit Ram P.W. 7, in which it was mentioned that he should take oath or make the affirmation before the Returning Officer on May 19, 1977.
It is therefore quite clear that the oath or affirmation had not been made or subscribed at the time of the presentation of the nomination papers, and as the appellant was not able to produce the certificate of his making or subscribing the oath or affirmation before the Returning Officer thereafter, in the manner alleged by him, there is nothing wrong with the view taken by the trial court that he did not really do so, and we do not think it necessary to reappraise the evidence in that connection.
Issue No. 6 dealt with the question whether the respondent was guilty of the corrupt practice of bribery alleged in paragraph 11 of the petition.
The allegations were amended by the appellant, but a part of them were ordered to be deleted and there is no grievance in that respect.
The remaining allegation was to the following effect, "11.
That after the last Parliament Elections and installation of Janta Party Government at the Centre, it became evident that the State Government would be toppled and the Ministers of the Previous Congress Government and specially respondent No. 1 with a view to bribe the voters or the Constituency, he started giving large sum of dis 509 cretionary grants in the Constituency.
To name a few Bara Pind, Littran, Dalla etc.
He used his influence in the Department that the funds were released during the Elections.
This was done with the object of influencing the electors of those villages to vote in favour of respondent No. 1.
Respondent No. 1 went to village Bara Pind on 25 5 1977 at 5.00 p.m. and in the presence of Master Jasmel Singh handed over a cheque No. K 314781 dated 29 4 1977 for a sum of Rs. 20,000/ out of the accounts of Punjab State Sports Council to the lady Sarpanch Smt.
Banti and Biant Kaur and gave a lecture requesting the co villagers to vote for him, since he had given the money.
On 27 5 1977 respondent No. 1 went to village Littran at 4 p.m. and gave a cheque of Rs. 5,000/ in the presence of about 50 villagers including Chanan Singh Mistri to section Balwant Singh Bali a cheque No. K 314782 and called upon those present to vote for him.
The cheque was issued out the funds of Punjab State Sports Council".
It is hardly necessary to say that the allegations were traversed by the respondent and the trial court found that they had not been established.
The corrupt practice which was thus alleged against the respondent was one under section 123(1) (a) (b), according to which any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing an elector to vote or refrain from voting at an election is a corrupt practice.
In view of the allegations mentioned above, it appears that it was not the allegation of the appellant that the gift, offer or promise was made as a reward to an elector for having voted or refrained from voting within the meaning of sub cl.
(ii), and it could only be said to fall under sub clause (b) of section 1(A) as the allegation was that the bribery was meant to induce the electors to vote for the respondent.
It is nonetheless an essential ingredient of the definition of the corrupt practice of "bribery" that the gift, offer or promise should be by the candidate or his agent or by any other person with the consent of the candidate or his election agent.
Part VI of the Act deals with disputes regarding elections and Part VII deals with Corrupt Practices and Electoral Offences.
Section 79 of the Act provides that both in Parts VI and VII, unless the context otherwise requires, the definitions mentioned in it would govern the interpretation of those parts.
Clause 510 (b) of the section defines the expression ' candidate ' as follows, " 'Candidate ' means a person who has been or claims to have been duly nominated as a candidate at any election".
It has therefore to be seen whether the respondent had been duly nominated as a candidate at the election in question, or whether he claimed to be duly nominated at that election at the time when the corrupt practice was alleged to have been committed by him.
It is nobody 's case that the respondent laid any such claim at any point of time until his nomination paper was scrutinised; and he was held to be a validly nominated candidate only after the nomination was scrutinised by the Returning Officer on May 19, 1977.
He could not therefore be said to be a 'candidate ' within the meaning of section 123 read with section 79 of the Act until that date.
The allegation in paragraph 11 of the election petition was to the effect that the cheque of Rs. 20,000/ was delivered at village Bara Pind on May 25, 1977 and the votes were solicited on that date.
As regards village Littran, the allegation was that a cheque of Rs. 5,000/ was delivered on May 27, 1977 and votes were solicited.
It is not disputed however that the precise evidence against the respondent was that he made an order for the delivery of Rs. 20,000/ on April 17, 1977 in respect of village Bara Pind and on April 29, 1977 in respect of village Littran, in his capacity as the Minister for Revenue.
Both these orders were therefore made before the respondent was a candidate at the election in question and it is not disputed before us that he ceased to be a minister on April 30, 1977, when Punjab was brought under the President 's rule.
So even if it were assumed that the respondent sanctioned the two payments for the purpose of gaining popularity in Bara Pind and Littran villages, with an eye to his ultimate candidature from Nakodar Assembly constituency, it cannot be said that his action amounted to a gift, offer or promise by him as a "candidate" at the election in question so as to amount to the corrupt practice of bribery under cl.
(1) of section 123 of the Act.
As regards the alleged distribution of cheques on May 25 and May 27, 1977, it will be enough to say that even if it were presumed that the respondent was allowed to do so after he ceased to be a Minister, the mere delivery of cheques could not possibly amount to bribery when, as has been stated, there was no element of bargain in regard to it.
It may be mentioned that the trial court rightly took the view that it was necessary for the purpose of proving the corrupt practice 511 of bribery to establish that there was an element of "bargaining" in what the respondent was alleged to have done for Bara Pind and Littran.
Reference in this connection may be made to the decision of this Court in Ghasi Ram vs Dal Singh and others where it was held with reference to the decision in Amirchand vs Surendra Lal Jha and others that if a Minister redress the grievances of a class of the public or people of a locality or renders them any help, on the eve of an election, it is not a corrup practice unless he obtains promises from the voters in return, as a condition for his help.
It was also held that the "evidence must show clearly that the promise or gift directly or indirectly was made to an elector to vote or refrain from voting at an election", and that "if there was good evidence that the Minister bargained directly or indirectly for votes, the result might have been different".
The decision in Ghasi Ram 's case (supra) was followed in Om Prabha Jain vs Abnash Chand and another, Bhanu Kumar Shastri vs Mohan Lal Sukhandia and others and Chaitanya Kumar Adatiya vs Smt.
Sushila Dixit and others.
It was therefore necessary for the appellant to plead and prove that there was bargaining between the respondent and the voters and he did what he is alleged to have done in Bara Pind and Littran for that reason but, as the trial court has pointed out, there was no such allegation in the election petition.
So when the element of bargain was completely absent from the allegation against the respondent, the trial court was justified in holding that the alleged corrupt practice had not been established.
The trial court has considered the evidence on the record in this respect and its finding on issue No. 6 is quite correct and nothing worthwhile has been urged before us to require its reconsideration.
As there is no merit in this appeal, it is dismissed with costs.
N.K.A. Appeal dismissed.
| IN-Abs | The appellant was a voter in the Constituency from which the Respondent was elected as a member of the State Legislative Assembly.
His nomination paper was rejected by the Returning Officer on the ground that it was filed beyond the time prescribed for filing nomination paper and that he had not made and subscribed an oath on it, as required by law.
In his petition before the High Court the appellant contended that (1) the filing of nomination paper late by 10 minutes could not be a ground for rejecting the nomination paper and it was not a defect of substantial character within the meaning of section 36(4) of the Act, (2) the allegation that he had filed to make and subscribe the oath before the Returning officer as required by article 173 of the Constitution was not true and (3) the respondent was guilty of corrupt practice of bribery.
The High Court rejecting all the contentions, dismissed the petition.
Dismissing the appeal, this court ^ HELD : 1(a) It is the requirement of law that the Returning officer should mention the time of presentation of the nomination papers.
The endorsement by the Returning officer shows that the nomination paper was presented on May 18, 1977 at 15.10 by the proposer, and that the endorsement to that effect was duly signed by the Returning officer.
[504 E F] (b) It is not correct to say that the delay in presentation of the nomination paper was not a ground for its rejection as it was not a defect of substantial character within the meaning of Section 36(4) of the Representation of the People Act.
In the face of the clear requirement of section 36(2)(b) of the Act, any other view would make the requirement for the presentation of the nomination paper before the last date and within the specified period of time, unworkable for it will not then be possible to draw a line upto which the delay in the delivery of the nomination papers could be condoned.
If the requirement of the law in that respect is not observed, and its breach is considered to be a defect which was not of a substantial character it may be permissible to go to the extent of arguing that the nomination paper may be filed even upto the date and time fixed for the scrutiny of the nominations.
That would not only cause administrative inconvenience but put the other candidate to a serious disadvantage for they would not be able to prepare themselves for any objection they may like to raise to the validity of the nomination, at the time of scrutiny of the nominations.
[505 H, 506 A C] 502 (c) The requirement that the nomination papers shall be delivered between the hours of eleven O 'clock in the forenoon and three O 'clock in the afternoon is mandatory and the Returning officer has no option but to reject the nomination paper as required by Section 36(2) of thee Act.
[505 G H] (2) The trial court held that the oath ar affirmation which was required to be made or subscribed by the candidate had not been made and subscribed at the time of the presentation of the nomination papers.
As the appellant was not able to produce the certificate of his making and subscribing the oath or affirmation before the Returning officer thereafter, in the manner alleged by him, there is nothing wrong with the view taken by the trial court that he did not really do so [508 A B, D E] (3) It is an essential ingredient of the definition of corrupt practice of "bribery" that the gift, offer or promise should be by the candidate or his agent or by any other person with the consent of the candidate or his Election Agent.
The trial court rightly took the view that it was necessary for the purpose of proving the corrupt practice of bribery to establish that there was an element of "bargaining" in what the respondent was alleged to have done for two villages.
When the element of bargain was completely absent from the allegation against the respondent, the trial court was justified in holding that the alleged corrup practice had not been established.
[809G, 510H, 511A, D E] Ghasi Ram vs Dal Singh and others ; , Amir Chand vs Surendra Lal Jha and others , Om Prabha Jain vs Abnash Chand and another ; ; Bhanu Kumar Shastri vs Mohan Lal Sukhadia and others ; ; Chaitanya Kumar Adatiya vs Smt.
Sushila Dixit and others , referred to.
|
N: Criminal Appeal No. 349 of 1974.
From the Judgment and order dated 24 4 1974 of the Patna High Court in original Crl.
No. 7/73.
Lal Narayan Sinha, Attorney General, U. P. Singh, B. P. Singh and section N. Jha for the Appellant.
Sukumar Ghosh for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The Advocate General of Bihar is the appellant in this appeal under Section 19 of the Contempts of Courts Act, 1971.
Respondent No. 1, M/s. Madhya Pradesh Khair Industries, represented by respondent No. 2, Om Prakash Agrawal, were the highest bides at an auction held by the Divisional Forest officer, Garhwa South, of four forest coupes in the State of Bihar.
Under the terms of the agreements the respondents were required to deposit 25% of each of the four bids as security.
The respondents were, however, able to make the deposit in respect of one coupe only and not in respect of the other three coupes.
The respondents requested for time.
Thereafter, there was a long course of correspondence with which we are not now concerned.
Finally, on January 28, 1970, the Conservator of Forests determined the agreements.
On February 28, 1970, respondent No. 1 served a notice on the Divisional Forest officer 1175 Garhwa South, intimating him that they had filed an application under Article 226 of the Constitution in the Calcutta High Court and that section C. Deb, J., had been pleased to issue a rule nisi and also an injunction restraining the Govt.
of Bihar and the officials of the Forest Department of the Govt.
of Bihar from giving effect to the proceedings by which the leases were determined and further directing them to allow M/s. Madhya Pradesh Khair Industries to carry on the work of cutting and felling of trees and removing the material in the said forest coupes.
Alleging that the officers of the Forest Department of the Govt.
of Bihar had violated the order of injunction granted against them, the respondents filed an application to commit the Officers for Contempt of Court and in that application they prayed for and obtained an interim order directing the Officers not to interfere in any way with the activities of the respondents in removing the produce of the Khair trees.
The State of Bihar preferred an appeal to a Division Bench of the Calcutta High Court and on September 29,1970, the Division Bench passed an order allowing the appeal and directing the respondents to furnish security in a sum of Rs. 1,55,000 if they desired to remove the forest produce.
Otherwise, they were restrained from selling the trees and extracting the produce.
The respondents offered certain property as security but that was rejected by the Registrar of the Calcutta High Court as the title was found to be defective.
At this stage on January 8, 1971, the State of Bihar filed money suit No. 3 of 1971 in the Court of the Subordinate Judge of Palamau to recover a sum of Rs. 1,93,225 as damages.
The State of Bihar also filed an application under order 38, Rule 5, Code of Civil Procedure and obtained an order of attachment of the 'Kath ' manufactured by the respondents alongwith utensils, equipment, etc.
The respondents were directed to furnish security in a sum of Rs. 2 lakhs and asked to show cause why the interim attachment should not be made absolute.
The attachment was effected on January 10, 1971.
The respondents appeared before the learned Subordinate Judge and requested that the reduced the amount of security from Rs. 2 lakhs to Rs. 75,000.
The learned Subordinate Judge allowed the prayer of the respondents and reduced the amount of security from Rs. 2 lakhs to Rs. 75,000.
The State of Bihar preferred an appeal to the Patna High Court and an interim order was made by the High Court, staying the operation of the order of the learned Subordinate Judge but continuing the attachment.
On March 29, 1971, after hearing both the parties, the Patna High Court made an order directing the respondents to furnish security of immovable property in a sum of Rs. 75,000 and to deposit cash or furnish bank guarantee in a sum of Rs. 50,000.
It was directed that 1176 on such security being furnished the interim attachment would cease and the respondents would be allowed to remove the stock, utensils and equipment.
Without complying with the order of the Patna High Court, Respondent No.1 then moved the learned Single Judge of the Calcutta High Court on April 21, 1971, and obtained an order restraining the State of Bihar from continuing the money suit in the Court of the Subordinate Judge, Palamau and further directing the State to take steps to get the attachment vacated if security was furnished by the respondents as directed by the Division Bench of the Calcutta High Court.
The State of Bihar filed an appeal against the order of the learned Single Judge and the operation of the order was stayed by an order of January 10, 1972 of the Division Bench.
It was directed that the proceedings in the money suit in the Court of the learned Subordinate Judge of Palamau should proceed.
In the meanwhile on July 30, 1971, Respondent No. 1 moved another application before the learned Single Judge of the Calcutta High Court offering to deposit Rs. 60,000 in cash and requesting that on such deposit being made, they might be allowed to remove the stock.
This application was allowed on July 30, 1971, by the learned Single Judge and the amount was directed to be deposited with the counsel for the State of Bihar.
The order was later on modified on December 16, 1972, and the amount was directed to be deposited with the Registrar of the High Court.
On November 20, 1972, the State of Bihar filed an application in the Court of the Subordinate Judge, Palamau complaining that the respondents had not furnished security as directed by the Patna High Court and as the attached stock was deteriorating it might be sold by auction.
Before anything further could be done Respondent No. 1 filed a petition on 14th December, 1972, and obtained an order from the learned Single Judge of the Calcutta High Court on December 18, 1972, staying the proceedings in the money suit in the Court of the Subordinate Judge, Palamau until the attached goods were released in compliance with the orders dated July 30, 1971 and February 16, 1972.
The State of Bihar preferred an appeal against the order of the learned Single Judge and on January 22, 1973, a Division Bench of the Calcutta High Court set aside the order of the learned Single Judge and directed the proceedings in the Court of Subordinate Judge, Palamau, to go on.
Vexed by the manner in which the 1st Respondent was filing repeated applications and procuring orders from a learned Single Judge 1177 of the High Court, necessitating the filing of as many appeals to the Division Bench, the State of Bihar filed an application for committing the Respondents for Contempt of Court alleging that, by their conduct the respondents were obstructing the administration of justice and interfering with the due course of judicial proceedings.
The Patna High Court held that the respondents ' conduct was most unscrupulous one that there was gross abuse of the process of the Court, which could in certain circumstances amount to contempt of Court.
The High Court, however, dismissed the application on the ground that it was barred by limitation as it was filed beyond the period of one year prescribed by section 20 of the .
The High Court held, on a reading of the Contempt application, that the material allegation in regard to the contempt committed by the respondents was that relating to the filing of the application dated April 7, 1971, before the Single Judge of the Calcutta High Court to circumvent and nullify the order dated March 29, 1971 of the Division Bench of the Patna High Court.
As the contempt application was filed more than a year later it was time barred.
In regard to the allegation relating to the filing of the petition dated December 14, 1972, the High Court observed that there was no specific allegation that any Contempt of Court was committed by the filing of this application.
We may also mention that the respondents tendered an unconditional apology to the High Court of Bihar.
The question of accepting the apology was not considered as the application was found to be beyond time.
The Advocate General of Bihar has filed this appeal against the judgment of the Patna High Court.
Before we consider the merits of the appeal we may mention here that the learned Single Judge who made the several orders in favour of the respondents was himself compelled in a later order dated August 13, 1973 to state that the respondents had suppressed material facts and misled him on various occasions and obtained orders from him.
Section 2(c) of the defines Criminal contempt as follows: "(c) 'Criminal Contempt ' means the publication (whether by words, spoken or written, or any signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or 1178 (iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner".
While we are conscious that every abuse of the process of the Court may not necessarily amount to Contempt of Court, abuse of the process of the Court calculated to hamper the due course of a judicial proceeding or the orderly administration of justice, we must say, is a contempt of Court.
It may be that certain minor abuses of the process of the Court may be suitably dealt with as between the parties, by striking out pleadings under the provisions of order 6, Rule 16 or in some other manner.
But, on the other hand, it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice.
The publice have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing.
The Court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for Contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression "Contempt of Court" may seem to suggest, but, to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with.
"It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage".(1) "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope".(2) In Halsbury 's Laws of England (4th Edn Vol. 9, paragraph 38), there is a brief discussion of when abuse of the process of the Court may be a punishable contempt.
It is said: "38.
Abuse of process in general.
The Court has power to punish as contempt any misuse of the court 's process.
Thus the forging or altering off court documents and other deceits of like kind are punishable as serious contempts.
Similarly, deceiving the court or the court 's officers by deliberately suppressing a fact, or giving false facts, may be a punishable contempt.
1179 Certain acts of a lesser nature may also constitute an abuse of process as, for instance, initiating or carrying on proceedings which are wanting in bona fides or which are frivolous, vexatious, or oppressive.
In such cases the court has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave.
Where the court, by exercising its statutory powers, its powers under rules of court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a contempt of court.
On the other hand, where an irregularity or misuse of process amounts to an offence against justice, extending its influence beyond the parties to the action, it may be punished as a contempt".
In the present case, the respondents began 'the game ' by filing an application under article 226 of the Constitution in the Calcutta High Court, whereas in the normal course one would expect such as application to be filed in the Patna High Court within whose jurisdiction the subject matter of the dispute was situate.
For some mysterious reasons which nobody has been able to explain to us, the writ application was filed in the Calcutta High Court.
A justifiable prima facie inference from this circumstance may be that the application was not bona fide but intended to harass and oppress the opposite parties.
We do not want to say anything more about this aspect of the case as we are told that this is a failing of the respondents which they shared with several others.
Perhaps, as we had occasion to remark during the course of the hearing, some parties are unable to reconcile themselves to the fact that the Calcutta High Court has long since ceased to have jurisdiction over the area comprising the State of Bihar which it had several decades ago.
The 'game ' proceeded further.
Application after application was filed before the learned Single Judge, everyone of them designed to circumvent, defeat or nullify the effect of the orders of the Division Benches of the Calcutta High Court and the Patna High Court.
The order of the Division Bench of the Calcutta High Court directing the respondents to furnish security in a sum of Rs. 1,55,000 was never complied with.
The order of the Division Bench of the Patna High Court directing the respondents to furnish security of immovable property in a sum of Rs. 75,000 and to deposit cash or furnish bank guarantee in a sum of Rs. 50,000 was also never complied with.
1180 Instead, an order was obtained from the Single Judge of the Calcutta High Court restraining the State of Bihar from continuing the money suit in the Court of the Subordinate Judge, Palamau.
When this order was set aside by the Division Bench, an attempt was made to circumvent all earlier orders by obtaining an order from the Single Judge that they may be allowed to deposit Rs. 60,000 in cash and permitted to remove the stock from the forest coupes.
When the State of Bihar moved the learned Subordinate Judge, Palamau for a direction to auction the attached stock, the respondents moved an application on December 14, 1972, and obtained an order from the Single Judge of the Calcutta High Court staying the proceedings in the money suit in the Court of the Subordinate Judge, Palamau.
In considering the question whether the filing of the application dated December 14, 1972, amount to a Contempt of Court, the Court must take into account the whole course of the continuing contumacious conduct of the respondents from the beginning of the "game".
Clearly, not a single application made to the Single Judge was bona fide.
Every application was a daring 'raid ' on the Court and each was an abuse of the process of the Court.
The application dated December 14, 1972 praying that the proceedings in the money suit in the Court of the Subordinate Judge should be stayed was made despite the fact that earlier, on January 10, 1972, the Division Bench of the Calcutta High Court had expressly permitted the proceedings in the money suit to go on.
The application of the respondents clearly showed that they were intent upon obstructing the due course of the proceedings in the money suit in the Court of the Subordinate Judge, Palamau and to obstruct the administration of justice by abusing the process of the Court.
The High Court expressed the view that there was no specific allegation that any contempt of Court had been committed by the filing of the application dated December 14, 1972.
We are unable to agree with the view of the High Court.
Paragraph 29 of the application to commit the respondents for Contempt expressly refers to the application dated December 14, 1972 and paragraph 31 states that all the facts and circumstances enumerated in the petition established that the respondents were obstructing and interfering with the due course and administration of justice.
It was not necessary that every allegation made should be followed then and there by the statement that the allegation established a Contempt of Court.
We are satisfied that the filing of the application dated December 14, 1972, was an abuse of the process of the Court, calculated to obstruct 1181 the due course of a judicial proceeding and the administration of justice and was, therefore, a Criminal Contempt of Court.
The respondents had expressed an unconditional apology to the Patna High Court, but we are convinced that the conduct of the respondents is so reprehensible as to warrant condemnation by the imposition of a sentence.
We accordingly allow the appeal and sentence each of the respondents to pay a fine of Rs. 500/ , in default to undergo simple imprisonment for a period of two weeks.
V.D.K. Appeal allowed.
| IN-Abs | The respondents were the successful bidders at an auction of forest coupes in the State of Bihar.
As they defaulted in making the security deposit in respect of three coupes, the agreements with them were determined by the Conservator of Forests.
The respondents thereupon filed a writ petition in the Calcutta High Court instead of in the Patna High Court and followed it up with several applications one after another both in the Calcutta and Patna High Courts towards the forest department from preventing unauthorised removal of forest produce by the respondents.
Vexed by the manner in which the respondent was filing repeated applications and procuring orders of a learned single judge of the High Court necessitating the filing of as many appeals to the Division Bench, the State of Bihar moved an application for committing the respondents for contempt of court, alleging that, by their conduct the respondents were obstructing the administration of justice and interfering with the due course of judicial proceedings.
The Patna High Court held that the respondent 's conduct was most unscrupulous and that there was gross abuse of the process of the Court, which could in certain circumstances amount to contempt of Court.
However, the High Court dismissed the application on the ground that it was barred by limitation as it was filed beyond the period of one year prescribed by section 20 of the Contempt of Courts Act.
The High Court held, on a reading of the contempt application that the material allegation in regard to the contempt committed by the respondents was that relating to the filing of the application dated April 7, 1971 before the single judge of the Calcutta High Court to circumvent and nullify the order dated March 29, 1971 of the Division Bench of the Patna High Court.
As the contempt application dated 18 7 73 in OCM 7/73 was filed more than a year later, it was timeshared.
In regard to the allegation relating to the filing of the petition dated December 14, 1972, the High Court observed that there was no specific allegation that any contempt of court was committed by the filing of this application.
Though the respondents tendered an unconditional apology, its acceptance was not considered as the application was found to be beyond time.
Hence the appeal under section 19 of the .
Allowing the State appeal, the Court ^ HELD: 1.
Every abuse of process of the court may not necessarily amount to contempt of Court.
Abuse of process of the Court calculated to hamper the due course of a judicial proceeding or the orderly administration of justice is a contempt of Court.
[1178A B] 2.
It may be that certain minor abuses of the process of the court may be suitably dealt with as between the parties by striking out pleadings under the 1173 provisions of order 6, Rule 16 C.P.C. or in some other manner.
But on the other hand, it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of Justice.
[1178B C] 3.
The public have an interest, an abiding and a real interest and a vital stake, in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing.
The Court has the duty of protecting the interest of the public in the administration of justice and, so, it is entrusted with the power to commit for contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression "Contempt of Court" may seem to suggest, but to protect and to vindicate the right of the public that administration of justice shall not be prevented, prejudiced, obstructed or interfered with.
[1178C E] Offutt vs U.S.p.11, quoted with approval.
It is not necessary that every allegation made should be followed then and there by the statement that the allegation established a contempt of Court Paragraph 29 of the application to commit the respondents for Contempt expressly referred to the application dated December 14, 1972 and paragraph 31 state that all the facts and circumstances enumerated in the petition established that the respondents were obstructing and interfering with the due course of administration of justice.
[1180F H] In the instant case: (a) the respondents began the "game" by filing an application under article 226 of the Constitution of India in the Calcutta High Court, whereas in the normal course one would expect such an application to be filed in the Patna High Court within whose jurisdiction the subject matter of dispute was situate.
A justifiable prima facie inference from this circumstance may be that the application was not bonafide but intended to harass and oppress the opposite party.
[1179C E] (b) Thereafter application after application was filed before the learned single Judge, everyone of them designed to circumvent, defect or nullify the effect of the orders of the Division Benches of the Calcutta High Court and Patna High Court.
The order of the Division Bench of the Calcutta High Court directing the respondents to furnish security in a sum of Rs. 1,55,000/ was never complied with.
The order of the Division Bench of the Patna High Court directing the respondents to furnish security of immovable property in a sum of Rs. 75,000/ and to deposit in cash or furnish bank guarantee in a sum of Rs. 50,000/ was also never complied with.
Instead, an order was obtained from the single Judge of the Calcutta High Court restraining the State of Bihar from continuing the money suit in the Court of the Subordinate Judge, Palamau.
When this order was set aside by the Division Bench, an attempt was made to circumvent all earlier orders by obtaining an order of the single Judge that they may be allowed to deposit a sum of Rs. 60,000/ in cash and permitted to remove the stock from the forest Coupes.
When the State of Bihar moved the learned Subordinate Judge, Palamau for a direction to auction the attached stock, the respondents moved an application on December 14, 1972, and obtained an order from the Single Judge of the Calcutta High Court staying the proceedings in the 1174 money suit in the Court of the Subordinate Judge, Palamau.
In considering the question whether the filing of the application dated December 14, 1972, amounts to a Contempt of Court, the Court must take into account the whole course of the continuing contumacious conduct of the respondents from the beginning of the 'game '.
Clearly, not a single application made to the Single Judge was bonafide.
Every application was a daring 'raid ' on the Court and each was an abuse of the process of the Court.
The application dated December 14, 1972 praying that the proceedings in the money suit in the Court of the Subordinate Judge should be stayed was made despite the fact that earlier, on January 10, 1972 the Division Bench of the Calcutta High Court had expressly permitted the proceedings in the money suit to go on.
The application of the respondents clearly showed that they were intent upon obstructing the due course of the proceedings in the money suit in the Court of the Subordinate Judge, Palamau and to obstruct the administration of justice by abusing the process of the Court.
[1179GH, 1180A E] (c) The application dated December 14, 1972 was an abuse of process of the Court, calculated to obstruct the due course of a judicial proceeding and the administration of justice and was therefore, a criminal contempt of Court; [1180H, 1181A] (d) though the respondents had expressed an unconditional apology to the Patna High Court, the conduct of the respondents is so reprehensible as to warrant condemnation by the imposition of a sentence.
[1181A]
|
Civil Appeal No. 2355 of 1979.
Appeal by Special Leave from the Judgment and Order dated 25 7 1979 of the Calcutta High Court in Appeal No. 3/1978.
G.B. Pai, Mrs. Rashmi Dhariwal, Miss Bina Gupta, Mr. Praveen Kumar and J.R. Das for the Appellant.
Amlan Ghosh for Respondents 3 4.
The Judgment of the Court was delivered by SEN, J.
This is an appeal by special leave from a judgment of the Calcutta High Court, by which it refrained from interfering with an order of the Central Government Industrial Tribunal, Calcutta, constituted under section 7A of the , setting aside an ex parte award made by it.
The facts giving rise to the appeal are these: The Government of India, Ministry of Labour by an order dated July 26, 1975 referred an industrial dispute existing between the employers in relation to the Grindlays Bank Ltd., Calcutta and their workmen, to the Central Government Industrial Tribunal in exercise of its powers under section 10 of the for adjudication.
By a notice 343 dated March 6, 1976 the Tribunal fixed peremptory hearing of the reference for May 28, 1976, but the hearing was adjourned from time to time on one ground or other.
Eventually, the hearing of the reference was fixed for December 9, 1976.
On December 9, 1976 counsel appearing on behalf of respondent No. 3, the Commercial establishments Employees Association, representing respondents Nos.
5 to 17, sought an adjournment on the ground that the General Secretary of the Association had suffered a bereavement as his father had died on November 25, 1976, and, therefore, he had to leave to perform the shradhha ceremony falling on December 9, 1976.
In support of his prayer for adjournment, the counsel produced a telegram, but the Tribunal refused to grant any further adjournment and proceeded to make an ex parte award.
On the basis of the statement recorded by the manager of the appellant, the Tribunal held that the respondents Nos. 5 to 17 were employed as drivers by the officers of the appellant and were not the employees of the appellant and, therefore, they were not entitled to the benefits enjoyed by the drivers employed by the appellant.
On January 19, 1977, respondent No. 3, acting for respondents Nos. 5 to 17 applied for setting aside the ex parte award on the ground that they were prevented by sufficient cause from appearing when the reference was called on for hearing on December 9, 1976.
The Tribunal by its order dated April 12, 1977 set aside the ex parte award on being satisfied that there was sufficient cause within the meaning of O. IX, r. 13 of the Code of Civil procedure, 1908.
The appellant challenged the order passed by the Tribunal setting aside the ex parte award but the High Court declined to interfere.
Two questions arise in the appeal, namely (1) whether the Tribunal had any jurisdiction to set aside the ex parte award, particularly when it was based on evidence, and (2) whether the Tribunal became functus officio on the expiry of the 30 days from the date of publication of the ex parte award under section 17, by reason of sub section
(3) of section 20 and, therefore, had no jurisdiction to set aside the award and the Central Government alone had the power under sub section
(1) of section 17 A to set it aside.
It is contended that neither the Act nor the rules framed there under confer any powers upon the Tribunal to set aside an ex parte award.
It is urged that the award although ex parte, was an adjudication on merits as it was based on the evidence led by the appellant, and, therefore, the application made by respondent No. 3 was in reality an application for review and not a mere application for setting aside an ex parte award.
A distinction is sought to be drawn between 344 an application for review and an application for setting aside an ex parte award based on evidence.
The contention is that if there is no evidence led before the Tribunal, there may be power to set aside an ex parte award, but if the award is based on evidence, the setting aside of the award cannot but virtually amount to a review.
In dealing with these contentions, it must be borne in mind that the is a piece of legislation calculated to ensure social justice to both employers and the employees and advance progress of industry by bringing harmony and cordial relations between the parties.
In other words, the purpose of the Act is to settle disputes between workmen and employers which if not settled, would result in strikes or lockouts and entail dislocation of work, essential to the life of the community.
The scheme of the Act shows that it aims at settlement of all industrial disputes arising between the capital and labour by peaceful methods and through the machinery of conciliation, arbitration and if necessary, by approaching the Tribunal constituted under the Act.
It, therefore, endeavours to resolve the competing claims of employers and employees by finding a solution which is just and fair to both the parties.
We are of the opinion that the Tribunal had the power to pass the impugned order if it thought fit in the interest of justice.
It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so.
But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties.
In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary.
We do not find any such statutory prohibition.
On the other hand, there are indications to the contrary.
Sub section (1) of section 11 of the Act, as substituted by section 9 of the Industrial Disputes (Amendment & Miscellaneous Provisions) Act, 1956 is in these terms: "11.
(1) Subject to any rules that may be made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit.
" The words 'shall follow such procedure as the arbitrator or other authority may think fit ' are of the widest amplitude and confer ample power upon the Tribunal and other authorities to devise such proce 345 dure as the justice of the case demands.
Under cls.
(a) to (c) of sub section
(3) of section 11, the Tribunal and other authorities have the same powers as are vested in civil courts under the Code of Civil Procedure, 1908, of (a) enforcing the attendance of any person and examining him on oath, (b) compelling the production of documents and material objects, and (c) issuing commissions for the examination of witnesses.
Under cl.
(d) thereof, the Tribunal or such other authorities have also the same powers as are vested in civil courts under the Code of Civil Procedure, 1908 in respect of such other matters as may be prescribed.
Although the Tribunal or other authorities specified in section 11 are not courts but they have the trappings of a court and they exercise quasi judicial functions.
The object of giving such wide powers is to mitigate the rigour of the technicalities of the law, for achieving the object of effective investigation and settlement of industrial disputes, and thus assuring industrial peace and harmony.
The discretion thus conferred on these authorities to determine the procedure as they may think fit, however, is subject to the rules made by the 'appropriate Government ' in this behalf.
Part III of the Industrial Disputes (Central) Rules, 1957 makes rules in this behalf.
Rules 9 to 30 are the relevant rules regulating procedure.
State Governments too have made their own corresponding rules.
Except to the extent specified in sub s.(3) of section 11 of the Act and the rules framed thereunder, the provisions of the Code of Civil Procedure, 1908 are not applicable to proceedings before the authorities mentioned in sub s.(1).
The provisions of the Evidence Act, in their strict sense, likewise do not apply to proceedings before the authorities.
Nevertheless, all these authorities being quasi judicial in nature objectively determining matters referred to them, have to exercise their discretion in a judicial manner, without caprice, and according to the general principles of law and rules of natural justice.
Rule 22 of the Industrial Disputes (Central Rules), 1957 framed by the Central Government in exercise of its powers under section 38 of the Act, provides: "22.
If without sufficient cause being shown, any party to proceedings before a Board, Court, Labour Court, Tribunal, National Tribunal or arbitrator fails to attend or to be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or arbitrator may proceed, as if the party had duly attended or had been represented." 346 Rule 24(b) provides that the Tribunal or other body shall have the power of a civil court under the Code of Civil Procedure, 1908 in the matter of grant of adjournments.
It runs thus: "24.
In addition to the powers conferred by the Act, Boards, Courts, Labour Courts, Tribunals and National Tribunals shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely; (a) . . . . (b) granting adjournment;" When sub section
(1) of section 11 expressly and in clear terms confers power upon the Tribunal to regulate its own procedure, it must necessarily be endowed with all powers which bring about an adjudication of an existing industrial dispute, after affording all the parties an opportunity of a hearing.
We are inclined to the view that where a party is prevented from appearing at the hearing due to a sufficient cause, and is faced with an ex parte award, it is as if the party is visited with an award without a notice of the proceedings.
It is needless to stress that where the Tribunal proceeds to make an award without notice to a party, the award is nothing but a nullity.
In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh.
The language of r. 22 unequivocally makes the jurisdiction of the Tribunal to render an ex parte award conditional upon the fulfilment of its requirements.
If there is no sufficient cause for the absence of a party, the Tribunal undoubtedly has jurisdiction to proceed ex parte.
But if there was sufficient cause shown which prevented a party from appearing, then under the terms of r. 22, the Tribunal will have had no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex parte award.
In other words, there is power to proceed ex parte, but this power is subject to the fulfilment of the condition laid down in r. 22.
The power to proceed ex parte under r. 22 carries with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing.
Under r. 24(b) a Tribunal or other body has the powers of a civil court under O. XVII of the Code of Civil Procedure, relating to the grant of adjournments.
Under O. XVII, r. 1, a civil court has the discretion to grant or refuse an adjournment.
Where it refuses to adjourn the hearing of a suit, it may proceed either under O. XVII, 347 r. 2 or r. 3.
When it decides to proceed under O. XVII, r. 2, it may proceed to dispose of the suit in one of the modes directed in that behalf by O. IX, or to make such other order as it thinks fit.
As a necessary corollary, when the Tribunal or other body refuses to adjourn the hearing, it may proceed ex parte.
In a case in which the Tribunal or other body makes an ex parte award, the provisions of O. IX, r. 13 of the Code are clearly attracted.
It logically follows that the Tribunal was competent to entertain an application to set aside an ex parte award.
We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review.
The decision in Narshi Thakershi vs Pradyumansinghji is distinguishable.
It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication.
Sub sections (1) and (3) of section 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act.
While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil court conferred upon it are clearly defined.
The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in section 11.
The answer to the question is, therefore, to be found in sub section
(1) of section 11 and not in sub section
(3) of section 11.
Furthermore, different considerations arise on review.
The expression 'review ' is used in two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record.
It is in the latter sense that the Court in Narshi Thakershi 's case held that no review lies on merits unless a status specifically provides for it.
Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal.
The contention that the Tribunal had become functus officio and therefore, had no jurisdiction to set aside the ex parte award and that the Central Government alone could set it aside, does not commend to us.
Sub section (3) of section 20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on 348 which the award becomes enforceable under section 17A.
Under section 17A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication under section 17.
The proceedings with regard to a reference under section 10 of the Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award.
Till then the Tribunal retains jurisdiction over the dispute referred to it for adjudication and upto that date it has the power to entertain an application in connection with such dispute.
That stage is not reached till the award becomes enforceable under section 17A.
In the instant case, the Tribunal made the ex parte award on December 9, 1976.
That award was published by the Central Government in the Gazette of India dated December 25, 1976.
The application for setting aside the ex parte award was filed by respondent No. 3, acting on behalf of respondents Nos.
5 to 17 on January 19, 1977 i.e., before the expiry of 30 days of its publication and was, therefore, rightly entertained by the Tribunal.
It had jurisdiction to entertain it and decide it on merits.
It was, however, urged that on April 12, 1977 the date on which the impugned order was passed the Tribunal had in any event become functus officio.
We cannot accede to this argument.
The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order.
There is no finality attached to an ex parte award because it is always subject to its being set aside on sufficient cause being shown.
The Tribunal had the power to deal with an application properly made before it for setting aside the ex parte award and pass suitable orders.
The result, therefore, is that the appeal must fail and is dismissed with costs throughout.
V.D.K. Appeal dismissed.
| IN-Abs | Dismissing the appeal, the Court ^ HELD: (1) It is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties.
In a case of this nature, the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary.
The words "shall follow such procedure as the arbitrator or other authority may think fit" in sub section (1) of section 11 of the Industrial Disputes Act are of the widest amplitude and confer ample power upon the Tribunal and other authorities to devise such procedure as the justice of the case demands.
The discretion thus conferred on these authorities to determine the procedure as they may think fit, however, is subject to the rules made by the 'appropriate Government ' in this behalf.
Nevertheless, all these authorities being quasi judicial in nature objectively determining matters referred to them, have to exercise their discretion in a judicial manner, without caprice, and according to the general principles of law and rules of natural justice.
[344 E F, H, 345A, C, F] (2) Where a party is prevented from appearing at the hearing due to a sufficient cause and is faced with an ex parte award, it is as if the party is visited with an award without a notice of the proceedings.
Where the Tribunal proceeds to make an award without notice to a party, the award is nothing but a nullity.
In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh.
Further, Rules 22 and 24(b) of the Industrial Disputes (Central) Rules, 1957 make it clear that the Tribunal was competent to entertain an application to set aside an ex parte award.
[346 C E] (3) Merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, does not amount to review.
The expression "review" is used in two distinct senses, namely, (i) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a 342 misapprehension by it, and (ii) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record.
When a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal.
[347 B C, E G] Narshi Thakershi vs Pradvumansinghji, A.I.R. , distinguished.
(4) The Tribunal had not become functus officio and, therefore, had the jurisdiction to set aside the ex parte award.
To contend that the Central Government alone could set aside the ex parte award is not correct.
Under section 17 A an award becomes enforceable on the expiry of 30 days from the date of its publication under section 17.
The proceedings with regard to a reference under section 10 of the Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award.
Till then the Tribunal retains jurisdiction over the dispute referred to it for adjudication and upto that date it has the power to entertain an application in connection with such dispute.
That stage is not reached till the award becomes enforceable under section 17 A. [347 G, 348 A B] (5) The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order.
There is no finality attached to an ex parte award because it is always subject to its being set aside on sufficient cause being shown.
The Tribunal had the power to deal with an application properly made before it for setting aside the ex parte award and pass suitable orders.
[348 D E]
|
ivil Appeal Nos.
707 708 of 1980.
Appeals by Special Leave from the Judgment and Order dated 12 9 1978 of the Punjab and Haryana High Court in C.W. 2391 and 2392/78.
V.M. Tarkunde, section Bagga and Mrs. section Bagga for the Appellants.
M.S. Dhillon for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
To what extent may the citizen 's right to be let alone be invaded by the duty of the Police to prevent crime 313 is the problem posed in these two appeals by special leave under article 136 of the Constitution.
The two appeals are directed against the judgment of the High Court of Punjab & Haryana dismissing the Writ Petitions filed by the appellants seeking the removal of their names from the surveillance register maintained at Police Station 'A ' Division, Amritsar City and for a direction that the respondent Police Officers should be restrained from harassing the appellants by calling them to the Police Station frequently without any justification.
The appellants Malak Singh and Jaswant Singh are brothers and they claim to be engaged in a business known as 'Continental Electricals ' besides owning a hotel named Park Restaurant on Grand Trunk Road Amritsar.
They state that they are Income tax assessees and assert that they are law abiding citizens.
They claim that on account of their active political affiliation to the Akali party, one Prithipal Singh a Congress M.L.A. is enimically disposed towards them and has been instrumental in having the appellants falsely implicated in some criminal cases.
All the criminal cases ended either in acquittal or discharge.
The appellants were also detained under the MISA for sometime but they were released from detention as the Advisory Board refused to confirm their detention.
The appellants claim that they took active part in exposing the corrupt activities of the Deputy Superintendent of Police, Amritsar and had even published wall posters with the result that the Deputy Superintendent of Police had instituted a prosecution for defamation against the appellants.
As a measure of humiliation and harassment, the names of the appellants were entered in the surveillance register maintained at the Police Station 'A ' Division, Amritsar.
The appellants allege that their photographs have been displayed amongst those of notorious criminals and bad characters at the Police Station.
Whenever a Senior Police Officer visits the Police Station the appellants are required to attend the Police Station alongwith other persons whose names are entered in the surveillance register.
They are also needlessly asked to associate themselves with various investigations though they have nothing whatever to do with those investigations.
As, according to the appellants, there is no material whatsoever on the basis of which the names of the appellants could be entered in the surveillance register, they filed Writ Petitions in the High Court questioning the inclusion of their names in the surveillance register and also praying that the police should be restrained from harassing them by calling them to the Police Station without any justification.
In the High Court, counter affidavits on behalf of the respondents were filed by the Senior Superintendent of Police, Amritsar, who 314 claimed that the appellants were opium smugglers and habitual offenders and receivers of stolen property and therefore, their names were entered in the surveillance register.
It was, however, denied that their photographs had been displayed at the Police Station.
It was pleaded that the reasons for entering their names in the surveillance register were to be found in the history sheets which were confidential documents and which, therefore, could not be disclosed.
It was also pleaded that one of the appellants had been convicted in a criminal case but it transpires from the rejoinder filed by the appellants that the conviction was set aside on appeal.
As the Writ Petitions were dismissed by the High Court, the appellants have preferred these two appeals after obtaining special leave from this Court.
Shri V.M. Tarkunde, learned counsel, who appeared as Amicus curiae for the appellants urged that there were no grounds on the basis of which the respondents could entertain a reasonable belief that the appellants were habitual offenders or receivers of stolen property and therefore, there was no justification for including the names of the appellants in the surveillance register.
He further submitted that an order for surveillance was a serious encroachment on the liberty of the citizen and therefore, it was necessary that a person should be given an opportunity to show cause before his name was included in the surveillance register.
As this was not done, the inclusion of the names of the appellants in the register was bad.
We may add that the vires of the Punjab Police rules which provide for the maintenance of a surveillance register was not questioned before us.
Chapter 23 of the Punjab Police rules deals with prevention of offences.
Rule 23.4 which provides for the maintenance of a surveillance register in every Police Station is in the following terms: "23.4 (1) In every police station, other than those of the railway police, a Surveillance Register shall be maintained in Form 23.4(1).
(2) In part I of such register shall be entered the names of persons commonly resident within or commonly frequenting the local jurisdiction of the police station concerned, who belong to one or more of the following classes: (a) All persons who have been proclaimed under section 87, Code of Criminal Procedure (s.82 of the Criminal Procedure Code of 1973).
315 (b) All released convicts in regard to whom an order under section 565, Criminal Procedure Code, has been made (section 356 of the Criminal Procedure Code of 1973).
(c) All convicts the execution of whose sentence is suspended in the whole, or any part of whose punishment has been remitted conditionally under section 401, Criminal Procedure Code (section 432 of the Criminal Procedure Code of 1973) (d) All persons restricted under Rules of Government made under section 16 of the Restriction of Habitual Offenders (Punjab) Act, 1918.
(3) In Part II of such register may be entered at the discretion of the Superintendent (a) persons who have been convicted twice, or more than twice, of offences mentioned in rule 27.29; (b) persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not; (c) persons under security under sections 109 or 110, Code of Criminal Procedure; (d) convicts, released before the expiration of their sentences under the Prisons Act and Remission Rules without the imposition of any conditions.
This rule must be strictly construed, and entries must be confined to the names of persons falling in the four classes named therein".
Rule 23.5 provides that the surveillance register shall be written up by the officer incharge of the Police Station personally or by an Assistant Sub Inspector.
No entry in Part II is to be made except by the order of the Superintendent of Police and no entry in Part I is to be made except by the order of a Gazetted Officer.
It is also provided that ordinarily a history sheet shall be opened for a person before his name is entered in Part II of the Surveillance Register.
If from the entries in the history sheet the Superintendent is of opinion that such person should be subjected to surveillance he shall enter his name in Part II of the register.
In the case of persons who have never been convicted or placed on security for good behaviour their names shall not be entered until the Superintendent has recorded definite reasons for doing so.
The recording of reasons is to be treated as confidential.
316 Rule 23.7 prescribes that Police surveillance shall comprise such close watch over the movements of the person under surveillance, by Police Officers, Village headmen and village watchmen as may be applicable without any illegal interference.
Rule 23.8 provides that the initial preparation of a history sheet is to be done with great care and invariably, by the officer incharge of the Police Station or by a thoroughly experienced Sub Inspector.
Detailed provision is made in the Rules with regard to the preparation, maintenance and custody of history sheets.
Rule 23.31 provides that all records connected with Police surveillance are confidential and nothing contained in them may be communicated to any person and that inspection may not be allowed or copies given.
The District Magistrate and the Ilaqa Magistrate are, however, entitled to examine the records in accordance with Rules 1.15 and 1.21.
As mentioned by us, earlier, the vires of the Punjab Police Rules which provide for the maintenance of the surveillance register was not questioned before us, perhaps, because of Kharak Singh vs State of U.P. & Ors.
and Gobind vs State of Madhya Pradesh & Anr.
The two principal questions which were raised for our consideration were whether a person was entitled to be given an opportunity to show cause before his name was included in the surveillance register and whether, in the instant case, their names were included in the register without any grounds for reasonably believing them to be habitual offenders or receivers of stolen property, as required by Rule 23.4 (3) (b).
The second submission was based on the circumstance that the appellants have not been previously convicted or placed on security for good behaviour under Sec.
109 or 110 Code of Criminal Procedure or proclaimed as offenders.
So, their names could be entered in the surveillance register only if they fitted into the category of persons who are reasonably believed to be habitual offenders or receivers of stolen property, whether they have been convicted of not".
Prevention of crime is one of the prime purposes of the constitution of a police force.
The preamble to the says : "Whereas it is expedient to reorganise the police and to make it a more efficient instrument for the prevention and detection of crime".
23 of the prescribes it as the duty of police officers "to collect and communicate intelligence affecting the public peace, to pre 317 vent the commission of offences and public nuisances".
In connection with these duties it will be necessary to keep discreet surveillance over reputed bad characters, habitual offenders and other potential offenders.
Organised crime cannot be successfully fought without close watch of suspects.
But, surveillance may be intrusive and it may so seriously encroach on the privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by article 21 of the Constitution and the freedom of movement guaranteed by article 19(1) (d).
That cannot be permitted.
This is recognised by the Punjab Police Rules themselves.
Rule 23.7, which prescribes the mode of surveillance, permits that the close watch over the movements of the person under surveillance but without any illegal interference.
Permissible surveillance is only to the extent of a close watch over the movements of the person under surveillance and no more.
So long as surveillance is for the purpose of preventing crime and is confined to the limits prescribed by Rule 23.7 we do not think a person whose name is included in the surveillance register can have a genuine cause for complaint.
We may notice here that interference in accordance with law and for the prevention of disorder and crime is an exception recognised even by European Convention of Human Rights to the right to respect for a person 's private and family life.
article 8 of the Convention reads as follows : "(1) Everyone 's right to respect for his private and family life, his home and his correspondence shall be recognised.
(2) There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety, for the prevention of disorder and crime or for the protection of health or morals".
As we said, discreet surveillance of suspects, habitual and potential offenders, may be necessary and so the maintenance of history sheet and surveillance register may be necessary too, for the purpose of prevention of crime.
History sheets and surveillance registers have to be and are confidential documents.
Neither the person whose name is entered in the register nor any other member of the public can have access to the surveillance register.
The nature and character of the function involved in the making of an entry in the surveillance register is so utterly administrative and non judicial, that it is difficult to con 318 ceive of the application of the rule of audi altrem partem.
Such enquiry as may be made has necessarily to be confidential and it appears to us to necessarily exclude the application of that principle.
In fact observance of the principles of natural justice may defeat the very object of the rule providing for surveillance.
There is every possibility of the ends of justice being defeated instead of being served.
It was well observed in Re : K(Infants) : "But a principle of judicial inquiry, whether fundamental or not, is only a means to an end.
If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice".
The entry in the surveillance register is to be made on the basis of the material provided by the history sheet whose contents, by their very nature have to be confidential.
It would be contrary to the public interest to reveal the information in the history sheet, particularly the source of information.
Revelation of the source of information may put the informant in jeopardy.
The observance of the principle of natural justice, apart from not serving the ends of justice may thus lead to undesirable results.
We accordingly held that the rule audi altrem partem is not attracted.
But all this does not mean that the police have a licence to enter the names of whoever they like (dislike?) in the surveillance register; nor can the surveillance be such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can the surveillance so intrude as to offend the dignity of the individual.
Surveillance of persons who do not fall within the categories mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the Court 's protection which the court will not hesitate to give.
The very rules which prescribe the conditions for making entries in the surveillance register and the mode of surveillance appear to recognise the caution and care with which the police officers are required to proceed.
The note following R. 23.4 is instructive.
It enjoins a duty upon the police officer to construe the rule strictly and confine the entries in the surveillance register to the class of persons mentioned in the rule.
Similarly R.23.7 demands that there should be no illegal 319 interference in the guise of surveillance.
Surveillance, therefore, has to be unobstrusive and within bounds.
Ordinarily the names of persons with previous criminal record alone are entered in the surveillance register.
They must be proclaimed offenders, previous convicts, or persons who have already been placed on security for good behaviour.
In addition, names of persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not may be entered.
It is only in the case of this category of persons that there may be occasion for abuse of the power of the police officer to make entries in the surveillance register.
But, here, the entry can only be made by the order of the Superintendent of Police who is prohibited from delegating his authority under Rule 23.5.
Further it is necessary that the Superintendent of Police must entertain a reasonable belief that persons whose names are to be entered in Part II are habitual offenders or receivers of stolen property.
While it may not be necessary to supply the grounds of belief to the persons whose names are entered in the surveillance register it may become necessary in some cases to satisfy the Court when an entry is challenged that there are grounds to entertain such reasonable belief.
In fact in the present case we sent for the relevant records and we have satisfied ourselves that there were sufficient grounds for the Superintendent of Police to entertain a reasonable belief.
In the result we reject both the appeals subject to our observations regarding the mode of surveillance.
There is no order as to costs.
S.R. Appeal dismissed.
| IN-Abs | Dismissing the appeals, the Court ^ HELD : (1) Prevention of crime is one of the prime purposes of the constitution of a police force.
In connection with the duties spoken of in section 23 of the , it will be necessary to keep discreet Surveillance over reputed bad characters, habitual offenders and other potential offenders.
Organised crime cannot be successfully fought without close watch of suspects.
But surveillance may be intrusive and it may so seriously encroach on the privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by Article 21 of the Constitution and the freedom of movement guaranteed by article 19(1)(d).
That such a thing cannot be permitted is recognised by the Punjab Police Rules themselves.
[316G, 317A B] Rule 23.7 which prescribes the mode of surveillance permits close watch over the movements of the person under surveillance but without any illegal interference.
Permissible surveillance is only to the extent of a close watch over the movements of the persons under surveillance and no more.
So long as surveillance is for the purpose of preventing crime and is confined to the limits prescribed by Rule 23.7 a person whose name is included in the surveillance registered cannot have a genuine cause for complaint.
Interference in accordance with law and for the prevention of disorder and crime is an exception recognised even by the European Convention of Human Rights to the right to respect for a person 's private and family life (Article 8).
[317B D] 2.
Discreet surveillance of suspects, habitual and potential offenders, may be necessary and so the maintenance of history sheet and surveillance a register may be necessary too, for the purpose of prevention of crime.
History sheets and surveillance registers have to be and are confidential documents.
Neither the persons whose name is entered in the register nor any other member of the public can have access to the surveillance register, the exception being that the District Magistrate and the Ilaqa Magistrate are entitled to examine the records in accordance with Rules 1.15 and 1.21.
The nature and character of the function involved in the making of an entry in the surveillance register 312 being utterly administrative and non judicial the rule of audi altrem partem is not applicable.
In fact observance of the principles of natural justice may defeat the very object of the rule providing for surveillance.
There is every possibility of the ends of justice being defeated instead of being served.
[317G H, 318A B] Further the entry in the surveillance register is to be made on the basis of the material provided by the history sheet whose contents, by their very nature have to be confidential.
It would be contrary to the public interest to reveal the information in the history sheet, particularly the source of information.
Revelation of the source of information may put the informant in jeopardy.
The observance of the principle of natural justice, apart from not serving the ends of justice may thus lend to undesirable results.
The rule audi altrem partem is, therefore, not attracted.
[318C E] Re vs K (Infants), & 238, quoted with approval.
The intention behind Rule 23 is not to give the police a licence to enter the names of whoever they like (dislike ?) in the surveillance register; nor can the surveillance be such as to squeeze the fundamental freedom guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can the surveillance so intrude as to offend the dignity of the individual.
Surveillance of persons who do not fall within the categories mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the Court protection which the court will not hesitate to give.
The very rules which prescribe the conditions for making entries in the surveillance register recognises the caution and care with which the police officers are required to proceed.
The note following Rule 23.4 enjoins a duty upon the police officer to construe the rule strictly and confine the entries in the surveillance register to the class of persons mentioned in the rule.
Similarly Rule 23.7 demands that there should be no illegal interference in the guise of surveillance.
Surveillance, therefore, has to be unobtrusive and within bounds.
[318E H, 319A] While it may not be necessary to supply the grounds of belief to the persons whose names are entered in the surveillance register it may become necessary in some cases to satisfy the Court when an entry is challenged on the ground that there are grounds to entertain such reasonable belief.
[319C D]
|
Petition for Special Leave to Appeal No. 5844 of 1980.
From the Judgment and Order dated 1 2 1979 of the Karnataka High Court in O.S.A. No. 5 of 1975.
Y. section Chitale and P. R. Ramases for the Petitioner.
NEMO for the Respondent.
The Order of the Court was delivered by BHAGWATI, J. We think that the view taken by the High Court is the correct view on the interpretation of sections 529 and 530 of the .
Section 529 provides that in the winding up of an insolvent company, the same rules shall prevail and be observed with regard to the provable debts as are in force to the time being under the law of insolvency with respect to the estate of persons adjudged insolvent.
This provision brings in the applicability of section 46 of the Provincial Insolvency Act which reads: "Where there have been mutual dealings between an insolvent and a creditor proving or claiming to prove a debt under this Act, an account shall be taken of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off against any sum due from the other party, and the balance of the account, and no more, shall be claimed or paid on either side respectively.
" This rule enacted in section 46 of the Provincial Insolvency Act with regard to the debts provable by a creditor against the insolvent must, therefore, likewise apply in regard to debts provable against a company in winding up.
Consequently, when the respondent in the present case claimed to prove her debt against the company in liquidation, she was entitled to the benefit of the rule enacted in Section 46 of the Provincial Insolvency Act and she could legitimately claim that since there were admittedly mutual dealings between her and the company in liquidation, an account should be taken in respect of such mutual dealings and only that amount should be payable or receivable by her which is due at the foot of such account.
It is true that section 530 provides for preferential payments, but that provision cannot in any way detract from full effect being given to section 529 and in fact the only way in which these two sections can be reconciled is by reading them together so as to provide that whenever any creditor seeks to prove his debt against the company in liquidation, the rule enacted in Section 46 of the Provincial Insolvency Act 351 should apply and only that amount which is ultimately found due from him at the foot of the account in respect of mutual dealings should be recoverable from him and not that the amount due from him should be recovered fully while the amount due to him from the company in liquidation should rank in payment after the preferential claims provided under section 530.
We find that the same view has been taken by the English Courts on the interpretation of the corresponding provisions of the English Companies Act, 1948 and since our Companies Act is modelled largely on the English Companies Act 1948, we do not see any reason why we should take a different view, particularly when that view appears to be fair and just.
We may, point out that Gore Browne in his book on Company Law, 43rd Ed at page 34 14 also confirms this view: "Indeed, all claims provable in the winding up may be the subject of set off, provided that there is mutuality." Moreover, we find that the observations of the House of Lords in National Westminster Bank Ltd. vs Halesowen Presswork & Assemblies Ltd. are also to the same effect.
We may also usefully refer to the observations of Sir Ernest Pollock, M. R. in re.
City Life Assurance Co. Ltd. where the learned Master of the Rolls after referring to section 207 of the Companies Act, 1908 (section 317 of the Companies Act, 1948) which corresponds to section 529 of and section 31 of the Bankruptcy Act, 1914 which corresponds to section 46 of the Provincial Insolvency Act, says: "It is to be observed that section 31 of Bankruptcy Act, 1914, is definite in its terms that where there is a mutual credit, mutual debt or other mutual dealings, the sums are to be set off and the balance of the account and no more shall be claimed or paid on either side respectively.
It is not merely permissive, it is a direct statutory enactment that the balance only is to be claimed in bankruptcy.
" We are in agreement with these observations and affirm the view taken by the Karnataka High Court in the judgment sought to be appealed against.
We accordingly dismiss the special leave petition on merits after condoning the delay in filing it.
P.B.R. Petition dismissed.
| IN-Abs | The respondent claimed that since there were mutual dealings between her and the company in liquidation an account should be taken in respect of such mutual dealings and only that amount should be payable or receivable by her which is due at the foot of such account.
She claimed that she was entitled to the benefit of the rule enacted in section 46 of the Provincial Insolvency Act.
The High Court upheld her contention.
Dismissing the special leave petition by the Official Liquidator ^ HELD: (1) In view of the provisions of section 529 of the the rule enacted in section 46 of the Provincial Insolvency Act with regard to debts provable by a creditor against the insolvent must equally apply in regard to debts provable against a company in winding up.
[350 F] (2) Although section 530 provides for preferential payments, that provision cannot in any way detract from full effect being given to section 529 which enacts that in the winding up of an insolvent company, the same rules shall prevail and be observed with regard to provable debts as are in force for the time being under the law of insolvency with respect to the estate of persons adjudged insolvent.
The only way in which sections 529 and 530 can be reconciled is by reading them together so as to provide that whenever any creditor seeks to prove his debt against the company in liquidation, the rule enacted in section 46 of the Provincial Insolvency Act should apply and only that amount which is ultimately found due from him at the foot of the account in respect of mutual dealings should be recoverable from him and not that the amount due from him should be recovered fully while the amount due to him from the company in liquidation should rank in payment after the preferential claims provided under section 530.[350H] Gore Brown on Companies, 43rd Ed.
at page 34 14.
National Westminster Bank Ltd vs Halesowen Presswork and Assemblies Ltd. [1972]1 All E. R. 641 at 659 and Re City Life Assurance Co. Ltd. at 457 referred to.
|
Appeal No. 224 of 1955.
665 Appeal by special leave from the judgment and order dated the 7th May 1954 of the Allahabad High Court in Civil Miscellaneous Writ No. 133 of 1952.
Naunit Lal for the appellant.
G. C. Mathur and C. P. Lal for respondents Nos.
I & 2. 1956.
September 20.
The Judgment of the Court was delivered by section K. DAS J.
This is an appeal by special leave from the judgment and order of the High Court of Judicature at Allahabad dated the 7th of May 1954 by which the High Court dismissed an application of the appellant for the issue of a writ of certiorari under the provisions of article 226 of the Constitution.
The appeal raises the question of the validity of the assessment of a tax on the appellant for the year 1950 51 by the Town Area Committee of Karbal under the provisions of clause (f) of sub section (1) of section 14 of the United Provinces Town Areas Act, 1914 (U. P. Act II of 1914), hereinafter referred to as the Act.
The appellant resides in the town of Mainpuri and carries on the business of plying a motor bus on hire.
The appellant 's bus plies on.
alternate days between Etawah and.
Mainpuri, and the town of Karhal falls on the route between Etawah and Mainpuri.
It is not now disputed that passengers travelling in the appellant 's bus used to get down or get in at a bus stand within the town area of Karhal; the appellant had a booking office situate within the Town Area and tickets were issued to passengers and an account of the business was maintained in the said booking office.
The Town Area Committee of Karhal imposed a tax of Rs. 25 on the appellant for the year 1950 51 under the provisions of clause (f) of sub section (1) of section 14 of the Act, being a tax on 'circumstances and property ' and assessing the income of the appellant from his business within the 86 666 Town Area of Karhal at a sum of Rs. 800 for the year.
The appellant preferred an appeal against the assessment of the tax under section 18 of the Act, and the grounds taken by the appellant were (1) that he did not reside within the limits of the Town Area and (2) that he did not carry on any trade or business within that Area.
By his order dated the 20th October 1951 ' the Appeal Officer held that the appellant carried on his trade or business within the limits of the Town Area and was therefore rightly assessed to tax under clause (f) of sub section (1) of section 14 of the Act.
He accordingly dismissed the appeal.
It may be stated here that the appellant was asked to submit an account of his income, but no such account was submitted and the assessing officer worked out the income of the appellant at about Rs. 67 a month, that is, about Rs. 800 a year.
No question about the amount of the tax has been raised before us, and it is not necessary to say anything further with regard to the quantum of assessment.
The appellant then filed a writ application in the High Court of Judicature at Allahabad and the ground taken by him was that there could be no assessment under clause (f) of sub section (1) of section 14 of the Act, because he resided outside the jurisdiction of the Town Area.
The learned Judge, who dealt with the.
application of the appellant, took the view that the tax imposed on the appellant could clearly be imposed under clause (d) of sub section (1) of section 14 of the Act; therefore it was unnecessary to consider whether the tax could be legally imposed under clause (f) of sub section (1) of section 14.
The learned Judge also expressed the view that residence within the Town Area was not a pre requisite condition for the imposition of the tax under clause (d), and it was enough if the appellant carried on a trade or business within the Town Area.
On these views, the learned Judge dismissed the writ application.
The main point which has been urged before us by 667 learned counsel for the appellant is that the assessment of a tax under clause (f) of sub section (1) of section 14 on the appellant was.
not valid, because residence within the Town Area was a necessary condition for the assessment of a tax under clause (f).
Learned counsel also argued before us that the.
assessing authority having assessed a tax on the appellant under clause (f), it was not open to the High Court to say that the tax was legally valid under a 'different clause, namely clause (d) of sub section (1) of section 14.
With regard to his second point, learned counsel has drawn our attention to sections 15 to 17 of the Act.
He has pointed out that under section 15 of the Act a list of persons liable to pay the tax imposed under section 14 and of the amounts to be paid respectively by such persons, has to be prepared; the list may be revised by the District Magistrate and has to be submitted to him for confirmation.
When so confirmed.
, the list can only be altered under sub section (2) of section 15 by the District Magistrate or in pursuance of an order passed in appeal under the provisions of section 18.
We think that learned counsel has rightly submitted that, so far as the present appellant is concerned, the list prepared under section 15 must have shown him as assessed to a certain amount of tax under clause (f) of sub section (1) of section 14 and the assessment must have been confirmed on that basis by the District Magistrate.
Therefore, the legality of the tax imposed on the appellant must be considered with reference to the clause under which the assessment was actually made, and a different clause under which the assessment might have fallen cannot be called in aid of the assessment.
We proceed therefore to consider the legality of the tax imposed on the appellant with reference to clause (f) of sub section (1) of section 14 of the Act.
The short point for consideration in that context is whether residence within the Town Area is a necessary condition for the imposition of the tax under clause 668 (f).
It is necessary to read here section 14 of the Act so far as it is relevant to the point in question.
"14 (1) Subject to any general rules or special orders of the State Government in this behalf, the taxes which a Committee may impose are the following: (d) A tax on trades, callings or professions not exceeding such rates as may be prescribed.
(f) A tax on persons assessed according to their circumstances and property not exceeding such rate and subject to such limitations and restrictions as may be prescribed: , Provided that such a person is not already assessed under clauses (a) to (e) above".
It will be noticed that the power of the Town Area Committee to impose a tax under clause (f) is subject to, ' first, 'any general rules or special orders of the State Government in this behalf ' and, secondly, to (such limitations and restrictions as may be prescribed '.
These restrictions and limitations are to be found in the Rules made by the State Government under section 39(2) of the Act, which are called Rules regarding the Limitations, Restrictions and Rate sub ject to which the Circumstances and Property Tax shall be levied by the Town Area Committee.
These rules were notified by Notification No. 681 T/IX 79T 50 dated July 20, 1950.
Two of the rules are important for our purpose, viz., rules 2 and 3.
They are in these terms: "2.
The tax shall be assessed on every person on whom it is imposed, in two separate parts, namely (1) on his circumstances and (2) on the property, if any, owned by him, and the aggregate of the sums so determined on both the counts shall constitute the total composite amount payable by him as circumstances and property tax: Provided that nothing shall render it irregular 669 to assess a person on only one ' of the two 'counts aforementioned if he does not fulfil the conditions for liability in respect of that count on which he is not assessed.
(1) The tax assessed on the circumstances of an assessee may be imposed on any person residing or carrying on business within the limits of the town area: Provided that such person has so resided or carried on business for a total period of at least six months in the year of assessment.
(2) No tax shall be imposed on any person whose total taxable income is less than Rs. 200 per annum.
(3) The rate of the tax shall not exceed one anna in a. rupee on total taxable income.
(4) The total amount of tax assessed on any person shall not, in any year, exceed a sum of section 250.
Explanation. (1) For purposes of this rule 'taxable income ' means gross income accruing within the limits of the town area.
(ii) The words 'carrying on business ' mean the carrying on of any trade, profession, calling or other practice or activity which yields or is capable of yielding income but do not include service under Government or a local body".
The important point which emerges out of these Rules is that under Rule 3 the tax assessed on the circumstances of an assessee may be imposed on any person residing or carrying on business within the limits of the town area; in other words, two, conditions in the alternative are laid down in Rule 3, either the person must reside within the limits of the town area or he must be carrying on business within the limits of the said area.
There is a third condition that the residence or carrying on of business must be for a total period of at least six months in the year of assessment.
No question regarding the third condition has been raised in this case and it is not necessary to consider that condition here.
Therefore, it is 670 clear that if Rule 3 is valid, then the imposition of the tax on the appellant under clause (f) is also valid, because on the finding not now in dispute the appellant carried on a trade or business within the limits of the Town Area of Karhal.
It has been argued before us that Rule 3 is invalid because, under clause (f) of sub section (1) of section 14, residence within the Town Area of the person to be taxed under that clause is a necessary condition.
We are unable to accept this argument.
Clause (f) of sub section (1) of section 14 does not say in express terms that residence within the Town Area is a necessary condition for the imposition of the tax.
The Rules make it quite clear that for each of the clauses of sub section (1) of section 14 there is a 'nexus ' between the territorial jurisdiction of the Town Area Committee and the imposition of the tax.
So far as clause (d) is concerned, the 'nexus ' is that the trade, calling or profession must be carried on within the limits of the Town Area.
So far as clause (f) is concerned, Rule 3 makes it quite clear that the 'nexus ' is either resi dence within the limits of the Town Area or carrying on business within the same limits.
It is to be remembered that clause (f) was inserted by an Amending Act, namely, the Uttar Pradesh Town Areas (Validation and Amendment) Act, 1950.
Section 1(2) of the Amending Act gave retrospective effect to the amendments.
The proviso to clause (f) makes it quite clear that a person who is already assessed under clauses (a) to (e) cannot be assessed again under clause (f).
The proviso is intended to avoid multiple taxation, but it is manifest from the proviso that ,there may be overlapping of the different clauses in sub section (1) of section 14; for example, a person may come under clause (d) as well as clause (f) if he carries on a trade within the limits of the Town Area.
Therefore, the proviso was necessary to prevent the same person being taxed more than once under the different clauses of sub section (1) of section 14.
If residence within the limits of the Town Area were a 671 sine qua non for the imposition of a tax under clause (f), no question of overlapping between clauses (d) and (f) would arise unless the person to be taxed resided as well as carried on a trade within the limits of the Town Area.
If the argument of learned counsel for the appellant is correct, then the proviso to clause (f) is meaningless in so far as it envisages an overlapping between clause (d) and clause (f) in other cases.
On a proper construction of clause (f), read with the limitations and restrictions embodied in the Rules made under section 39 of the Act, it cannot be held that residence within the Town Area of Karbal was a necessary condition for the imposition of the tax on the appellant.
A reference, was made to sub.;section (4) of section 15 A of the Act.
Section 15 A provides for preliminary proposals for the imposition of taxes under section 14, publication of such proposals and the submission of draft rules.
Sub section (4) states: "(4) Any, inhabitant of the Town Area may, in the prescribed manner, file an objection in writing on such proposals and the committee shall take into consideration the objections so filed and finally settle its proposals." Under sub section (4) any inhabitant of the Town Area may file an objection to the preliminary proposals for the imposition of taxes under section 14.
The argument before us was that if an inhabitant of the Town Area alone was entitled to file an objection to preliminary proposals for taxation, then in all the, clauses of sub section (1) of section 14 residence within the Town Area must be read as a necessary condition for the imposition of the taxes under section 14.
This contention appears to us to be unsound.
Firstly, the objection as, to preliminary proposals for taxation is not the same thing as objection to an assessment, and it may well be that the legislature in their wisdom thought fit to confine the filing of objections to preliminary proposals for taxation to the inhabitants of the Town Area.
Secondly, there are several other 672 sections of the Act, such as section 20 and section 21, which show that the imposition of a tax on persons not resident within the Town Area.
but having some other nexus within that Area, was permissible.
Thirdly, the question of the validity of sub section (4) of section 15 A does not arise in this case.
The appellant was assessed to a tax and he had a right to file an appeal which right he exercised.
No grievance was made of the failure to exercise the right under subsection (4) of section 15 A.
It is therefore un necessary for us to make any pronounce ment on the validity or otherwise of sub section (4) of section 15 A All that is necessary for us to state is that by reason of sub section (4) of section 15 A, it cannot be held that residence within the Town Area is a necessary condition for the imposition of a tax in all the clauses of sub section (1) of section 14 of the Act.
Learned counsel for the appellant referred us to two decisions of 'the Allahabad High Court: District Board, Farrukhabad vs Prag Dutt(1) and District Board, Dehra Dun vs Damodar Dutt(2).
The second decision, which was earlier in point of time, arose out of a suit for recovery of 'circumstances and property tax under the U. P. District Boards Act (Local Act X of 1922).
The question there was whether the District Board of Dehra Dun could impose a tax on the defendants who were not residents within the area of the District Board.
It is worthy of note that under section 114 of the U. P. District Boards Act, the power of a Board to impose a tax on circumstances and 'property is subject to the condition that the tax may be imposed on any person residing or carrying on business in the rural area within the District Board.
The only question in that Allahabad case was whether the defendants resided within the rural area of the District Board so as to make them liable for the. tax.
The finding Was that they did not reside within the rural area and therefore the imposition of (1) A.I.R. 1948 All. 382.
(2) I.L.R. [1944] All.
673 the tax was illegal, and section 131 of the U. P. District Boards Act did not bar the suit.
This decision does not help the appellant.
If it shows anything, it shows that it was open to the District Board to impose a circumstances and property ' tax on any person residing or carrying on business in the rural area.
In the 1948 Allahabad decision, the main question was whether the provisions of section 2, Professions Tax Limitation Act (20 of 1941) affected the powers conferred upon the District Board by section 108 of the U.P. District Boards Act to levy a tax on circumstances and property '.
A subsidiary question was also raised, whether section 131 of the U. P. District Boards Act barred the suit.
With regard to the main question, it was pointed out that the name given to a tax did not matter; what had to be considered was the pith and substance of it.
It was held that in pith and substance the tax was one which attracted the provisions of section 2, Professions Tax Limitation Act (20 of 1941).
A tax on 'circumstances and property ' is a composite tax and the word 'circumstances '.
means a man 's financial position, his status as a whole depending, among other things, on his income from trade or business.
From militating against the principle that in considering the circumstances of a person his income from trade or business within the Town Area may be taken into consideration, the decision approves of the principle.
In the course of his judgment, Bind Basni Prasad J. referred to section 128, U.P. Municipalities Act, 1916, where 'taxes on circumstances and property ' appear as a head distinct from the 'taxes on trades, callings and vocations and employments ' and the argument was that the taxes being under different heads should be treated as being entirely different, one from the other It was rightly pointed out that it is no sound principle of construction to interpret expressions used in one Act with reference to their use in another Act.
The meanings of words and expressions used in an Act must take their colour from the context in which 87 674 they appear.
It is true that in the Act under our consideration the taxes which the Town Area Committee may impose appear under different heads in Sub section (1) of section 14.
We have already stated that though the clauses are different, the words used in the section show that there may be overlapping between the different clauses, and to prevent the same person being subjected to multiple taxation, a 'proviso was incorporated in clause (f).
In view of the words and expressions used in section 14 of the Act, we cannot accept the argument that clause (f) should be read as entirely independent of and unconnected with the other clauses and a different condition, namely residence within the Town Area, must be read as a necessary part of clause (f).
To do so will be to read in clause (f) words which do not occur there.
The limitations for the imposition of a tax under clause (f) are given in Rule 3 and 'residence 'is only one of the alternative conditions for the imposition of the tax not a line qua non as is contended by learned counsel for the appellant.
In the result, we hold that the assessment of the tax on the appellant under clause (f) of subjection (1) of section 14 of the Act was legally valid.
The appeal fails and is dismissed with costs.
| IN-Abs | The appellant was carrying on business, but was not residing within the Town Area of Karhal.
The Town Area Committee imposed a tax of Rs. 25 on him under clause (f) of a. 14(1) of the U.P. Town Areas Act, 1914, being a tax on 'circumstances and property '.
The appellant filed a writ application in the High Court on the ground that there could be no assessment under clause (f) because he resided outside the jurisdiction of the Town Are& Committee.
The High Court dismissed the application taking the view that it was unnecessary to consider whether the tax could be legally imposed under clause (f) as the tax imposed could clearly be justified under clause (d) of section 14(1) which authorised the imposition of a tax on trades, callings or professions.
Held, that residence was not a sine qua non for the imposition of the tax under clause (f), that the carrying on of 'business within the Town Area was a sufficient nexus for the imposition of the tax under clause (f) and that the assessment of the tax on the appellant under clause (f) was legally valid.
The legality of the tax imposed must be considered with ref erence to the clause under which the assessment was actually made and a different clause under which the assessment might have fallen cannot be called in aid of the assessment.
Rule 3 of the 'Rules regarding the Limitations, Restrictions and Rate subject to which the Circumstances and Property Tax shall be levied by the Town Area Committees ' framed under section 39(2) of the Act does not go beyond section 14(1)(f) and is not invalid.
|
Civil Appeal No. 2150 of 1970.
Appeal by Special Leave from the Judgment and Order dated 27 7 1980 of the Punjab and Haryana High Court in R.S. No. 737/70 Harbans Singh for the Appellant.
Hardayal Hardy and B. Datta, for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
This appeal by special leave is directed against the judgment dated July 27, 1970 of the High Court of Punjab and Haryana affirming the decrees passed by the trial court and the first appellate court in a suit for possession by way of pre emption of the land in dispute in favour of plaintiff respondent No. 1 on the ground that he was a tenant of the disputed land when it was sold to the appellants by respondents Nos. 2 to 4 through a registered sale deed dated September 29, 1967.
406 2.
The suit was resisted by the appellants with the counter claim that they, and not respondent No. 1, were in possession of the land on the relevant date as tenants inasmuch as it had been leased out to them by their vendor Kanti Prasad two years prior to the sale, i.e., in the year 1965.
The decrees passed by the courts below proceed on the basis of evidence to the effect that the name of respondent No. 1 was recorded as a tenant in the Jamabandi for the year 1959 60 (exhibit P. 1) and consistently thereafter till the year 1968 (Khasragirdawaris Exs.
P. 2 to P. 7).
Apart from the oral evidence there is no material on the record which may indicate the falsity of any of the entries in the revenue records and we are of the opinion that the lower courts were fully justified in relying on them.
Learned counsel for the appellants relies upon three documents in support of his contention that the Khasra girdawaris should not be believed.
First in point of time is an application (exhibit A31) which was sent to the concerned Deputy Commissioner through the military authorities by one of the appellants who was an army hand.
That application is dated December 11, 1967 and states that the land in dispute was taken by him on lease from Kanti Prasad in the year 1965 and prays that the Khasra girdawari should be corrected accordingly.
The second is the sale deed itself in which appears a recital to the effect that on the date of the sale the vendors had been in possession of the land covered by it for the preceding two years.
The third is the plaint itself which seeks "possession by way of pre emption".
None of these documents is of any help to the case of the appellants.
The recital in the plaint is easily explained.
It is no more than the usual prayer made in suits for preemption and may well be interpreted to mean that possession be granted to the plaintiff by the decree in his capacity of a pre emptor (and not that of a mere tenant).
It cannot be implied therefrom that the plaintiff was out of actual possession.
In fact the case made out in the plaint was specifically founded on the plea that the plaintiff had been in possession of the land in dispute as a tenant right upto the date of the institution of the suit.
Paragraph 4 of the plaint reads: "4.
The plaintiff has been continuously cultivating the aforesaid land mentioned in para No. 1 of the plaint, for a long time as non occupancy tenant and I, the plaintiff, have been cultivating the same even uptil now.
The Vendees are outsiders, therefore, I, the plaintiff have the preferential right of pre emption.
" This plea clearly negatives the contention based on the recital contained in the prayer clause of the plaint.
407 The averments appearing in the sale deed and application exhibit A. 31 (which was made about 2/1/2 months later) to the effect that the appellants had been in possession of the land as tenants since 1965 appears to have been falsely made in an attempt to defeat prospective preemptors.
Had it been a correct statement of fact, there is no reason why it should not have found a place in the agreement of sale which is dated the 24th April, 1967 but in which no mention of delivery of possession of the land to the appellants is made.
Nor is any cogent explanation forthcoming for the fact that no attempt was made by any of the appellants to have their possession over the land as tenants made the subject matter of an entry in the relevant records at any time before the sale deed was registered.
No suspicion can attach to the entries in the jamabandi for the year 1959 60, nor have the contents of that document been assailed before us.
A presumption of truth attaches to those entries in view of the provisions of section 44 of the Punjab Land Revenue Act.
That presumption is no doubt rebuttable but no attempt has been made to displace it.
Further, once that presumption is raised, still another comes to the aid of respondent No. 1 by reason of the rule contained in section 109 of the Indian Evidence Act, namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts.
It may therefore be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit.
Even though the question of possession of the plaintiff as a tenant is a question of fact which is concluded by concurrent findings arrived at by the courts below, we confirm these findings after consideration of the relevant material.
The decree passed in favour of respondent No. 1 is not challenged on any other ground.
The appeal is accordingly dismissed with costs.
All mesne profits deposited by respondent No. 1 in the courts below shall be paid back to him forthwith.
V.D.K Appeal dismissed.
| IN-Abs | Dismissing the defendant 's appeal and affirming the decree in favour of the plaintiffs, the Court. ^ HELD: A presumption of truth attaches to the entries in the Jamabandi for the year 1959 60 showing the defendant respondents as a tenant, in view of the provisions of Section 44 of the Punjab Land Revenue Act.
That presumption is no doubt rebuttable, but, in the instant case, no attempt has been made to displace it.
[407C D] Further, once that presumption is raised, still another comes to the aid of respondent No. 1 by reason of the rule contained in Section 109 of the Indian Evidence Act, namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts.
It may, therefore, be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit.
[407D E]
|
Civil Appeal No. 34 of 1980.
From the Judgment and Order dated 7 11 1979 of the Madras High Court in Writ Petition No. 2886/76.
Soli J. Sorabjee, D.N. Gupta and H. K. Dutt for the Appellant.
R. K. Garg and V. J. Francis for the Respondent.
The Judgment of the Court was delivered by SEN, J.
This appeal on certificate, from the judgment of the Madras High Court raises a question of some complexity.
The ques 304 tion is, whether an employer is statutorily bound to pay wages if the workmen are on strike, for any of the national or festival holidays falling within the period of strike, under s.3 read with sub s.(1) of s.5 of the Tamil Nadu Industrial Establishments (National and Festival Holidays) Act, 1958 (hereinafter to referred to as `the Act ').
The facts of the case are not in dispute.
Messrs Madura Coats Limited are an industrial establishment within the meaning of s.2(e) of the Act, owning textile mills at Madurai, Ambasamudram and Tuticorin in the State of Tamil Nadu.
The cotton textile industry had been declared to be a public utility service for purposes of the .
In respect of claim for bonus for the year 1974 75 a settlement was entered into which stood superseded by the Payment of Bonus Ordinance, 1975.
The management accordingly took the view that no bonus was payable for the year in question, since its payment would be against the provisions of the Act, as amended by the Ordinance.
This resulted in a strike by the workmen of the concerned mills.
The workmen were on strike from January 21, 1976 to February 5, 1976.
The strike was called off by the workmen on February 6, 1976 due to the intervention of the Commissioner of Labour, Madras, who brought about a settlement.
The proceedings of the Commissioner of Labour dated February 5, 1976 show that the parties, i.e., the management and the workmen, had agreed to abide by his decision in the matter.
The terms of the settlement were, inter alia, that the strike was to be called off forthwith and the workmen would commence work on February 6, 1976, that the management 's proposal 10 make a penal cut of eight days ' wages of the workmen for going on an illegal strike would be waived and that there would be no wages payable for the period of the strike.
In accordance therewith, the workmen resumed work on February 6, 1976 and the management paid them wages for the month of January, 1976 after excluding there from the wages payable for the period of strike during January, namely, for the period from January 21 to 31, 1976.
The management having withheld the wages payable for January 26, 1976, the Inspector of Factories, Ist Circle, Madurai addressed a communication dated May 22, 1976 stating that in view of s.5 of the Act, payment of wages for January 26, 1976 had to be made.
The management challenged the order by a writ petition but the High Court declined to interfere.
It held that the appellant was bound to pay to the workmen wages for January 26, 1976, having regard to the provisions contained in s.3 and sub s.(1) of s.5 of the Act, even though the workmen were on strike on that day.
The correctness of that decision is in question.
305 It is urged firstly that in view of the term `wages ' in s.2(g) of the Act, no wages were payable to the workmen for January 26, 1976, in terms of the contract of employment since they were not available for work and thereby the management were deprived of the right given to them under sub s.(2) of s.5 of the Act, to call upon the workmen to come and do the work and secondly, the right of the workmen to receive wages for the national or festival holidays under s.3 of the Act, is subject to the right of the management under sub s.(2) of s.5 to call upon them to come and work on such holidays.
It is said that when a person creates a situation by going on a strike whereby he is not available for work, the terms of employment cannot be fulfilled and, therefore, a fortiori no wages are payable.
It is suggested that the right of the workmen to wages is not dependent on their status as such, but on the fulfilment of the contract of employment.
It would be convenient in the first instance to set out the relevant provisions of the Act.
In the Act the term `wages ' as defined in s.2(g), insofar as relevant, is in these terms: "2(g) "Wages" means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, express or implied, were fulfilled, be payable to an employee in respect of his employment or of the work done by him in such employment. ".
Section 3 of the Act provides as follows: "3.
Grant of National and Festival holidays Every employee shall be allowed in each calendar year a holiday of one whole day on the 26th January, the first May, the 15th August and the 2nd October and five other holidays each of one whole day for such festivals as the Inspector may, in consultation with the employer and the employees, specify in respect of any industrial establishment.
" Sub sections (1) and (2) of s.5 of the Act provide: "5.
Wages (1) Notwithstanding any contract to the contrary, every employee shall be paid wages for each of the holidays allowed to him under section 3.
(2)(a) Notwithstanding anything contained in section 3, any employee.
may be required by the employer to work on 306 any holiday allowed under that section if the employer has, not less than twenty four hours before such holiday, (i) served in the prescribed manner on the employee a notice in writing requiring him to work as aforesaid; and (ii) send to the Inspector having jurisdiction over the area in which the industrial establishment is situated and displayed in the premises of the industrial establishment a copy of such notice.
(b) Where an employee works on any holiday allowed under section 3, he shall, at his option, be entitled to (i) twice the wages; or (ii) wages for such day and to avail himself of a substituted holiday with wages on one of the three days immediately before or after the day on which he so works.
" The legislation is intended to provide for national and festival holidays in industrial establishments in the State.
Section 3 of the Act provides that every employee in an industrial establishment shall be entitled to four national and five festival holidays in each calendar year.
Sub section (1) of s.5 provides that `notwithstanding any contract to the contrary ' every employee shall be paid wages for each of the holidays allowed to him under s.3.
The matter is thus taken out of the realm of contract.
There is a statutory obligation cast on the employer and a corresponding benefit conferred on the employees.
The word `allowed ' in sub section
(1) of s.5 means holidays allowed under s.3.
In other words, the employer has no option in the matter.
There can be no contracting out of the liability to pay wages for such holidays.
It will be noticed that both sub sections
(1) and (2) of s.5 contain non obstante clauses.
While the non obstante clause in sub s.(1) of s.5 gives to the workmen the right to claim wages for such holidays `notwithstanding any contract to the contrary ', the non obstante clause in sub section
(2) of s.5 subordinates the right of the workmen to claim wages for the national or festival holidays `notwithstanding anything contained in s.3 '.
Sub sections (1) and (2) of s.5 have been enacted with separate and distinct objects and they operate on different planes.
Sub section (2) of s.5 confers upon the employer the right to call 307 upon the workmen to come and work on such holidays on the fulfilment of the conditions set out therein.
As a matter of construction, the non obstante clause contained in sub section
(2) of s.5 has an overriding effect over s.3.
The right of the workmen to claim wages under sub section
(1) of s.5 for any of the national and festival holidays under s.3 is, therefore, co extensive with the right of the management under sub s.(2) of s.5 to call upon the workmen to come and work on such holidays subject to the compliance with the conditions laid down therein.
On the construction of sub s.(2) of s.5 of the Act and its impact on s.3 and sub s.(1) of s.5 of the Act, there is a conflict of opinion in the High Court.
In Vasudevan, R.M.S. Union vs Lotus Mills Ltd. Koshal J. in dealing with a case where the workers of a textile mill went on a strike, and in between there were two paid holidays, held that wages for the holidays in question were payable despite the strike since sub s.(1) of s.5 was absolute and unconditional and gave to the employees the right to stay away from work.
He was of the view that s.3 and sub s.(1) of s.5 operate independently without reference to sub s.(2) of s.5 and as such, even if the management had no opportunity to call upon the workmen to come and work on national and festival holidays as provided for in sub s.(2) of s.5, they were bound to declare such national and festival holidays under s.3 and pay wages for these holidays to the workmen as provided by sub s.(1) of s.5.
In substance, Koshal J. was of the view that the legislature never intended to give to sub s.(2) of s.5 an overriding effect so as to make the fulfilment of the terms of contract of employment and of the work done a condition prerequisite for the payment of wages for the national or festival holidays.
When the matter came before Natarajan J., he expressed his doubts about the correctness of the view taken in Lotus Mills case.
In his view the benefit conferred on the workmen under s.3 and sub s.(1) of s.5 cannot be taken to be independent of sub s.(2) of s.5 which confers a special right on the management to call upon the workmen to come and work on national and festival holidays declared under s.3, and so long as that right of the management could not be exercised as the workmen were on strike on these days, the benefits cannot be enforced by the workmen.
He, accordingly, referred the case to a Division Bench for a reconsideration of the decision in Lotus Mills case.
The Division Bench (Ramanujam and Padmanabhan JJ.), however, disagreed with him and preferred to 308 follow the view taken by Koshal J. expressed in Lotus Mills case.
The question is which of the two views is in accord with the provisions of the Act.
Ramanujan J., speaking for the Division Bench, while accepting that 'sub s.(2) of s.5 conferred a special right on the management, which is somewhat inconsistent with s.3 and sub s.(1) of s.5, comments that 'these provisions confer two benefits on the employees, viz., (1) not to work on a holiday, and (2) to get wages from the management for such holiday ', and observes: "If the right conferred on the management under section 5(2) is intended to override the right given to the employees under section 3 and 5(1), the legislature would have specially said so by giving an overriding effect to section 5(2).
But so long as section 5(2) does not specifically override section 3 and 5(1), it is not possible for us to say that sections 3 and 5(1) are subject to section 5(2).
The right conferred on the management under section 5(2) and the right conferred on employees under sections 3 and 5(1) should be taken to be independent of each other." (Emphasis supplied) This observation virtually renders sub s.(2) of s.5 a mere superfluity.
Furthermore, the assumption that the Act confers the right not to work on a holiday ' appears to be unwarranted.
The ultimate conclusion of the High Court was that the contract of service continues even during the period of strike and, therefore, though in the instant case the employees were on strike, they still continued to enjoy the benefits of the Act and must be paid their wages for 26th January, 1976 even though they were on strike.
In our judgment, the construction placed by the High Court on sub s.(2) of s.5 of the Act cannot be accepted.
It is apparently wrong in observing that 'if the legislature intended such a result, the language used would have been different '.
That precisely is the effect of the non obstante clause in sub s.(2) of s.5 which clearly has an overriding effect over s.3.
Under the scheme of the Act, the workmen are entitled to wages for the national and festival holidays under s.3 read with sub section
(1) of s.5, but this right of theirs ' is subject to the right of the management given under sub s.(2) of s.5, to call upon the workmen to come and work on such holidays.
Any other construction would make the provisions contained in sub section
(2) of s.5 wholly nugatory.
309 It would depend on the facts and circumstances of each case whether or not wages become payable in the context of strike.
It is true that where a strike is neither illegal being not in contravention or any statutory provision, nor unjustified having been lodged as a protest against the unreasonable attitude of the management, there is no reason to deprive the workmen of their wages.
It must, nevertheless, be observed that workmen cannot resort to strike with impunity for any kind of demand without first exhausting reasonable avenues for possible achievement of their object.
In the present case, the affidavit of the Inspector of Factories, First Circle, Madurai shows that the dispute between the management and their workmen as to payment of bonus for the year 1974 75 had been referred to the Special Industrial Tribunal Madras which gave a decision in favour of the workmen.
That has a bearing on the claim for bonus but has no relevance to the question in controversy.
It appears that the workmen went on a strike without serving a notice under section 22 of the .
That being so, the strike resorted to by the workmen was wholly unjustified if not illegal.
When the workmen themselves brought about a situation by going on a strike, they cannot be permitted to claim wages under sub s.(1) of s.5 of the Act, since the management were deprived of their right under sub s.(2) of s.5 of the Act.
In Buckingham and Carnatic Co. Ltd. vs Workers of the Buckingham and Carnatic Co. Ltd. the night shift operatives of a textile mills stopped work from about 4 p.m. upto about 8 p.m. on a certain day, the apparent cause of the strike being that the management had expressed their inability to comply with the request of the workers to declare the forenoon of that day as a holiday for solar eclipse.
The stoppage of work was the result of a concerted action and fell within the definition of a 'strike ' in s.2(q) of the .
The strike was an illegal strike as the textile mills was a public utility industry and no notice had been given to the management, even though the refusal to work continued only for a few hours.
It was held that the continuity of service of the workers was interrupted by the illegal strike and, therefore, they were not entitled to claim holidays with pay under section 49 B(1) of the Factories Act, 1934.
In Management of Chandramalai Estate, Ernakulam vs Its Workmen the workmen made certain demands and the matter was referred for conciliation.
After conciliation efforts failed the workmen struck work.
The question was whether the workmen were entitled to 310 paid holidays for the period of strike.
It was held, on the facts of the case, that the strike was unjustified and the workmen were not entitled to any wages for the period.
The question ultimately is one of fact.
The liability of the management to pay wages for the national and festival holidays under s.3, read with sub s.(1) of s.5 of the Act, is subject to their right under sub s.(2) of s.5 of the Act to call upon the workmen to come and work on such holidays.
That depends upon whether or not the strike was illegal or unjustified.
In the result, the appeal succeeds and is allowed.
The judgment of the High Court is reversed.
The writ petition filed by the appellant is allowed and the impugned notice issued by the Inspector of Factories is quashed.
We wish to mention that the appellant has undertaken to pay wages to the workmen for 26th January, 1976 irrespective of the result of the appeal.
There shall be no order as to costs.
N.V.K. Appeal allowed.
| IN-Abs | The Tamil Nadu Industrial Establishment (National and Festival Holidays) Act, 1958 was a legislation intended to provide for national and festival holidays in industrial establishments in the State of Tamil Nadu.
Section 3 of the Act provides that every employee in an industrial establishment shall be entitled to four national and five festival holidays in each calender year.
Sub section (1) of section 5 provides that `notwithstanding any contract to the contrary every employee shall be paid wages for each of the holidays allowed to him under section 3.
Sub section (2) of section 5 confers upon the employer the right to call upon the workmen to come and work on such holidays on the fulfilment of the conditions set out therein The appellant was an industrial establishment owning textile mills in the State of Tamil Nadu.
In respect of a claim for bonus for the year 1974 75 there was a dispute between the management and its workmen.
This resulted in a strike by the workmen, from January 21, 1976 to February 5, 1976 which was called off by the workmen on February 6, 1976.
The management paid the workmen wages for the month of January 1976 after excluding therefrom the wages payable for the period of strike during January namely January 21 to January 31, 1976.
The Management having withheld the wages payable for January 26, 1976 the first respondent addressed a communication stating that in view of section 5 of the Act payment of wages for January 26, 1976 had to be made.
The management challenged the order by a Writ Petition in the High Court.
The High Court held that having regard to the provisions contained in sections and sub section (I) of section 5 of the Act, the appellant was bound to pay the workmen wages for January 26, 1976 even though the workmen were on strike on that date and dismissed the Writ Petition Allowing the appeal to this Court ^ HELD: (1) The liability of the Management to pay wages for the national and festival holidays under section 3 read with sub section (1) of section 5 of the Act is subject to the rights under sub section (2) of section 5 of the Act to call upon the workmen to come and work on such holidays.
303 (2) The construction placed by the High Court on sub Section (2) of section 5 of the Act cannot be accepted.
Under the scheme of the Act the workmen are entitled to wages for the national and festival holidays under section 3 read with sub section (I) of section 5, but this right of theirs ' is subject to the right of management given under sub section (2) of section 5 to call upon the workmen to come and work on such holidays.
Any other construction would make the provision contained in sub section (2) of section 5 wholly nugatory.
[308H; 309A] (3) Both sub sections (1) and (2) of section 5 contain non obstante clauses.
While the non obstante clause in sub section (I) of section 5 gives to the workmen the right to claim wages for the national or festival holidays `notwithstanding any contract to the contrary ' the non obstante clause in sub section (2) of section 5 subordinates the right of the workmen to claim wages for the national or festival holidays `notwithstanding anything contained in section 3.
sub sections (1) and (2) of section 5 have been enacted with separate and distinct objects and they operate on different planes.
[306H; 307A] Vasudevan, R.M.S. Union vs Lotus Mills Ltd. [1977] II LLJ 483 overruled.
(4) It would depend on the facts and circumstances of each case whether or not wages become payable in the context of strike.
When a Strike is neither illegal being not in contravention of any statutory provision, nor unjustified having been lodged as a protest against the unreasonable attitude of the management, there is no reason to deprive the workmen of their wages.
[309B] Buckingham and Carnatic Co. Ltd. vs Workers of the Buckingham and Carnatic Co. Ltd. ; and Management of Chandramalai Estate, Ernakulam vs Its Workmen ; referred to.
In the instant case the workmen went on strike without serving a notice under section 22 of the Industrial Dispute Act 1947.
That being so the strike resorted to by the workmen was wholly unjustified if not illegal.
When the workmen themselves brought about a situation by going on a strike they cannot be permitted to claim wages under sub section (1) of section 5 of the Act since the management were deprived of their right under sub section (2) of section 5 of the Act.
[309E]
|
ition No. 5670 of 1980.
(Under Article 32 of the Constitution) Mrs. K. Hingorani and Miss Rekha Tiwari for the Petitioner.
K. G. Bhagat and D. Goburdhan for the Respondent.
The Order of the Court was delivered by BHAGWATI, J. This case has now come before us after service of notice on the State of Bihar.
When this case was taken up for hearing by us on 2nd December, 1980, we expressed our displeasure that the State of Bihar had not chosen to appear in answer to the notice, but this expression of displeasure was made by us on the assumption that the notice was served on the State of Bihar.
We are however informed by Mr. K. G. Bhagat, learned advocate, appearing on behalf of the State of Bihar that the notice of the writ petition was served upon the State only on 6th December, 1980 and that is the reason why it was not possible for the State to appear before us on 2nd December, 1980.
We accept this explanation offered by Mr. K. G. Bhagat and exonerate the State of Bihar from remissness in appearing before the Court on 2nd December, 1980.
The State has filed before us a counter affidavit sworn by Tarkeshwar Parshad, Under Secretary, Home (Police) Department of the State Government giving various particulars required by us by our order dated 2nd December, 1980.
We have also before us the counter affidavit filed by Jitendra Narain Singh, Assistant Jailer, Bhagalpur Central Jail, on behalf of the State and this affidavit gives certain other particulars required by us.
The State has also in addition to these particulars, filed statements giving various particulars in regard to the blinded prisoners drawn from the records of the judicial magistrates dealing with their cases.
The District and Sessions Judge has also addressed a letter to the Registrar (Judicial) of this Court stating that for the reasons given in his letter, no inspection of the Bhagalpur Central Jail has been carried out by the District and Sessions Judge in the year 1980.
The Registrar (Judicial) has also furnished to us copies of the statements of the blinded prisoners 410 and B. L. Das, former Superintendent of the Bhagalpur Central Jail, recorded by him pursuant to the order of this Court dated 1st December, 1980.
Full and detailed arguments have been advanced before us on the basis of the particulars contained in these documents, but we do not, at this stage, propose to deal with the arguments in regard to each of the blinded prisoners and we shall examine only the broad contentions advanced before us, leaving the arguments in regard to each specific blinded prisoner to be dealt with at a later stage when the writ petition again comes up for hearing.
Before we deal with the main contentions urged before us on behalf of the parties, we must dispose of one serious question which raises a rather difficult problem and which has to be resolved with some immediacy.
The problem is not so much a legal problem as a human one and it arises because the blinded prisoners who are under going treatment in the Rajendra Prashad Ophthalmic Institute, New Delhi are likely to be discharged from that Institute since their vision is so totally impaired that it is not possible to restore it by any medical or surgical treatment, and the question is wherever they can go.
Mrs. Hingorani, on behalf of the blinded prisoners, expressed the apprehension that it may not be safe for them to go back to Bhagalpur, particularly when investigation into the offences of blinding was still in progress and some arrangement should, therefore, be made for housing them in New Delhi at the cost of the State.
We cannot definitely state that the apprehension expressed by Mrs. Hingorani is totally unfounded nor can we say at the present stage that it is justified, but we feel that at least until the next date of hearing, it would be desirable not to send the blinded prisoners back to Bhagalpur.
We would, therefore, suggest that the blinded prisoners who are discharged from the Rajendra Parshad Ophthalmic Institute, New Delhi should be kept in the Home which is being run by the Blind Relief Association of Delhi on the Lal Bahadur Shastri Marg, New Delhi and the State of Bihar should bear the cost of their boarding and lodging in that Home.
We hope and trust and, in fact, we would strongly recommend that the Blind Relief Association of Delhi will accept these blinded prisoners in the Home run by them and look after them until the next hearing of the petition.
The State of Bihar will pay by way of advance or otherwise as may be required the costs, charges and expenses of maintaining the blinded prisoners in such Home The other question raised by Mrs. Hingorani on behalf of the blinded prisoners was whether the State was liable to pay compensation to the blinded prisoners for violation of their Fundamental Right 411 under Article 21 of the Constitution.
She contended that the blinded prisoners were deprived of their eye sight by the Police Officers who were Government servant acting on behalf of the State and since this constituted a violation of the constitutional right under Article 21, the State was liable to pay compensation to the blinded prisoners.
The liability to compensate a person deprived of his life or personal liberty otherwise than in accordance with procedure established by law was, according to Mrs. Hingorani, implicit in Article 21.
Mr. K. G. Bhagat on behalf of the State, however, contended that it was not yet established that the blinding of the prisoners was done by the Police and that the investigation was in progress and he further urged that even if blinding was done by the police and there was violation of the constitutional right enshrined in Article 21, the State could not be held liable to pay compensation to the persons wronged.
These rival arguments raised a question of great constitutional importance as to what relief can a court give for violation of the constitutional right guaranteed in Article 21.
The court can certainly injunct the State from depriving a person of his life or personal liberty except in accordance with procedure established by law, but if life or personal liberty is violated otherwise than in accordance with such procedure, is the court helpless to grant relief to the person who has suffered such deprivation ? Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious Fundamental Right to life and personal liberty.
These were the issues raised before us on the contention of Mrs. Hingorani, and to our mind, they are issues of the gravest constitutional importance involving as they do, the exploration of a new dimension of the right to life and personal liberty.
We, therefore, intimated to the counsel appearing on behalf of the parties that we would hear detailed arguments on these issues at the next hearing of the writ petition and proceed to lay down the correct implications of the constitutional right in Article 21 in the light of the dynamic constitutional jurisprudence which we are evolving in this Court.
That takes us to one other important issue which arises in this case.
It is clear from the particulars supplied by the State from the records of the various judicial magistrates dealing with the blinded prisoners from time to time that, neither at the time when the blinded prisoners were produced for the first time before the judicial magistrate nor at the time when the remand orders were passed, was any legal representation available to most of the blinded prisoners.
The records of the judicial magistrates show that no legal representation was provided to the blinded prisoners, because none of them asked 412 for it nor did the judicial magistrates enquire from the blinded prisoners produced before them either initially or at the time of remand whether they wanted any legal representation at State cost.
The only excuse for not providing legal representation to the blinded prisoners at the cost of the State was that none of the blinded prisoners asked for it.
The result was that barring two or three blinded prisoners who managed to get a lawyer to represent them at the later stages of remand, most of the blinded prisoners were not represented by any lawyers and save a few who were released on bail, and that too after being in jail for quite some time, the rest of them continued to languish in jail.
It is difficult to understand how this state of affairs could be permitted to continue despite the decision of this Court in Hussainara Khatonn 's case.
This Court has pointed out in Hussainara Khatoon 's case (supra) which was decided as far back as 9th March, 1979 that the right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.
It is unfortunate that though this Court declared the right to legal aid as a Fundamental Right of an accused person by a process of judicial construction of Article 21, most of the States in the country have not taken note of this decision and provided free legal services to a person accused of an offence.
We regret this disregard of the decision of the highest court in the land by many of the States despite the constitutional declaration in Article 141 that the law declared by this Court shall be binding through out the territory of India.
Mr. K. G. Bhagat on behalf of the State agreed that in view of the decision of this Court the State was bound to provide free legal services to an indigent accused but he suggested that the State might find it difficulty to do so owing to financial constraints.
We may point out to the State of Bihar that it cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative inability.
The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigenous and whatever is necessary for his purpose has to be done by the State.
The State may have its financial constraints and its priorities in expenditure but, as pointed out by the court in Rhem vs Malcolm.
"The law does not permit 413 any Government to deprive its citizens of constitutional rights on a plea of poverty" and to quote the words of Justice Blackmum in Jackson vs Bishop, "humane considerations and constitutional requirements are not in this day to be measured by dollar considerations.
" Moreover, this constitutional obligation to provide free legal services to an indigent accused does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate.
It is elementary that the jeopardy to his personal liberty arises as soon as a person is arrested and produced before a magistrate, for it is at that stage that he gets the first opportunity to apply for bail and obtain his release as also to resist remand to police or jail custody.
That is the stage at which an accused person needs competent legal advice and representation and no procedure can be said to be reasonable, fair and just which denies legal advice and representation to him at this stage.
We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the magistrate as also when he is remanded from time to time.
But even this right to free legal services would be illusory for an indigent accused unless the magistrate or the Sessions Judge before whom he is produced informs him of such right.
It is common knowledge that about 70 per cent of the people in the rural areas are illiterate and even more than that percentage of people are not aware of the rights conferred upon them by law.
There is so much lack of legal awareness that it has always been recognised as one of the principal items of the programme of the legal aid movement in this country to promote legal literacy.
It would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services.
Legal aid would become merely a paper promise and it would fail of its purpose.
The magistrate or the sessions judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.
Unfortunately, the judicial magistrates failed to discharge this obligation in the case of the blinded prisoners and they merely stated that no legal representation was asked for by the blinded prisoners and hence none was provided.
We would, therefore, direct the magistrates and Session Judges in the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State.
Unless he is not willing to take advantage every 414 other State in the country to make provision for grant of free legal services to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicado situation.
The only qualification would be that the offence charged against the accused is such that, on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation.
There may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal services need not be provided by the State.
There are two other irregularities appearing from the record to which we think it is necessary to refer.
In the first place in a few cases the accused persons do not appear to have been produced before the Judicial Magistrates within 24 hours of their arrest as required by article 22 of the Constitution.
We do not wish to express any definite opinion in regard to this irregularity which prima facie appears to have occurred in a few cases, but we would strongly urge upon the State and its police authorities to see that this constitutional and legal requirement to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest must be scrupulously observed.
It is also clear from the particulars furnished to us from the records of the Judicial Magistrates that in some cases particularly those relating to Patel Sahu, Raman Bind, Shaligram Singh and a few others the accused persons were not produced before the Judicial Magistrates subsequent to their first production and they continued to remain in jail without any remand orders being passed by the Judicial Magistrates.
This was plainly contrary to law.
It is difficult to understand how the State continued to detain these accused persons in jail without any remand orders.
We hope and trust that the State, Government will inquire as to why this irregularity was allowed to be perpetrated and will see to it that in future no such violations of the law are permitted to be committed by the administrators of the law.
The provision inhibiting detention without remand is a very healthy provision which enables the Magistrates to keep check over the police investigation and it is necessary that the Magistrates should try to enforce this requirement and where it is found to be disobeyed, come down heavily upon the police.
We also cannot help expressing our unhappiness at the lack of concern shown by the judicial magistrates in not enquiring from the blinded prisoners, when they were first produced before the judicial magistrates and thereafter from time to time for the purpose of remand, 415 as to how they had received injuries in the eyes.
It is true that most of the blinded prisoners have said in their statements before the Registrar that they were not actually produced before the judicial magistrates at any time, but we cannot, without further inquiry in that behalf, accept the ex parte statement of the blinded prisoners.
Their statements may be true or may not be true; it is a matter which may require investigation.
But one thing is clear that in the case of almost all the blinded prisoners, the forwarding report sent by the Police Officer In Charge stated that the accused had sustained injuries and yet the judicial magistrates did not care to enquire as to how injuries had been caused.
This can give rise only to two inferences; either the blinded prisoners were not physically produced before the judicial magistrates and the judicial magistrates mechanically signed the orders of remand or they did not bother to enquire even if they found that the prisoners before them had received injuries in the eyes.
It is also regrettable that no inspection of the Central Jail, Bhagalpur was carried out by the District & Sessions Judge at any time during the year 1980.
We would request the High Court to look into these matters closely and ensure that such remissness on the part of the judicial officers does not occur in the future.
We would also like to advert to one more matter before we close and that is rather a serious matter.
It appears from the record that one blinded prisoner by the name of Umesh Yadav sent a petition to the District and Sessions Judge, Bhagalpur, on 30th July, 1980 complaining that he had been blinded by Shri B. K. Sharma, District Superintendent of Police and since he had no money to prosecute this police officer, he should be provided a lawyer at Government expense so that he might be able to bring the police atrocities before the court and seek justice.
Ten other blinded prisoners also made a similar petition and all these petitions were forwarded to the District & Sessions Judge on 30th July, 1980.
The District & Sessions Judge by his letter dated 5th August, 1980, addressed to the Superintendent of the Bhagalpur Central Jail stated that there was no provision in the Code of Criminal Procedure under which legal assistance could be provided to the blinded prisoners who had made a petition to him and that he had forwarded their petitions to the chief judicial magistrate for necessary action.
The Chief Judicial Magistrate also expressed his inability to do anything in the matter.
It appears that the Superintendent of the Bhagalpur Central Jail also sent the petitions of these blinded prisoners to the Inspector General of Prisons, Patna on 30th July, 1980 with a request that this matter should be brought to the notice of the State Government.
The Inspector General of Prisons, forwarded these petitions to the Home Department.
The Inspector 416 General of Prisons was also informed by three blinded prisoners on 9th September 1980 when he visited the Banka Jail that they had been blinded by the police and the Inspector General of Prisons observed in his inspection note that it would be necessary to place the matter before the Government so that the police atrocities may be stopped.
The facts disclose a very disturbing state of affairs.
In the first place we find it difficult to appreciate why the Chief Judicial Magistrate to whom the petitions of these blinded prisoners had been.
forwarded by the District & Sessions Judge did not act upon the complaint contained in these petitions and either take cognizance of the offence revealed in these petitions or order investigation by the higher police officers.
The information appearing in these petitions disclosed very serious offences alleged to have been committed by the Police and the Chief Judicial Magistrate should not have nonchalantly ignored these petitions and expressed his inability to do anything in the matter.
But apart from that, one thing is certain that within a few days after 30th July 80 the Home Department did come to know from the Inspector General of Prisons that according to the blinded prisoners who had sent their petitions, they had been blinded by the Police, and from the inspection note of the Inspector General of Police it would seem reasonable to assume that he must have brought the matter to the notice of the Government.
We should like to know from the Inspector General of Prisons as to who was the individual or which was the department of the State Government to whose notice he brought this matter and what steps did the State Government take on receipt of the petitions of the blinded prisoners forwarded by the Inspector General of Prisons as also on the matter being brought to their attention by the Inspector General of Prisons as observed by him in his inspection note.
We should like the State Government to inform us clearly and precisely as to what steps they took after 30th July, 1980 to bring the guilty to book and to stop recurrence of such atrocities.
We want to have this information because we should like to satisfy ourselves whether the blindings which took place in October 1980 could have been prevented by the State Government by taking appropriate steps on receipt of information in regard to the complaint of the blinded prisoners from the Inspector General of Prisons.
We would direct the State Government to furnish us full and detailed particulars in this behalf before the next hearing of the writ petition.
The writ petition will now be taken up for further hearing on 6th January, 1981.
S.R. Petition adjourned.
| IN-Abs | Expressing displeasure over disregard of the decision of the Supreme Court by the State of Bihar, the Court ^ HELD: (1) The right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it is implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.
The State should provide free legal aid to an accused person who is unable to secure legal services on account of indigence and whatever is necessary for this purpose has to be done by the State.
It cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative liability.
[412C D, F G] Hussainara Khatoon v State of Bihar [1979] 3 S.C.R. 532, reiterated.
Rhem vs Malcolm, ; Jackson vs Bishop , quoted with approval.
(2) The State is under a constitutional obligation to provide free legal services not only at the stage of trial but also at the stage when the accused is first produced before the magistrate as also when he is remanded from time to time.
[413C D] (3) But even this right to free legal services would be illusory for an indigent accused unless the magistrate or the Sessions Judge before whom he is produced informs him of such right.
It would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services.
Legal aid would become merely a paper promise and it would fail of its purpose.
The magistrate or the sessions judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.
Unless he is not willing to take advantage, every other State in the country should make provision for grant of free legal services to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicado situation.
The only qualification would be that the offence charged against the accused is such that on conviction it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation.
There may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal services need not be provided by the State.
[413D, E F, H, 414A B] 409 (4) The State and its police authorities should see to it that the constitutional, and legal requirement to produce an arrested person before a judicial magistrate within 24 hours of the arrest is scrupulously observed.
[414C D] (5) The provision inhibiting detention without remand is a very healthy provision which enables the magistrates to keep check over the police investigation and it is necessary that the magistrates should try to enforce this requirement and where it is found to be disobeyed come down heavily upon the police.[414F G]
|
Civil Appeal No. 1572 of 1970.
From the Judgment and Order dated 8 11 1968 of the Bombay High Court in S.C.A. No. 2087/68.
M. C. Bhandare, C. K. Sucharita and M. N. Shroff for the Appellant.
Nemo for the Respondent.
The Judgment of the Court was delivered by KOSHAL J.
, This is an appeal by special leave against the judgment dated November 8, 1968 of a Division Bench of the High Court of Bombay allowing a petition under articles 226 and 227 of the Constitution of India and declaring that sub section
(5) of section 17 of the Maharashtra Medical Practitioners Act, 1961 (hereinafter referred to as the Act) is ultra vires of article 14 of the Constitution of India.
The facts are not in dispute and may be shortly stated.
The respondent hails from Uttar Pradesh.
In 1940 he obtained the degree of "Ayurved Shastri" from the All India Adarsh Vidwat Parishad, Kanpur.
On November 12, 1940 his name was listed by the Board of Indian Medicine, Uttar Pradesh, in the register of Vaids and Hakims.
He practised as a Vaid in Agra thereafter upto 1955 when he migrated to Bhopal where he was registered as an Ayurvedic Doctor by the Medical Council of the Government of Bhopal under the Bhopal Medical Practitioners Registration Act, 1935.
He migrated to Bombay in 1962 and started practising there as an Ayurvedic Doctor.
However, in the meantime, i.e., on November 23, 1961, the Act came into force, except for Chapter VI thereof which came into operation on November 1, 1966.
The respondent 's application for registration as a medical practitioner made to the Committee of the Medical Board of Unani System of Medicine under sub section
(5) of section 17 of the Act (although none of the clauses of that sub section had anything to do with it) was rejected and his appeal filed to the Board was also dismissed on September 30, 1964.
Clause (ii) of the said sub section
(5) with which we are concerned provides that any person not being a person qualified for registration under sub sections
(3) or (4) who proves to the satisfaction of the Committee appointed under sub section
(6) "that he was on the 4th day of November 1941 regularly practising the Ayurvedic or the Unani System of Medicine in the Bombay area of the State, but his name was not entered in the register maintained under the Bombay Medical 400 Practitioners Act, 1938" shall be entitled to have his name entered in the register on making an application on the prescribed form, on payment of a fee of Rs. 10/ and production of such documents as may be prescribed by the rules.
The expression "Bombay area of the State of Maharashtra" is defined in sub section
(6) of section 3 of the Bombay General Clauses Act to mean "the area of the State of Maharashtra excluding the Vidarbha region and the Hyderabad area of that State." A contention was raised before the High Court on the strength of Rukmani Hoondraj Hingorani vs The Appellate Authority under the Maharashtra Medical Practitioners Act, 1961 that sub section
(5) of section 17 of the Act fell foul of article 14 of the Constitution, and that contention was accepted.
We may usefully refer to the following observations made in the decision just above cited: "Confining our attention, however, to medical practitioners practising in the Bombay area of the State, we find it difficult to appreciate why the right of enlistment should have been restricted to those who were regularly practising on 4th November 1951, `in the Bombay area of the State '.
Since the object of the Legislature was to allow medical practice by those less qualified persons who were too old to choose alternative means of livelihood, it was clearly open to the Legislature to provide that a person must have been practising for a certain number of years, or from before a particular date, in order that his name may be included in the list.
It was thus open to the Legislature to provide that, out of unregistered and unlisted medical practitioners who were practising in the Bombay area of the State, only those would be entitled to have their names included in the list who were practising regularly from before the 4th of November, 1951.
It is, however, not possible to find any rational basis for the provision that medical practitioners in the Bombay area of the State, in order to be entitled to enlistment, must not only have been practising regularly from 4th November, 1951, but must have been practising on that day `in the Bombay area of the State '.
The provision that medical practitioners must have been practising on 4th November, 1951 in the Bombay area of the State has no rational nexus with the object of the Legislature which was to ensure that medical practitioners, who were not fully qualified but who were too old to choose alternative means of livelihood, should not be deprived of their practice.
401 In order to illustrate the discriminatory nature of the provision contained in section 18(2)(b)(ii), we shall take imaginary instances of five persons who were all practising in the Bombay area of the State at the time of their applications under section 18 (i.e., on or before 31st March, 1965) and who were not already enlisted and were not entitled to registration under the Act.
Let us suppose that one of them, A, was practising continuously in Bombay City from 1950 to 1963, when he applied under section 18 of the Act.
Since on 4th November, 1951 he was practising regularly 'in the Bombay area of the State ', he is clearly entitled to have his name included in the list.
Let us take another person B who practised in Poona from 1950 to 1954 and in Bombay City from 1954 to 1963 when he applied under section 18.
He is also entitled to enlistment because Poona falls in the Bombay area of the State.
We may then take the instance of C who practised in Nagpur from 1950 to 1954 and in Bombay City from 1954 to 1963.
He would not be entitled to have his name included in the list, because on 4th November, 1951 he was regularly practising in Nagpur which, though situated in Maharashtra, is not included in the Bombay area of the State.
We will next take the instance of D who practised in Baroda, then a part of the Bombay State, from 1950 to 1954 and thereafter in Bombay City from 1954 to 1963.
He is also not entitled to enlistment, since Baroda in out side the State of Maharashtra.
Similar would be the position of another person E who practised in Bhopal from 1950 to 1954 and then in Bombay City from 1954 to 1963.
No rational explanation can be given of why A and B should receive the said concession from the Legislature and should be able to continue their practice and why C, D and E should not receive the concession and should be deprived of their practice.
" We find ourselves in complete agreement with these observations which were made in relation to sub clause (ii) of clause (b) of sub section
(2) of section 18 of the Act.
The provisions of that sub clause being in pari materia with sub section
(5) of section 17 of the Act, they apply fully to that sub section which must therefor be held to be violative of article 14 of the Constitution.
Accordingly we have no hesitation in upholding the impugned judgment and dismiss this appeal, but with no order as to costs as the respondent has not appeared before us to contest it.
N.V.K. Appeal dismissed.
| IN-Abs | The Maharashtra Medical Practitioners Act 1961, contains provisions for registration and enlistment of medical practitioners.
Clause (ii) of sub section (5) of section 17 of the Act provides that any person not being a person qualified for registration under sub sections (3) or (4) who proves to the satisfaction of the Committee appointed under sub section (6), "that he was on the 4th day of November 1941 regularly practising the Ayurvedic or the Unani System of Medicine in the Bombay area of the State, but his name was not entered in the register maintained under the Bombay Medical Practitioners Act, 1938" shall be entitled to have his name entered in the register on making an application and on payment of the prescribed fee.
The respondent whose name was listed by the Board of Indian Medicine, Uttar Pradesh in the register of Vaids and Hakims practised as a Vaid and as an Ayurvedic Doctor in Agra and Bhopal respectively.
He migrated to Bombay in 1962 where he started practice as an Ayurvedic Doctor.
He applied for registration as a medical practitioner to the Committee of the Medical Board of Unani system of Medicine under sub section (5) of section 17 of the Act.
His application was rejected, and his appeal filed to the Board was also dismissed.
The High Court, however, allowed the respondent 's writ petition, relying on its earlier decision in Rukmani Hoondraj Hingorani vs The Appellate Authority under the Maharashtra Medical Practitioner Act, 1961 (1969) 71 Bom.
L.R. 71 (77), held section 17(5) of the Act as unconstitutional and set aside the orders passed by the Board.
Dismissing the appeal to this Court, ^ HELD: 1.
In Rukmani Hoondraj Hingorani vs The Appellate Authority under the Maharashtra Medical Practitioners Act, 1961 the validity of section 18(2)(b)(ii) fell for consideration and was rightly held to be unconstitutional as it offends the provisions of Article 14.
It was observed in that case that the provision, by restricting the right of enlistment to those medical practitioners 'who have been regularly practising on 4th November, 1951 in the Bombay area of the State ' had no rational nexus with the object of the Legislature which was to allow medical practice by those less qualified persons who were too old to choose alternative means of livelihood, and that while it was clearly open to the Legislature to provide that a person must have been practising for a certain number of years, or from before a particular date, in order that his name may be included in the list, no distinction on the basis of the area in which he had been practising could be made.
[400C H] 399 2.
The provisions of section 18(2)(b)(ii) being in pari materia with subsection (5) of section 17, the observations made in the above case apply also to this sub section.
This sub section is, therefore, violative of Article 14 of the Constitution.
[401G]
|
ition No. 4349 of 1980.
(Under Article 32 of the Constitution.) 354 M/s. Ram Jethmalani, Anil Dewan, Harjinder Singh and section H. Sajanwala, for the Petitioner.
J. L. Nain, Sushil Kumar and M. N. Shroff for the Respondents.
The Judgment of the Court was delivered by SARKARIA, J.
By our order dated October 3, 1980, we had allowed this writ petition for the issue of a writ of Habeas Corpus and directed the release of the detenu.
We are now giving the reasons in support of that order.
On January 30, 1980, the petitioner, Lallubhai Jogibhai Patel was served with an order of detention, dated January 30, 1980, passed by Shri P. M. Shah, Deputy Secretary to the Government of Gujarat (Home Department) under Section 3 of the (for short, the COFEPOSA).
The grounds of detention were also served on him on the same day.
The petitioner challenged the order of his detention by Writ Petition No. 449 of 1980 in this Court.
That petition was dismissed by this Court by an order dated May 9, 1980, but the reasons for that order were announced later on August 4, 1980.
After the dismissal of his petition, he on July 21, 1980, filed additional grounds.
He was on July 30, 1980, informed that he may, if so advised, file a fresh petition on those additional grounds.
That is how this subsequent petition came to be filed on additional grounds which were not urged in the previous Writ Petition 449 of 1980.
A preliminary objection was raised on behalf of the respondent State that this subsequent petition is barred as constructive res judicata.
In this connection, reference has been made to the decision of this Court in Ghulam Sarwar vs Union of India & Ors.
and Seervai 's Constitutional Law.
In reply, Shri Ram Jethmalani, counsel for the petitioner, contended that this Court cannot refuse to entertain a second petition for habeas corpus on a fresh ground which could not, for good reasons, be taken in the earlier writ petition, on the ground that it is barred by any doctrine of estoppel or constructive res judicata.
It is stressed that a preventive detention illegally continued is a continuous wrong and furnishes a continuous cause of action to the detenu to challenge the same on fresh grounds.
In this connection, reference has been 355 made to a Full Bench decision of the Punjab High Court in Ram Kumar Pearay Lal vs District Magistrate, Delhi.
On facts, counsel has tried to distinguish the decisions of this Court in Daryao vs State of Uttar Pradesh and Niranjan Singh vs State of Madhya Pradesh.
The preliminary question, therefore, to be considered is, whether the doctrine of constructive res judicata applies to a subsequent petition for a writ of habeas corpus on a ground which he "might and ought" to have taken in his earlier petition for the same relief.
In England, before the Judicature Act, 1873, an applicant for habeas corpus had a right to go from court to court, but not from one Bench of a court to another Bench of the same Court.
After the Judicature Act, 1873, this right was lost, and no second application for habeas corpus can be brought in the same court, except on fresh evidence.
In re Hastings (No. 3) Lord Parker, C.J., after surveying the history of the right of habeas corpus, arrived at the conclusion that it was never the law that in term time, successive writs of habeas corpus lay from Judge to Judge.
In re Hostings (No. 4).
Harman, J. pointed out that since the Judicature Act had abolished the three independent courts, namely, the Court of Exchequer, the King 's Bench Division, and the Common Pleas, and had constituted one High Court, when an application for writ of habeas corpus has been disposed of by one Divisional Court, no second application on the same ground lies to another Divisional Court of the High Court.
This position was given statutory recognition in the Administration of Justice Act, 1960.
In a Full Bench decision of the Punjab High Court, which purports to follow these English decisions and two decisions of this Court in Daryao vs State of U.P. (ibid) and Calcutta Gas Co. (Proprietary) Ltd. vs State of West Bengal, it was held as follows: "No second petition for writ of habeas corpus lies to the High Court on a ground on which a similar petition had already been dismissed by the Court.
However, a second such petition will lie when a fresh and a new ground of attack against the legality of detention or custody has arisen after the decision on the first petition, and also where for some exceptional reason a ground has been omitted in an earlier 356 petition, in appropriate circumstances, the High Court will hear the second petition on such a ground for ends of justice.
In the last case, it is only a ground which existed at the time of the earlier petition, and was omitted from it, that will be considered.
Second petition will not be competent on the same ground merely because an additional argument is available to urge with regard to the same.
" In Daryao 's case (ibid), Gajendragadkar, J. (as he then was), speaking for the Constitution Bench, held that where the High Court dismisses a writ petition under Article 226 of the Constitution after hearing the matter on the merits on the ground that no fundamental right was proved or contravened or that its contravention was constitutionally justified, a subsequent petition to the Supreme Court under Article 32 of the Constitution on the same facts and for the same reliefs filed by the same party would be barred by the general principle of res judicata.
It was further clarified that the rule of res judicata, as indicated in Section 11 of the Code of Civil Procedure, has no doubt some technical aspects, for instance, the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy.
It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation.
If these two principles form the foundation of the general rule of res judicata, they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.
It was also noted that the liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution, and it is the privilege and the duty of this Court to uphold those rights.
Though a right is given to the citizen to move this Court by a petition under Article 32 and to claim an appropriate writ against the unconstitutional infringement of his fundamental rights, yet, in dealing with an objection based on the principle of res judicata may even apply to a successive petition.
The Court was careful enough to add: "We propose to express no opinion on the question as to whether repeated applications for habeas corpus would be competent under our Constitution.
That is a matter with which we are not concerned in the present proceedings".
It may be noted that the petitions which were before the Court in Daryao 's case were civil matters and not petitions for issue of a writ of habeas corpus.
Even so, it was clarified in that case that the 357 principle of constructive res judicata, as embodied in Section 11 of the Code of Civil Procedure, was of a technical character and this principle was not one of universal application.
In Ghulam Sarwar 's case (ibid), the Constitution Bench of this Court was dealing with a petition under Article 32 of the Constitution which had raised the question of the validity of the detention of the petitioner under Section 3 of the .
The petitioner was a Pakistani national, who entered India without any travel documents.
On May 8, 1964, he was arrested in New Delhi by the Customs Authorities under Section 135 of the .
When he was about to be enlarged on bail, he was detained by an order under Section 3(2)(g) of the .
It was said that he had to be detained, as police investigation was in progress in respect of a case of conspiracy to smuggle gold, of which he was a member.
On May 29, 1965, he was convicted by the Magistrate, of an offence under the and sentenced to imprisonment.
His appeal was dismissed by the Sessions Judge.
Before his term of imprisonment expired, the petitioner filed a writ of habeas corpus in the Circuit Bench of the Punjab High Court, challenging his detention.
The petition was dismissed by Khanna, J., on merits.
Before the learned Judge, the constitutional validity of Section 3(2) (g) of the Act was not canvassed.
The learned Judge held that the section authorised the Government to make the said order of detention on its subjective satisfaction and that the Court could not question its validity in the absence of any mala fides.
In short, he dismissed the petition on merits.
Thereafter, Ghulam Sarwar filed a petition under Article 32 of the Constitution for issue of a writ of habeas corpus against the respondent on the ground that the provisions of the Act were invalid.
On behalf of the respondents, a preliminary objection was raised that the decision of Khanna, J. of the Punjab High Court operated as res judicata and barred the maintainability of the subsequent petition under Article 32.
Reliance was placed on the decision of this Court in Daryao 's case.
After observing that Daryao 's case was no authority in regard to the repeated applications for habeas corpus, and examining English and American decisions, the learned Chief Justice (Mr. Justice Subba Rao) summed up the position, thus: "But unlike in England, in India the person detained can file original petition for enforcement of his fundamental right to liberty before a court other than the High Court, namely, this Court.
The order of the High Court in the said writ is not res judicata as held by the English and the 358 American Courts either because it is not a judgment or because the principle of res judicata is not applicable to a fundamentally lawless order.
If the doctrine of res judicata is attracted to an application for a writ of habeas corpus, there is no reason why the principle of constructive res judicata cannot also govern the said application, for the rule of constructive res judicata is only a part of the general principle of the law of res judicata, and if that be applied, the scope of the liberty of an individual will be considerably narrowed.
The present case illustrates the position.
Before the High Court, the petitioner did not question the constitutional validity of the President 's order made under Article 359 of the Constitution.
If the doctrine of constructive res judicata be applied, this Court, though it is enjoined by the Constitution to protect the right of a person illegality detained, will become powerless to do so.
That would be whittling down the wide sweep of the constitutional protection, On these premises, it was held "that the order of Khanna, J., made in the petition for habeas corpus filed by the petitioner does not operate as res judicata and this Court will have to decide the petition on merits".
In his concurring judgment, Bachawat, J., while holding that the order of dismissal by the High Court does not operate as res judicata and does not bar the petition under Article 32 of this Court, asking for the issue of a writ of habeas corpus on the same facts, clarified that the petitioner would not have the right to move this Court under Article 32 more than once on the same facts.
In Niranjan Singh 's case (supra), the District Magistrate of Gwalior by his order dated May 26, 1971, passed under Section 2A of the Madhya Pradesh Public Security (Amendment Act) of 1970, detained the petitioner.
The petitioner filed a writ petition under Article 226 of the Constitution, challenging his detention and praying for a writ of habeas corpus.
The petition was rejected by the High Court.
Thereupon, the detenu moved this Court by a petition under Article 32 of the Constitution, for the same relief.
A preliminary objection was taken on behalf of the respondent that the petition was barred by res judicata.
Following the earlier decision of this Court in Ghulam Sarwar 's case (ibid).
Jaganmohan Reddy, J., speaking for a Bench of two learned Judges, over ruled this objection.
359 The position that emerges from a survey of the above decisions is that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings.
This principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Article 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief.
In the present petition fresh additional grounds have been taken, to challenge the legality of the continued detention of the detenu.
We would therefore hold that the subsequent writ petition is not barred as res judicata and over rule the preliminary objection raised by the respondents.
The additional grounds which have been pressed into arguments by Shri Ram Jethmalani, are: (1) The respondents failed to supply despite the request of the detenu, all the documents which were relied upon by the detaining authority while passing the order of his detention, that the detaining authority purported to give him 460 documents, but later on, the detenu discovered that their number was less and many of them were either incomplete or had been wholly withheld; that in particular 236 documents covering 236 pages were not supplied.
This is alleged in ground No. 13 of the present petition.
In reply to this, in para 17 of the counter affidavit filed on behalf of the respondents, it is admitted that all the documents had not been given to the detenu, and he had been supplied enough documents which were thought to be sufficient to enable him to make an effective representation.
The petitioner came to know about the non supply of these documents from the copy of the judgment, dated May 13, 1980, of the Gujarat High Court passed in the allied writ petitions filed on behalf of other detenus who were alleged to be the associates of the present petitioner.
(2) On July 17, 1980, a representation was made on behalf of the detenu with a request that the same be forwarded to the Central Government for exercise of its power of revocation of the detention under Section 11 of the Act.
The Jailor forwarded that representation to the Central Government on July 18, 1980, but the same has not yet been disposed of.
This plea is the subject of grounds 16, 17 and 26 of the Writ Petition.
360 A reply to these allegations is to be found in paragraphs 20 and 21 of the counter filed on behalf of the respondents, wherein it is admitted that the jailor has sent the representation at the detenu 's request to the Central Govt.
(3) The grounds served on the detenu were in English.
The detenu does not know English.
It is stated in the affidavit of the person who served the 'grounds ' that they were explained to the detenu in Gujarati which is the mother tongue of the detenu.
Admittedly, no translation into Gujarati of the grounds of detention was given to the detenu on March 11, 1980.
This being the case there was a breach of the constitutional imperative which requires that the grounds should be communicated to the detenu.
It can be spelled out therefrom that the grounds must be communicated in a language which the detenu understands.
In support of this contention, reference has been made to Haribandhu Das vs District Magistrate, Cuttack & Anr.
and the judgment dated June 23, 1980 in Bakshi 's case.
Contention No. (1): In the previous petition, though it was alleged that there was delay in supply of copies of the documents relied on by the detaining authority in passing the impugned order of detention, no specific ground was taken that documents covering about 236 pages which were relied upon by the detaining authority in passing the order of detention, were suppressed and not supplied to the petitioner.
Indeed this is not denied in the counter affidavit.
The petitioner has affirmed in his affidavit that he came to know about the non supply of these documents from the judgment of the Gujarat High Court subsequently to the dismissal of his earlier petition.
This affirmation remains unchallenged.
A catena of decisions of this Court has firmly established the rule that one of the constitutional imperatives embodied in Article 22(5) of the Constitution is that all the documents and materials relied upon by the detaining authority in passing the order of detention must be supplied to the detenu, as soon as practicable, to enable him to make an effective representation.
Recently, in Smt.
Icchu Devi Choraria vs Union of India & Ors.
, this Court reiterated the principle as follows: "One of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must, as soon as may be, communicate to the detenu the grounds 361 on which the order of detention has been made and under sub section (3) of Section 3 of the COFEPOSA Act, the words "as soon as may be" have been translated to mean "ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention.
" The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention.
These are the two outside time limits provided by Section 3, sub section (3) of the COFEPOSA Act because unless the grounds of detention are furnished to the detenu, it would not be possible for him to make a requirement against the order of detention and it is a basic requirement of clause, (5) of Article 22 that the detenu must be afforded the earliest opportunity of making a representation against his detention.
If the grounds of detention are not furnished to the detenu within five or fifteen days, as the case may be, the continued detention of the detenu would be rendered illegal both on the ground of violation of clause (5) of Article 22 as also on the ground of breach of requirement of Section 3 sub section (3) of the COFEPOSA Act.
Now it is obvious that when clause (5) of Article 22 and sub section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu, if there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete with them.
It would not therefore be sufficient to communicate the detenu a bare recital of the grounds of detention, but of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order 362 to constitute compliance with clause (5) of Article 22 and Section 3, sub section (3) of the COFEPOSA Act.
" In the instant case, the materials and documents which were not supplied to the detenu were evidently a part of those materials which had influenced the mind of the detaining authority in passing the order of detention.
In other words, they were a part of the basic facts and materials, and therefore, according to the ratio of Smt.
Icchu Devi 's case (ibid), should have been supplied to the detenu ordinarily within five days of the order of detention, and, for exceptional reasons to be recorded, within fifteen days of the commencement of detention.
In the counter affidavit, it has not been asserted that these documents, which were not supplied, were not relevant to the case of the detenu.
Contention (2) : The respondents have, in their counter affidavit, stated that this representation was not addressed to the Central Government.
It is, however, admitted that the Jailor had, on the request of the detenu, forwarded the same to the Central Government on July 18, 1980.
No counter affidavit has been filed on behalf of the Central Government, showing that this representation was considered and disposed of by it.
In matters touching the personal liberty of a person preventively detained, the constitutional imperative embodied in Article 22(5) is that any representation made by him should be dealt with utmost expedition.
This constitutional mandate has been honoured in breach regarding the representation sent by the detenu to the Central Government.
Contention (3) : It is an admitted position that the detenu does not know English.
The grounds of detention, which were served on the detenu, have been drawn up in English.
It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu.
But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communicated" to the detenu.
"Communicate" is a strong word.
It means that sufficient knowledge of the basic facts constituting the 'grounds ' should be imparted effectively and fully to the detenu in writing in a language which he understands.
The whole purpose of communicating the 'ground ' to the detenu is to enable him to make a purposeful and effective representation.
If the 'grounds ' are only verbally 363 explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed.
If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikishan vs State of Maharashtra: and Haribandhu Dass.
vs District Magistrate (ibid).
Thus all the three contentions canvassed by the counsel for the petitioner, on merits were sound.
The conclusion was therefore, inescapable that due to the aforesaid contraventions of constitutional imperatives, the continued detention of the detenu was illegal.
It was for these reasons that we had allowed Writ Petition (Crl.) No. 4349 of 1980 by our order dated October 3, 1980, and directed the release of the detenu.
P.B.R. Petition allowed.
| IN-Abs | After dismissal by this Court of the petition impugning the order of his detention under section 3 of the the petitioner filed the present petition urging additional grounds which were not urged in the previous petition.
He alleged that (i) despite his request for the supply of all the documents relied upon by the detaining authority while passing the order of detention the respondent failed to do so; (ii) that many of the documents were either incomplete or had been wholly withheld and in particular 236 documents out of 460 documents purported to have been supplied to him were not supplied; (iii) that though his representation dated July 17, 1980 for revocation of the detention order was forwarded by the jailer to the Central Government it had not been disposed of and (iv) that lastly serving the grounds of detention in English which is a language not known to him, without supplying a translation in his mother tongue, was a breach of the constitutional imperative embodied in article 22(5) and that for these reasons the order of detention should be held void.
A preliminary objection was raised on behalf of the respondent State that the present petition was barred as constructive res judicata.
Overruling the preliminary objection, ^ HELD: In the present petition fresh additional grounds had been taken by the detenu to challenge the legality of his continued detention.
Therefore the subsequent writ petition is not barred as res judicata.
[359 B C] 1.
By a long line of decisions this Court has held that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings.
This principle of public policy is entirely in applicable to illegal detentions and does not bar a subsequent petition for the writ of habeas corpus 353 under article 32 of the Constitution on fresh grounds which were not taken in the earlier petition for the same relief.
[359 A B] Ghulam Sarwar vs Union of India & Ors.
[1967] 2 S.C.R. 271, Daryao vs State of Uttar Pradesh A.I.R. 1961 SC.
1457=[1962] 1 S.C.R. 574, Niranjan Singh vs State of Madhya Pradesh ; and Calcutta Gas Co. (Proprietary) Ltd. vs State of West Bengal, A.I.R. 1965 S.C. 596 referred to. 2(a).
One of the constitutional imperatives embodied in Art 22(5) of the Constitution is that all the documents and materials relied upon by the detaining authority in passing the order of detention must be supplied to the detenu as soon as practicable to enable him to make an effective representation.
[360 G] In the instant case the materials and documents which were not supplied to the detenu were a part of the basic facts and materials which should have been supplied to him, ordinarily within 5 days of the order of detention and for exceptional reasons to be recorded, within 15 days of the commencement of the detention.
The respondent did not state that the documents which were not supplied were not relevant to the case of detenu.
[362 C] Smt.
Icchu Devi Choraria vs Union of India & Ors. ; applied.
(b) In the first petition no specific ground was taken by the detenu that documents covering 236 pages relied upon by the detaining authority were suppressed and not supplied to him.
He had now stated that he had come to know about the non supply of these documents from the judgment of the Gujarat High Court which was subsequent to the dismissal of his earlier petition.
This assertion has remained unchallenged.
[360 E F] (c) In matters touching the personal liberty of a person preventively detained, the constitutional imperative in article 22(5) is that any representation made by the detenu should be dealt with the utmost expedition which in this is has been honoured in breach.
[362 E] (d) Merely explaining the grounds of detention in the mother tongue of the detenu would not be sufficient compliance with the mandate of article 22(5) which requires that the grounds of detention must be communicated to the detenu.
"Communicate" is a strong word.
It means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language understood by him.
Its whole purpose is to enable him to make a purposeful and effective representation.
If the grounds are only verbally explained without giving them to him in writing in a language that he understands, its purpose is not served and the constitutional mandate is infringed.
[362G H] Haribandhu Das vs District Magistrate Cuttack & Anr. ; Smt Razia Umar Bakshi vs Union of India and Harikisan vs State of Maharashtra [1962] Supp. 2 S.C.R. 918 followed.
|
ition No. 5873 of 1980.
(Under Article 32 of the Constitution.) Ram Jethmalani and Miss Rani Jethmalani for the Petitioner.
O. P. Rana and M. N. Shroff for the Respondents.
The Judgment of the Court was delivered by FAZAL ALI, J.
This petition has been filed by the sister of the detenu praying that the detenu be released because the safeguards provided by the constitution have not been complied with.
The detenu was arrested on 20 10 1980 when only the grounds of detention were served on him.
On 5 11 1980 the documents and materials on the basis of which the order of detention was passed were supplied to the detenu.
On the 18th November 1980, the detenu made a representation to the Government which was disposed of as late as the 15th December 1980.
In support of the petition, Mr. Jethmalani has submitted two points on which alone, in our opinion, the petition must succeed.
In the first place, it was pointed out that, as already held by this Court the grounds served on the petitioner were not accompanied by the documents and materials which formed the basis of the order of detention, hence the safeguards contained in article 22(5) of the Constitution not having been complied with, the continued detention of the detenu became void.
Secondly, it was argued that even though the detenu had made a representation on 18 11 1980, the same was disposed of a month thereafter and no explanation for this delay has been furnished by the respondents.
This Court has held in numerous cases that the representations of the detenu should be disposed of as soon as possible and even an unexplained delay of 12 to 14 days has been held to be fatal to the order of detention.
Reliance has been placed 461 by Mr. Jethmalani on two decisions of this Court in Smt.
Icchu Devi Choraria vs Union of India & Ors.
which was later followed in Smt.
Shalini Soni Ors.
vs Union of India & Ors.
As regards the first case, which is a decision of two Judges of this Court, it has clearly held that before an effective representation can be made by the detenu he must be supplied with the documents and materials which formed the basis of the grounds of detention.
Unless this is done, there could be no question of making any representation, much less an effective representation, against the order of detention.
In this connection, Bhagwati J., speaking for the Court observed as follows: "Now it is obvious that when clause (5) of Article 22 and sub section (3) of section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu.
If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them.
It would not therefore be sufficient to communicate to the detenu a bear recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and Section 3.
sub section (3) of the COFEPOSA Act.
One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention.
There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with Section 3, sub section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of Article 22 copies of the 462 documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.
If this requirement of clause (5) of Article 22 read with Section 3, sub section (3) is not satisfied, the continued detention of the detenu would be illegal and void." Mr. Rana for the State has submitted that the observations extracted above do not form the ratio of the decision because in a subsequent para of the decision, Bhagwati, J. had observed that at the most grounds could be given within a period of five to fifteen days of the order of detention.
These observations, no doubt, are contained in paragraphs 7 and 8 of the judgment but they do not, in our opinion, form the ratio decidendi of this case but were made merely to rebut the extreme arguments that could be put forward.
This Court made it very clear that even apart from the interpretation placed by the Court on article 22(5) of the Constitution, the conclusion is inescapable that the documents and statements which formed the basis of the grounds of detention must be supplied to the detenu without least possible delay.
It is in this context that these observations were made in paragraphs 7 and 8 Moreover, this position has been made absolutely clear by a later decision of this Court in Smt.
Shalini Soni 's case (supra) where a Division Bench of this Court while endorsing Smt.
Icchu Devi 's case observed as follows: "The matter may also be looked at from the point of view of the second facet of Article 22(5).
An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him.
It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact.
If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility.
Whatever angle from which the question is looked at, it is clear that 'grounds ' in Article 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences.
The grounds must be self sufficient and self explanatory.
In our view copies of documents to which 463 reference is made in the 'grounds ' must be supplied to the detenu as part of the 'grounds '.
" The Court, therefore, clearly held that the documents and materials relied upon in the order of detention formed an integral part of the grounds and must be supplied to the detenu pari passu the grounds of detention.
If the documents and materials are supplied later, then the detenu is deprived of an opportunity of making an effective representation against the order of detention.
In this case, the court relied upon the ratio in Icchu Devi Choraria 's case (supra) extracted above.
We find ourselves in complete agreement with the view expressed by the two decisions of this Court and we are unable to accede to the prayer of Mr. Rana for sending the case for reconsideration to a larger Bench.
This Court has invariably laid down that before an order of detention can be supported, the constitutional safeguards must be strictly observed.
This Court in Maneka Gandhi vs Union of India has widened the horizon of article 21 and added new dimensions to various features of and concept of liberty enshrined in article 21.
In view of the decision in the aforesaid case, article 22(5) of the Constitution assumes a new complexion and has to be construed liberally and meaningfully so as to permit the legislature to impose the minimum possible curbs on the precious rights of a citizen, by virtue of preventive detention.
If a procedure under article 21 has to be reasonable, fair and just, then the words 'effective representation ' appearing in article 22(5) must be construed so as to provide a real and meaningful opportunity to detenu to explain his case to the detaining authority in his representation.
If the words 'effective representation ' are interpreted in an artificial or fanciful manner, then it would defeat the very object not only of article 22(5) but also of article 21 of the Constitution.
Thus, we are of the opinion that in view of what has been laid down in Mankea Gandhi 's case (supra) and in a number of other cases following the aforesaid decision, the law of preventive detention has now to satisfy a twofold test : (1) that the protection and the guarantee afforded under article 22(5) is complied with, and (2) that the procedure is just and reasonable.
In this view of the matter unless the materials and documents relied on in the order of detention are supplied to the detenu alongwith the grounds, the supply of grounds simpliciter would give him not a real but merely an illusory opportunity to make a representation to the detaining authority.
464 It is well settled that the Court frowns on preventive detention without trial because the detenu is deprived of the right of proving his innocence in a trial by a court of law.
It is, therefore, of the utmost importance that all the necessary safeguards laid down by the Constitution under article 21 or article 22(5) should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention.
This is so because in a civilised society, like ours, liberty of a citizen is a highly precious right and a prized possession and has to be protected unless it becomes absolutely essential to detain a person in order to prevent him from indulging in anti national activities like smuggling, etc.
We are fortified in our view by a decision of this Court in Sampat Prakash vs State of Jammu & Kashmir where the following observations were made: "that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal.
" It is a matter of great concern and deep dismay that despite repeated warnings by this Court, the detaining authorities do not care to comply with the spirit and tenor of the constitutional safeguards contained in article 22(5) of the Constitution.
It is manifest that when the detaining authority applies its mind to the documents and materials which form the basis of the detention, the same are indeed placed before it and there could be no difficulty in getting photostat copies of the documents and materials, referred to in the order of detention, prepared and attaching the same alongwith the grounds of detention, if the detaining authority is really serious in passing a valid order of detention.
Unfortunately, the constitutional safeguards are not complied with, resulting in the orders of detention being set aside by the Court, even though on merits they might have been justified in suitable cases.
We feel that it is high time that the Government should impress on the detaining authority the desirability of complying with the constitutional safeguards as adumbrated by the principles laid down in this regard.
We would like to suggest that whenever a detention is struck down by the High Court or the Supreme Court, the detaining authority or the officers concerned who are associated with the preparation of the grounds of detention, must be held personally responsible and action should be taken against them for not complying with the constitutional requirements and safeguards (viz. delay in disposing of the representation, not supplying the documents and materials relied upon in the order of detention pari passu the order of detention, etc.
etc.) or, at any rate, an explanation from the authorities concern 465 ed must be called for by the Central Government so that in future persons against whom serious acts of smuggling are alleged, do not go scot free.
In the instant case, not only were the documents and materials not supplied along with the order of detention, but there has been a delay of about 25 days in disposing of the representation of the detenu and no explanation for the same has been given.
These are matters which must be closely examined by the Government.
For the reasons given above, we hold that the continued detention of the detenu is void.
We allow the petition and direct the detenu to be released forthwith.
A copy of this judgment be sent to the Home Ministers of all the State Governments, Hon 'ble the Home Minister of the Government of India and also the Hon 'ble Finance Minister, Government of India for necessary action.
P.B.R. Petition allowed.
| IN-Abs | In a petition under article 32 of the Constitution the petitioner detenu complained that though the grounds of detention were served on the detenu on the date of arrest (October 20, 1980) the materials and documents on which the order of detention was based were not supplied to him till November 5, 1980 and that his representation dated November 18, 1980 was disposed of nearly a month later (December 15, 1980) and that the failure on the part of the detaining authority to supply the requisite documents and materials and the unexplained delay in the disposal of the representation constituted violation of the safeguards contained in Art, 22(5) of the Constitution which vitiated the order of detention.
Allowing the petition, ^ HELD: It is well settled that the law of preventive detention has to satisfy a two fold test: (1) that the protection and the guarantee afforded under article 22(5) of the Constitution are complied with, and (2) that the procedure is just and reasonable.
[463G] Before an "effective representation" could be made by the detenu he must be supplied with the documents and materials which form the basis of the grounds of detention and unless this is done there could be no question of making any representation, much less an "effective representation" against the order of detention.
The documents and materials relied upon in the order of detention form an integral part of the grounds and must be supplied to the detenu pari passu the grounds of detention.
[461B] Smt.
Icchu Devi Choraria vs Union of India & Ors. ; and Smt.
Shalini Soni & Ors.
vs Union of India & Ors.
; referred to.
If procedure under article 21 has to be reasonable, fair and just, then the words 'effective representation ' appearing in article 22(5) must be construed so as to provide a real and meaningful opportunity to the detenu to explain his case to the detaining authority in his representation.
If the words 'effective representation ' are interpreted in an artificial or fanciful manner, then it would defeat the very object not only of article 22(5) but also of article 21 of the Constitution.
It is settled law that it is of the utmost importance that all the necessary safeguards laid down by the Constitution under article 21 or article 22(5) should be complied with fully and strictly and any departure from any of the safeguards would vitiate the order of detention.
[463E F] Maneka Gandhi vs Union of India [1978] 2 SCR 621 referred to.
460 In the instant case not only were the documents and materials not supplied to the detenu alongwith the order of detention but there had been an unexplained delay of about 25 days in disposing of the representation of the detenu.
[465B] [Despite repeated warnings by this Court the detaining authorities do not care to comply with the spirit and tenor of the safeguards contained in article 22(5) of the Constitution.
There should be no difficulty in keeping copies of the documents and materials referred to in the order of detention and supplying them to the detenu along with the order of detention.
This dereliction on the part of the detaining authorities results in the release of persons indulging in such anti national activities as smuggling though on merits the detentions in suitable cases may be justified.]
|
: Criminal Appeal No. 17 of 1975.
Appeal by Special Leave from the Judgment and Order dated 7 6 1974 of the Himachal Pradesh High Court in Criminal Appeal No. 40/73.
Hardyal Hardy and P.P. Juneja for the Appellants.
Badri Das Sharma and Miss A. Subhashini for the Respondent.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment, dated June.
7. 1974, of the High Court of Himachal Pradesh, whereby it upheld the conviction of Rama Nand accused under Section 302, Penal Code, and that of the co accused Shish Ram and Kali Datt under Section 201, Penal Code, and also the sentences awarded to each of them by the learned Sessions Judge, 446 Mandi.
The prosecution story, as it emerged from the record, was as follows: Sumitra deceased, aged 19 years, was the daughter of Som Krishan (P.W. 33).
Rama Nand, appellant is her husband and Shish Ram, appellant 2, is her father in law while Kali Datt appellant 3, is the younger brother of Rama Nand.
Sumitra 's father wished to see his daughter highly educated, and employed in Government service and married to a suitable, highly educated person, settled in life.
Sumitra had passed Higher Secondary Examination and wanted to pursue her studies further according to the wishes of her father.
About two years before Sumitra 's reported death, Shish Ram appellant approached Som Krishan (P.W. 33) and persuaded him to give Sumitra in marriage to his son, Rama Nand.
While negotiating this matrimonial alliance, Shish Rama told Som Krishan that his son was suitably employed on a Government job in the Office of the Deputy Commissioner, Kasumpti.
He further falsely represented to Som Krishan that his son, Rama Nand was a graduate.
Believing this representation to be true, Som Krishan about 1 1/2 or 2 years before Sumitra 's murder in question, married her to Rama Nand; Before this marriage it was settled by Som Krishan with Shish Ram and Rama Nand accused that even after her marriage, Sumitra would continue to pursue further studies and take up employment as a teacher.
After the marriage, her father got his daughter, Sumitra, employed as a teacher in Village Nursery School at Chanyana which was situated near her parents ' village.
While teaching at Chnayana, she continued to reside with her parents.
She used to visit village Jherwin occasionally to be in the society of her husband who also used to come to Jherwin from Kasumpti.
The accused persistently demanded that Sumitra should give up her employment at Chanyana, and start residing permanently and continuously in her matrimonial home at Jherwin.
Sumitra tenaciously refused to do so.
Rama Nand wrote several letters to Sumitra urging her to give up her adamant attitude.
These letters furnished evidence of a strong motive for Rama Nand to put an end to the life of Sumitra.
Rama Nand was employed as a Clerk in the Office of the Deputy Commissioner Kasumpti.
On May 12, 1972, he came to Jherwin from Kasumpti.
He had earlier written to his wife, Sumitra, strongly urging her to come to village Jherwin.
On May 13, 1972, Sumitra came to Rama Nand 's house at Jherwin and stayed with him in his room on the night between 13th and 14th May, 1972.
The other 447 rooms of the house were in occupation of the other members of Shish Ram 's family.
Thereafter, on May 14, 1972, she disappeared from the house of the accused.
The accused gave out that Sumitra had gone towards the Sutlej river on the pretext of attending to the call of nature; that thereafter her Salwar and shoes were found on the bank of the river, which indicated that she had jumped into the river and committed suicide.
After pretending to make a search for her body in the river and nearabout, Shish Ram on May 16, 1972, went to Police Station Karsog at 5.30 p.m. and lodged a report (exhibit PAQ).
It was recorded by Head Constable Nand Lal.
After recording it in the Roznamacha, the Head Constable read it in the presence of one Inder Pal to the informant, who, after hearing the same to be correct, signed it in Hindi and his companion Inder Lal signed it in English.
As this report, according to the prosecution, shows that an attempt was made by Shish Ram accused to lay a false trail and manufacture false clues as to the cause of the death of Sumitra and to screen the offence, it is necessary to reproduce the material parts of that report (rendered into English), hereunder: . "my daughter in law Smt.
Sumitra Devi aged about 18/19 years, was married about 1 1/2 years ago, to my son Rama Nand who is employed in the office of D.C. Kasumpti as a clerk.
Sumitra Devi herself was employed as a Mistress in Nursery School, Chanyana and was residing with her parents.
Whenever my son used to come home on leave, she also used to visit her house at such time.
Similarly my son Rama Nand had come on leave to his house on 12 5 72 and in the evening of 13 5 72, my daughter in law, Smt.
Sumitra Devi had also come to his house.
As usual, because of Sunday holiday, in the morning on 14 5 72, myself, my daughter in law and other members of the family were planting chilly seedlings in the fields near our house.
My son (Rama Nand) was lying in bed on account of stomach trouble.
After plantation work, at about 9/10 a.m. my daughter in law, Smt.
Sumitra Devi along with Sheela Devi aged about 7 years, who is daughter of my brother, had gone downward on the pretext of easing herself.
After some time, Sheela returned home and reported that she had been turned back from the way by her aunt.
Sumitra Devi, who had gone ahead towards the river side.
For some time it was believed that she might have gone to answer the call of nature.
The river is about 2 furlongs from my house towards downside.
When sufficient time passed and she did 448 not return home, then calls were given hither and thither and search was also started but her whereabouts could not be known.
After a thorough search on the Sutlej river bank, the Salwar and shoes of Smt.
Sumitra were found which Smt.
Sumitra was wearing at the time of her going that side.
This created a suspicion that she might have committed suicide by jumping into the river.
She was searched at the river bank as also in the nearby villages. but her dead body was not found, nor any clue of her going is available.
Sumitra was married in a good family and her character was also good, her relations with her husband were cordial.
No quarrel on that day or prior to that, took place between her and my son, nor is there any reason for her disappearance.
I have come to report, which may be recorded.
After locating her alive or dead, separate report will be lodged.
" Daulat Ram, Station House Officer (P.W. 38) then visited the scene of occurrence on May 13, 1972.
He was not satisfied about the correctness of the information given by Shish Ram accused.
He, therefore, got a case under Section 364, Penal Code, registered.
Shis Ram accused produced before him the Salwar (exhibit P 14) and shoes (exhibit P 15/12) which, according to Shish Ram 's report, belonged to Sumitra deceased and were found lying on the river bank.
The investigator also prepared a rough sketch of the spot where these clothes and shoes were stated to have been found.
Som Krishan upon receiving the information, suspected that her daughter had been murdered at the instance of Rama Nand and others.
Som Krishan reached the spot and made enquiries.
Rama Nand and Shish Ram accused were arrested by the Investigating Officer on June 5, 1972.
The Investigating Officer took into possession the Locket chain (exhibit P 1) and the watch (exhibit P 2) belonging to the deceased from the room which was in the occupation of Rama Nand, in the deceased from the room which was in the occupation of Rama Nand, in the presence of Kanshi Ram and Hira Mani and prepared the Memo (exhibit P A) in this behalf.
Rama Nand accused, whilst in police custody, produced Sumitra 's clothes (exhibit P 5 to exhibit P 10) which were taken into possession by the Investigator in the presence of Mastu and Hari Ram, witnesses (vide exhibit P Y).
These clothes, according to the prosecution, were the same which Sumitra was wearing when she arrived at the house of Rama Nand accused on May 13, 1972.
449 On June 5, 1972, a legless and armless dead body in a highly decomposed state was found at a distance of four kilometers down stream on the bank of the river Sutlej near village Randaul.
Kali Datt appellant was found near that skeleton in the early hours or June 5,1972.
He dragged the skeleton from the river upto some distance.
It appeared that dogs etc.
had eaten away the flesh.
A part of the skull was found in tact, while the remaining part of it was lying at some distance.
On receiving information, Som Krishan (P.W.33) and his brother 's wife, Laxmi (P.W. 2), came and identified the skeleton to be that of Sumitra.
There was some flesh on the buttock portion and there was a mark on it.
According to these identifying witnesses, this mark was that of a burn which Sumitra had received during her infancy.
One of the teeth found in the inaudible was carious, while another tooth was jutting out.
Daulat Ram got the dead body measured from shoulder to the cut portion of the thies by Mehar Chand.
The measurement came to 2 ' 4".
Daulat Ram prepared the inquest report (exhibit P/F) which was attested by Kundan witness.
He sent the dead body along with the inquest report (exhibit PF) to Simla for post mortem examination.
The dead body reached the Hospital at 1 p.m on June 7, 1972.
There, they directed the police to take the dead body to Ripon Hospital.
The post mortem examination.
was conducted by Dr. J. R. Sharma (P.W. 14) on the following day.
The post mortem report was handed over to the police by the Doctor on June 21, 1972.
A few components of the skeleton, including the mandible, were sent to the Dental Surgeon, Dr. R. section Pathania (P.W. 15) and Radiologist, Dr. M. L. Ahuja (P.W. 16) for examination and opinion.
These Doctors, however, opined that the mandible belonged to a child of not more than 10 years of age.
The components of the skeleton were, also, sent to Dr. O. P. Bhargave (P.W. 31), Professor of Anatomy in the Medical College of simila.
His opinion about the age of the deceased was also the same.
The Doctor could not determine the sex of the skeleton.
On August 24, 1972, a Paranda (cotton headtail), alleged to be of Sumitra deceased was recovered from the jungle of Ghangar.
Some human hair were found entangled in the Paranda.
These hair were sent for comparison with the hair of the deceased found embedded in her Dupatta.
The forensic expert opined that the two sets of hair belonged to one and the same person.
After investigation, the four accused, namely, Rama Nand, his father Shish Ram, his brother Kali Datt and Shish Ram 's brother Kesar Chand, were sent up before a Magistrate who committed them 450 for trial to the Court of Session.
At the trial, in his examination under Section 342, Rama Nand admitted that after her marriage, Sumitra got employment as a teacher.
He, however, denied the prosecution allegation that he and his father were opposed to her employment as a teacher.
He expressed ignorance as to whether there was any settlement between his father, Shish Ram, and Som Krishan Shastri, father of Sumitra that she would continue her studies even after the marriage and would be free to take up service as her career.
He added that his matrimonial alliance with Sumitra was not negotiated and settled in his presence.
He admitted that the letters dated December 13, 1971, December 16, 1971 and May 9, 1972 (the English rendering of which is marked exhibit PAH, exhibit PAB, and exhibit PC, respectively) were written by him to Sumitra, and that the letter (exhibit PAJ) dated October 14, 1971, was written by him to his father in law.
Som Krishan Shastri (P.W. 33).
He further admitted that on May 13, 1972, Sumitra came to his house in village Jherwin from her parents ' place, and that she was then wearing the golden chain (exhibit P 1), wrist watch (exhibit P 2), Dupatta (exhibit P 5), suit (exhibit P 6 and exhibit P 7), socks (Ex.
P 8 and 9), banian (Ex.
P 10) and was carrying the basket (exhibit P 11) and umbrella (exhibit P 12).
He, however, added that when she (Sumitra) reached home on May 13, 1972 with the articles mentioned above, she was wearing pink ribbon on her head and not any threadbunch like exhibit
Question No.9 put to him was: "It is in prosecution evidence that on May 14, 1972 Sumitra was not seen at your house or in the village at Jherwin at all or thereafter.
What have you to say?" He replied: "On 14 5 72 morning at about, say upto 11 a.m., she was working in the field at Jherwin and thereafter she was not seen there and later on I was arrested and so I cannot say about her whereabouts." He admitted that his father Shish Ram had lodged the report (exhibit PAQ) in the Police Station, Karsog.
When the circumstance appearing in the prosecution evidence, "that after the occurrence on May 16, 1972, he (Rama Nand) went away to Simla from Jherwin and returned home three or four days thereafter" was put to Ramanand, he replied: "It is wrong.
I went to Simla on 17 5 72 evening and returned on 19th morning".
He denied that he and his father implored Som Krishan Shastri that he should save them from the police at Jherwin.
When the negative circumstance appearing in evidence, to the effect that the Salwar (exhibit P 14) was not of Sumitra, was put to him, he asserted that the Salwar (exhibit P 14) was that of Sumitra; and that his father had shown the Salwar (exhibit P 14) indicating that his daughter in law, Sumitra had gone in the river when the (Ramanand) was weeping.
In reply to the last question, Rama Nand narrated more or less the same story which was given by them (accused) to 451 the police in the Report, PAQ.
Among other things, he stated: "It was found on the river side that her Salwar (exhibit P 14) and shoes (exhibit P 15) were lying by the river bank giving indication that she had jumped into the river.
Then we were in mourning and the villagers also verified that Sumitra was seen going to the river".
Shish Ram accused admitted that Sumitra had come to their house at Jherwin on May 13, 1972 and had disappeared on May 14, 1972.
He admitted having lodged the report (exhibit PAQ) in the Police Station, Karsog.
He admitted that he had produced the Salwar (Ex.
P 14) and shoes (exhibit P 15) before the police during investigation.
He also maintained that the Salwar (exhibit P 14) belonged to Sumitra.
He denied that he and his co accused were threatening to teach Sumitra and her father the lesson of life for keeping Sumitra employed against their wishes at Chanayana.
He repeated the substance of the story which he had earlier stated in the report (exhibit PAQ), and reiterated that since Sumitra 's Salwar and shoes were found on the river bank, she had either jumped into the river or run away somewhere.
The learned Additional Sessions Judge by his judgment, dated December 1, 1973, convicted Rama Nand under Section 302, Penal Code, and sentenced him to rigorous imprisonment for life.
He further convicted Kali Datt and Shish Ram accused under Section 201, Penal Code, and sentenced each of them to one year 's rigorous imprisonment and a fine of Rs. 500/ .
Keshar Chand accused was given the benefit of doubt and acquitted.
The appeal by the convicted persons was dismissed by the High Court as per its judgment, dated June 7, 1974.
Hence this appeal by special leave.
The conviction of the appellants is based entirely on circumstantial evidence.
In convicting Rama Nand, appellant under Section 302, Penal Code, for the murder of his wife, Sumitra, the courts below have concurrently relied upon these circumstances which, according to them, had been established by the prosecution.
(1) Rama Nand accused had a strong motive to murder his wife, Sumitra.
(2) Sumitra was last seen alive with Rama Nand, appellant in the family house at Jherwin on the night between 13th and 14th May, 1972.
The other two co accused were also present in the same house (3) (a) Rama Nand and the other co accused falsely gave out that she had committed suicide by jumping into the river.
They 'planted ' a Salwar and a pair of shoes on the bank of the Sutlej and gave out that they belonged to the deceased, and Shish Ram lodged 452 a false report with the police to the effect that she had committed suicide by jumping into the river.
The Salwar and the shoes, which had been 'planted ' there to manufacture false clues by the accused, did not belong to Sumitra, and the accused have falsely asserted that these articles belong to the deceased.
(b) The story given out by the accused persons that upto 11 a.m. on May 14, 1972, Sumitra was planting chillies along with Sheela and other members of the family of the accused, was false.
(4) The gold chain (exhibit P 1) and the watch (exhibit P 2) which Sumitra used to wear on her person all the 24 hours, and the clothes (exhibit P 5 to P 10) which she had on the person and the basket (exhibit P 11) and umbrella (exhibit P 12) which she was carrying when on the evening of May 13, 1972 she came to the house of the accused at Jherwin, were recovered from the house of the accused.
(5) Some days after the occurrence, one Paranda was found from the jungle near this village.
There was a bunch of hair in the plaited tail of this Paranda.
The tail appeared to have been cut.
These hair sticking in the Paranda and those found entangled in the Dupatta of the deceased were according to the Forensic Expert of one and the same person.
(6) A legless decomposed corpse was recovered from the Sutlej near village Randol in a mutilated condition.
From a burnt mark on the flesh sticking to the buttock of the corpse it was identified as that of Sumitra, deceased.
The High Court further held that even if any doubt remained with regard to the identity or recovery of the corpus delicti, the telling circumstances otherwise complete the chain of evidence to establish beyond doubt that Sumitra had been murdered and the charges had been established against the accused as held by the trial court.
In the result it dismissed the appeal of the accused respondents.
Shri Hardayal Hardy, learned counsel appearing for the appellants contents that these circumstances have not been satisfactorily established.
He has placed great emphasis on the evidence of the medical experts, according to which the mutilated corpse found at Randol was that of a child, aged about 8 or 9 years.
It is submitted that the dead body found was not that of Sumitra deceased, and as a result, the courts below were not justified in holding that the death of Sumitra had been established by the prosecution.
On the other hand, the learned counsel for the State has argued in support of the judgment of the High Court.
453 It is well settled that where the inference of guilt of an accused person is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established.
Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused and none else.
The first circumstance which has been found to be established by the courts below against the appellant is that he had "a very strong motive" to commit the murder of Sumitra.
To substantiate this fact, the prosecution produced four letters written by Rama Nand appellant.
There are: exhibit PAJ, exhibit PAH, exhibit PAB/1 and exhibit PC.
The accused also tendered in evidence the letter (exhibit DA) dated November 14, 1971 written by Som Krishan to Sumitra.
As already mentioned, Rama Nand accused has admitted that the letters (exhibit PAJ, PAH, PAB/1 and P.C.) were written by him.
exhibit PAJ purports to have been written by him from village Jherwin on October 14, 1971.
In this letter, Rama Nand very clearly informed his father in law that his father Shish Ram was not in favour of Sumitra taking up service and residing away from the accused 's house at Jherwin.
In this letter, Rama Nand urged his father in law that the latter should either come to Jherwin along with Sumitra or send her alone.
This letter also indicates that Sumitra was persisting in taking up service elsewhere against the wishes of the accused persons.
Chronologically, the next letter is exhibit DA dated November 14, 1971.
It is addressed by Som Krishan to his daughter, Sumitra.
In this letter, the father informs the daughter that he had obtained her appointment letter and she would be required to join by the 17th to start the Nursing School at Balwari.
He wanted her to come to his house to take up the appointment.
In this letter, he also wishes her daughter to convey to Rama Nand appellant and his brother, Kesar Chand (acquitted accused) that they should agree to Sumitra 's taking up this employment and that they should further bring round Shish Ram by reminding him that they had earlier consented to her taking up Service.
This letter further indicates that Sumitra was much distressed because of the hostile attitude adopted by her in laws towards her.
To console her, the father wrote: "Don 't worry.
Whatever God does is good.
Have self confidence and do not repent on any failure".
The third letter, dated December 13, 1971, (exhibit PAH), written by Rama Nand to Sumitra, shows that the opposition of the appellant, 454 his father Shish Ram and brothers to Sumitra 's taking up service away from the matrimonial home, had passed from the serious to the sardonic stage.
It starts with the words: "Wish you happy luxury !" Read in accord with the tenor of the letter, it conveys a biting ironical taunt.
These words were capable of being construed as conveying an innuendo that she was merry making de hors the matrimonial home in an extra marital way.
May be, the appellant was doubting her fidelity.
He informs her that he had visited Jherwin in the hope that he would join her there, but this hope did not materialise.
He complains against this attitude of neglect on the part of his wife when he says: "Today you have not seen to my condition, and have defamed me.
To whom should I blame ? It is the wind and to which side it blows it must do something.
I was thinking to save (you) from this wind.
" He further reproaches and upbraids her: "You did not think over it seriously and you did not care for it nor others.
You have taken it as a prestige issue.
I cannot do anything so long I am not heartily happy and I weep to my fate.
" He then warns her in a contemptuous and peremptory tone: "It would be better that you should resign your job now and come down here .
If you intend to reside with me, then you should agree to my words. otherwise it will be a dog 's life.
You should either come to this place or to village Jherwin after resigning the job and from there you may come to Simla on any day.
As you know, a friend in need is a friend in deed.
When this is lost, one cannot take the shelter of others.
" He reminds her that her marriage had been solemnised with him. "To do service entirely depends upon you and me and not upon (your) father.
It is time to resign the Service. " He repeats: "It is against the respect of my family, yourself and myself that I should allow you to serve at a monthly pay of Rs. 120/ and only for a tenure of six months and myself to stay at Simla in the Hotel." He then in stronger language demanded her to resign her job within 24 hours and come to his house direct without waiting for her resignation to be accepted.
He closes the letter with an ominous threat veiled as a warning: "If you do not resign the job, our relations will become strained." In the next letter (exhibit PC), dated December 16, 1971, Rama Nand wrote to Sumitra that he did not understand why she did not "improve his (?) life ' and why she was acting at the beck and call of others.
He urged her that it would be better to 'live for a more '.
He added: "You obey me or not, you yourself will understand the significance of this when you give place to it in your mind".
He sternly repeated the warning: "I once again request you to keep in mind your as also my honour, what you have to do, as the time has come.
There is no example in the history of world that a girl after marriage 455 should act on the advice of her father, which may be harmful." He again urged her: "Do not think this letter as a mere piece of paper, but each and every line in it will decide our future career. you should resign your post.
" He again administered a warning, coupled with a threat of resorting to violence in case she did not resign her job to live with the accused permanently: "The present is the condition of China 's wall as Lt. General Mr. Kaul was saying that on China Border there is no firing, no firing, no firing.
But what was the result in the end, you know better. .
If you honour me, your husband, then you should tender your resignation from the job forthwith".
He further sternly warned her: "If you still do not come round, what would happen in future, will entirely be your responsibility and I may not be blamed for that".
He ended the letter with a hostile note, repeating the threat: "I may write, what will happen in future.
Entire responsibility of future solely depends upon you.
It is the question of life and not of service. .
This is time of your test.
Reply this letter.
" The sentence, 'It is the question of life and not of service ' read in the context, clearly conveys to the wife a threat that the choice open to her was between 'life ' and 'service ', that is to say, she would not be left alive if she did not give up the 'service '.
This letter unmistakably reveals that Rama Nand had worked his feelings at his wife 's persistent refusal to give up service and live with him, into such a frenzied resolve that if his wife did not, as he desired, 'mend ' her ways, he would 'end ' her life.
Even after this letter, there appears to have been no alleviation or change in this revengeful attitude of the husband towards his wife.
This is discernible from Rama Nand 's last letter dated May 9, 1972 (exhibit PAB) addressed to Sumitra.
In this letter also, he cannot conceal his feeling of being "sick of you".
He writes, ". the difference in views can make life troubleful or as well can lead towards downfall as I already told you", that "to deceive any true person can only be a sin and nothing else".
He appears to be giving her a last warning, a last chance to come round and come home when he writes that "time is short I will again request you that if you try to come home on Saturday, it will be good .
I do not feel good. you definitely try to come, if you cannot come on Saturday then come on Sunday, otherwise. " These letters vividly reveal that despite the repeated persuasions, warnings and threats proceeding from Rama Nand accused, Sumitra intransigently and persistently refused to give up her service at Chanyana, and residence with her parents, and declined to come and live permanently in the matrimonial home at Jherwin, and as a result, how the husband 's feelings of tenderness towards his wife progressively 456 changing into regret, persecution complex, resentment, exasperation and smouldering hostility, ultimately hardened into a revengeful resolve in the mind of Rama Nand to end what he calls "a dog 's life" by putting an end to the life of his spouse.
We agree with the High Court that these letters reveal that Rama Nand appellant had a strong motive to murder the deceased.
The second circumstance was also well established.
It had been admitted even by the appellant and his co accused.
The courts below have found, and rightly so, that both the limbs of circumstance No. (3) had also been established by evidence produced by the prosecution.
Som Krishan (P.W. 33), father of Sumitra, had testified that when he went to Jherwin on receiving a message from the accused about the disappearance of his daughter, he was shown the Salwar (exhibit P 14) and shoes (exhibit P 15/1 2) and told that these clothes were left behind on the bank of the Sutlej river when she disappeared.
P.W. 33 further stated that this shabby Salwar (exhibit P 14) which had patches on it, did not belong to Sumitra and she never wore such a Salwar; nor did the pair of shoes (exhibit P 15) belong to her.
P.W. 33 further testified: "Then Rama Nand, Shish Ram and Kesar Chand accused implored me that they may be saved from police remand.
To this I said that I was not conversant with law but you may tell the truth".
This testimony of P.W. 33 has been accepted by the courts below.
We have no reason to take a different view.
As rightly held by the courts below Sumitra was a sophisticated and educated girl.
It was difficult to believe that she would do chilly plantation and wear such a patched and dirty Salwar as exhibit P 14.
The very story given out by the accused persons and narrated by Shish Ram in the report (exhibit PAQ) made by him to the Police, and repeated by him and Rama Nand in their examination under Section 342, Cr.
P.C., to effect that Sumitra had after undressing and leaving behind her shoes (exhibit P 15) and Salwar (exhibit P 14) on the bank of the Sutlej, committed suicide by jumping into the river was improbable, incredible and false.
Thus, circumstance 3(a) and (b) had also been clearly and cogently established.
This piece of evidence was relevant under Section 8, Evidence Act and was a definite pointer towards the guilt of the accused.
Circumstance (4) appearing in the prosecution evidence, was admitted by the accused persons.
Circumstance (5) also stood established.
Though a feeble pointer towards the guilt of the accused, by itself it was not of a conclusive character.
Circumstance (6) has been seriously controverted.
The burden of the arguments of the learned counsel for the appellants is that the prosecution had miserably failed to establish that the legless decomposed 457 body found in the river was that of Smt.
Sumitra, and in such a situation, the possibility of her being alive cannot be reasonably ruled out.
Although the High Court has held that the body recovered was that of Sumitra deceased and that the bones sent to the medical experts were not parts of the decomposed body found, but appeared to have been fraudulently replaced with the bones of a child during transmission to the medical experts, we would assume that the identity of the body found in the river was not established beyond reasonable doubt.
In other words, we would take it that the corpus delicti, i.e., the dead body of the victim was not found in this case.
But even on that assumption, the question remains whether the other circumstances established on record were sufficient to lead to the conclusion that within all human probability, she had been murdered by Rama Nand appellant ? It is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused "caused the death" of the person alleged to have been killed.
This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been caused.
Ordinarily, the recovery of the dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim.
There was a time when under the old English Law, the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide.
"I would never convict", said Sir Mathew Hale, "a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead".
This was merely a rule of caution, and not of law.
But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater.
Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder.
Indeed, very many cases are of such a nature where the discovery of the dead body is impossible.
A blind adherence to this old "body" doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim.
In the context of our law, Hale 's enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution.
Such proof may be by the direct ocular 458 account of an eye witness, or by circumstantial evidence, or by both.
But where the fact of corpus delicti, i.e. 'homicidal death ' is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death.
Even so, this principle of caution cannot be pushed too far as requiring absolute proof.
Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth.
That is why under Section 3, Evidence Act, a fact is said to be "proved", if the Court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exists.
The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned.
In the instant case, Circumstances (1) to (5), in their cumulative effect, are not only inconsistent with the innocence of Rama Nand appellant, but ineluctably and rationally compel the conclusion that Sumitra has died and it is Rama Nand appellant who has intentionally caused her death.
Circumstance (3) involves an admission by Rama Nand and Shish Ram accused that Sumitra has met an unnatural death.
The only difference between the prosecution version and the defence version is as to whether Sumitra committed suicide or had been killed by Rama Nand appellant.
It has been found that the story of the suicide set up by the accused is false.
The articles Salwar (exhibit P.14) and the shoes (exhibit P 15) do not belong to her.
They were planted by the accused to lay a false trail and to mis direct the investigation.
This circumstance taken in conjunction with the others, irresistibly and rationally leads to the conclusion that she has been murdered by Rama Nand appellant and her dead body has been disposed of by the appellants Shish Ram and Kali Datt.
For the foregoing reasons, we dismiss this appeal and maintain the convictions and sentences of the appellants.
S.R. Appeal dismissed.
| IN-Abs | Dismissing the appeal and maintaining the conviction and sentences of the appellants, the Court ^ HELD:(1) It is well settled that where the inference of guilt of an accused person is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established.
Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused and none else.
In the instant case, the following circumstances had been correctly found to have been established by the prosecution: (i) Rama Nand accused had a strong motive to murder his wife, Sumitra.
(ii) Sumitra was last seen alive with Rama Nand, appellant in the family house at Jherwin on the night between 13th and 14th May, 1972.
(iii) (a) Rama Nand and the other co accused falsely gave out that she had committed suicide by jumping into the river.
They 'planted ' a Salwar and a pair of shoes on the bank of the Sutlaj and gave out that they belonged to the deceased, and Shish Ram lodged a false report with the police to the effect that she had committed suicide by jumping into the river.
The Salwar and the shoes, which had been 'planted ' there to manufacture false clues by the accused, did not belong to Sumitra, and the accused falsely asserted that whose articles belong to the deceased.
(b) The story given out by the accused persons that upto 11 a.m. on May 14, 1972, Sumitra was planting chillies along with Sheela and other members of the family of the accused, was false.
(iv) The gold chain (exhibit P 1) and the watch (exhibit P 2) which Sumitra used to wear on her person all the 24 hours, and the clothes (exhibit P 5 to P 10) which she had on her person and the basket (exhibit P 11) and umbrella (exhibit P 12) which she was carrying when on the evening of May 13, 1972 she came to house of the accused at Jherwin, were recovered from the house of the accused.
(v) Some days after the occurrence, one Paranda was found from the jungle near this village.
There was a bunch of hair in the plated tail of this Paranda.
The tail appeared to have been cut.
These hair sticking in the paranda and those found entangled in the Dupatta of the deceased were according to the Forensic Expert of one and the same person.
(vi) A legless decomposed corpse was recovered from the Sutlej near village Randol in a mutilated condition.
But its identity [451G H, 452A E, 453A B] (2) Even on the assumption that the dead body of the victim was not found, circumstances (i) to (v) mentioned above in their cumulative effect includably and rationally compel the conclusion that Sumitra had died and it was Rama 445 Nand accused who had intentionally caused her death.
Ordinarily, the recovery of the dead body of the victim or a vital part of it, bearing marks of violence is sufficient proof of homicidal death of the victim.
Even so, discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder.
Indeed very many cases are of such a nature where the discovery of the dead body is impossible.
A blind adherence to this old doctrine of Sir Mathew Hale that "for a conviction of murder atleast the body was found dead" would open the door wide open for many a heinous murderer to escape with impunity simply because they were a cunning and clever enough to destroy the body of their victim.
In the context of our law, Hale 's enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution.
Such proof may be the direct ocular account of an eye witness, or by circumstantial evidence, or by both.
But where the fact of corpus delicti, i.e. 'homicidal death ' is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death.
Even so, this principle of caution cannot be pushed too far as requiring absolute proof.
Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth.
That is why under Section 3, Evidence Act, a fact is said to be "proved", if the Court considering the matters before it, considers its existence so probable that a prudent man ought.
under the circumstances of the particular case, to act upon the supposition that it exists.
The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned.
[457 D H, 458A D]
|
N: Criminal Appeal No. 699 of 1980.
Appeal by Special Leave from the Judgment and Order dated 6 11 1979 of Patna High Court in Criminal Misc.
3679 and 3913/79.
403 K. G. Bhagat and D. Goburdhan for the Appellant.
section C. Misra, M. P. Jha and A. K. Jha for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
This is an appeal by special leave against an order dated the 6th November, 1979 of a learned Single Judge of the Patna High Court quashing the entire proceedings in a criminal case against the 7 respondents who were facing a charge under section 7 of the Essential Commodities Act in the Court of a Magistrate at Bhagalpur.
The case was initiated through a report lodged with the police on the 9th of April 1960 with the allegation that the respondents ' firm which held a licence for dealing in iron and steel had misappropriated a large quantity of G.C. sheets meant for distribution to quota and sub quota holders.
After investigation a police report was submitted on the 23rd December 1962 to a Bhagalpur Magistrate who took cognizance of the case on the 25th January 1963.
However, the charge against the respondents was framed as late as 15th September 1967 and since then the progress of the case was very tardy as the orders passed therein were challenged in appeals or on the revisional side from time to time.
Ultimately in 1979 the respondents made two applications to the High Court praying that the proceedings against them be quashed and the same were accepted through the impugned order.
The High Court held for various reasons that the police report did not disclose any offence against any of the respondents.
Another reason for accepting the two applications may be stated in the words of the learned Single Judge: "Another important aspect of the matter is that the prosecution commenced in the year 1963 and it is still going on in 1979.
It is true that the accused persons themselves are partly blamed for this delay because several revision applications have been filed at their instance in the High Court and in the district court.
The situation, however, continues to be unjustified because the last revision application was some time disposed in 1973 and the record was returned in 1974.
This fact has been stated by the learned counsel for the petitioners and five years have elapsed since then.
I am told that four witnesses have been examined and the last witness was examined in April, 1979 and after that no witness has been examined.
It has been stated in the order sheet that prosecution is not in a position to know the address of the witnesses who are mostly Government Officials.
Luxury of protracted trial cannot be allowed to the 404 prosecution.
If they did not know the address of their own witnesses and if the prosecution was not in a position to conclude its evidence by now it will be an abuse of the process of the court to allow the prosecution go on any further.
Learned counsel for the appellant State has challenged the impugned order not only on the ground that its finding about the police report not disclosing any offence against the respondents was erroneous but also with the argument that the delay in the conclusion of the trial was not a justification for quashing the proceedings.
We have heard him at length and although there is much to be said against the impugned order in so far as the finding about the police report is concerned, we cannot lose sight of the fact that the trial has not made much headway even though no less than 20 years have gone by.
Such protraction itself means considerable harassment to the accused not only monetarily but also by way of constant attention to the case and repeated appearances in court, apart from anxiety.
It may well be that the respondents themselves were responsible in a large measure for the slow pace of the case inasmuch as quite a few orders made by the trial magistrate were challenged in higher courts, but then there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage.
In this view of the matter we do not consider the present case a proper one for our interference in spite of the fact that we feel that the allegations disclosed the commission of an offence which we regard as quite serious.
For the reasons stated we dismiss the appeal.
N.V.K. Appeal dismissed.
| IN-Abs | A case was initiated through a report lodged with the police on the 9th April, 1960 that the respondent 's firm had misappropriated a large quantity of G. C. Sheets meant for distribution to quota and sub quota holders.
After investigation, a police report was submitted on the 23rd December 1962 to the Magistrate, who took cognizance of the case on the 25th January, 1963.
Charges were framed against the respondents under section 7 of the Essential Commodities Act on 15th September, 1967.
The progress of the case thereafter was very tardy.
In 1979, the respondents made two applications to the High Court for quashing the proceedings initiated against them.
The High Court allowed them on the ground that the police report did not disclose any offence against any of the respondents and that as the prosecution commenced in the year 1963 was still going on in 1979, it would be an abuse of the process of the Court to allow the prosecution to continue any further.
In the appeal by the State to this Court, it was contended that the finding about the police report not disclosing any offence was erroneous and that the delay in the conclusion of the trial was not a justification for quashing the proceedings.
Dismissing the appeal ^ HELD: 1.
There has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage.
[404D] 2.
The present case is not a proper one for interference inspite of the fact that the allegations disclose the commission of an offence which is quite serious.
[404E] In the instant case the trial has not made much headway even though no less than 20 years have gone by.
Such protraction itself means considerable harassment to the accused not only monetarily but also by way of constant attention to the case and repeated appearances in court, apart from anxiety.
[404C D]
|
ition No. 3042 of 1980.
(Under Article 32 of the Constitution.) N. M. Ghatate (Dr.) and section V. Deshpande for the Petitioner.
Hardayal Hardy and M. N. Shroff for the Respondents Nos. 1 2.
The Judgment of the Court was delivered by BHAGWATI, J.
This petition under Article 32 of the Constitution raises a question in regard of the right of a detenu under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (hereinafter referred to as COFEPOSA Act) to have interview with a lawyer and the members of his family.
The facts giving rise to the petition are few and undisputed and may be briefly stated as follows: The petitioner, who is a British national, was arrested and detained in the Central Jail, Tihar under an Order dated 23rd November 1979 issued under section 3 of the COFEPOSA Act.
She preferred a petition in this Court for a writ of habeas corpus challenging her detention, but by a judgment delivered by this Court on 27th February 1980, her petition was rejected with the result that she continued to remain under detention in the Tihar Central Jail.
Whilst under detention, the petitioner experienced considerable difficulty in having interview with her lawyer and the members of her family.
Her daughter aged about five years and her sister, who was looking after the daughter, were permitted to have interview with her only once in a month and she was not allowed to meet her daughter more often, though a child of very tender age.
It seems that some criminal proceeding was pending against the petitioner for attempting to smuggle hashish out of the country and for the purpose of her defence in such criminal proceeding, it was necessary for her to consult her lawyer, but even her lawyer found it difficult to obtain an interview with her because in order to arrange an interview, he was 521 required to obtain prior appointment from the District Magistrate, Delhi and the interview could take place only in the presence of a Customs Officer nominated by the Collector of Customs.
This procedure for obtaining interview caused considerable hardship and inconvenience and there were occasions when, even after obtaining prior appointment from the District Magistrate, Delhi, her lawyer could not have an interview with her since no Customs Officer nominated by the Collector of Customs remained present at the appointed time.
The petitioner was thus effectively denied the facility of interview with her lawyer and even her young daughter 5 years old could not meet her except once in a month.
This restriction on interviews was imposed by the Prison Authorities by virtue of clause 3(b) sub clauses (i) and (ii) of the Conditions of Detention laid down by the Delhi Administration under an Order dated 23rd August 1975 issued in exercise of the powers conferred under section 5 of the COFEPOSA Act.
These two sub clauses of clause 3(b) provided inter alia as under: "3.
The conditions of detention in respect of classification and interviews shall be as under: (a) . . (b) Interviews: Subject to the direction issued by the Administrator from time to time, permission for the grant of interviews with a detenu shall be granted by the District Magistrate, Delhi as under: (i) Interview with legal adviser: Interview with legal adviser in connection with defence of a detenu in a criminal case or in regard to writ petitions and the like, may be allowed by prior appointment, in the presence of an officer of Customs/Central Excise/ Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who sponsors the case for detention.
(ii) Interview with family members: A monthly interview may be permitted for members of the family consisting of wife, children or parents of the detenu . . " The petitioner, therefore, preferred a petition in this Court under Article 32 challenging the constitutional validity of sub clauses (i) 522 and (ii) of clause 3(b) of the Conditions of Detention Order and praying that the Administrator of the Union Territory of Delhi and the Superintendent of Tihar Central Jail be directed to permit her to have interview with her lawyer and the members of her family without complying with the restrictions laid down in those sub clauses.
The principal ground on which the constitutional validity of sub clauses (i) and (ii) of clause 3(b) of the Conditions of Detention Order was challenged was that these provisions were violative of Articles 14 and 21 of the Constitution inasmuch as they were arbitrary and unreasonable.
It was contended on behalf of the petitioner that allowing interview with the members of the family only once in a month was discriminatory and unreasonable, particularly when under trial prisoners were granted the facility of interview with relatives and friends twice in a week under Rule 559A and convicted prisoners were permitted to have interview with their relatives and friends once in a week under Rule 550 of the Rules set out in the Manual for the Superintendence and Management of Jails in the Punjab.
The petitioner also urged that a detenu was entitled under Article 22 of the Constitution to consult and be defended by a legal practitioner of his choice and she was, therefore entitled to the facility of interview with a lawyer whom he wanted to consult or appear for him in a legal proceeding and the requirement of prior appointment for interview and of the presence of a Customs or Excise Officer at the interview was arbitrary and unreasonable and therefore violative of Articles 14 and 21.
The respondents resisted the contentions of the petitioner and submitted that sub clauses (i) and (ii) of clause 3(b) were not violative of Articles 14 and 21, since the restrictions imposed by them were reasonable, fair and just, but stated that they would have no objection if instead of a monthly interview, the petitioner was granted the facility of interview with her daughter and sister twice in a week as in the case of under trial prisoners and so far as interview with the lawyer is concerned, they would not insist on the presence of a customs or excise officer at the interview.
Though these two concessions were made on behalf of the respondents at the hearing of the petition before us, the question still remains whether sub clause (i) and (ii) of cl.
3(b) are valid and it is necessary that we should examine this question in the context of our constitutional values, since there are a large number of detenus under the COFEPOSA Act and the conditions of their detention in regard to interviews must be finally settled by this Court.
Now it is necessary to bear in mind the distinction between 'preventive detention ' and punitive detention ', when we are considering 523 the question of validity of conditions of detention.
There is a vital distinction between these two kinds of detention. 'Punitive detention ' is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while 'preventive detention ' is not by way of punishment at all, but it is intended to pre empt a person from indulging in conduct injurious to the society.
The power of preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order.
It is a drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in times of war or aggression.
Our Constitution does recognise the existence of this power, but it is hedged in by various safeguards set out in Articles 21 and 22.
article 22 in clauses (4) to (7), deals specifically with safeguards against preventive detention and any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation.
But apart from article 22, there is also article 21 which lays down restrictions on the power of preventive detention.
Until the decision of this Court in Maneka Gandhi.
vs Union of India, a very narrow and constricted meaning was given to the guarantee embodied in article 21 and that article was understood to embody only that aspect of the rule of law, which requires that no one shall be deprived of his life or personal liberty without the authority of law.
It was construed only as a guarantee against executive action unsupported by law.
So long as there was some law, which prescribed a procedure authorising deprivation of life or personal liberty, it was supposed to meet the requirement of article 21.
But in Maneka Gandhi 's case (supra), this Court for the first time opened up a new dimension of article 21 and laid down that article 21 is not only a guarantee against executive action unsupported by law, but is also a restriction on law making.
It is not enough to secure compliance with the prescription of Article 21 that there should be a law prescribing some semblance of a procedure for depriving a person of his life or personal liberty, but the procedure prescribed by the law must be reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of article 21.
This Court expanded the scope and ambit of the right to life and personal liberty enshrined in article 21 and sowed the seed for future development of the law enlarging this most fundamental of Fundamental Rights.
This decision in Maneka Gandhi 's case became the starting point the spring board for a most spectacular evolution the law culminating in the decisions in M. O. Hoscot vs 524 State of Maharashtra,, Hussainara Khatoon 's case, the first Sunil Batra 's case and the second Sunil Batra 's case.
The position now is that article 21 as interpreted in Maneka Gandhi 's case (supra) requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the Court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise.
The law of preventive detention has therefore now to pass the test not only of article 22, but also of article 21 and if the constitutional validity of any such law is challenged, the Court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just.
But despite these safeguards laid down by the Constitution and creatively evolved by the Courts, the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilised society.
It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused.
It must always be remembered that preventive detention is qualitatively different from punitive detention and their purposes are different.
In case of punitive detention, the person concerned is detained by way of punishment after he is found guilty of wrong doing as a result of trial where he has the fullest opportunity to defend himself, while in case of preventive detention, he is detained merely on suspicion with a view to preventing him from doing harm in future and the opportunity that he has for contesting the action of the Executive is very limited.
Having regard to this distinctive character of preventive detention, which aims not at punishing an individual for a wrong done by him, but at curtailing his liberty with a view to pre empting his injurious activities in future, it has been laid down by this Court in Sampat Prakash vs State of Jammu and Kashmir "that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal." The question which then arises is whether a person preventively detained in a prison has any rights which he can enforce in a Court 525 of law.
Once his freedom is curtailed by incarceration in a jail, does he have any fundamental rights at all or does he leave them behind, when he enters the prison gate ? The answer to this question is no longer res integra.
It has been held by this Court in the two Sunil Batra cases that "fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration.
" The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration.
Even before the two Sunil Batra cases, this position was impliedly accepted in State of Maharashtra vs Prabhakar Sanzgiri and it was spelt out clearly and in no uncertain terms by Chandrachud, J. as he then was, in D. B. Patnaik vs State of Andhra Pradesh : "Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess.
A compulsion under the authority of law, following upon a conviction, to live in a prison house entails to by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to "practise" a profession.
A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence.
But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment.
Likewise, even a convict is entitled to the precious right guaranteed by article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.
" This statement of the law was affirmed by a Bench of five Judges of this Court in the first Sunil Batra case (supra) and by Krishna Iyer, J. speaking on behalf of the Court in the second Sunil Batra case (supra).
Krishna Iyer, J. in the latter case proceeded to add in his characteristic style; "The jurisdictional reach and range of this Court 's writ to hold prison caprice and cruelty in constitutional leash is incontestable" and concluded by observing; "Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ ' aid.
The Indian human has a constant companion the Court armed with the Constitution.
" 526 It is interesting to note that the Supreme Court of the United States has also taken the same view in regard to rights of prisoners.
Mr. Justice Douglas struck a humanistic note when he said in Eve Pall 's case : "Prisoners are still persons entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process." So also in Charles Wolff 's case, Mr. Justice White made the same point in emphatic terms.
"But, though his rights may be diminished by environment, a prisoner is not wholly stripped off constitutional protections, when he is imprisoned for crime.
There is no iron curtain drawn between the Constitution and the prisons of this country." Mr. Justice Douglas reiterated his thesis when he asserted: "Every prisoner 's liberty i.e. of courses, circumscribed by the very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial.
Conviction of a crime does not render one a non person whose rights are subject to the whim of the prison administration, and therefore, the imposition of any serious punishment within the system requires procedural safeguards." Mr. Justice Marshall also expressed himself clearly and explicitly in the same terms: "I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court 's holding that the interest of inmates in freedom from imposition of serious discipline is a 'liberty ' entitled to due process protection.
" What is stated by these learned Judges in regard to the rights of a prisoner under the Constitution of the United States applies equally in regard to the rights of a prisoner or detenu under our constitutional system.
It must, therefore, now be taken to be well settled that a prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the Court which is to use the words of Krishna Iyer, J., "not a distant abstraction omnipotent in the 527 books but an activist institution which is the cynosure of public hope," will immediately spring into action and run to his rescue.
We must therefore proceed to consider whether any of the Fundamental Rights of the detenu are violated by sub clauses (i) and (ii) of clause 3(b) so as to result in their invalidation wholly or in part.
We will first take up for consideration the Fundamental Right of the detenu under Article 21 because that is a Fundamental Right which has, after the decision in Maneka Gandhi 's case (supra), a highly activist magnitude and it embodies a constitutional value of supreme importance in a democratic society.
It provides that no one shall be deprived of his life or personal liberty except according to procedure established by law and such procedure shall be reasonable fair, and just.
Now what is the true scope and ambit of the right to life guaranteed under this Article ? While arriving at the proper meaning and content of the right to life, we must remember that it is a constitutional provision which we are expounding and moreover it is a provision enacting a Fundamental right and the attempt of the court should always be to expand the reach and ambit of the Fundamental right rather than to attenuate its meaning and content.
The luminous guideline in the interpretation of a constitutional provision is provided by the Supreme Court of United States in Weems vs U. section 54 Lawyers Edition 801.
"Legislation, both statutory and constitutional is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had, therefore taken.
Time works changes, brings into existence new conditions and purposes.
Therefore, a principle, to be vital, must be capable of wider application than mischief which gave it birth.
This is peculiarly true of constitutions.
They are not ephemeral enactments designed to meet passing occasions.
They are, to use the words of Chief Justice Marshall, "designed to approach immorality as nearly as human institutions can approach it" The future is their care, and provisions for events of good and bad tendencies of which no prophecy can be made.
In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be.
Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power.
Its general principles would have little value, and be converted by precedent into important and lifeless formulas.
Rights declared in the words might be lost in reality.
And this has been recognised.
The meaning and vitality of the 528 Constitution have developed against narrow and restrictive construction.
" This principle of interpretation which requires that a Constitutional provision must be construed, not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges, applies with greater force in relation to a fundamental right enacted by the Constitution.
The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.
Now obviously, the right to life enshrined in Article 21 can not be restricted to mere animal existence.
It means something much more than just physical survival.
In Kharak Singh vs State of Uttar Pradesh Subba Rao J. quoted with approval the following passage from the judgment of Field J. in Munn vs Illinois to emphasize the quality of life covered by Article 21: "By the term "life" as here used something more is meant than mere animal existence.
The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.
The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world." and this passage was again accepted as laying down the correct law by the Constitution Bench of this Court in the first Sunil Batra case (supra).
Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling.
Now deprivation which is inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged.
Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, depriva 529 tion is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law.
It is therefore clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.
But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more.
We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one self in diverse forms, freely moving about and mixing and commingling with fellow human beings.
Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self.
Every act which offends against or impairs human dignity would constitute deprivation protanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.
Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21.
It would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and Political Rights.
This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration.
The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can he socialise at his free will with persons outside the jail.
But, as part of the 530 right to live with human dignity and therefore as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and friends can be upheld as constitutionally valid under Articles 14 and 21, unless it is reasonable, fair and just.
The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Article 21, for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article.
The expression 'personal liberty ' occurring in Article 21 has been given a broad and liberal interpretation in Maneka Gandhi 's case (supra) and it has been held in that case that the expression 'personal liberty used in that Article is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which "have been raised to the status of distinct Fundamental Rights and given additional protection under Article 19".
There can therefore be no doubt that 'personal liberty would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non arbitrary.
If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21.
Now obviously when an under trial prisoner is granted the facility of interviews with relatives and friends twice in a week under Rule 559A and a convicted prisoner is permitted to have interviews with his relatives and friends once in a week under Rule 550, it is difficult to understand how sub clause (ii) of Clause 3(b) of the Conditions of Detention Order, which restricts the interview only to one in a month in case of a detenu, can possibly be regarded as reasonable and non arbitrary, particularly when a detenu stands on a higher pedestal than an under trial prisoner or a convict and, as held by this Court in Sampath Prakash 's case (supra) restrictions placed on a detenu must "consistent with the effectiveness of detention, be minimal.
" We would therefore unhesitatingly hold sub clause (ii) of clause 3(b) to be violative of Articles 14 and 21 in so far as it permits only one interview in a month to a detenu.
We are of the view that a detenu must be permitted to have atleast two interviews in a week with relatives and friends and it should be possible for a relative or friend to have interview with 531 the detenu at any reasonable hour on obtaining permission from the Superintendent of the Jail and it should not be necessary to seek the permission of the District Magistrate, Delhi, as the latter procedure would be cumbrous and unnecessary from the point of view of security and hence unreasonable.
We would go so far as to say that even independently of Rules 550 and 559A, we would regard the present norm of two interviews in a week for prisoners as furnishing a criterion of what we would consider reasonable and non arbitrary.
The same reasoning must also result in invalidation of sub clause (i) of clause 3(b) of the Conditions of Detention Order which prescribes that a detenu can have interview with a legal adviser only after obtaining prior permission of the District Magistrate, Delhi and the interview has to take place in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the case for detention.
The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention of filing a writ petition or prosecuting any claim or proceeding, civil or criminal, is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established by a valid law.
A prison regulation may, therefore, regulate the right of a detenu to have interview with a legal adviser in a manner which is reasonable, fair and just but it cannot prescribe an arbitrary or unreasonable procedure for regulating such an interview and if it does so, it would be violative of Articles 14 and 21.
Now in the present case the legal adviser can have interview with a detenu only by prior appointment after obtaining permission of the District Magistrate, Delhi.
This would obviously cause great hardship and inconvenience because the legal adviser would have to apply to the District Magistrate, Delhi well in advance and then also the time fixed by the District Magistrate, Delhi may not be suitable to the legal adviser who would ordinarily be a busy practitioner and, in that event, from a practical point of view the right to consult a legal adviser would be rendered illusory.
Moreover, the interview must take place in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the detention and this too would seem to be an unreasonable procedural requirement because in order to secure the presence of such officer at the interview, the District Magistrate, Delhi 532 would have to fix the time for the interview in consultation with the Collector of Customs/Central Excise or the Deputy Director of Enforcement and it may become difficult to synchronise the time which suits the legal adviser with the time convenient to the concerned officer and furthermore if the nominated officer does not, for any reason, attend at the appointed time, as seems to have happened on quite a few occasions in the case of the petitioner, the interview cannot be held at all and the legal adviser would have to go back without meeting the detenu and the entire procedure for applying for an appointment to the District Magistrate, Delhi would have to be gone through once again.
We may point out that no satisfactory explanation has been given on behalf of the respondents disclosing the rationale of this requirement.
We are therefore of view that sub clause (i) of clause 3(b) regulating the right of a detenu to have interview with a legal adviser of his choice is violative of articles 14 and 21 and must be held to be unconstitutional and void.
We think that it would be quite reasonable if a detenu were to be entitled to have interview with his legal adviser at any reasonable hour during the day after taking appointment from the Superintendent of the Jail, which appointment should be given by the Superintendent without any avoidable delay.
We may add that the interview need not necessarily take place in the presence of a nominated officer of Customs/Central Excise/Enforcement but if the presence of such officer can be conveniently secured at the time of the interview without involving any postponement of the interview, then such officer and if his presence cannot be so secured, then any other Jail official may, if thought necessary, watch the interview but not as to be within hearing distance of the detenu and the legal adviser.
We accordingly allow the writ petition and grant relief to the extent indicated above.
V.D.K. Petition allowed.
| IN-Abs | Allowing the writ petition, the Court ^ HELD : (1) While considering the question of validity of conditions of detention courts must necessarily bear in mind the vital distinction between preventive detention and punitive detention.
Punitive detention is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while preventive detention is not by way of punishment at all, but it is intended to pre empt a person from indulging in conduct injurious to the society.
[523 A B] (2) The power of preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order.
It is a drastic power to detain a person without trial and in many countries it is not allowed to be exercised except in times of war or aggression.
The Indian Constitution does recognise the existence of this power, but it is hedged in by various safeguards set out in Articles 21 and 22.
Article 22 in clauses (4) to (7) deals specifically with safeguards against preventive detention and enjoins that any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation, Article 21 also lays down restrictions on the power of preventive detention.
[523 B D] Article 21 as interpreted in Maneka Gandhi 's case requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the Court to decide in the exercise of its constitutional power or judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise.
The law of preventive detention must, therefore, pass the test not only of Article 22 but also of Article 21.
But, despite these safeguards laid down by the Constitution and creatively evolved by the Courts.
the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished 517 and prized possession of man in a civilised society.
It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused, inasmuch as the preventive detention is qualitatively different from punitive detention and their purposes are different.
In case of punitive detention, the person has fullest opportunity to defend himself, while in case of preventive detention, the opportunity that he has for contesting the action of the Executive is very limited.
Therefore, the "restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal".
[524A G] Maneka Gandhi vs Union of India, ; ; M.O. Hoscot vs State of Maharashtra, ; ; Hussainara Khatoon vs State of Bihar, ; ; Sunil Batra (I) vs Delhi Administration, ; ; Sunil Batra (II) vs Delhi Administration, ; , referred to.
Sampat Prakash vs State of Jammu and Kashmir, ; , followed.
The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration.
A prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the Court will immediately spring into action and run to his rescue.
[525 B C, 526 G H, 527 A] Sunil Batra (I) vs Delhi Administration, ; ; Sunil Batra (II) vs Delhi Administration, ; , State of Maharashtra vs Prabhakar Sanzgire ; ; D. B. Patnaik vs State of Andhra Pradesh, ; , followed.
Eve Pall 's Case; , 41 Lawyers Edition 2nd 495; Charles Wolffs Case, 41 Lawyers Edition 2nd 935, quoted with approval.
(4) While arriving at the proper meaning and content of the right to life, the attempt of the court should always be to expand the reach and ambit of the fundamental right rather than to attenuate its meaning and content.
A constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges.
This principle applies with greater force in relation to a fundamental right enacted by the Constitution.
The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.
[527 C D, 528 A C] Weems vs U.S. 54 Lawyers Edition 801, quoted with approval.
(5) The right to life enshrined in Article 21 cannot be restricted to mere animal existence.
It means something much more than just physical survival.
518 Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling.
Now deprivation which is inhibited by Article may be total or partially neither any limb or faculty can be totally destroyed nor can it be partially damaged.
Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, deprivation is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law.
Therefore any act which damages or injures or interferes with the use of any limb or faculty of a person either permanently or even temporarily, would be within the inhibition of Article 21.
[528 D, G H, 529 A] Kharak Singh vs State of Uttar Pradesh, , followed.
Munn vs Illinois , referred to.
Sunil Batra vs Delhi Administration, ; , applied.
(6) The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.
The magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self.
Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.
Therefore, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruelty, inhuman or degrading treatment can ever stand the test of reasonableness and non arbitrariness: it would plainly be unconstitutional and void as being violative of Article 14 and 21.
[529 B F] (7) There is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the international Covenant on Civil and Political Rights.
This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore, when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration.
The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can be socialise at his free will with persons outside the jail.
But, as part of the right to live with human dignity and therefore, as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and 519 friends can be upheld as constitutionally valid under Article 14 and 21, unless it is reasonable, fair and just.
Considered from the point of view also of the right to personal liberty enshrined in Article 21, the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article.
The expression "personal liberty" occurring in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which "have been raised to the status of distinct Fundamental Rights and given additional protection under Article 19".
Therefore, personal liberty would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non arbitrary.
If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21.
[530 B E] Maneka Gandhi vs Union of India, ; , applied.
(8) Sub clause (ii) of clause 3(b) of the Conditions of Detention Order is violative of Articles 14 and 21 in so far as it permits only one interview in a month to a detenu.
When an under trial prisoner is granted the facility of interviews with relatives and friends twice in a week under Rule 559A and a convicted prisoner is permitted to have interviews with his relatives and friends, once in a week under Rule 550, sub clause (ii) of clause 3(b) of the Conditions of Detention Order, which restricts the interview only to one in a month in case of a detenu, is unreasonable and arbitrary, particularly when a detenu stands on a highest pedestal than an under trial prisoner or a convict.
A detenu must be permitted to have at least two interviews in a week with relatives and friends and it should be possible for relative or friend to have interview with the detenu at any reasonable hour on obtaining permission from the Superintendent of the Jail and it should not be necessary to seek the permission of the District Magistrate, Delhi, as the latter procedure would be cumbrous and unnecessary from the point of view of security and hence unreasonable.
Even independently of Rules 550 and 559A, of the Punjab Manual for the Superintendence and Management of Jails, the present norm of two interviews in a week for prisoners furnishes a reasonable and non arbitrary criterion.
[530 F H, 531 A B] Sampath Prakash vs State of Jammu and Kashmir, ; , applied.
(9) Sub clause (i) of clause 3(b) of the Conditions of Detention Order regulating the right of a detenu to have interview with a legal adviser of his choice is violative of Article 14 and 21 and therefore unconstitutional and void, It would be quite reasonable if a detenu were to be entitled to have interview with his legal adviser at any reasonable hour during the day after taking appointment from the Superintendent of the Jail, which appointment should be given by the Superintendent without any avoidable delay.
The interview need not necessarily take place in the presence of a nominated officer of Customs/ Central Excise/Enforcement but if the presence of such officer can be conveniently secured at the time of the interview without involving any postponement of the interview, than such officer and if his presence cannot be so secured, 520 then any other Jail official may, if thought necessary, watch the interview but in a month to a detenu.
When an under trial prisoner is granted the facility [532C F] (10) The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention or filling a writ petition or prosecuting any claim or proceeding, civil or criminal is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established by a valid law.
[531C E]
|
ICTION: Criminal Appeal No. 368 of 1975 Appeal by special leave from the Judgment and Order dated 5 4 1974 of the Calcutta High Court in Crl.
No. 193 of 1971.
D. N. Mukherjee, M. M. Kshtriya, A. K. Ganguli and G. section Chatterjee for the appellant.
T. section Arora for RR 1,3 to 17.
664 Uma Dutta for Respondent No. 2.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated April 5, 1974 of the Calcutta High Court by which the order of the trial court was set aside and the case was remitted for fresh hearing in the light of the directions given by the High Court.
The High Court further directed that the Commitment Inquiry held by Mr. R. P. Roy Chowdhury who was the Trial Magistrate, should be held by some other Magistrate.
The facts of the case lie within a very narrow compass and the central controversy turns upon the interpretation of section 14 of the Official Secrets Act.
, 1923 (hereinafter referred to as the 'Act ').
It appears that a complaint was filed on the 20th March 1969 against 38 accused persons under section 120B of the Indian Penal Code read with sections 3 9, and 10 of the Act.
The charges against the accused were no doubt very serious and concerned the security of the State, as the accused persons are alleged to have passed on some military secrets to the enemy resulting in serious detriment to the safety and security of our country.
Of the 38 accused persons named in the chargesheet, only 17 were in custody and a commitment inquiry into the charges was held against them by the trial Magistrate.
During the commitment inquiry the State filed an application under section 14 of the Act praying that the proceedings be held in camera and public should be excluded from attending the hearings of the case because the statements made in the course of the proceedings would be prejudicial to the safety of the State.
It was also prayed that apart from excluding the public from the hearings of the proceeding, the accused should not be allowed to have access to, or be given copies of, the statements of the witnesses recorded by the Magistrate or those recorded earlier during police investigation.
The Magistrate partly allowed the application but permitted the defence lawyer to take copious notes of the statements of witnesses in order to be in a position to cross examine the witnesses.
Subsequently, the Magistrate directed the lawyer to produce his notebook so that the Magistrate may examine if only a summary of the evidence had been taken by the lawyer or the statements had been taken in extenso in which case it would amount to publication and, therefore, would be barred by section 14 of the Act.
The lawyer of the defence appearing before the Magistrate first agreed to show his note book but later claimed privilege under section 126 of the Evidence Act on the ground that the register in which he had taken down the notes of the evidence also contained certain instructions given 665 to him which amounted to a privileged communication and could not be looked into by the Court.
In this view of the matter the Magistrate found himself helpless and proceeded with the inquiry.
As the prosecution was not satisfied with the procedure adopted by the Magistrate, the State filed a revision before the High Court for quashing of the order of the Magistrate in allowing the lawyer to cross examine the witnesses without impounding the notes comprising the statements of the witnesses taken down in extenso by the lawyer.
The High Court after hearing the counsel for the parties thoroughly examined the entire position and ultimately came to a finding that the Magistrate should have taken legal action against the lawyer for flouting the orders of the Court by not producing the notebook on the plea of privilege which did not hold any water.
The High Court was further of the opinion that in view of the provisions of section 14 of the Act not only could the public be excluded from taking part at the hearing but even the statements of witnesses recorded by the court or other documents could not be made available to the accused or his counsel nor could copies of the said documents be given to the accused.
In this view of the matter the High Court quashed the order of the Magistrate and remitted the case to the trial court to be heard by some other Magistrate in view of the directions given by it.
Hence, this appeal to this Court.
We have been taken through the entire judgment of the High Court by the learned counsel for the parties.
The two Judges who decided the case agreed in the conclusion but have given separate reasons for coming to the conclusion arrived at by them.
The only question that is to be determined in the present appeal is as to the scope and ambit of section 14 of the Act.
Mr. Mukherjee, appearing for the State, however, submitted that on a close scrutiny of the language employed in section 14, it would appear that the statute contains a two fold bar (1) that publication of any evidence cannot be given, and (2) that public should be excluded from attending the hearing of the proceedings.
The learned counsel appearing for the respondent submitted that section 14 does not in any way deprive the valuable right of the accused to get copies of the statements of witnesses recorded during the commitment inquiry or the documents or statements recorded by the police which is a statutory right conferred on the accused under the Code of Criminal Procedure and the Criminal rules framed thereunder by various High Courts.
All that section 14 prohibits is that the public be excluded from attending the hearings of the inquiry.
Since the Magistrate had already acceded to this prayer of the accused, there was nothing more that could be done by him.
666 It appears that the Calcutta High Court has been consistently taking the view as adumbrated by the learned counsel for the appellant, viz., that the court has a discretion under section 14 of the Act not only to hold the proceedings in camera by excluding the public but also has the discretion to prohibit publication of any evidence given in the course of the proceedings.
In Ramendra Singh vs Mohit Choudhary & Ors.
a Division Bench of the Calcutta High Court went to the extent of holding that the Act prescribes a special procedure and, therefore, overrides the procedure for trial under section 251A or 252 of the Code of Criminal Procedure as amended by the Act of 1955.
In this connection, the High Court observed as follows: "The prosecution is under the Official Secrets Act and it is unlikely that the Legislature would provide for a camera trial and at the same time provide for giving copies of all documents under section 173 to the accused.
This strikes at the root of secrecy and goes counter to the provisions of trial in camera and this is why the Legislature purposely used the word 'complaint ' and provided for a special procedure regarding cognizance.
This view finds support from the provisions of Section 14 of the Act providing for camera trial.
The Official Secrets Act provides for a special procedure of complaint and if it was upon a complaint by a person authorised under the Act, cognizance was taken under Section 190(1) (a) and not under Section 190(1) (b).
The procedure for trial would therefore, be under Section 252 of the Code of Criminal Procedure and not under Section 251A.
In respect of prosecution under Section 252 of the Code of Criminal Procedure there is no compulsory provision for giving copies of documents referred to under Section 173 and the opposite parties are not, therefore, entitled to copies as of right.
" The decision under appeal follows the aforesaid decision and has taken the same view.
In a later decision in In Re Anthony Allen Fletcher vs State, the Calcutta High Court seems to have struck a slightly different note.
In that case, the court was considering the question of bail and the exclusion of the public from attending the hearing of the case, where the following observations were made: 667 "On a Consideration of the provisions of the Statute as also the imprimatur of the judicial decisions, we ultimately hold that in view of the specific provisions contained in Section 14 of the Official Secrets Act, 1923 when it reasonably appears to the Court that a trial eatiis apertis would have the risk of any publication of any evidence to be given or any statements to be made in course of the proceedings would be prejudicial to the safety of the State, the Court in exercise of its discretion can exclude the public from such proceedings and that this power is in addition to the inherent power exercised by the Court to do justice.
" It may be noticed that the High Court did not go to the extreme of holding that even the statements or evidence recorded by the Magistrate in the course of the proceedings would have to be excluded under section 14.
All that was held by the High Court was that the Court has a discretion to exclude the public from the proceedings and that this power of exclusion was available to the court apart from the inherent power which every Court possessed in this matter.
With due respect we find ourselves in agreement with the view taken by the Calcutta High Court in Fletcher 's case (supra) as mentioned above.
However, we find ourselves unable to agree with the view taken by the High Court in the judgment under appeal for the reasons that we shall give hereafter.
We might also mention that section 14 was interpreted by this Court in Naresh Shridhar Mirajkar & Ors.
vs State of Maharashtra & Anr., where this Court while dealing with the question of holding proceedings in camera observed as follows: "Having thus enunciated the universally accepted proposition in favour of open trials, it is necessary to consider whether this rule admits of any exceptions or not.
Cases may occur where the requirement of the administration of justice itself may make it necessary for the court to hold a trial in camera.
While emphasising the importance of public trial, we cannot overlook the fact that the primary function of the Judiciary is to do justice between the parties who bring their causes before it.
If a Judge trying a case is satisfied that the very purpose of finding truth in the case would be retarded, or even defeated if witnesses are required to give evidence subject to public gaze is it or is it not open to him in exercise of his inherent power to hold the trial in camera either partly or fully? . .
That is why we 668 feel no hesitation in holding that the High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a course. .
It is the fair administration of justice which is the end of judicial process, and so, if ever a real conflict arises between fair administration of justice itself on the one hand, and public trial on the other, inevitably, public trial may have to be regulated or controlled in the interest of administration of justice.
" While interpreting the scope and ambit of section 14 this Court in Naresh Shridhar Mirajkars case (supra) observed as follows: "It would be noticed that while making a specific provision authorising the court to exclude all or any portion of the public from a trial, section 14 in terms recognises the existence of such inherent powers by its opening clause.
" It may be pertinent to note that while this Court was fully alive to the contents of section 14, it neither held that the opening part of the section amounted to a non obstante clause nor that the section in any way deprived the accused of the right of getting copies of the statements of witnesses recorded by the court or before the police.
In the aforesaid case, the Supreme Court was concerned with a defamation case but the observations made by this Court fully apply to the facts of the present case also on the view that we take on the scope and ambit of section 14 of the Act.
There can be no doubt that an open trial held in public is the general rule and seems to be the very concomitant of a fair and reasonable trial, yet the public can be excluded from the hearings of the trial and the proceedings can be held in camera only under very exceptional circumstances as pointed out by this Court in the aforesaid case.
This being the position, section 14 must be interpreted so as to fall in line with the observations made and the test laid down by this Court regarding the doctrine of holding proceedings in camera.
A close and careful scrutiny of section 14 would itself clearly show that the section does not contemplate the type of exclusion that the High Court seems to think.
It is true that offences under the Act are very serious offences and maintenance of secrecy is of the very essence of the matter but that by itself will not justify the legislature to pass an Act so as to deprive an accused of the valuable right to defend or for that matter to stifle the defence itself.
The importance of holding trial in camera in cases under the Official Secrets Act has been emphasised in R.V. Socialist 669 Worker Printers and Publishers Ltd. & Anr., where Lord Widgery, C. J., observed as follows: "When one has an order for trial in camera, all the public and all the press are evicted at one fell swoop and the entire supervision by the public is gone.
The actual conduct of the trial, the success or otherwise of the defendant, does not turn on this kind of thing, and very often the only value of the witness 's name being given as opposed to it being withheld is that if it is published up and down the country other witnesses may discover that they can help in regard to the case and come forward.
" With this background we shall now proceed to examine the language of section 14 of the Act itself which may be extracted thus: "14.
Exclusion of public from proceedings.
In addition and without prejudice to any powers which a Court may possess to order the exclusion of the public from any proceedings if, in the course of proceedings before a Court against any person for an offence under this Act or the proceedings on appeal, or in the course of the trial of a person under this Act, application is made by the prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the safety of the State, that all or any portion of the public shall be excluded during any part of the hearing, the Court may make an order to that effect, but the passing of sentence shall in any case take place in public." To begin with, the opening words of the section, namely, 'In addition and without prejudice to any powers which a Court may possess ' clearly reveal that the intention of the legislature was to give only an enabling additional power to the court regarding holding the proceedings in camera.
In other words, the legislature never intended that the inherent powers possessed by the court to hold the proceeding in camera in suitable cases would be in any way affected by section 14 but the intention was merely to give an additional power to strengthen the hands of the court for holding the proceedings in camera where the necessities of the situation demanded.
Thus, to begin with, section 14 is merely an enabling and not a barring provision.
Mr. Mukherjee argued that the opening words of section 14, referred to above, really amount to a non obstante clause overriding the provisions 670 of all Acts including the Code of Criminal Procedure and the mode of trial contemplated by section 14 would take precedence over the mode of trial provided by section 251A or 252 of the Code of Criminal Procedure.
We are, however, unable to agree with this extreme argument which in fact overstates the law.
It is well settled that a non obstante clause has doubtless the effect of overriding the provisions of a law or of the law in which the said clause is inserted.
Sarathi in 'Interpretation of Statutes ' defines a non obstante clause thus: "A section sometimes begins with the phrase 'notwithstanding anything contained etc. '.
Such a clause is called a non obstante clause and its general purpose is to give the provision contained in the non obstante clause an overriding effect in the event of a conflict between it and the rest of the Section." In Aswini Kumar Ghosh & Anr.
vs Arabinda Bose & Anr.
Sastri, C.J., held that the non obstante clause cannot reasonably be read as overriding anything contained in any relevant existing law which is inconsistent with the new enactment.
These are the well settled rules of interpretation of a non obstante clause.
Normally, a non obstante clause is always expressed in a negative form, that is to say, by using the words 'notwithstanding anything contained ' or 'anything contained in a previous law shall not affect the provisions of a particular Act ' and so on.
In the instant case, the words 'in addition and without prejudice to any powers cannot be construed to be a non obstante clause at all so as to override other provisions of the Act or those of the Code of Criminal Procedure.
In these circumstances, therefore, the argument of Mr. Mukherjee that the opening words of section 14 amount to a non obstante clause cannot be accepted on a simple and plain interpretation of the opening part of section 14.
This takes us to the substantive portion of the Act on which reliance was placed both by Mr. Mukherjee and by the High Court so as to hold that the section not only conferred powers on a court for holding the proceedings in camera but also to exclude publication of any evidence which includes the right of the accused to get copies of the statements recorded during police investigation or during the inquiry or during trial.
With great respect to the learned Judges of the Calcutta High Court, we feel that the main part of the section has not been correctly interpreted by them.
The High Court seems to have taken for granted that section 14 consists of two separate parts, one, providing for a trial in camera, and the other prohibiting publication of 671 evidence.
By the expression 'publication of evidence ' is meant, according to the High Court, the power to deprive an accused of the right to get copies of the evidence recorded by the court or the statements recorded during the police investigation.
We might mention here that as section 13(3) of the Act clearly provides that no court shall take cognizance of any offence under the Act except upon a complaint made by or under the authority of the Government or any person empowered by it, it is manifest that section 251A of the Code of Criminal Procedure, as amended by the Act of 1955, will not apply because the present case was not instituted on a police report but on the basis of a complaint.
As the occurrence had taken place before the Code of 1973, therefore, the provisions of section 207 of the Code of 1973 would not apply to the present case.
The question, however, is: does the first part of section 14 empower the court to take away the valuable right of an accused of getting copies of the statements recorded by the Magistrate before the Court ? Even before the amending Act of 1955, under the criminal rules framed by various High Courts, an accused was undoubtedly entitled to have copies of the statements of witnesses recorded by the police.
This is a very valuable right because without having the statements recorded by the police in his possession, it would be difficult, if not impossible, for an accused to defend himself effectively.
It is well settled that fouler the crime the higher should be the proof.
If an accused is not supplied either the statements recorded by the police or the statement of witnesses recorded at the inquiry or the trial, how can he possibly defend himself and instruct his lawyer to cross examine the witnesses successfully and effectively so as to disprove the prosecution case.
We, therefore, think that section 14 could never have intended to take away or deprive an accused of this valuable right which has been conferred on him by the criminal law of the land.
The legislature when it passed the Act in 1923 was aware of the provisions of the Code of Criminal Procedure which had conferred the valuable right on an accused in order to defend himself.
Indeed, if any of these rights were to be taken away, we should have expected a clearer and more specific language used in section 14 to connote such an intention.
Our reading of section 14 is merely this: that the first part of the section does not prohibit or exclude giving to an accused copies of the statements of witnesses either during police investigation or in court but is mentioned merely as a motive or reason for holding the proceedings in camera.
The entire sentence starting from 'application is made by the prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the safety of the State, that all or any portion of the 672 public shall be excluded during any part of the hearing ' has to be read conjunctively as one composite sentence and there is no warrant for truncating it into two separate parts dealing with different subject matters.
The words 'publication of any evidence ' on which great stress has been laid by Mr. Mukherjee and the High Court do not indicate that the accused should not be allowed access to the evidence recorded by the court, are merely made to highlight the ground for holding the proceedings in camera because if public are allowed to be present during the hearing the evidence which is recorded in their presence it will amount to publication and it is in that sense alone that the word 'publication ' has been used in section 14.
Indeed, if the interpretation put by the High Court or by Mr. Mukherjee is accepted then the provisions of section 14 will have to be struck down as being violative of articles 14 and 21 of the Constitution of India.
This Court has now widened the horizon of the concept of liberty, as contained in article 21 so as to give the word 'procedure ' a very wide connotation.
In Maneka Gandhi vs Union of India while detailing the attributes of a fair trial as contemplated in article 21 this Court observed as follows: "The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the best of reasonableness in order to be in conformity with Article 14.
It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.
" Thus, if we hold that section 14 by using the word 'publication ' deprives an accused of getting any copies of the statement of witnesses or of the judgment under section 548 of the Code of Criminal Procedure or Criminal Rules 308 and 310 framed by the Calcutta High Court, then it would be difficult to uphold the constitutional validity of section 14 because then the procedure would become extremely unreasonable harsh and prejudicial to the accused as a result of which the case would have been tried according to a procedure which was not in consonance with the provisions of article 21 of the Constitution.
This aspect of the matter does not appear to have been considered by the High Court perhaps because Maneka Gandhi 's case (supra) came much later.
673 Mr. Mukherjee submitted that if the accused is allowed to have access to the statements recorded by the police or is given a copy of the statement recorded by the Magistrate, then it will amount to publication and will endanger the safety and security of the country because the accused or the lawyer who is defending the accused may publish the statements or disclose the same to other persons.
This apprehension, in our opinion, is not well founded.
The Act itself takes particular care of such a situation because under the provisions of section 5 of the Act any person who is found in possession or control of any document or information and makes it public would also be deemed to have committed an offence under that section and would be prosecuted and entitled to a heavy penalty.
This, therefore, prohibits even the lawyers from disclosing the evidence outside the court.
So far as the arguments and the discussion of the evidence inside the court is concerned, so long as the proceedings are in camera the danger of publication is completely excluded.
The High Court had been rather bitter on the trial Magistrate when it observed that he could compel the lawyer to submit his register.
The observations made by the High Court on the conduct of the Magistrate or on the lawyer were not at all called for because both of them were doing their duties according to law.
On the view that we have taken, the Magistrate was fully justified in not compelling the lawyer to surrender his register which undoubtedly contained a part of the privileged communication and even if the lawyer had taken down the evidence in extenso for the limited purpose of using it to defend the accused or cross examine the witnesses, he could not be prevented from doing so, nor does section 14 contemplate or envisage such a course of action.
The Magistrate also in declining to give copies of the statements concerned to the accused, took an erroneous view of section 14 of the Act which, as we have already held, did not debar the Magistrate from giving copies to the accused for the purpose of his defence.
Thus, we are satisfied that the judgment of the High Court under appeal is vitiated by an error of law and it has not correctly interpreted section 14 of the Act.
Similarly the earlier decision of the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West Bengal vs Satyen Bhowmik & Ors.
cannot be held to be good law and must be overruled.
Thus on an overall consideration of the facts and circumstances of the case and a true interpretation of the language employed in section 14 of the Act, we reach the following conclusions: 1.
That section 14 apart from providing that the proceedings of the Court may be held in camera under the circumstances men 674 tioned in the Section, does not in any way affect or override the provisions of the Criminal Procedure Code relating to enquiries or trials held thereunder.
That section 14 does not in any way deprive the valuable rights of the accused to get copies of the statement recorded by the Magistrate or statements of witnesses recorded by the police the documents obtained by the Police during the investigation as envisaged by criminal Rules 308 and 310 framed under the Code of Criminal Procedure by various High Courts nor does section 14 in any way affect the right of the accused to get copies under section 548 of the Code of Criminal Procedure.
That the opening words of section 14 do not amount to a non obstante clause but are merely in the nature of an enabling provision reserving the inherent powers of the Court to exclude the public from the proceedings if the Court is of the opinion that it is just and expedient to do so.
That there was absolutely no impropriety on the power of the Magistrate in not taking action against the defence lawyer for his refusal to show his register because the lawyer had rightly claimed privilege under section 126 of the Evidence Act as the register contained instructions given by the client which being privileged could not be disclosed to the Court.
On a parity of reasoning we find no impropriety on the conduct of the lawyer in refusing to show the statement of witnesses recorded by the Court in extenso in order to prepare himself for an effective cross examination of the witnesses.
Hence the strictures passed by the High Court on the Magistrate as also on the lawyer of the defence were, in our opinion, totally unwarranted.
That if the lawyer of the defence or staff of the Court or any one who was not excluded from the hearing of the case made any attempt to disclose the contents of the documents or the statements of the witnesses, exposed himself to a prosecution on a charge under section 5 of the Act.
For the reasons given above, we overrule the view of the High Court and the reasons given therefor that section 14 of the Act prohibits the giving of copies of the statement concerned to the accused or that the lawyer is prohibited from taking the statements in extenso and had a duty to show the same to the court.
We also overrule the view taken by the High Court regarding the interpretation of section 14 of the Act.
675 We do not agree with the High Court that the case should be tried by some other Magistrate but as lot of time has elapsed, surely the Magistrate against whose orders revision was taken to the High Court must have been transferred by this time.
Therefore, the case will now be inquired into by a Magistrate who is available in the light of the observations made by us.
The appeal is disposed of accordingly.
| IN-Abs | Section 14 of the Official Secrets Act provides that in addition to and without prejudice to any powers which a Court may possess to order the exclusion of the public from any proceedings if, in the course of proceedings before a Court against any person for an offence under this Act, the prosecution makes an application that publication of any evidence to be given would be prejudicial to the safety of the State.
The Court may make an order prohibiting the publication of evidence to be given or of any statement to be made in the course of proceedings if it is of opinion that the proceedings would be prejudicial to the safety of the State.
On the allegation that the accused had passed on some military secrets to the enemy resulting in serious detriment to the safety and security of the country the accused were charge sheeted under sections 3, 9 and 10 of the Act.
During the commitment inquiry the prosecution prayed that the accused should not be allowed to have access to or be given copies of statements of witnesses recorded by the Magistrate.
The defence lawyers were allowed to take notes of the statements of witnesses.
When the Magistrate asked the defence lawyers to produce their note books for perusal, they claimed privilege under section 126 of the Evidence Act on the ground that they contained certain instructions given to them by the accused which amounted to privileged communication and that for this reason they could not be looked into by the Court.
The Magistrate upheld the objection.
Purporting to follow one of its earlier decisions the High Court in a revision filed by the State held that the Magistrate should have taken legal action against the lawyer for flouting its order by not producing the note books on the ground of privilege.
It also held that in view of the provisions of section 14 of the Act not only could the public be excluded from the hearing but even the statements of witnesses recorded by the Court could not be made available to the accused or his counsel.
In appeal to this Court it was contended that the opening words of section 14 really amounted to a non obstante clause overriding the provisions of all Acts including the Code of Criminal Procedure and the mode of trial contemplated by section 14 would take precedence over the mode of trial provided by section 251 A 662 or section 252 of the Code and (2) the Magistrate could not only hold the proceedings in camera but could exclude publication of any evidence, including the right of accused to get notes of the statements recorded during the police investigation or during inquiry or trial.
^ HELD: The opening words of section 14 "in addition and without prejudice to any powers which a Court may possess" clearly reveal that the intention of the legislature was to give only an enabling additional power to the Court regarding holding of the proceedings in camera.
The legislature never intended that the inherent powers possessed by the Court to hold the proceedings in camera in suitable cases should in any way be affected by section 14.
The intention was merely to give an additional power to strengthen the hands of the Court for holding the proceedings in camera where the necessities of the situation demanded.
[669F H] It is well settled that a non obstante clause has the effect of overriding the provisions of a law or of the law in which the said clause is inserted.
The non obstante clause cannot reasonably be read as overriding anything contained in any relevant existing law which is inconsistent with the new enactment.
Normally a non obstante clause is always expressed in a negative form i.e. by using the words "notwithstanding anything contained" or "anything contained in previous law shall not affect the provisions of a particular Act" and so on.
[670B E] In the instant case the words "in addition and without prejudice to any powers" cannot be construed to be a non obstante clause at all so as to override other provisions of the Act or those of the Code of Criminal Procedure.
[670E] Aswini Kumar Ghosh & Anr.
vs Arabinda Bose & Anr. ; referred to.
Interpretation of Statutes, Vepa P. Sarathi, 2nd Edn.
referred to.
Section 14 not only confers powers on a Court for holding the proceedings in camera but also to exclude publication of any evidence which includes the right of the accused to get copies of the statements recorded during police investigation or during the inquiry or during trial.
[670G] The right to obtain copies of statements of witnesses recorded by the police is a very valuable right because without having those statements in his possession, it would be difficult for the accused to defend himself effectively.
If an accused is not supplied either the statements recorded by the police or the statements of witnesses recorded at the inquiry or the trial he cannot defend himself and instruct his lawyer to cross examine the witnesses successfully and effectively so as to disprove the prosecution case.
[671D E] Section 14, therefore.
could never have intended to take away or deprive an accused of this valuable right which has been conferred on him by the Criminal Law of the land.
The first part of the section does not prohibit or exclude giving to an accused person copies of the statements of witnesses either during police investigation or in court but is mentioned merely as a motive or reason for holding proceedings in camera.
The entire sentence starting from "application is made by the prosecution on the ground that the publication of any evidence to be given or of any statement to be made in the course of the 663 proceedings would be prejudicial to the safety of the State" that all or any portion of the public should be excluded during any part of the hearing has to be read conjunctively as one composite sentence and there is no warrant for truncating it into two separate parts dealing with different subject matters.
The words 'publication of any evidence ' do not indicate that the accused should not be allowed access to the evidence recorded by the Court: they are merely made to highlight the ground for holding the proceedings in camera because if public are allowed to be present during the hearing the evidence which is recorded in their presence will amount to publication and it is in that sense alone that the word publication has been used in section 14.
[671F H] If it is held that section 14, by using the word 'publication ' deprives an accused of getting any copies of the statement of witnesses or of the judgment under section 548 of the Code of Criminal Procedure or Criminal Rules of Practice framed by the High Court then it would be difficult to uphold the constitutional validity of section 14 because in that event the procedure would become extremely unreasonable, harsh and prejudicial to the accused as a result of which the case would have been tried according to a procedure which was not in consonance with the provisions of article 21 of the Constitution.
[672G H] The apprehension that if the accused was allowed access to copies of statements recorded by the police or the Magistrate it would amount to publication, is not well founded.
Under the provisions of section 5 of the Act, any person who is found in possession or control of any document or information and makes it public would also be deemed to have committed an offence under that section and would be prosecuted and liable to a heavy penalty.
This prohibits even the lawyers from disclosing the evidence outside the Court.
[673B C] In the instant case the Magistrate was fully justified in not compelling the lawyer to surrender his register which contained a part of the privileged communication and even if the lawyer had taken down the evidence in extenso for the limited purpose of using it to defend the accused or cross examine the witnesses, he could not be prevented from doing so, nor does section 14 contemplate or envisage such a course of action.
[673E F] The Superintendent and Remembrancer of Legal Affairs, West Bengal vs Satyen Bhowmik & Ors., , overruled.
Anthony Allen Fletcher vs State 78 Calcutta Weekly Notes 313 approved.
Naresh Shridhar Mirajkar & Ors.
vs State of Maharashtra
|
Civil Appeal No. 216 of 1953.
On appeal from the judgment and decree dated the 8th March, 1951 of the Mysore High Court in Regular Appeal No. 123 of 1947 48 arising out of the decree dated the 23rd June 1947 of the Court of District Judge, Bangalore in Original Suit No. 84 of 1945 46.
K. section Krishnaswami Iyengar and M. section K. Sastri for the appellants.
R. Ganapathy Iyer and K. R. Krishnaswamy for the respondent No. 1. 1956.
April 26.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This appeal arises out of a suit instituted by one Krishna Rao, since deceased, and now represented by his son and heir, the respondent herein, for a declaration of his title to certain building sites situate in Bangalore in the State of Mysore, and for consequential reliefs.
These properties belonged to one Munuswami, who died leaving him surviving his third wife Chellammal.
, three sons by his predeceased wives, Keshavananda, 454 Madhavananda and Brabmananda, and three minor daughters, Shankaramma, Srikantamma and Devamma.
On 1 9 1918 the three brothers executed a usufructuary mortgage for Rs. 16,000 in favour of one Abdul Huq over a bungalow and vacant sites in cluding the properties concerned in this litigation.
A period of three years was fixed for redemption.
There was a lease back of the properties by the mortgagee to the mortgagors on 3 9 1918, and it was also for a period of three years.
On 6 9 1918 the three brothers effected a partition under a deed, Exhibit K, which provided inter alia that they were to pay each a sum of Rs. 8 per mensem to their step mother, Chellammal, for her maintenance, and that their step sisters should be under their protection.
On 6 6 1919 Chellammal presented a plaint in forma pauperis claiming maintenance and praying that it might be charged on the properties specified in the plaint.
That was Miscellaneous Case No. 377 of 1918 19.
At the same time, she also presented as the next friend of her minor daughters, Srikantamma and Devamma, two plaints in forma pauperis, Miscellaneous Cases Nos. 378 and 379 of 1918 19 claiming maintenance and marriage expenses for them, and praying that the amounts decreed might be charged on the schedule mentioned properties.
The properties which are involved in this suit are included in item 8 in schedule A annexed to all the three plaints.
On 17 6 1920 permission to sue in forma pauperis was granted in all the three cases, and they were registered as Suits Nos. 98 to 100 of 1919 20.
We are concerned in this appeal with only one of them, the suit of Devamma which was Miscellaneous Case No. 379 of 1918 19, subsequently registered as Suit No. 100 of 1919 20.
The suits were contested, and decreed after trial on 12 12 1921.
The decree in 0.
section No. 100 of 1919 20 directed the defendants each to pay to the plaintiff a sum of Rs.6 per mensem for maintenance until her marriage and Rs. 1,500 for marriage expenses, and the payment of the amount was made a first charge on the properties.
In execution of this decree, the 455 properties with which we are now concerned, were sold on 2 8 1928 and purchased by Devamma, the decree holder.
A sale certificate was issued to her on 21 11 1930 (Exhibit J 5).
Proceedings were also taken in execution of the decrees obtained by Chellammal and Srikantamma and of one Appalaraju, and all the properties comprised in the mortgage were sold and purchased by third parties.
It must be mentioned that all the three brothers were adjudicated insolvents on their own application, Brahmananda by an order dated 23 3 1923 in Insolvency Case No. 7 of 1921 22 and Keshavananda and Madhavananda by an order dated 19 2 1926 in Insolvency Case No. 4 of 1925 26.
It also appears from the evidence of D.W. 5 that at about this time all of them left the place.
While these proceedings were going on, Abdul Huq, the mortgagee, filed on 16 8 1921, O.S. No. 27 of 192122 against Keshavananda and his two brothers for recovery of arrears of rent due by them under the lease deed, and obtained a decree on 21 10 1921 but was unable to realise anything in execution thereof, and the execution petition was finally dismissed on 22 1 1926.
He then filed a second suit against the mortgagors, O.S. No. 86 of 1931 32, for arrears of rent for a period subsequent to that covered by the decree in O.S. No. 27 of 1921 22 and for possession of the properties on the basis of the lease dated 3 9 1918, and obtained a decree on 22 3 1932 but was unable to get possession, as the properties were in the occupation of third parties under claims of right.
Abdul Huq died on 20 3 1933, and thereafter, his legal representatives filed on 30 8 1933 O.S. No. 8 of 1933 34 to enforce their rights under the mortgage deed dated 1 9 1918.
Among the defendants who were impleaded in this suit were the mortgagors Keshavananda and Madhavananda, Gururaja, son of Brabmananda who bad died, the Official Receiver and the purchasers of the mortgaged properties in execution of the maintenance decrees and the decree of Appalaraju.
Devamma was the third defendant in this action.
The plaint alleged that the mortgagors had failed to 456 pay rent as provided in the lease deed dated 3 9 1918, and had suffered collusive decrees to be passed against them in the maintenance suits and other actions, and that properties had been sold fraudulently in execution of those decrees.
On the basis of these allegations, the plaintiffs prayed for a decree for possession as against the purchasers including Devamma, and for a sum of Rs. 5,000 as damages.
In the alternative, they prayed for a decree for sale of the mort gaged properties for the amount due under the mortgage.
The suit was contested, and issues raised as to whether the sales were collusive, and whether the plaintiffs were entitled to possession and damages, and alternatively, as to what amounts were payable under the mortgage and to what reliefs the plaintiffs were entitled.
At the trial, the plaintiffs abandoned the relief as to possession and damages, and it accordingly became unnecessary to go into the question as to the collusive character of the maintenance decrees and the execution sales.
On 26 9 1935 a decree was passed determining the amount payable to the plaintiffs on redemption, providing for payment thereof on or before 26th January 1936, and in default, directing the sale of the properties.
In execution of this decree, the properties were sold in court auction sometime in 1936, and purchased by one Chapman, and possession was taken by him through court on 18 2 1937.
On 25 1 1938, Saldhana, who was the agent of Chapman, and became his executor on his death, sold the building sites now in dispute and forming part of the properties purchased in court auction, to Krishna Rao, the plaintiff in the present action.
When Krishna Rao attempted to take possession of the sites, he was obstructed by one Garudachar, claiming title under a sale deed dated 1 12 1932 executed by one Lokiah, the husband of Srikantamma, sister of Devamma, and be accordingly filed O.S. No. 92 of 1938 39 in the court of the Subordinate Judge, Bangalore for establishing his title to the suit properties, and for an injunction restraining Garudachar from interfering with his possession.
The 457 suit was decreed on 23 7 1940, and the matter having been taken in appeal to the High Court by Garudachar, the parties entered into a compromise, and a decree, Exhibit E 1, was passed in terms thereof on 18 9 1942.
Under this decree.
, the title of the plaintiff to the suit properties was recognised.
After obtaining this decree, Krishna Rao started building on the sites, when he met with fresh obstruction, this time from the appellants who set up that they were in possession under a claim of title.
Under the partition deed entered into by the mortgagors on 6 9 1918 (Exhibit K), Keshavananda was allotted two plots, Nos. 3 and 4 to the west of East Lal Bagh Road in the plan, Exhibit G. These are the very plots, which form the subject matter of the present suit.
On 30 1 1920 Keshavananda con veyed these properties to Dr. Nanjunda Rao under a deed of sale, Exhibit VI.
There was on the same date a sale by Brahmananda of plots Nos. 1 and 2 to Dr. Nanjunda Rao, but those properties are not involved in this litigation.
On the death of Dr. Nanjunda Rao, his sons partitioned the properties, and in the division the suit properties fell to the share of one Raghunatha Rao, and on his death in 1938) his estate devolved on his widow, Nagubai, who is the first appellant.
On 28 5 1939 she executed a trust deed settling a moiety of these properties on the Anjaneyaswami Temple at Karaikal, and the trustees of that institution are the other appellants in this appeal.
In view of their obstruction, Krishna Rao instituted the suit out of which the present appeal arises, for a declaration of his title to the sites in question, and for an injunction restraining the defen dants from interfering with his possession, or in the alternative, for a decree in ejectment if they were held to be in possession.
The claim made in the plaint is a simple one.
It is that the title of Chapman as purchaser in execution of the decree passed on the mortgage dated 1 9 1918 prevailed against all titles created subsequent to that date, and that accordingly Dr. Nanjunda Rao and his successors acquired under the sale deed dated 30 1 1920 no title which could be 458 set up as against that of the plaintiff.
The defendants contested the suit on the ground, firstly, that as they were not impleaded as parties in the suit on the mortgage, O.S. No. 8 of 1933 34, their right of redemption remained unaffected by the decree passed therein or the sale in execution thereof; and secondly, that the suit was barred by limitation, because the plaintiff was not in possession within 12 years of the suit, and also because the defendants had acquired title to the suit properties by adverse possession for over 20 years.
The District Judge of Bangalore, who tried the suit, held that the title of Dr. Nanjunda Rao to the suit properties under the sale deed dated 30 1 1920 was, under section 52 of the Transfer of Property Act, subject to the result of the maintenance suit of Devamma (O.S. No. 100 of 1919 20), and was in consequence extinguished by the purchase by her in execution of the charge decree in that suit.
On the ques tion of limitation, the learned Judge held that the plaintiff had established possession of the properties within 12 years of the suit, and that the defendants had failed to establish title by adverse possession.
In the result, he granted a decree in favour of the plaintiff for possession of the suit properties.
The defendants appealed to the High Court, Mysore and by their judgment dated 8 3 1951 the learned Judges agreed with the District.
Judge that by reason of section 52 of the Transfer of Property Act, the title of Dr. Nanjunda Rao based on the deed dated 30 1 1920 came to an end when Devamma purchased the proper ties in execution of her maintenance decree, and dismissed the appeal, but granted a certificate under article 133(1) of the Constitution, and that is how the appeal comes before us.
Notwithstanding the tangle of legal proceedings extending over 30 years, which forms the background of the present litigation, the single and sole question that arises for decision in this suit is whether the sale deed dated 30 1 1920 under which the appellants claim is subject to the result of the sale dated 2 8 1928 in execution of the decree in O.S. No.100 of 459 1919 20 by reason of the rule of lis pendens enacted in section 52 of the Transfer of Property Act.
If it is, it is not in dispute that it becomes avoided by the purchase by Devamma on 2 8 1928.
If it is not, it is equally indisputable that the appellants as purchasers of the equity of redemption from Keshavananda have a right to redeem the mortgage dated 1 9 1918, and not having been impleaded in O.S. No. 8 of 1933 34 are not bound either by the decree passed therein or by the sale in execution thereof.
On this question, as the plaint in O.S. No. 100 of 1919 20 praying for a charge was presented on 6 6 1919, the sale to Dr. Nanjunda Rao subsequent thereto on 30 1 1920 would prima facie fall within the mischief of section 52 of the Transfer of Property Act, and would be hit by the purchase by Devamma on 2 8 1928 in execution of the charge decree.
Sri K. section Krishnaswami Ayyangar, learned counsel for the appellants, did not press before us the contention urged by them in the courts below that when a plaint is presented in forma pauperis the lis commences only after it is admitted and registered as a suit, which was in this case on 17 6 1920, subsequent to the sale under Exhibit VI a contention directly opposed to the plain language of the Explanation to section 52.
And he also conceded and quite rightly, that when a suit is filed for maintenance and there is a prayer that it be charged on specified properties, it is a suit in which right to immovable property is directly in question, and the lis commences on the date of the plaint and not on the date of the decree, which creates the charge.
But he contends that the decision of the courts below that the sale deed dated 30 1 1920 is hit by section 52 is bad on the following three grounds: (1) The question of lis pendens was not raised in the pleadings, and is not open to the plaintiff.
(2 The suit for maintenance, O.S. No. 100 of 1919 20 and the sale in execution of the decree passed therein are all collusive, and section 52 has accordingly no application.
(3) The purchase by Devamma in execution of the decree in O.S. No. 160 of 1919 20 on 2 8 1928 is void and inoperative, as the Official Receiver in whom 60 460 the estate of Keshavananda had vested on 19 2 1926 was not a party to the sale proceedings.
The e contentions must now be considered.
We see no substance in the contention that the plea of lis pendens is not open to the plaintiff on the ground that it had not been raised in the pleadings.
It is true that neither the plaint nor the reply statement of tile plaintiff contains any averment that the sale is affected by the rule of lis pendens.
Nor is there any issue specifically directed to that question.
It is argued for the respondent that the allegations in para 4 of the plaint and in.
para 5 of the reply statement that Dr. Nanjunda Rao being a transferee subsequent to the mortgage could claim no right "inconsistent with or superstar to those of the mortgagee and the auction purchaser" are sufficiently wide to embrace this question, and reference was made to issue No. 3 which is general in character.
Even if the plaintiff meant by the above allegations to raise the plea of lis pendens, he has not expressed himself with sufficient clearness for the defendants to know his mind, and if the matter had rested there, there would be much to be said in favour of the appellant 's contention.
But it does not rest there.
The question of lis pendens was raised by the plaintiff at the very commencement of the trial on 8 3 1947 when he went into the witness box and filed in his examination in chief Exhibit J series, relating to the maintenance suits, the decrees passed therein and the proceedings in execution thereof, including the purchase by Devamma.
This evidence is relevant only with reference to the plea of lis pendens, and it is significant that no objection was raised by the defendants to its reception.
Nay, more.
On 13 3 1947 they cross examined the plaintiff on the collusive character of the proceedings in Exhibit J series, and filed documents in proof of it, The trial went on thereafter for nearly three months, the defendants adduced their evidence, and the bearing was concluded on 2 6 1947.
In the argument before the District Judge, far from objecting to the plea of lis pendens being permitted to be raised, the defendants argued 461 the question on its merits, and sought a decision on the evidence that the proceedings were collusive in character, with a view to avoid the operation of section 52 of the Transfer of Property Act.
We are satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon, and fully availed themselves of the same, and that, in the circumstances, the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice to them.
It was argued for the appellants that as no plea of lis pendens was taken in the pleadings, the evidence bearing on that question could not be properly looked into, and that no decision could be given based on Exhibit J series that the sale dated 30 1 1920 was affected by lis; and reliance was placed on the observations of Lord Dunedin in Siddik Mahomed Shah vs Mt. Saran and others(1) that "no amount of evidence can be looked into upon a plea which was never put forward".
The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they bad no opportunity of adducing evidence.
But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue,tbough no specific issue has been framed thereon, and adduce evidence relating thereto.
The rule applicable to this class of cases is that laid down in Rani Chandra Kunwar vs Chaudhri Narpat Singh: Rani Chandra Kunwar vs Rajah Makund Singh(2).
There, the defendants put forward at the time of trial a contention that the plaintiff had been given away in adoption, and was in consequence not entitled to inherit.
No such plea was taken in the written statement; nor was any issue framed thereon.
Before the Privy Council, the contention was raised on behalf of the plaintiff that in view of the pleadings, the question of adoption was not open to the defendants.
It was (1) A.I.R. 1930 P.C. 57.
(2) [1906 07] L.R. 34 I A. 27.
462 held by Lord Atkinson overruling this objection that as both the parties had gone to trial on the question of adoption, and as the plaintiff had not been taken by surprise, the plea as to adoption was open to the defendants, and indeed, the defendants succeeded on that very issue.
This objection must accordingly be overruled.
2.It is next contended that section 52 of the Transfer of Property Act does not operate to extinguish the title of Dr. Nanjunda Rao and his successors under the sale dated 30 1 1920, because the proceedings which resulted in the decree in 0.
section No. 100 of 1919 20 and the sale in execution thereof on 2 8 1928 were all collusive.
Whether they were so or not is essentially a question of fact, and both the courts below have concurred in answering it in the negative.
It is contended for the appellants that this finding is the result of an error into which the learned Judges of the High Court fell as to the incidence of burden of proof, and it should not therefore be accepted.
The argument is that Abdul Huq, his legal representatives and the plaintiff himself bad admitted again and again in judicial proceedings taken with reference to the suit properties that the decree and sale in 0.
section No. 100 of 1919 20 were collusive, and that, in consequence, even if the initial onus of establishing this fact was on the defendants, that was shifted on to the plaintiff on proof of the abovementioned admissions, and as there was no evidence worth the name on his side to explain them, he must fail.
We must now examine the several statements which are relied on by the appellants as admissions, ascertain what their true import is, and determine what weight should be attached to them.
On 27 6 1932 Abdul Huq moved the insolvency court for a direction to the Official Receiver to take possession of the mortgaged properties, which were stated to be in the occupation of one Lokiah.
This Lokiah, it has been already mentioned, is the husband of Srikantamma, the sister of Devamma, he having married her after the maintenance suits had been decreed and sometime 463 prior to the court auction in 1928.
In his petition, Abdul Huq alleged that Lokiah conducted proceedings in execution of the decree in O.S. No. 100 of 1919 20 in collusion with the insolvents and without notice to the Official Receiver, and purchased the properties in court auction on 2 8 1928 on behalf of the decree holder.
The decree itself was not attacked as collusive, and as for the sale dated 2 8 1928 it was distinctly alleged in para 3 of the petition that the purchase by Lokiah was for the benefit of Devamma.
The substance of the complaint of Abdul Huq was that the execution proceedings and the sales were fraudulent, and intended to defeat his rights to the rents and profits from the properties.
In other words, the ground of attack on the sale dated 2 8 1928 was not that it was unreal and collusive, but that it was real but fraudulent.
Now, there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent.
"Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose".
(Wharton 's Law Lexicon, 14th Edition, page 212).
In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties.
But when a proceeding is alleged to be fraudulent, what is meant is that the claim made therein is untrue, but that the claimant has managed to obtain the verdict of the court in his favour and against his opponent by practising fraud on the court.
Such a proceeding is started with a view to injure the opponent, and there can be no question of its having been initiated as the result of an understanding between the parties.
While in collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest.
The allegations in the petition of Abdul Huq set out above show that the suit itself was not attacked as collusive, but that the execution 464 proceedings were impeached as fraudulent.
It should be mentioned that on this petition the District Judge passed an order on 30 6 1932 directing the Official Receiver to take the necessary steps and report.
But nothing came out of this.
We next come to a petition filed after the death of Abdul Huq by his legal representatives asking for permission of the insolvency court to institute a suit on the mortgage dated 1 9 1918 impleading the Official Receiver as party.
The allegations made in the petition are on the same lines as those made by Abdul Huq in his petition dated 27 6 1932, and they do not carry the matter any further.
This petition was ordered, and on 30 8 1933 O.S. No. 3 of 1933 34 was instituted.
In this suit, as already stated, the plaintiffs sought to recover possession of the properties on foot of the usufructuary mortgage, and ancillary to that relief, they claimed damages from the defendants who were in possession, on the ground that the execution proceedings under which they got into possession were collusive and fraudulent.
Thus far, the allegations are a mere repetition of what bad been stated in the prior proceedings.
But the plaint in the suit went further, and stated for the first time that the proceedings in O.S. No. 100 of 1919 20 and the decree passed therein were collusive.
But these allegations were made only as the basis of the claim for damages for non payment of rent under the lease deed dated 3 9 1918 and non surrender of possession of the properties, and their true import is that the suit was fraudulent and intended to deprive the mortgagee of the rents and profits to which be was entitled.
At the trial, as already stated, the relief for possession and damages was given up, the question as to the collusive character of the sale was abandoned, and a decree for sale was passed.
These proceedings are open to the same comment as was made on the petition of Abdul Huq, and do not assist the defendants.
It remains to deal with a proceeding to which the present plaintiff was a party.
It will be remembered that after his purchase be was obstructed in his 465 possession by one Garudachar, and he had to file O.S. No. 92 of 1938 39 to establish his title against him.
In his plaint in that suit he stated, obviously adopting what Abdul Huq and his legal representatives had previously alleged, that the decree in O.S. No. 100 of 1919 20 and the execution sale on 2 8 1928 were collusive.
On behalf of the appellants, a contention is urged that as the plaintiff obtained a decree in O.S. No. 92 of 1938 39 on the strength of the above allegations, it is not open to him in these proceedings to go back on them, and plead the contrary.
That is a contention which will be presently considered.
But apart from that, the statements of the plaintiff in his plaint in O.S. No. 92 of 1938 39 considered purely as admissions, do not carry the matter beyond the point to which the statements made by Abdul Huq and his legal representatives in the prior proceedings take us.
The question then is, what is the effect to be given to these statements? An admission is not conclusive as to the truth of the matters stated therein.
It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made.
It can be shown to be erroneous or untrue, SO long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel.
In the present case, there is no question of estoppel, as the title of Dr. Nanjunda Rao arose under a purchase which was long prior to the admissions made in 1932 and in the subsequent years.
It is argued for the appellants that these admissions at the least shifted the burden on to the plaintiff of proving that the proceedings were not collusive, and that as he gave no evidence worth the name that these statements were made under a mistake or for a purpose and were, in fact, not true, full effect must be given to them.
Reliance was placed on the well known observations of Baron Park in Slatterie vs Pooley(1) that "what a party himself admits to be true may reasonably be presumed to be so", and on the decision in Rani Chandra Kunwar vs Chaudhri (1) ; , 669; ; , 581.
466 Narpat Singh: Rani Chandra Kunwar vs Rajah Makund Singh(1), where this statement of the law was adopted.
No exception can be taken to this proposition.
But before it can be invoked, it must be shown that there is a clear and unambiguous statement by the opponent, such as will be conclusive unless explained.
It has been already pointed out that the tenor of the statements made by Abdul Huq, his legal representatives and the plaintiff was to suggest that the proceedings in 0.
section No. 100 of 1919 20 were fraudulent and not collusive in character.
Those statements would not, in our opinion, be sufficient, without more, to sustain a finding that the proceedings were collusive.
But assuming that they are sufficient to shift the burden on to the plaintiff of proving that the decree and sale in 0.
section No. 100 of 1919 20 were not collusive, the evidence adduced by him is, in our opinion, ample to discharge that burden.
He has filed Exhibit J series, which give a complete picture of the proceedings in 0.
section No. 100 of 1919 20.
Under the partition deed, Exhibit K,it will be remembered, the brothers agreed to pay a monthly maintenance of Rs. 8 each to their step mother, Chellammal.
This, however, was not charged on the family properties.
With reference to their step sisters, Srikantamma and Devamma, the provision was simply that the brothers should protect them.
It will also be remembered that under the partition Keshavananda and Brahmananda each got two vacant sites in full quit of their shares.
It appears from Exhibit J 10, paragraph 2, that the two brothers were contemplating the disposal of their plots, in which case the claim of Chellammal and the step sisters to maintenance would be defeated.
It became accordingly necessary for them to safeguard their rights, and for that purpose, to file suits for maintenance and claim a charge therefor on the family properties.
That the apprehensions of Chellammal were well founded is established by the fact that the two brothers entered into agreements for the sale of their vacant sites to Dr. Nanjunda Rao on 20 10 1919, and sale deeds were actually executed (1) [1906 07] L.R. 34 I.A. 27.
467 pursuant thereto on 30 1 1920.
There cannot be any doubt, therefore, that the suits were bona fide.
This conclusion is further reinforced when regard is had to the conduct of the litigation.
Two of the brothers contested the suit.
It underwent several adjournments, and was heard finally in December 1921.
At the trial, a number of witnesses were examined on either side, and the judgment, Exhibit J 6, shows that the contest centred round the quantum of maintenance payable to the plaintiffs, and it was keen, even bitter.
When at last the plaintiffs obtained decrees, they had no easy time of it in realising the fruits thereof.
The troubles of a creditor, it has been said, begin after he obtains a decree, and so it was with the plaintiffs.
Exhibit J 4 shows that Devamma had to file several applications for execution, before she could finally bring the properties to sale and in view of the heavy encumbrances to which they were subject, she had herself to purchase them on 2 8 1928.
The sale was confirmed on 21 11 1930, and the sale certificate, Exhibit J 5, was issued, and she got into possession.
To sum up, the claim on which the suit was laid was true and honest; it was hotly contested by the defendants, and prolonged proceedings in execution had to be taken for realising the fruits of the decree.
These are facts which are eloquent to show that the suit in O.S. No. 100 of 1919 20 and the sale on 2 8 1928 were not collusive.
The plaintiff also went into the box, and stated in cross examination that though when he filed 0. section No. 92 of 1938 39 he had thought that the proceedings were collusive, he now thought otherwise.
Counsel for the appellants strongly criticised this evidence, and contended that in the absence of facts as to why he chanced his mind, the statement of the plaintiff that he now thought otherwise was worthless.
But then, the plaintiff as also Abdul Huq and his legal representatives were utter strangers, and their statement about the collusive character of the proceedings, in O.S. No. 100 of 1919 20 could only be a matter of inference.
If on the materials then before him the plaintiff could have thought that those proceedings 468 were collusive, there is no reason why on the materials now before him he could not think otherwise.
It was open to the defendants to have further crossexamined him about the materials which led him to change his opinion, but they chose not to pursue the matter.
Both the courts below have, on a careful consideration of the record, come to the conclusion that the proceedings in O.S. No. 100 of 1919 20 were not collusive, and we do not see sufficient grounds for disturbing that finding, which must be affirmed.
We shall now deal with the contention of the appellants that in view of what happened in O.S. No. 92 of 1938 39 it is not open to the plaintiff to plead in these proceedings that the decree and sale in O.S. No. 100 of 1919 20 are not collusive.
It is argued that in his plaint in O.S. No. 92 of 1938 39 the plaintiff alleged that the proceedings in O.S, No. 100 of 1919 20 were collusive, adduced evidence in proof of these allegations, persuaded the court to give a finding to that effect, and obtained a decree on the basis of that finding, and he cannot therefore be permitted in this litigation to change his front and plead that the pro ceedings in O.S. No. 100 of 1919 20 are not collusive and succeed on it.
This bar arises, it is argued, on the principle that a person cannot both approbate and reprobate.
Now, the facts relating to the litigation in O.S. No. 92 of 1938 39 are that Garudachar set up title to the suit properties under a purchase dated 1 12 1932 from Lokiah, and it was the truth and validity of this sale that was really in question in that suit.
Lokiah purchased these and other properties in execution of the money decree of one Appalaraju, and therefore his title cannot prevail as against that of Devamma under the purchase under the charge decree on 2 8 1928.
In his plaint in O.S. No. 92 of 1938 39, the plaintiff attacked the purchases of both Devamma and of Lokiah as fraudulent and collusive.
But, in fact, as Garudachar did not claim any title under Devamma, there was no need to attack the purchase by her on 2 8 1928.
The suit was contested, 469 and in the judgment that was given, Exhibit E, the title of the plaintiff was upheld and a decree granted in his favour.
There was an appeal against the decree by Garudachar, R.A. No. 101 of 1940 41, and that was disposed of on a compromise by the parties, under which the title of the plaintiff to the suit properties was affirmed and Garudachar was granted some other vacant sites in satisfaction of his claim.
It is difficult to say on these facts that the allegation of the plaintiff that the proceedings in O.S. No. 100 of 1919 20 were collusive was either the foundation of his claim, or that he obtained any benefit under the decree on that basis.
Counsel for the appellants sought to rely on the findings in Exhibit E, as establishing that the proceedings in O.S. No. 100 of 191920 were collusive.
But as that judgment was not inter parties, the findings therein are inadmissible in this litigation, and, moreover, there having been an appeal against that judgment, the findings in Exhibit E lost their finality, and when the parties settled their claim by granting to Garudachar another property in substitution, they ceased to possess any force even inter parties.
But it is argued by Sri Krishnaswami Ayyangar that as the proceedings in 0.
section No. 92 of 1938 39 are relied on as barring the plea that the decree and sale in 0.
section No. 100 of 1919 20 are not collusive, not on the ground of resjudicata or estoppel but on the principle that a person cannot both approbate and reprobate, it is immaterial that the present appellants were not parties thereto, and the decision in Verschures Creameries Ltd. vs Hull and Netherlands Steamship Company Ltd.(1), and in particular, the observations of Scrutton, L.J., at page 611 were quoted in support of this position.
There, the facts were that an agent delivered goods to the customer contrary to the instructions of the principal, who thereafter filed a suit against the purchaser for price of goods and obtained a decree.
Not having obtained satisfaction, the principal next filed a suit against the agent for damages on the ground of negligence and (1) (1921] 2 K B. 608.
470 breach of duty.
It was held that such an action was barred.
The ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief.
The principle was thus stated by Bankes, L. J.: "Having elected to treat the delivery to him as an authorised delivery they cannot treat the same act as a misdelivery.
To do so would be to approbate and reprobate the same act".
The observations of Scrutton, L. J. on which the appellants rely are as follows: "A plaintiff is not permitted to 'approbate and reprobate '.
The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election namely, that no party can accept and reject the same instrument: Ker vs Wauchope(1): Douglas Menzies vs Umphelby(2).
The doctrine of election is not however confined to instruments.
A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage.
That is to approbate and reprobate the transaction".
It is clear from the above observations that the maxim that a person cannot 'approbate and reprobate ' is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto.
The law is thus stated in Halsbury 's Laws of England, Volume XIII, page 454, para 512: "On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais, and may conveniently be referred to here.
Thus a party cannot, after taking advantage under an order (e.g. payment of costs), (1) , 21.
(2) , 232, 471 be heard to say that it is invalid and ask to set it aside, or to set up to the prejudice of persons who have relied upon it a case inconsistent with that upon which it was founded; nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it".
The plaintiff obtained no advantage against the appellants by pleading in 0.
section No. 92 of 1938 39 that the proceedings in 0.
section No. 100 of 1919 20 were collusive; nor did they acting on those pleadings acquire rights to the suit properties.
Nor is there any question of election, because the only relief which the plaintiff claimed in 0.
section No. 92 of 1938 39 and which he now claims is that he is entitled to the suit properties.
Only, the ground on which that relief is claimed is different and, it is true, inconsistent.
But the principle of election does not forbid it, and there being no question of estoppel, the plea that the proceedings in 0.
section No. 100 of 1919 20 are not collusive is open to the plaintiff.
3.It was finally contended that the purchase by Devamma in execution of the decree in 0.
section No. 100 of 1919 20 was void and conferred no title on her, because the Official Receiver in whom the estate of Keshavananda, the mortgagor, had vested on his adjudication as insolvent on 19 2 1926 had not been made a party to those proceedings, and that, in conse quence, the title of Dr. Nanjunda Rao and his successors under the sale deed dated 30 1 1920 continued to subsist, notwithstanding the court auction sale on 2 8 1928.
The obvious answer to this contention is that the properties which were sold on 2 8 1928 did not vest in the Official Receiver on the making of the order of adjudication on 19 2 1926.
, as they had been transferred by the mortgagor, long prior to the presentation of Insolvency Case No. 4 of 1925 26 under the very sale deed dated 30 1 1920, which forms the root of the appellants ' title.
That sale was no doubt pendente lite, but the effect of section 52 is not to wipe it out altogether but to subordinate it to the rights based.
on the decree in the suit.
As between the 472 parties to the transaction, however, it was perfectly valid, and operated to vest the title of the transferor in the transferee.
Under section 28(2) of the Insolvency Act, what vests in the Official Receiver is only the property of the insolvent, and as the suit properties had ceased to be his properties by reason of the sale deed dated 30 1 1920, they did not vest in the Official Receiver, and the sale held on 2 8 1928 is not liable to be attacked on the ground that he bad not been impleaded as a party thereto.
But it is argued for the appellants that having regard to the words of section 52 that pendente lite "the property cannot be transferred", such a transfer must, when it falls within the mischief of that section, be deemed to be non est, that in consequence Keshavananda must, for purposes of lis pendens, be regarded as the owner of the properties, notwithstanding that he bad transferred them, and that the Official Receiver who succeeded to his rights had a right to be impleaded in the action.
This contention gives no effect to the words "so as to affect the rights of any other party thereto under any decree or order which may be made therein", which make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order.
It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto.
It will be inconsistent to bold that the sale deed dated 30 1 1920 is effective to convey the title to the properties to Dr. Nanjunda Rao, and that, at the same time, it was Keshava nanda who must be deemed to possess that title.
We are, therefore, unable to accede to the contention of the appellants that a transferor pendente lite must, for purposes of section 52, be treated as still retaining title to the properties.
But assuming that Keshavananda had still some interest in the properties left even after he had sold them on 30 1 1920 and that it would vest in the Official Receiver on the making of the order of adjudication on 19 2 1926, what is its effect on the title of Devamma as purchaser in court auction in execu 473 tion of her charge decree? It has been held by the Privy Council in Kala Chand Banerjee vs Jagannath Marwari(1) that when in execution of a mortgage decree properties are sold without notice to the Official Receiver in whom the equity of redemption had vested prior to the sale, such sale would not be binding on him.
But here, it is not the Official Receiver, who impeaches the sale as bad.
In fact, he was a party to O.S. No. 8 of 1933 34 and would be bound by the sale in execution of the decree therein, under which the plaintiff claims.
It is the purchaser pendente lite in the charge suit, O.S. No. 100 of 1919 20, that now attacks the sale held on 2 8 1928 as null and void.
Is he entitled to do so? Counsel for the respondent has invited our attention to the decision in Wood vs Surr(2).
There, the mortgagor filed a suit for redemption in 1838.
A preliminary decree for accounts was passed in 1843 and pursuant thereto, a final decree was made in 1848 declaring the amount payable, and time for payment was given till 1849.
The amount not having been paid, the mortgage became foreclosed.
During the pendency of these proceedings, the mortgagor was adjudicated bankrupt in 1844, but the Official Assignee, in whom the equity of redemption had vested, was not impleaded in the mortgage action.
In 1841, the mortgagor bad created a further mortgage in favour of one Mrs. Cuppage, and she was not made a party in the redemption suit.
After the foreclosure of the mortgage in 1849, one Mr. Wood claiming in the rights of Mrs. Cuppage instituted an action to redeem the mortgage.
The question was whether being transferee pendente lite he was bound by the foreclosure proceedings.
The contention on his behalf was that as the official assignee was not a party to those proceedings, there had been no proper foreclosure, and that the whole matter was at large.
In negativing this contention, Sir John Romilly, M. R. observed: "There can be no question but that the suit (Davis 's suit) was defective by reason of no notice having been taken of the insolvency.
The proceeding (1) [1927] L, R. 54 T.A. 190, (2) ; ; , 474 having gone on exactly as if no insolvency had taken place, the subsequent proceedings would, in my opinion, be wholly inoperative against the assigneein insolvency and if he thought fit to contest the validity of the decree of foreclosure against Davis, it could not be held to be binding on such assignee.
But that does not conclude the question, which really is, whether the plaintiff who, but for this, would in truth have been bound, can take advantage of this objection.
I am of opinion that although the suit was undoubtedly defective, by reason of this insolvency, the assignee alone could take advantage of this defect.
It is obvious that Davis himself could not take advantage of it, or if from any subsequent cause, or any subsequent circumstance, the insolvency or bankruptcy had been superseded or annulled, he could not have said that the foreclosure was not absolute against him".
These observations directly cover the point now in controversy, and they embody a principle adopted in the law of this country as to the effect of a sale in execution of a decree passed in a defectively constituted mortgage suit.
Such a sale, it has been held, does not affect the rights of redemption of persons interested in the equity of redemption, who have not been impleaded as parties to the action as they should have been under Order 34, Rule 1, Civil Procedure Code but that it is valid and effective as against parties to the action.
This rule has been affirmed even when the person in whom the equity of redemption had vested is the Official Receiver, and he had not been made a party to the proceedings resulting in sale.
Vide Inamullah Khan vs Shambhu Dayal(1) and Subbaiah vs Ramasami Goundan(2).
We should accordingly hold that even assuming that the equity of redemption in the suit properties vested in the Official Receiver on the adjudication of Keshavananda, his non joinder in the execution proceedings did not render the purchase by Devamma a nullity, and that under the sale she acquired a good and impeccable title, subject to any right which the Official Receiver (1) A.I.R. 1931 All.
(2) I.L.R. 475 might elect to exercise, and it is not open to attack by the transferee pendente lite under the deed dated 30 1 1920 and his representatives, the present appellants.
In the result, we agree with the courts below that the title of the appellants has been extinguished under section 52 of the Transfer of Property Act, by the court sale dated 2 8 1928.
It must be mentioned that the appellants also pleaded that the suit was barred by limitation under article 142 on the ground that the plaintiff and his predecessors had not been in possession within 12 years of the suit, and that further the defendant had acquired title by adverse possession commencing from 1920.
The learned District Judge, found on both the issues in favour of the plaintiff, and though the correctness of these findings was attacked in the grounds of appeal to the High Court, there is no discussion of the question in the judgment of the learned Judges, and we must take it that the point had been abandoned by the appellants.
We accordingly declined to hear them on this question.
We may add that the question of limitation cannot really arise on the facts of this case, inasmuch as the possession which is claimed to be adverse is stated to have commenced in 1920, and it is well settled that such possession cannot affect the right of a prior mortgagee to bring the properties to sale, and adverse possession against the purchaser under that sale cannot commence prior to the date of that sale, and the present suit was instituted on 8 1 1945 within 12 years of the sale, which took place in 1936.
The appeal fails, and is dismissed with costs.
| IN-Abs | The appellants as defendants in a suit for declaration of title to certain building sites sought to resist the respondents ' claim, arising by purchase from a purchaser in a sale in execution of a mortgage decree passed on a mortgage deed of 1918, by a counter claim based on a purchase of the same lands made in 1920 by their pre decessor in interest from one of the mortgagors against whom was then pending a suit for maintenance and for declaration of a charge on the land in suit.
That suit was decreed in 1921 and the lands were purchased by the decreeholder in execution of her decree in 1928.
The mortgagor had been adjudged an insolvent in 1926 and the Official Receiver in whom his estate vested was not made a party to the execution proceeding.
Suit to enforce the mortgage deed of 1918 was brought in 1933 impleading the Official Receiver and the purchaser in execution of the maintenance and charge decree but not the appellants.
In execution of the decree passed in this suit, the lands in suit were sold to a third party in 1936 and in 1938 the respondent 's father purchased them.
The respondent did not specifically raise the question of lis pendens in his pleading nor was an issue framed on the point, but he raised the question at the very commencement of the trial in his deposition, proved relevant documents which were admitted into evidence without any objection from the appellants who filed their own documents, cross examined the respondent and invited the court to hold that the suit for maintenance and a charge and the connected proceedings evidenced by these documents were collusive in order to avoid the operation of section 52 of the Transfer of Property Act.
The District Judge held that the appellants ' title acquired by the purchase of 1920 was extinguished by the sale held in execution of the charge decree by the operation of section 52 of the Transfer of Property 59 452 Act and decreed the suit and his decision was affirmed by the High Court in appeal.
Hold, that the decisions of the courts below were correct and must be affirmed.
That in the facts and circumstances of the case the omission of the respondent to specifically raise the question of lis pendens in his pleading did not take the appellants by surprise and was a mere irregularity which resulted in no prejudice to them.
Rani Chandra Kunwar vs Chaudhri Narpat Singh ([1906] L.R. 34 I.A. 27), applied.
Siddik Mahomed Shah vs Mt. Saran and Others (A.I.R. , explained and held inapplicable.
That section 52 of the Transfer of Property Act did not prevent the vesting of title in a transferee in a sale pendente lite but only made it subject to the rights of other parties as decided in the suit and subsequent insolvency of the transferor could not, therefore, vest any title in the Official Receiver or make the title of the execution purchaser liable to attack on the ground that the Receiver was not made a party to the execution proceeding.
That even assuming that title could not wholly pass by a transfer pendento lite and some interest would still subsist in the transferor to vest in the Receiver, the lands in suit having been sold in execution of a charge decree, the sale would at the most be not binding on him and he could, if he so chose, move to set it aside; but the transferee pendente lite or his representative could not be allowed to make his non joinder a ground for attacking the sale.
Wood vs Surr ([1854) ; , applied.
Inamullah Khan vs Shambhu Dayal (A.I.R. 1931 All. 159), Subbaiah vs Ramasami Goundan (I.L.R. and Kala Chand Banerjee vs Jagannath Marwari ([1927] L.P. 54 I.A. 190), referred to.
That no question of limitation or adverse possession really arose in the case.
It was well settled that a claim of adverse possession could not affect the right of a prior mortgagee to bring the properties to sale and adverse possession against the purchaser under that sale could not commence prior to the date of sale.
Held further, that there was a fundamental distinction bet ween a collusive and a fraudulent proceeding in that while the former was the result of an understanding between the parties, both the claim and the contest being fictitious, and the purpose to confound third parties, in the latter the contest was real, though the claim was untrue, and the purpose to injure the defendant by a verdict of the court obtained by practising fraud in it; that an admission was a mere piece of evidence and could not be conclusive except by way of estoppel when it had been acted 453 upon to his detriment by the person to whom it was made, the weight to be attached to it depending on the circumstances of each case, and the onus of proving that it was not true could not shift to the maker of it unless it was so clear and unambiguous as to be conclusive in absence of any explanation from him.
Slatterie vs Pooley, ([1840] ; and Rani Chandra Kunwari vs Choudhri Narpat Singh ([1906] L.R. 34 I.A. 27), referred to.
That the maxim that 'a person could not approbate and repro bate ' had its origin in the doctrine of election and was confined to reliefs arising out of one and the same transaction and against the parties to it.
Where, however, there was no question of election, as the relief claimed was one and the same, although based on different and inconsistent grounds, the maxim had no application.
Verschures Creameries Ltd. vs Hull and Netherlands Steamship Company Ltd. ([1921] 2 K.B. 608), considered and distinguished.
|
Civil Appeal No. 2063 of 1970.
From the Judgment and Order dated 26 2 1970 of Punjab and Haryana High Court in L.P.A. No. 283/69.
O. P. Sharma and M. section Dhillon for the Appellant.
section K. Mehra, P. N. Puri, E. M. section Anam and M. K. Dua for Respondents Nos. 1 3.
K. J. John for Respondent No. 4.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
This appeal by the State of Punjab and two others, namely, the Collector, Rupar District and the Sub Divisional Officer (Civil cum Land Acquisition Collector, Rupar, is on a certificate granted by a Division Bench of the High Court of Punjab and Haryana in respect of its judgment in a Letters Patent Appeal holding the acquisition of the land in question to be bad in law on the grounds that the Food Corporation of India for which the Land in question was sought to be acquired was not a "Company" within the meaning of section 3(e) of the Land Acquisition Act that the land had also not been acquired for a public purpose and that the State could acquire the land under that Act only for a public purpose or for the purpose of a Company.
The material facts of the case may be stated thus: Nine biswas of the disputed land situated within the municipal area of Morinda in the District of Rupar was owned by respondent No. 1, Raja Ram, Respondents No. 2 and 3 are Raja Ram 's sons.
The State of Punjab issued a notification dated December 17, 1968 under section 4 read with section 17 of the Land Acquisition Act of 1894 (hereinafter called "the L.A. Act").
The notification related to 15 different plots of land including the land of the present acquisition proceedings.
The material portion of the notification is as follows: "Whereas it appears to the President of India that the land is likely to be needed by Government, at public expense, for a public purpose, namely, for the construction of godowns for storage of food grains at Morinda, it is hereby notified that the land in the locality described below is likely to be required for the above purpose. . . . . " "Further in exercise of the powers conferred by the said Act, the President of India is pleased to direct that the action under Section 17 shall be taken in this case on the 714 grounds of urgency and provisions of Section 5 (A) shall not apply in regard to this acquisition.
" On the same day another notification under Sections 6 and 7 read with Section 17(2)(c) of the L.A. Act was issued.
The material portion of this notification runs thus: "Whereas the President of India is satisfied that the land specified below is needed by Government at the public expense for a public purpose, namely, for the construction of godowns for storage of food grains at Morinda, it is hereby declared that the land described in the specification below is required for the aforesaid purpose.
This declaration is made under the provisions of Section 6 of the Land Acquisition Act, 1894. . . " 3.
Against the aforesaid notification a writ petition was filed by respondents No. 1 to 3.
The writ petition was heard by a single Judge of the High Court and was dismissed.
The learned Single Judge, inter alia, found that the provisions of Part VII of the L.A. Act relating to the acquisition of land for Companies were not applicable to the present case as the Food Corporation of India (hereinafter called the Corporation) was a department of Government and not a Company within the meaning of Section 3(e) of the L.A. Act although, undoubtedly, according to the learned Judge, there was no manner of doubt about the fact that the land in dispute was in fact being acquired for the Corporation and that the purpose for which the land had been acquired was a public purpose.
Against the aforesaid Order of the learned Single Judge a Letters Patent Appeal, being L.P.A. No. 1283 of 1969, was filed by respondents No. 1 to 3 before the Division Bench, that allowed the appeal and quashed the land acquisition proceedings as stated earlier.
With respect we find it difficult to agree with the learned division bench when it held that the Corporation was not a "Company" within the meaning of section 3(e) of the L.A. Act which runs thus: "3.
In this Act, unless there is something repugnant in the subject or context (e) the expression "Company" means a Company registered under the Indian Companies Act, 1882 or under the (English) Companies Act, 1862 to 1890 or incorporated by an Act of Parliament of the United Kingdom or by an Indian law or by Royal Charter or Letters Patent and includes a 715 society registered under the societies Registration Act, 1860, and a registered society within the meaning of the or any other law relating to co operative societies for the time being in force in any State.
" The section mentions in unmistakable terms that a company incorporated by an Indian law would be a 'Company ' for the purposes of the L.A. Act.
Now the corporation was admittedly created by section 3 of the Food Corporation Act, 1964 (hereinafter called the F.C. Act).
That section states : "3.
(1) With effect from such date as the Central Government may, by notification in the Official Gazette, specify in this behalf, the Central Government shall establish for the purposes of this Act a Corporation known as the Food Corporation of India.
(2) The Corporation shall be a body corporate with the name, aforesaid, having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and to contract, and may, by that name, sue and be sued.
" Sub section (2) which we need hardly say, is an Indian law, clothes the Corporation with the attributes of a company.
It cannot, therefore, be contended with any plausibility that the Corporation is not a 'Company ' within the meaning of the definition of that term appearing in clause (e) of section 3 of the L.A. Act.
Learned counsel for the appellant then urged that the Corporation is a Government department.
We are unable to accept this submission also.
A Government department has to be an organisation which is not only completely controlled and financed by the Government but has also no identity of its own.
The money earned by such a department goes to the exchequer of the Government and losses incurred by the department are losses of the Government.
The Corporation, on the other hand, is an autonomous body capable of acquiring, holding and disposing of property and having the power to contract.
It may also sue or be sued by its own name and the Government does not figure in any litigation to which it is a party.
It is true that its original share capital is provided by the Central Government (section 5 of the F.C. Act) and that 11 out of the 12 members of its Board of Directors are appointed by that Government (section 7 of the F.C. Act) but then these factors may at the most lead to the conclusion (about which we express no final opinion) that the Corporation is an agency or instrumentality of the Central Government.
In this connection we may cite 716 with advantage the following observations of this Court in Ramana Dayaram Shetty vs The International Authority of India and Ors. "A Corporation may be created in one of two ways.
It may be either established by statute or incorporated under a law such as the or the .
Where a corporation is wholly controlled by government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government.
But ordinarily where a corporation is established by statute, it is autonomous in its working subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters.
So also a Corporation incorporated under law is managed by a Board of Directors or committee of management in accordance with the provisions of the statute under which it is incorporated.
When does such a corporation become an instrumentality or agency of Government ? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition, there should be a certain amount of direct control exercised by Government and, if so what should be the nature of such control? Should the functions which the Corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial ? Now, one thing is clear that if the entire share capital of the Corporation is held by Government it would be a long way towards indicating that the Corporation is an instrumentality or agency of Government.
But, as is quite often the case the Corporation established by statute may have no share or shareholders in which case it would be a relevant factor to consider whether the administration is in the hands of a Board of Directors appointed by Government though this consideration also may not be determinative, because even where the directors are appointed by Government, they may be completely free from governmental control in the discharge of their functions.
" Even the conclusion, however, that the Corporation is an agency or instrumentality of the Central Government does not lead to the further inference that the Corporation is a Government department.
The reason is that the F.C. Act has given the Corporation an individuality apart 717 from that of the Government.
In any case the Corporation cannot be divested of its character as a 'Company ' within the meaning of the definition in clause (e) of section 3 of the L.A. Act, for it completely fulfils the requirements of that clause, as held by us above.
The Corporation being a 'Company ', compliance with the provisions of Chapter VII of the L.A. Act had to be made in order to lawfully acquire any land for its purpose.
It is not denied that such compliance is completely lacking in the present case.
As a result of the foregoing discussion it must be held that the land in dispute has not been acquired in accordance with law, although our reasons in that behalf are different from those forming the basis of impugned judgment.
This appeal is thus found to be without merit and is dismissed but with no order as to costs.
S.R. Appeal dismissed.
| IN-Abs | Dismissing the State appeal on certificate, the Court ^ HELD: (1) The acquisition of land for the Food Corporation of India is not in accordance with law for the reason that compliance with the provisions of Chapter VII of the Land Acquisition Act had not been made.
[717 A B] (2) The Food Corporation of India is a Company within the meaning of the term appearing in clause (e) of section 3 of the Land Acquisition Act, 1894.
Section 3 (e) mentions in unmistakable terms that a company incorporated by an Indian law would be a "Company" for the purposes of the Land Acquisition Act.
The Corporation was admittedly created by section 3 of the Food Corporation Act, 1964.
Sub section (2) of section 3 of the Food Corporation Act, 1964 is an Indian Law and clothes the Corporation with the attributes of a company.
[715A E] (3) A Government department has to be an organisation which is not only completely controlled and financed by the Government but has also no identity of its own.
The money earned by such a department goes to the exchequer of the Government and losses incurred by the department are losses of the Government.
The Corporation, on the other hand, is an autonomous body capable of acquiring, holding and disposing of property and having the power to contract.
It may also sue or be sued by its own name and the Government does not figure in any litigation to which it is a party.
It is true that its original share capital is provided by the Central Government and that 11 out of the 12 members of its Board of Directors are appointed by the Central Government but then these factors may at the most lead to the conclusion that the Corporation is an agency or instrumentality of the Central Government.
[715E H] Even the conclusion, however, that the Corporation is an agency or instrumentality of the Central Government does not lead to the further inference that the Corporation is a Government department.
The reason is that the Food Corporation Act has given the Corporation an individuality apart from that of the Government.
In any case the Corporation cannot be divested of its character as a "Company" within the meaning of the definition in clause (e) of section 3 of the Land Acquisition Act, for it completely fulfils the requirements of that clause.
[716G H, 717A B] Ramana Dayaram Shetty vs The International Authority of India and Ors., , applied.
|
tition Nos. 116, 186 189/77, 3935 63/78 3922 24/78, 1221/77, 3821 27/78, 3828 31/78, 44 50/77, 4237/78,4400/78, 92 97/77.
(Under Article 32 of the Constitution) F. section Nariman, R. N. Banerjee, J. B. Dadachanji and K. J. John, for the Petitioners in W.P. No. 116/77.
R. M. Poddar for Respondent No. 1 in W.P. No. 116/77.
678 Lal Narain Sinha Attorney Genl., P. K. Pillai and T. P. Soundara Rajan, for Respondents 2 3 in W.P. No. 116/77.
N. M. Abdul Khader, M. A. Feroze and K. M. K. Nair, for the Respondent.
R. N. Banerjee, J. B. Dadachanji and K. J. John, for the Petitioners in W.P. Nos. 186 189/77.
Lal Narain Sinha Att Genl.
and R. M. Poddar, for Respondent No. 1 in W.P. Nos.
186 189/77.
P.K. Pillai and T. P. Soundra Rajan, for Respondents 2 3 in W.P. Nos.
186 1 89/77.
N. M. Abdul Khader, M. A. Feroze and K. M. K. Nair, for the State.
F. section Nariman, R. N. Banerjee, J. B. Dadachanji and K. J. John, for the Petitioners in W.P. Nos.
3935 63/78.
N. M. Abdul Khader, M. A. Feroze and K. M. K. Nair, for Respondent No. 1 in W.P. Nos.
3935 63/78.
A. section Nambiar and P. Parameswaran, for Respondents 2 3 in W.P. Nos.
3935 63/78.
P. Govindan Nair and K. Sukumaran, for the Petitioners in W.P. Nos.
3922 24/78.
K. M. K. Nair, for the Respondent in W.P. Nos.
3922 24/78.
R. N. Banerjee, J. B. Dadachanji and K. J. John, for the Petitioner in W.P. No. 1221/77.
K. M. K. Nair for Respondent No. 1.
A. section Nambiyar for Respondent No. 2.
Miss A. Subhashini for Respondent No.5.
P. Govindan Nair and K. Sukumaran for the Petitioners in W.P. Nos.3821 27/78.
K. M. K. Nair for Respondent No. 1 in W.P. Nos.
3821 27/78.
A. section Nambiar and P. Parameswaran for Respondents 2 3 in W.P. Nos.
3821 27/78.
P. Govindan Nair and K. Sukumaran for the Petitioner in W. P. Nos.
3828 31/78.
K. M. K. Nair for Respondent No. 1 in W.P. Nos.
3828 31/78.
679 A. section Nambiar and P. Parameswaran for Respondent No. 2 in W.P. Nos.
3828 31/78.
R. N. Banerjee, J. B. Dadachanji and K. J. John for the Petitioners in W.P. Nos.
44 50/77.
Miss A. Subhashini for Respondent No. 1 in W.P. Nos.
44 50/77.
K.M.K. Nair for Respondent No. 2 in W.P. Nos.
44 50/77.
P. Govindan Nair, Mrs. Baby Krishnan and Mrs. V. D. Khanna, for the Petitioners in W.P. Nos.
4237/78.
K. M. K. Nair for the Respondent in W.P. No. 4237/78.
D. Govindan Nair and Mrs. Baby Krishnan for the Petitioners in W.P. No. 4400/78.
K. M. K. Nair for the Respondent in W.P. No. 4400/78.
R. N. Banerjee, J. B. Dadachanji and K. J. John for the Petitioners in W.P. Nos.
92 97/77.
Miss A. Subhashini for Respondent No. 1 in W.P. Nos.
92 97/77.
K. M. K. Nair for Respondent No. 2 in W.P. Nos.
92 97/77.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The common question which arise for consideration in the above writ petitions under Article 32 of the Constitution of India relates to the validity of the declaration made by the State Government of Kerala on March 20, 1976 declaring that raw cashewnut was an essential article, in exercise of the power under clause (a) of section 2 of the Kerala Essential Articles Control (Temporary Powers) Act, 1961 (Act 3 of 1962) (hereinafter referred to as 'the Kerala Act ') and the Kerala Raw Cashewnuts (Procurement and Distribution) Order, 1977 (hereinafter referred to as 'the Order ') made by the State Government of Kerala in exercise of the powers conferred by section 3 of the Kerala Act regulating the procurement and distribution of raw cashewnuts grown in the State of Kerala.
The petitioners are persons engaged in the cashewnut processing industry in the State of Kerala.
Since the impugned declaration and the Order seriously interfered with the right of the petitioners to purchase sufficient quantities of raw cashewnuts for processing in their factories and imposed several other restrictions on them, they have filed the above petitions.
Although the validity of several other orders was also questioned in the present petitions, the petitioners confined their challenge only to the impugned declaration and the 680 Order in the course of the arguments since according to them it was not necessary to urge their contentions as against those orders.
The recital in the preamble to the Order states that it was being made in order to ensure the maintenance of supplies of raw cashewnuts which was considered to be essential for the continued employment of a large number of workmen in the State of Kerala and for their equitable distribution and availability at fair prices.
It is further recited that the Order was being made as the State Government felt a doubt about the question whether the Kerala Raw Cashewnuts (Marketing and Distribution) Order 1976 issued under the Defence and Internal Security of India Rules, 1971, for the very same purpose would continue to remain in force.
The main provisions of the Order broadly related to the prohibition of sale of raw cashewnuts to any person other than an agent authorised to purchase by clause 3 thereof, appointment of Co operative Societies as subagents, imposition of restrictions on processing or conversion of raw cashewnuts and their distribution amongst the occupiers of cashewnut processing factories, appointment and powers of Cashew Special Officer and other incidental and ancillary matters.
The explanatory note attached to the Order stated that it was intended to regulate the procurement and distribution of raw cashwnuts by the State Government.
The Order is issued by the State Government of Kerala under section 3 of the Kerala Act, the object of which is to provide, in the interest of the general public, for the control of the production, supply and distribution of, and trade and commerce in certain articles which, is the title of the Act indicates, are considered to be essential for the community.
The Kerala Act as originally enacted was intended to be in force for a period of five years from the date of its commencement.
By successive amendments, its life is extended to twenty years from the commencement of the Act.
Although it makes provision for conferring power on the State Government to make appropriate orders regarding regulation of production, supply and distribution of essential articles substantially on the lines on which the (Act 10 of 1955) (hereinafter referred to as the Central Act ') passed by the Parliament provides for the regulation of production, supply and distribution of essential commodities as defined in the Central Act.
the Kerela Act does not itself specify any article as an essential article.
But the expression 'essential article ' is defined by section 2(a) of the Kerala Act thus : 681 "2.
Definition.
In this Act, unless the context otherwise requires, (a) "essential article" means any article (not being an essential commodity as defined in the ) which may be declared by the Government by notified order to be an essential article.
" From the above definition it is clear that the State Government can declare as an essential article under the Kerala Act only an article which is not an essential commodity as defined in the Central Act.
When such a declaration is made in respect of any article, the State Government acquires the power to make an order under section 3 thereof in respect of such article.
The State Government is, however, precluded from declaring any article which is an essential commodity under the Central Act as an essential article and from making an order for the purpose of controlling its production, supply and distribution.
This is obvious from the words in the parenthesis in section 2(a) of the Kerala Act defining the word 'essential article '.
That the object of the Kerala Act is only to provide for regulation of production, supply and distribution of an article which is not an essential commodity as defined under the Central Act is also clear from what is stated by the Kerala Government in the letter dated December 5, 1961 addressed by the Law Secretary, Government of Kerala to the Central Government seeking the assent of the President to the Bill passed by the Kerala Legislature.
The relevant part of the letter reads: ". . . . . . .
Sub: The Kerala Essential Articles Control (Temporary Powers) Bill 1960.
I am to forward herewith two copies of the Kerala Essential Articles Control (Temporary Powers) Bill, 1960, as passed by the Legislative Assembly and reserved by the Governor for the consideration of the President.
The Madras Essential Articles Control and Requisitioning (Temporary Powers) Act, 1949, as amended by the Kerala Acts 24 of 1958 and 3 of 1959, was in force in the Kerala State till 25 1 1960 when it expired by efflux of time.
The (Central Act 10 of 1955) applies only in the case of essential commodities specified in that Act.
At present there is no law in the State to control the production, supply and distribution of, and trade and commerce in, essential articles required for industrial 682 and other purposes, which do not fall within the ambit of the Central Act.
For the implementation of the scheme under the programme of industrialisation during the Third Five Year Plan it may become necessary to control the production, supply and distribution of, and trade and commerce in, articles which are not essential commodities and unless the Govt.
have such powers, difficulties are likely to arise.
The object of the present legislation is to take power for the control of essential articles which are not essential commodities within the meaning of the Central Act.
It empowers Govt.
to declare any article, not being an essential commodities within the meaning of , to be an "essential article" and to control, by notified order, the production, supply and distribution of, and trade and commerce in, any such article.
This is an enabling measure and is modelled on the Central .
It is intended to be in force only for a period of five years.
The subject matter of the legislation falls within the scope of entries 26 and 27 of the State List in the Seventh Schedule to the Constitution, namely: 26.
Trade and commerce within the State subject to the provisions of entry 33 of List III.
Production, supply and distribution of goods subject to the provisions of entry 33 of List III.
Hence the State Legislature is competent to enact the measure.
The provisions of the Bill may attract Articles 301 and 304(b) of the Constitution as imposing a reasonable restriction on the freedom of trade and commerce.
Accordingly the previous sanction of the President for the introduction of the Bill in the State Legislature has been obtained as required by the proviso to article 304(b) in the letter of the Ministry of Commerce and Industry referred to as third paper above".
One of the grounds urged on behalf of the petitioners in support of these petitions is that raw cashewnut being a foodstuff (which is an essential commodity under the Central Act), the State Government of Kerala could not make a declaration to the effect that it was an essential article under section 2(a) of the Kerala Act and consequently the impugned Order was outside the scope of the Kerala Act.
On 683 behalf of the State Government, it is contended that raw cashewnut is not a foodstuff and even if it is held to be a foodstuff having regard to the nature and object of the Order, it should be treated as being within the competence of the State Government.
The relevant part of section 2(a) of the Central Act containing the definition of the expression 'essential commodity ' read thus: "2.
In this Act, unless the context otherwise requires, (a) "essential commodity" means any of the following classes of commodities: (i) cattle fodder, including oilcakes and other concentrates; (v) foodstuffs, including edible oilseeds and oils; Since it is argued on behalf of the State Government that foodstuffs ' only mean those articles which can be directly consumed without any kind of processing and that raw cashewnuts which are intended to be used as industrial raw material cannot, therefore, be called as 'foodstuffs ' in the strict sense, it is necessary to examine the history of legislation relating to the trade and commerce within a State and production, supply and distribution of goods in India.
Under the Government of India Act, 1935, entries 27 and 29 of List II in the Seventh Schedule read as follows: "27.
Trade and commerce within the Province; markets and fairs; money lending and money lenders.
Production, supply and distribution of goods; development of industries, subject to the provisions of List I with respect to the development of certain industries under Federal control.
" Entry 34 of List I read as: "34.
Development of industries where development, under a Federal control is declared by Federal law to be expedient in the public interest.
" From the above entries it is clear that the subject of trade and commerce within the Province and subject to entry 34 of List I, the subject of production, supply and distribution of goods were within the competence of the Provincial Government.
As a result of the emergency proclaimed by the Governor General under section 102 of 684 the Government of India Act, 1935 on the outbreak of the Second World War the Federal Legislature acquired the power to make laws on all the subjects in the Provincial List.
The laws made by the Federal Legislature on the provincial subjects after the Proclamation of Emergency were to cease to have effect on the expiration of a period of six months after the Proclamation of Emergency had ceased to operate except as respects things done or omitted to be done before the expiration of the said period.
The Proclamation of Emergency was revoked on April 1, 1946.
Consequently all laws made by the Federal Legislature on the subjects in the Provincial List were to cease to have effect after the expiry of September 30, 1946.
During the period of emergency the Federal Legislature had passed a law enabling the Federal Government to issue Orders with respect to trade and commerce within the Provinces and the production, supply and distribution of several commodities which were considered to be essential and those Orders were also to cease to have effect on the expiry of September 30, 1946.
Since it was felt that the Federal Legislature should continue to have power to make laws on the subject of production, supply and distribution of certain essential commodities, on March 26, 1946 the British Parliament passed the India (Central Government and Legislature) Act, 1946 (9 & 10 Geo.
6, Chapter 39) amending, among others, sub section (4) of section 102 of the Government of India Act, 1935 as to the effect of laws passed by virtue of the Proclamation of Emergency.
The relevant part of that Act read: "2.
(1) Notwithstanding anything in the Government of India Act, 1935, the Indian Legislature shall during the period mentioned in section four of this Act have power to make laws with respect to the following matters (a) trade and commerce (whether or not within a Province) in, and the production, supply and distribution of cotton and woollen textiles, papers (including newsprint).
foodstuffs (including edible oil seeds and oils) petroleum and petroleum products, spare parts of mechanically propelled vehicles, coal, iron, steel and mica; and (b) . . . . . . (c) . . . . . . but any law made by the Indian Legislature which that Legislature would not but for the provisions of this section, have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of the 685 said period except as respects things done or omitted to be done before the expiration thereof.
" Section 4 of that Act specified the duration of the legislative power conferred on the Federal Legislature by section 2 and section 5 prescribed the duration of laws passed by virtue of a Proclamation of Emergency.
It is seen from section 2(1)(a) of the above British Act that for the first time, the subject of foodstuffs (including edible oil seeds and oils) was dealt with separately in a constitutional document.
The Governor General in exercise of the extended legislative power granted by the British Act promptly issued within the specified period the Essential Supplies (Temporary Powers) Ordinance 1946) (XVIII of 1946) extending the controls in respect of certain essential commodities including foodstuffs beyond the first day of October, 1946 and the said Ordinance was repealed and replaced by the Essential Supplies (Temporary Powers) Act, 1946 (Act No. XXIV of 1946) enacted by the Federal Legislature in November, 1946.
Section 2(a) of that Act defined the expression 'essential commodity ' as meaning 'foodstuffs ' and certain other articles mentioned therein.
Section 2(e) defined 'foodstuffs ' as including edible oil seeds and oils.
The operation of the said Act was extended by competent legislative acts upto March 31, 1950.
Since by Entries 26 and 27 of List II of the Seventh Schedule to the Constitution, the subject of trade and commerce within the State subject to the provisions of Entry 33 of List III and the subject to production, supply and distribution of goods subject to the provisions of Entry 33 of List III had been assigned to the States and Entry 33 of List III only dealt with trade and commerce in, and the production, supply and distribution of the products of industries where the control of such industries by the Union was declared by Parliament by law to be expedient in the public interest, having regard to the then existing conditions, Article 369 was enacted as a temporary and transitional measure conferring legislative power on the Parliament during a period of five years from the commencement of the Constitution to make laws with respect to the following matters as if they were enumerated in the Concurrent List, namely: (a) trade and commerce within a State in, and the production, supply and distribution of, cotton and woollen textiles, raw cotton (including ginned cotton and unginned cotton or kapas), cotton seed, paper (including newsprint), foodstuffs (including edible oilseeds and oil), cattle fodder (including oil cakes and other concentrates), coal (including coke and derivatives of coal), iron, steel and mica; 686 (b) offences against laws with respect to any of the matters mentioned in clause (a), jurisdiction and powers of all courts except the Supreme Court with respect to any of those matters, and fees in respect of any of those matters but not including fees taken in any court.
It was provided that any law made by Parliament which Parliament would not but for the provisions of Article 369 of the Constitution have been competency to make would, to the extent of the incompetency, cease to have effect on the expiration of the period of five years from the commencement of the Constitution except as respects things done or omitted to be done before the expiration thereof.
It may be noticed that clause (a) of Article 369 of the Constitution specifically referred to foodstuffs (including oilseeds and oil) and cattle fodder (including oil cakes and other concentrates).
By virtue of the power under Article 369, the Parliament extended the life of the Essential Supplies (Temporary Powers) Act, 1946 till January 26, 1955.
As the subjects referred to in Article 369 of the Constitution were of national importance and it was thought that it was desirable that the Parliament should also have concurrent power to make laws with respect to them, the Constitution (Third Amendment) Act, 1954 was enacted on February 22, 1955 substituting Entry 33 of List III by the following new Entry: "33.
Trade and commerce in, and the production, supply and distribution of, (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products; (b) foodstuffs, including edible oilseeds and oils; (c) cattle fodder, including oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and cotton seed; and (e) raw jute.
" It was pursuant to the new Entry 33 of List III of the Seventh Schedule to the Constitution that Parliament enacted the Central Act (i.e. the ).
It is not disputed by the State Government that if raw cashewnut is foodstuff within the meaning of the Central Act, it cannot be declared as an essential article under the Kerala Act.
What is, however, 687 urged is that since the Order regulates only procurement and distribution of raw cashewnut as industrial raw material for processing in the factories it is not being dealt with as foodstuff.
Hence it should not be treated as an essential commodity under the Central Act.
There are at least two good reasons to reject this contention advanced on behalf of the State Government first, the language used in section 2(a) (v) of the Central Act and secondly the purpose of the Central Act.
Section 2(a) (v) of the Central Act reads: 'foodstuffs.
including edible oilseeds and oils '.
It is a well known rule of interpretation that associated words take their meaning from one another and that is the meaning of the rule of statutory construction, noscitur a sociis.
When 'foodstuffs ' are associated with edible oilseeds which have to be processed before the oil in them can be consumed, it is appropriate to interpret 'foodstuffs ' in the wider sense as including all articles of food which may be consumed by human beings after processing.
It is in this wider sense that the said term has been understood by Indian courts as can be seen from some of the decisions to which we shall presently refer.
Secondly, having regard to the history of legislation relating to foodstuffs dealt with above and the object of the Central Act which regulates the production, supply and distribution of essential commodities amongst the poverty stricken Indian people, the expression 'foodstuffs ' should be given a wider meaning as including even raw materials which ultimately result in edible articles.
Any interpretation that may be given in this case should not be governed by its consequence on the impugned Order but in the light of the importance of the Central Act in the context of the national economy.
A narrow interpretation may result in the exclusion of several articles from the purview of the Central Act although nobody has entertained any doubt so far about their being essential commodities.
We shall now see what cashewnut means.
Cashewnut is an edible seed or nut belonging to the family of anacardiaceae and grows mostly in tropical and sub tropical regions where humidity is great.
It is generally grown in the States of Kerala, Karnataka and Tamil Nadu, in India, in East Africa and in the tropics of Central and South America.
Cashewnut is shaped like a kidney or a large thick bean. 'It appears as though one of its ends had been forcibly sunk into the calyx end of a fleshy pear shaped fruit, called the cashew apple which is about three times as large as the nut and of reddish or yellow colour.
The cashew apple is much used where the tree grows, in beverages, jams and jellies but is unimportant commercially.
The nut has two walls or shells, the outer of which is smooth and glass like over the surface thin and somewhat elastic but stout and of olive green 688 colour until mature when it becomes strawberry roan.
The inner shell is considerably harder and must be cracked like the shells of other nuts. .
The fruits are picked by hand and the nuts are first detached, then thoroughly dried in the sun. .By improved methods of roasting, the nuts pass through large revolving cylinders of sheet iron with perforated sides, which are made to revolve above well controlled flames.
The oil drains into containers below and is salvaged.
Later, the inner shells are broken open by hand labour and the kernels given further heating treatment by which the skins are removed and the kernels made ready for consumption '.
(Vide Encyclopaedia Britannica 1962 Edn.
4, pp. 958 959).
It is not disputed that the raw cashewnut with which we are now concerned is used by the petitioners for processing in their factories in order to make it fit for human consumption.
It is also stated that even the raw cashewnut kernel is eaten by human beings.
It is well known that the food eaten by human beings consists of cereals like wheat, rice or other coerce grains, pulses, oilseeds, vegetables, sugar, fruits and nuts, animal foodstuffs and sea food like meat, beaf, mutton and fish and dairy products like milk, butter, eggs etc.
According to Webster 's Third New International Dictionary, the word 'food ' means 'fodder ' also.
One of the meanings of the word 'food ' given in that Dictionary is 'material consisting of carbohydrates, fats, proteins and supplementary substances (as minerals vitamins) that is taken or absorbed into the body of an organism in order to sustain growth, repair, and all vital processes and to furnish energy for all activity of the organism '.
In the same Dictionary 'foodstuff ' is defined as 'a substance with food value ' and 'the raw material of food before or after processing '.
One of the usages of the said word is given as 'a bountiful crop of cereal foodstuffs '.
Therefore, 'foodstuff ' need not necessarily mean only the final food product which is consumed.
It also includes raw food articles which may after processing be used as food by human beings.
The earliest of the Indian cases cited before us on the interpretation of the expression 'foodstuffs ' is Shriniwas Pannalal Chockhani & Ors.
vs The Crown.
In that case the conviction of the appellant of an offence punishable under section 7 of the Essential Supplies (Temporary Powers) Act, 1946 had been challenged.
The charge of which the appellant had been found guilty by the judgment under appeal was that he had transported 'bharda ' or 'chuni bharda ' which was a foodstuff without the required permit.
The contention of the appellant was that it was just cattle feed which was not fit for human consump 689 tion and therefore it could not be said that he had violated the law on the footing that the material transported was 'tur dal ' a foodstuff the transport of which alone without a permit was an offence.
The said argument was rejected by the Nagpur High Court with the following observations: "The learned counsel for the appellants further contended that as the Essential Supplies (Temporary Powers) Ordinance, 1946 [XVIII (18 of 1946)] and the Essential Supplies (Temporary Powers) Act, 1946 [XXIV (24) of 1946], dealt with "foodstuffs" and not "cattle feed" export of chuni, a cattle feed was not prohibited under the Food grains Export Restrictions Order, 1943.
The term "foodstuff" has not been defined either in the Ordinance or in the Act.
In common parlance, foodstuffs mean "materials used as food".
The term is not used only for material which is immediately fit for human consumption but it also applies to material which can be used as food after subjecting it to processes like grinding, cleaning etc.
For instance, paddy as such is not fit for human consumption but rice in it is, and yet paddy is called foodstuff.
So also tur.
There is no reason to suppose that the word "food stuffs" is not used, in these laws, in this usual sense but is used in the restricted sense of material which is fit for human consumption immediately without subjecting it to any process.
If such a restricted meaning is accepted, it would lead to evasion of the Law in question by mixing some foreign matter with the stuff that is immediately fit for human consumption.
The test is not whether it can be immediately used for human consumption but whether it can be so used after subjecting it to the usual processes.
The uncleaned tur dal (ie.
tur dal without separating from it wastage and foreign matter) which was being exported on 26 12 1946 in this case was such a foodstuff and comes within the provisions of the Essential Supplies (Temporary Powers) Ordinance 1946, and the Essential Supplies (Temporary Powers) Act, 1946".
In the State of Bombay vs Virkumar Gulabchand Shah this Court was called upon to decide whether 'turmeric ' was 'foodstuff ' in a case arising under the Essential Supplies (Temporary Powers) Act, 1946.
Vivian Bose, J. who delivered the judgment after observing: 690 "So far as "food" is concerned it can be used in a wide as well as a narrow sense and, in my opinion, much must depend upon the context and background.
Even in a popular sense, when one asks another, "Have you had your food", one means the composite preparations which normally go to constitute meal curry and rice, sweetmeats, pudding, cooked vegetables and so forth.
One does not usually think separately of the different preparations which enter into their making of the various condiments and spices and vitamins, any more than one would think of separating in his mind the purely nutritive elements of what is eaten from their non nutritive adjuncts.
So also, looked at from another point of view, the various adjuncts of what I may term food proper which enter into its preparation for human consumption in order to make it palatable and nutritive, can hardly be separated from the purely nutritive elements if the effect of their absence would be to render the particular commodity in its finished state unsavoury and indigestible to a whole class of persons whose stomachs are accustomed to a more spicely prepared product".
held: "As we have seen, turmeric falls within the wider definition of 'food ' and 'foodstuffs ' given in a dictionary of international standing as well as in several English decisions.
It is, I think, as much a "foodstuff", in its wider meaning, as sausage skins and baking powder and tea.
In the face of all that I would find it difficult to hold that an article like turmeric cannot fall within the wider meaning of the term "foodstuffs".
Following the above decision of this Court, the High Court of Calcutta held in Atulya Kumar De & Ors.
vs The Director of Procurement and Supply & Ors.
that paddy was foodstuff within the meaning of that expression used in the Essential Supplies (Temporary Powers) Act, 1946 even though paddy could not be consumed without further processing.
The relevant part of the decision runs thus: "The first point taken is that the power conferred by the Act (read with the notification) upon the State of West Bengal is only in relation to foodstuffs and that paddy is not foodstuff.
It is stated that the description of paddy at "Rice in 691 the "husk" is a colourable attempt to avoid this difficulty.
In 'The State of Bombay vs Virkumar Gulabchand Shah ' (AIR , it was held that turmeric is "foodstuff" within the meaning of the Spices (Forward Contract Prohibition) Order 1944" read with section 2(a) of the Act.
It was held that the term "foodstuff" is ambiguous and may have a vide meaning or a narrow one.
Whether the term is used in a particular Statute in its wider or narrower sense cannot be answered in the abstract but must be answered with due regard the background and context.
Thus in 'James vs Jones ' [(1894) 1 Q.B. 304], baking powder was held to be an article of food while in 'Hinde vs Allmond ' , it was held that tea was not.
Now the act had been passed to control the production and distribution of essential commodities.
What can be looked upon more of an essential commodity than both rice and paddy ? In West Bengal, the two things most essential for the sustenance of human life are rice and paddy.
Mr. Mukherjee admits that rice is an essential commodity & a foodstuff, but he says that paddy is not because nobody can eat paddy.
But that is a very narrow view to take.
Paddy is only a stage in the production of rice and the one cannot be food without the other being food as well.
Nobody eats the husk in paddy; but nobody eats the skin of mango or the shell of a egg and yet they are unquestionably articles of food.
In my opinion paddy is 'foodstuff ' within the meaning of that expression as used in the Act and the notification.
" To the same effect is the decision of the Calcutta High Court in Nathuni Lal Gupta & Ors.
vs The State & Ors.
in which wheat and wheat products were held to be foodstuffs.
The High Court of Punjab and Haryana in Sujan Singh Matu Ram vs The State of Haryana and the High Court of Orissa in Bijoy Kumar Routrai & Ors.
vs State of Orissa & Ors.
also lay down the same principle.
In Tika Ramji & Ors.
vs The State of Uttar Pradesh & Ors.
this Court observed: "The essential commodities therein comprised inter alia foodstuffs which would include sugar as well as sugarcane 692 and both sugar and sugarcane therefore came within the jurisdiction of the Centre.
" The above observation makes it manifest that even a raw material like sugarcane used in the manufacture of sugar is a 'foodstuff '.
Younus vs Sub Inspector of Police is a case in which the question whether raw cashewnut was foodstuff or not directly arose for consideration.
The learned Judge who decided the case held: "The reasoning adopted for holding that wheat and paddy are foodstuffs applies with equal force in the case of cashewnuts.
There is no scope for doubt that cashew kernel is an eatable commodity both in its raw form and also when fried.
It is taken in as part of the food and is also used in the preparation of food.
That its kernel should be separated from the shell or outer covering or that it should be processed before use does not make raw cashewnuts any the less "foodstuff.
" It is also significant that 'raw cashewnut ' is included in the group of edible fruits in Chapter 8 of section II dealing with vegetable products of the First Schedule to the .
It was, however, urged that even though cashewnut was an article which could be eaten, it was an article which was eaten by very few persons on rare occasions and hence it is difficult to conceive cashewnut as an essential commodity.
It is no doubt true that cashewnut having become expensive, it is now more of a luxury.
Due to export of cashewnut on a large scale, it is a commodity which is in short supply in the country and therefore the price at which it sells is beyond the reach of the common man.
But nevertheless it is an article of food.
It is eaten in raw form and after it is fried.
It is also commonly used in various preparations of food like pulav, sweets etc.
There is no basis for the assertion that it is a rare commodity outside the State where it is grown.
It is eaten not only in Kerala but also in other parts of the country.
When cashewnut is exported, it is exported as a foodstuff.
Now it cannot be that cashewnut eaten abroad is a foodstuff, and whatever is consumed within the country is not a foodstuff.
It is therefore, a foodstuff and must be classified as an essential commodity.
Its importance as a foodstuff can also be seen from the statements filed in these cases in which is stated that in the State of Kerala in the year 1976 77 the total quantity of raw cashewnut procured was in the order of 60,000 tonnes, the number of workers 693 engaged in the cashewnut processing industry was about 1,20,000 and that there were 269 cashew factories.
It was next urged that cashewnut could be treated as an essential article only for the purpose of export and not an essential commodity under the Central Act.
This again is not correct.
The Central Government can make an Order under the Central Act even when an essential commodity is used for industrial purpose or for purposes of export.
Essential commodities do not cease to be essential commodities under the Central Act merely because they are exported after they are processed in India.
Foodgrains (Prohibition of Use in Manufacture of Starch) Order, 1971, The Fruit Products Order, 1955, The Gur (Regulation of Use) Order, 1978, Pulses, Edible Oilseeds and Edible Oils (Storage Control) Order, 1977, Rice (Prohibition of Use in Wheat Products) Order, 1971.
Vegetable Oil (Standards of Quality) Order, 1972, Vegetable Oil Product Producers (Regulation of Refined Oil Manufacture) Order, 1973 and the Essential Commodities (Regulation of Production and Distribution for purposes of Export) Order, 1966 demonstrate the diverse purposes for which an Order can be made under the Central Act.
It was next urged that as long as the Central Government had not passed an order in respect of the same matter, it was open to the Government of Kerala to pass the impugned Order.
Reliance was also placed on the decision of this Court in Tika Ramji 's case (supra), in which U.P. Sugarcane Regulation of Supply and Purchase Order, 1954 was upheld even though sugarcane was an essential commodity under the Central Act.
In that case this Court was concerned with the question whether there was any repugnancy between a Central law and a State law.
We are not concerned here with such a question.
If a question of application of Article 254 of the Constitution had arisen, it would have been open to consider whether there was any repugnancy at all between the two laws having regard to the scope and extent of the field occupied by the Central law and the State law.
But the real question which now arises for decision in these petitions is whether the Kerala Legislature ever intended to treat any article which comes within the scope of the Central Act as an essential article.
The language of section 2(a) of the Kerala Act steers clear of all essential commodities under the Central Act by excluding them from the operation of the Kerala Act.
The power of the Central Government to make an order under the Central Act in respect of raw cashewnut which is a foodstuff cannot be doubted.
If that is so the Kerala Act cannot apply to it.
The argument that as long as the Central Government had not made an Order in respect of raw cashew 694 nut, the Kerala Government can pass an Order is not available in the circumstances by reason of the definition of the 'essential article ' in the Kerala Act.
It might have been open to consideration if the said definition had not contained the words in the parenthesis.
On a careful consideration of the matter, we are satisfied that raw cashewnut is a foodstuff falling under section 2(a) (v) of the Central Act and hence cannot be declared as an essential article under section 2(a) of the Kerala Act.
It follows that no Order can be made by the Government of Kerala under section 3 thereof in respect of raw cashewnut.
The action of the Kerala Government is beyond the power conferred on it by the Kerala Legislature.
In the result, we hold that the declaration made by the Government of Kerala to the effect that raw cashewnut is an essential article under the Kerala Act and the impugned Order made thereunder are liable to be quashed and they are accordingly quashed.
All the other contentions including those relating to the alleged infringement of the fundamental rights of the petitioners raised in these petitions are left open.
Before concluding, we propose to advert to the last submission made before us on behalf of the State Government.
It was submitted that the cashewnut industry in Kerala was a labour oriented industry and if the declaration and the Order were struck down, a number of workmen would be adversely affected.
It was also submitted that the entire economy of the State of Kerala which largely depended on the export trade in cashewnuts would be disrupted.
If any such serious problem arises, it can always be set right by the competent Legislature or the appropriate Government taking needful remedial action in the light of Entry 33 of List III of the Seventh Schedule to the Constitution.
The petitions are accordingly allowed.
In the circumstances of the case, there shall be no order as to costs.
P.B.R. Petitions allowed.
| IN-Abs | By an order made on March 20, 1976 the Kerala State Government declared that raw cashewnut was an essential article under section 2(a) of the Kerala Essential Articles Control (Temporary Powers) Act, 1961 and thereafter promulgated the Kerala Raw Cashewnuts (Procurement and Distribution) Order 1977 under section 3 thereof, regulating the procurement and distribution of raw cashewnuts in the State of Kerala.
The expression "essential article" is defined in section 2(a) of the Kerala Act as "an article (not being an essential commodity as defined in the ) which may be declared by the Government by a notified order to be an essential article".
Under Section 2(a) (v) of the essential commodity means "foodstuffs, including edible oilseeds and oils.
" In their petitions under article 32 of the Constitution the petitioners who were engaged in the processing of raw cashewnuts urged that raw cashewnut being a foodstuff, which was an essential commodity under the Central Act, the State Government could not make a declaration that it was an essential article under section 2(a) of the State Act and that for this reason the declaration and the impugned order were ultra vires the State Act.
On behalf of the State Government it was contended that the expression "foodstuffs" meant only those articles which could be directly consumed without any kind of processing since the order regulated only the procurement and distribution of raw cashewnuts which were used as industrial raw material, they could not be called foodstuffs in the strict sense and were not an "essential commodity" within the meaning of that term under the Central Act.
Allowing the petitions, ^ HELD: Raw cashewnut is a foodstuff under section 2(a)(v) of the Central Act and hence cannot be declared as an essential article under section 2(a) of the Kerala Act.
No order could therefore be made by the State Government under section 3 thereof in respect of raw cashewnuts.
Therefore the declaration made by the State Government to the effect that raw cashewnut is an essential article under the Kerala Act and the impugned order made thereunder are liable to be quashed.
[694 B C] The words in parenthesis in section 2(a) of the State Act make it clear that the State Government can declare as an essential article under the State Act 677 only an article which is not an essential commodity under the Central Act.
It is a well known rule of interpretation that associated words take their meaning from one another and that is the meaning of the rule of statutory construction noscitur a sociis.
When the term 'foodstuffs ' is associated with edible oilseeds which have to be processed before the oil in them can be consumed, it is appropriate to interpret 'foodstuffs ' in the wider sense as including all articles of food which may be consumed by human beings after processing.
[687 C] Having regard to the fact that the object of the Central Act is to regulate production, supply and distribution of essential commodities amongst the people, the expression 'foodstuffs ' should be given a wider meaning as including even raw materials which ultimately result in edible articles.
[687 D E] The dictionary meaning of 'foodstuff ' is 'a substance with food value ' and 'the raw material of food before or after processing '.
Therefore 'foodstuff ' need not necessarily mean only the final food product which is consumed.
It also includes raw food articles which may, after processing, be used as food by human beings.[688 F] State of Bombay vs Virkumar Gulabchand Shah ; and Tika Ramji & Ors. etc.
vs The State of Uttar Pradesh & Ors. ; at 418 referred to.
Although as a result of large exports of cashewnut it is now in short supply and its price is beyond the reach of the common man, it is an article of food eaten in raw form and is used in various preparations.
It is eaten in all parts of the country though it is grown in a few States.
It is exported as foodstuff.
It is, therefore, a foodstuff and must be classified as an essential commodity.
[692 M G] There is no substance in the argument that cashewnuts can be treated as an essential article only for the purposes of export and not an essential commodity under the Central Act.
The Central Government can make an Order under the Central Act even when an essential commodity is used for industrial purposes or for purposes of export.
Essential commodities do not cease to be essential commodities under the Central Act merely because they are exported after they are processed in India.
[693 B] The argument that so long as the Central Government had not made an order in respect of raw cashewnuts the State Government can pass an order is not available in the circumstances by reason of the definition of essential article in the Kerela Act.
[693 E]
|
N: Criminal Appeal No. 329 of 1979.
From the Judgment and Order dated 9 4 1979 of the Gujarat High Court in Criminal Appeal No. 270/76.
511 Rajandra Prasad Singh, M/s. K. G. Vakharia, P. H. Parekh and Ratan Karanjawala for the Appellants.
T. U. Mehta, M. N. Shroff and Himantika Wahi for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
This appeal, preferred under the , is directed against the judgment and order of the High Court of Gujarat setting aside the judgment and order of acquittal passed by the trial court and convicting and sentencing the appellants for offences under section 302 read with section 34, Indian Penal Code, and under section 326 read with section 34 of the Code.
The appellants, Ajit Singh and Balwant Singh, are father and son.
Another son is Mohan Singh.
All three were charged with the murder of Manilal and with causing injuries to Parmabhai, Bhulabhai and Natwarlal.
The prosecution case is that Manilal, Bhulabhai and Bhikabhai were three brothers residing in a chawl belonging to the appellant Ajit Singh, that on 9th April, 1975 Manilal drew his salary from the factory where he worked and at about 6.45 p.m. on returning to his room in the chawl he was met by the appellants and Mohan Singh.
They demanded payment of rent but Manilal said he would pay it only on the next day.
His refusal to make immediate payment is alleged to have infuriated Balwant Singh who, it is said, inflicted two kirpan blows on him.
Upon this Manilal started running away, pursued by the three accused, and headed towards the room of Parmabhai.
Further kirpan blows were inflicted on him there by the appellants.
Parmabhai, who had emerged from his room, was also attacked and given a kirpan blow.
Manilal, meanwhile, turned and entered the house of Shanabhai.
Ajit Singh is alleged to have struck him further blows there in consequence of which he fell down.
Bhulabhai, who arrived on the scene, was also struck a kirpan blow.
Mohan Singh is alleged to have wielded a bamboo stick and hit Natwarlal on the head with it.
All three accused are said to have run away from the place then, leaving their bicycles behind.
Manilal was removed to the hospital and declared dead.
Parmabhai was admitted as an indoor patient.
Shanabhai telephoned the police control room and informed them of the incident, and the Gomtipur Police Station recorded a complaint made by Bhulabhai.
512 The three accused were tried by the learned Additional Sessions Judge, Ahmedabad (Rural), who after considering the evidence on the record acquitted the accused by his judgment and order dated 15th October, 1975.
On 26th April, 1976 the State filed an appeal in the High Court and prayed for condonation of the delay in filing it.
The High Court condoned the delay, considered the appeal on its merits and allowed it against Ajit Singh and Balwant Singh.
They were convicted under section 302 read with section 34 of the Code and sentenced to imprisonment for life.
They were also convicted under section 326 read with section 34 of the Code but no separate sentence was passed thereunder.
The appeal against the acquittal of Mohan Singh was dismissed.
At the outset, it is urged by learned counsel for the appellants that the High Court erred in condoning the delay in filing the appeal, and the appeal should have been dismissed as barred by limitation.
We have examined the facts carefully.
It appears that initially the State Government took a decision not to file an appeal and it allowed the period of limitation to lapse.
Subsequently, on certain observations made by the High Court while considering a revision petition by Bhulabhai that it was a fit case where the State Government should file an appeal and on notice being issued by the High Court to the State Government in the matter, the appeal was filed.
It was filed three months after limitation had expired.
A faint attempt was made to show that when the initial decision was taken not to file an appeal all the papers had not been considered by the department concerned, but we are not impressed by that allegation.
The truth appears to be that the appeal was not filed at first because the State Government saw no case on the merits for an appeal, and it was filed only because the High Court had observed and that was long after limitation had expired that the case was fit for appeal by the State Government.
Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal.
But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time.
No event or circumstance arising after the expiry of limitation can constitute such sufficient cause.
There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal.
But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation.
In the present case, there was no such cause, and the High Court erred in condoning the delay.
513 It is pointed out that the High Court could have sent for the record in the exercise of its revisional jurisdiction and examined the case.
That is quite another matter and raises other questions.
We are concerned here with the question whether the delay in filing the appeal could have been condoned.
But quite besides this, there was also no merit in the appeal filed before the High Court.
The trial court wrote a careful judgment, exhaustively considering all the evidence and on painstaking analysis reached conclusions which, in our opinion, are pre eminently reasonable and support the order of acquittal.
It found that the evidence did not establish that the injury suffered by Bhulabhai could have resulted from a kirpan, that the panch witnesses to the recovery of the two kirpans did not support the prosecution, that of the six eyewitnesses one of them, Ramiben, widow of Manilal, was not present on the scene at all, that all the eye witnesses had indulged in palpable falsehood in attempting to implicate Mohan Singh when plainly he was not there (the State appeal against his acquittal was dismissed by the High Court), that there were material contradictions between the different eye witnesses concerning the sequence of events, the exact places where the blows were struck, and the role played by each accused, that the information given by one eye witness, Shanabhai, to the police control room mentioned merely that four or five "sardarjis" had come to the chawl and had injured two persons with a knife, and although admittedly Shanabhai had known the accused by name for the last four or five years he did not mention their names in that report.
It is also in evidence that it was already dark when the incident took place and there were no municipal lights within the limits of the chawl.
The trial court has further adverted to the circumstance that four bicycles were seized by the police at the scene, which is inconsistent with the prosecution case that three persons, the accused, were involved.
As regards the complaint filed by Bhulabhai, the trial court has found that it could not be admitted in evidence under section 154, Code of Criminal Procedure, and there was ample material to show that the eye witnesses had plenty of time to confer with one another before the complaint was drawn up.
The trial court also adverted to the fact that the police did not record the statement of the remaining eye witnesses that very night.
The Prosecuting Inspector also admitted in cross examination that during the investigation all the eye witnesses came forward with "stereotype" statements.
One other significant fact remains.
According to the evidence the incident was witnessed by several other people, but not a single independent witness has come forward to support the prosecution.
The eye witnesses produced are either related or members 514 of the same community; members of other communities also lived in the chawl and admittedly were on cordial terms with the complainant Bhulabhai and the other witnesses.
The trial court pointed out that the eye witnesses were, already prior to the incident, extremely hostile to the accused.
There was a running war between them in the matter of payment of rent, and disputes had arisen concerning ownership of the property and criminal proceedings had been taken.
At this point, it is relevant to note that Ajit Singh used to employ one Shivram for collecting rents.
In all the circumstances, the trial court observed that when the witnesses could not identify the four or five Sardarjis who had come to the chawl, they put their heads together and decided to involve Ajit Singh and his two sons.
Holding that the evidence was untrustworthy and it would be highly unsafe and hazardous to convict the accused on such testimony the trial court gave them the benefit of doubt and acquitted them.
We may observe that the High Court had before it an appeal against an order of acquittal.
The approach to be adopted by the High Court when exercising its appellate powers in such a case has been defined in a long line of cases.
As long ago as Warren Ducane Smith vs The King the Privy Council declared that the High Court must give proper weight and consideration to "such matters as (1) the view of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
" The approach has been endorsed by this Court repeatedly, and in a very recent decision, Ganesh Bhavan Patel & Anr.
vs State of Maharashtra to which one of us (Sarkaria, J.) was party, it was also observed: "Where two reasonable conclusions can be drawn on the evidence on record, the High Court should as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the Court below.
In other words, if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal.
" 515 The legal position is well settled and, indeed, has been adverted to by the High Court.
But after specifically referring to it the High Court appears to have overlooked the limitations imposed on it and has embarked on a course not warranted by law.
It has taken into particular regard a few considerations which seemed to it to assume importance.
It has referred to the recovery of a bloodstained slipper and a diary from the scene of the offence, and has inferred that they belong to Ajit Singh.
We are not satisfied that the connection has been truly established.
The papers found in the diary do not necessarily show that the diary belongs to him.
Nor is there sufficient proof that the slipper is his.
The High Court has concentrated on some of the material only, omitting to consider in the process that the integrality of the evidence alone can ensure whether the accused are guilty.
We are satisfied that the High Court erred in interfering with the judgment of the trial court.
The appeal must, therefore, be allowed, the judgment and order of the High Court set aside and the judgment and order of the trial court restored.
These are the reasons which persuaded us to make the order disposing of the appeal.
N.V.K. Appeal allowed.
| IN-Abs | The two appellants who were father and son alongwith another son, who was acquitted were charged with the offence of committing the murder of the deceased and of causing injuries to his two brothers all of whom were residing in a chawl belonging to the first appellant.
The prosecution alleged that on the fateful day the appellants demanded payment of rent from the deceased and refusal to make immediate payment infuriated the second appellant who inflicted two kirpan blows on him.
When the deceased started running to the room of his brothers he was pursued and further kirpan blows were inflicted on him.
His brothers were also attacked by the three accused.
After the incident all the accused ran away from the place leaving their bicycles behind.
The deceased succumbed to his injuries in the hospital and one of his brothers was admitted as an indoor patient.
The three accused were tried by the Addl.
Sessions Judge.
As there were material contradictions in the 'eye witnesses ' account of the sequence of events, the exact places where the blows were struck, and the role played by each accused and the seizure of four bicycles by the police at the scene being inconsistent with the prosecution case that three persons, the accused were involved the Sessions Judge held the evidence to be untrustworthy and being of opinion that it was unsafe and hazardous to convict the accused on such testimony he gave them the benefit of doubt and acquitted them.
No appeal was filed at first because the State Government saw no case on the merits for an appeal.
However, in a revision petition filed by one of the brothers of the deceased the High Court declared that the case was a fit case where the State Government should file an appeal.
Thereafter, the State Government filed an appeal, in the High Court and prayed for condonation of the delay in filing the appeal.
The High Court condoned the delay considered the appeal on its merits, and allowed it against the two appellants.
The appeal against the acquittal of the third accused was dismissed.
Allowing the appeal to this Court: ^ HELD: 1(i) There was no sufficient cause for the State not filing the appeal within time, and the High Court erred in condoning the delay.
[512 F H] 510 (ii) A party is entitled to wait until the last day of limitation for filing an appeal.
But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time.
No event or circumstance arising after the expiry of limitation can constitute such sufficient cause.
There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal.
But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation.
[512 G] 2(i) The High Court erred in interfering with the judgment of the trial court.
[515 D] (ii) The approach to be adopted by the High Court when exercising its appellate powers in a case of appeal against an order of acquittal has been defined in a long line of cases.
As long ago as 1934, the Privy Council declared that the High Court must give proper weight and consideration to "such matters as (1) the view of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses".
The approach has been endorsed by this Court repeatedly and in a very recent decision it has been held that if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal.
[514D F; H Warren Ducane Smith vs The King A.I.R. 1934 P.C.227 & Ganesh Bhavan Patel & Anr.
vs State of Maharashtra ; , referred to.
(iii) The High Court after specifically referring to the aforesaid legal position, overlooked the limitations imposed on it and embarked on a course not warranted by law.
It took into particular regard a few considerations which seemed to it to assume importance and has concentrated on some of the material only, omitting to consider in the process that the integrality of the evidence alone can ensure whether the accused are guilty.
[515A, C] In the instant case the High Court referred to the recovery of a blood stained slipper and a diary from the scene of the offence, and inferred that they belonged to the first appellant.
This connection has not been properly established.
The papers found in the diary do not necessarily show that the diary belonged to him.
Nor is there sufficient proof that the slipper is his.
[515 B] 3 The trial court wrote a careful judgment, exhaustively considering all the evidence and on painstaking analysis reached conclusion which are preeminently reasonable and support the order of acquittal.
[513 B]
|
Civil Appeal No. 2020 of 1980.
From the Judgment and Order dated 5 9 1980 of the Madhya Pradesh High Court in Election Petition No. 1 of 1980.
A. K. Sen, O. P. Sharma, Rajinder Singh, P. L. Dubey and P. N. Tewari for the appellant.
section N. Kacker, Swaraj and Mrs. Sushma Swaraj for Respondent No. 1.
Y. section Chitale (Dr.) and Miss Rani Jethmalani for the Intervener.
641 The Judgment of the Court was delivered by SARKARIA, J.
This is an appeal under Sections 116(A) and 116(B) of the Representation of People Act, 1951 (hereinafter referred to as the Act) against a judgment dated September 5, 1980, of a learned Judge of the High Court of Madhya Pradesh, whereby the Election Petition 1 of 1980 filed by the respondent was accepted and the appellant 's election to Lok Sabha was declared to be void.
The principal question that falls to be determined in this appeal is, whether the election of a returned candidate whose appeal against the orders of his conviction and sentence exceeding two years imprisonment, pending at the date of the scrutiny of nomination papers, is accepted by the appellate court, resulting in his acquittal, before the decision of the election petition against him, can be declared to be void under Section 100(1) of the Act, on the ground that he was disqualified from being chosen as a candidate within the meaning of Section 8(2) of the Act.
The material facts are as follow: The respondent and the appellant contested the election as rival candidates, to the Lok Sabha from No. 18 Mahasamund Parliamentary Constituency in Madhya Pradesh.
The last date for filing nominations was December 7, 1979.
The scrutiny of the nomination papers took place on December 11, 1979.
The respondent raised an objection to the validity of the appellant 's nomination before the Returning Officer at the time of the scrutiny.
The objection was that the appellant had been convicted and sentenced to imprisonment exceeding two years by the Sessions Judge, Delhi on February 22/27, 1979, and, as such, the appellant was disqualified from being chosen as a candidate in view of sub section (2) of Section 8 of the Act.
The Returning Officer, by his order dated December 11, 1979, rejected the objection and accepted the appellant 's nomination as valid.
The result of the election was declared on January 7, 1980.
The election result was notified on January 10.
The appellant was declared elected, and the respondent was defeated.
Thereafter on February 18, 1980, the respondent filed an Election Petition in the High Court to get the election of the appellant herein, declared void under Section 100(1) (a) and 100(1) (d) (i) of the Act, alleging that at the date of the election, including the date of the scrutiny of the nomination papers, the appellant was disqualified by virtue of Section 8(2) of the Act from being, chosen as a candidate on account of his aforesaid conviction and sentence.
642 The Session Judge who had convicted the appellant, had, by his order dated February 27, 1979, passed under Section 389 (3) of the Code of Criminal Procedure, suspended the execution of the sentence to afford the appellant time to file an appeal.
On March 21, 1979, the High Court of Delhi admitted his appeal and by an order of the same date directed that his sentence shall remain suspended provided the appellant furnished a personal bond and surety in the amount of Rs. 5000/ to the satisfaction of the Sessions Judge.
The appellant 's appeal pending in the High Court was transferred to the Supreme Court under the .
This Court by its judgment dated April 11, 1980, allowed the appeal, set aside the conviction and sentence of the appellant and acquitted him of the charges against him.
Subsequently, by its impugned judgment, dated September 5, 1980, the High Court of Madya Pradesh, allowed with costs, the election petition filed by the respondent, and declared the appellant 's election to be void on the ground contained in Section 100(1) (d) (i) of the Act.
Hence this appeal.
The contentions canvassed by Shri Asoke Sen, learned counsel for the appellant may be summarised as follows: (1) The conviction and sentence of the appellant had been quashed by the Supreme Court in appeal.
The acquittal of the appellant had the effect of wiping out the conviction with retrospective effect as if he had never been convicted and sentenced.
In support of this proposition, reliance has been placed on Manni Lal vs Shri Parmi Lal & Ors.
Reference has also been made to Dilip Kumar Sharma & Ors.
vs State of Madhya Pradesh.
(2) Conviction and sentence in Section 8(2) must mean the final and ultimate conviction and sentence.
Reference has been made to Union of India vs R. Akbar Sheriff, and Dilbag Rai Jarry v Divisional Superintendent.
(3) Invalidity of the appellant 's election, in the instant case, was to be tested under clause (a) and not under clause (d) (i) of Section 100(1) of the Act, because (a) (i) "Election" within the meaning of Section 100(1) (a) connotes the entire process of election commencing with the filing of 643 nominations and ending with the declaration of the result of the poll.
The stage of the scrutiny of the nominations and their acceptance or rejection was an important step of the election process and, as such, was an integral part of the 'election '.
Reliance on this point has been placed on the decisions of this Court in N. P. Ponnuswami vs Returning Officer, Namaklal Constituency; and M. section Gill vs Chief Election Commissioner.
(ii) The term "disqualified" in clause (a) of Section 100(1), as defined in Section 7(b) means "disqualified for being chosen as, and for being, a member of either House of Parliament, etc.", and the expression "being chosen".
(which is the language of Article 102 of the Constitution also) has been interpreted by this Court in Chatturbhuj Vithaldas Jasani vs Moreshwar Parashram & Ors., as embracing "a series of steps starting with the nomination and ending with the announcement of the election".
(b) In substance and reality, the election of the appellant has been challenged on the ground that both at the date of the scrutiny and acceptance of his nomination and at the subsequent stages of the election including the dates of poll and declaration of the election result, the appellant was disqualified for being chosen on account of his having been convicted and sentenced to imprisonment exceeding two years.
This ground finds specific mention in clause (a) and not in clause (d) (i) which is a general and residuary clause and its application to the instant case will be excluded on the principle that the special excludes the general.
(c) The phrase "any candidate" in sub clause (i) of clause (d) of Section 100 (1) does not include the returned candidate.
(This point was not seriously pressed).
(4) (a) Even if it is assumed that clause (d) (i) or (d) (iv) is applicable, then also, the instant case cannot be taken out of the ratio of Manni Lal 's case (ibid), because the effect of the quashing of the appellant 's conviction and sentence by the appellate court, during the pendency of the Election Petition before the High Court was, that the conviction and sentence were retrospectively wiped out, and the High Court could not at the date of deciding the Election Petition hold that in spite of the acquittal by the Appellate Court, the disqualification of the appellant "for being chosen" ever existed even at the date of the acceptance of his nomination paper by the Returning Officer.
The proposition enunciated by this Court in Manni Lal 's case must be taken 644 to its logical end and the imagination must not be allowed to boggle down.
(b) Clause (a) and clause (d) (i) of Section 100 (1) of the Act should be construed harmoniously.
If these clauses are construed differently, there will be serious contradictions and inconsistencies.
Under Section 100 (1) (a), the candidate whose conviction and sentence are quashed, is qualified to be chosen and elected on the principle of retrospective wiping out of conviction and sentence, and yet he remains disqualified for his nomination.
Such an anomalous result should be avoided.
(5) The effect of suspension of the sentence made by the trial court and thereafter by the High Court pending the appeal, would be that the disqualification automatically stood eclipsed.
(This point was also not pressed).
On the other hand Shri section N. Kacker, learned counsel for the respondent, made these submissions: (1) Article 102 (1) (e) of the Constitution provides that "a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament ______" "if he is so disqualified by or under any law made by Parliament.
" Under Section 8(2) of the Representation of People Act, 1951, which is a law made by Parliament the appellant on account of his conviction and sentence exceeding two years, was disqualified at the date of scrutiny of nominations and the Returning Officer was bound in view of Section 36(2) (a), of the Act, to take into account only such facts as they stood on the date of the scrutiny, which is an integral step in the process of election i.e., process of "being chosen".
(Reference has been made in this connection to Chaturbhuj 's case (ibid) and Chandan Lal vs Ram Dass and Another.
(2) The phrase "date of such conviction" occurring in sub section (2) of Section 8 of the Act means the date of the initial conviction and not the date of the final conviction.
If this phrase was construed to mean the date of the final and ultimate conviction on termination of the entire judicial process in the hierarchy of courts, sub section(3) would be redundant.
Sub section (3) applies to a special category of persons mentioned therein, and its language makes it clear that in their case, conviction will not operate as disqualification unless it becomes final in the course of judicial process.
(3) The present case is governed by clause (d) (i) and not by clause (a) of Section 100(1).
In the election petition, both the 645 grounds under Section 100(1) (d) (i) and under Section 100(1) (a) were taken, because (i) the appellant was disqualified on the date of scrutiny a ground under Section 100(1) (d) (i); and (ii) the disqualification also existed on the date of declaration of election result affording ground under Section 100(1) (a).
Since the appellant was subsequently acquitted during the pendency of election petition, the ground under Section 100(1) (a) become non existent in view of the principle laid down by this Court in Manni Lal 's case (ibid).
but the ground under Section 100(1) (d) (i) still subsisted.
Consequently, at the stage of arguments before the High Court, the ground under Section 100(1) (a) was given up and the petition was pressed only on the ground under Section 100(1) (d) (i).
(4) Section 100(1)(d)(i) is applicable to a returned candidate as well.
(5) The basic distinction between clauses (a) and (d) (i) of Section 100(1) is that under the former clause the existence or non existence of disqualification of the returned candidate is to be determined as "on the date of his election", which date in view of Section 67A. means the date on which he was declared elected under Section 53 or Section 66 of the Act; whereas under clause (d) (i), the enquiry is restricted to judging the propriety or otherwise of the action of the Returning Officer in accepting his nomination on the date of scrutiny; that is to say, for purposes of the latter clause all that has to be enquired into is whether the disqualification existed on the date of scrutiny.
(6) The proposition laid down in Manni Lal 's case (ibid) to the effect that subsequent acquittal by the appellate court in a criminal matter has the effect of wiping out the conviction from the date of its very inception is not applicable to the case in hand because: (a) Manni Lal 's case was one under Section 100(1) (a); while the present case is under Section 100(1) (d) (i); (b) in Manni Lal 's case the returned candidate was not disqualified on the date of the scrutiny; whereas in the instant case the disqualification of the appellant did, in fact exist on the date of the scrutiny, although the same may have ceased to exist in point of law due to his subsequent acquittal; and (c) Section 36(2) (a) fixes a date for judging the qualification of a candidate and if the legal fiction of retrospective repeal is applied 646 to the case of subsequent acquittal wiping out the disqualification which in fact existed on the date of scrutiny, Section 36(2) (a) could be rendered nugatory and several inconsistent situations could arise.
(7) In sum, the instant case being one under Section 100(1) (d) (i) falls within the ratio of this Court 's decision in Amritlal Ambalal Patel vs Himatbhai Gumanbhai Patel & Anr.
and Manni Lal 's case is not in point.
Shri Chitale, appearing for the intervener, has elaborated contentions (5) and 6 (c) of Shri Kacker and stressed that the facts constituting the disqualification, as obtaining on the date of scrutiny, are under Section 36 the decisive factor.
Before dealing with the contentions canvassed on both sides, it will be necessary to have a look at the relevant constitutional and statutory provisions.
Article 102 of the Constitution, so far as material, reads thus: "(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament (a) to (d). . . (e) if he is so disqualified by or under any law made by Parliament.
" The words "for being chosen as, and for being, a member of either House of Parliament" have been lifted from Article 102 and incorporated in the definition of "disqualified" given in Section 7(b) of the Act.
According to this definition, "disqualified" means "disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State." Section 8 of the Act provides for disqualification on conviction for certain offences.
Under sub section (1), a person convicted of any of the offences specified in that sub section shall be disqualified for a period of six years from the date of such conviction.
The material part of sub sections (2) and (3) reads as under: "(2) A person convicted by a court in India for any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of five years since his release: Provided . 647 (3) Notwithstanding anything in sub section (1) and sub section (2), a disqualification under either sub section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.
" Then there is an Explanation appended to this Section, which is not material for our purpose.
Chapter I of Part V includes Sections 30 to 39 under the main heading "Nomination of Candidates".
Section 30 requires the Election Commission to appoint dates for making nominations, scrutiny of nominations, withdrawal by candidates, for poll and also to specify the date before which the election shall be completed.
The provision in clause (b) requires that the date for the scrutiny of nominations shall be the date immediately following the last date for making nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday.
Section 32 lays down that any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act, or under the provisions of the (20 of 1963), as the case may be.
Section 36 deals with scrutiny of nominations.
Sub section (2) (a) of the Section is material.
It reads thus: "(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds: (a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely: Articles 84, 102, 173 and 191, of this Act and. . " 648 Under sub section (7), for the purposes of this Section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in Section 16 of the Representation of the People Act, 1950.
Before the amendment of 1956.
clauses (a) and (b) of sub section (2) of Section 36 read as under: "The returning officer shall then examine the nomination papers and. .refuse any nomination on any of the following grounds: (a) that the candidate is not qualified to be chosen to fill the seat under the Constitution or this Act; or (b) that the candidate is disqualified for being chosen to fill the seat under the Constitution or this Act. . ." The Amendment Act 27 of 1956 recast clauses (a) to (e) of the old Section.
It also combined clauses (a) and (b) and the recast clause read as follows: "(a) that the candidate is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, 'namely:. . ." The Amendment Act 40 of 1961 substituted in Sub section (2)(a), for the words "that the candidate" the words "that on the date fixed for the scrutiny of nominations the candidate".
The same Amendment Act substituted in sub section (5) the proviso for the words "an objection is made" the words "an objection is raised by the returning officer or is made by any other person".
Thus, the amendment in sub section 2(a) was only of a clarificatory character.
It made it clear that the date of scrutiny of the nominations is a crucial date.
Next, we come to Section 100.
The Section enumerates the grounds on which an election can be declared to be void.
Before the Amendment of 1956, Section 100, so far as material, was as follows: "(1) If the Tribunal is of opinion (a) . . . . (b) . . . . (c) that the result of the election has been materially affected by the improper acceptance or rejection of 649 any nomination, the Tribunal shall declare the election to be wholly void.
Explanation. . . (2) Subject to the provisions of sub section (1) if the Tribunal is of opinion (a) . . . . (b) . . . . . (c) that the result of the election has been materially affected by the improper reception or refusal of a vote or by the reception of any vote which is void or by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act or of any other Act or rules relating to the election, or by any mistake in the use of any prescribed form, the Tribunal shall declare the election of the returned candidate to be void".
In Durga Shanker Mehta vs Thakur Raghuraj Singh & Ors.
nominations were filed for a double member Legislative Assembly constituency in Madhya Pradesh.
No objection was taken before the returning officer, that one of the candidates, Vasant Rao, was less than 25 years of age at the date of the nomination and, as such, was not qualified under Article 173 to be chosen to fill the seat.
The Returning Officer accepted his nomination.
In the Election Petition, the election of the returned candidate, Vasant Rao, was challenged on the ground that his nomination had been improperly accepted by the Returning Officer within the contemplation of Section 100(1)(c) of the Act, as then in force, because he was 'not qualified to be chosen in view of Section 173 of the Constitution.
The Tribunal held that the act of the Returning Officer in accepting the nomination of Vasant Rao, who was disqualified to be elected a member of the State Legislature under the Constitution, amounted to an improper acceptance of nomination within the meaning of Section 100(1)(c) of the Act, and as the result of the election was materially affected thereby, the whole election must be pronounced to be void.
The controversy centered round the question, whether on the facts proved and admitted the case was one under sub section (1) (c) or Section 2(c) of the then extant Section 100.
This Court held that 650 the acceptance of the nomination paper of Vasant Rao by the Returning Officer could not be said to be improper acceptance "within the contemplation of Section 100 (1) (c) of the Act, and that the case was of a description which came under sub section (2) (c) of Section 100 and not under sub section (1) (c) of the Section as it really amounted to holding an election without complying with the provisions of the Constitution.
The expression "non compliance with the provisions of the Constitution" in clause (c) of sub section (2) was held to be sufficiently wide to cover such cases where the question was not one of improper acceptance or rejection of the nomination by the Returning Officer, but there was a fundamental disability in the candidate to stand for election at all.
There was no material difference between "non compliance" and "non observance" or "breach" and this item in clause (c) of sub section (2) might be taken as a residuary provision contemplating cases where there had been infraction of the provisions of the Constitution or of the Act but which had not been specifically enumerated in the other portions of the clause.
After the decision in Durga Shanker Mehta 's case (ibid), Parliament in 1956 amended Section 100 along with Sections 36, 123, 124 and 125 of the Act.
By this Amendment, the various clauses of sub sections (1) and (2) were rearranged and recast and simplified in accordance with the recommendations of the Select Committee of Parliament, "that sub sections (1) and (2) of existing Section 100 should be suitably combined retaining the substance of the existing law and at the same time making the law simple and easily intelligible".
Now, Section 100, as amended, by the Amending Act of 1956 and subsequent Amendment Acts, reads as under: "100.
Grounds for declaring election to be void (1) Subject to the provisions of sub section (2) if the High Court is of opinion (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the (20 of 1963); or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or 651 (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii)by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent; (b) . . . (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void".
A plain reading of Section 100(1) of the Act shows that it can be conveniently divided into two parts.
Clauses (a), (b) and (c) 652 of the sub section fall in the first part and clause (d) along with its sub clauses falls in the second part.
The distinction between clauses (a), (b) and (c) in the first part and clause (d) in the second part lies in the fact that whereas on proof of any of the grounds mentioned in clauses (a), (b) and (c) the election has to be declared void without any further requirement, in a case falling under clause (d) the election cannot be declared void merely on proof of any of the grounds mentioned in its sub clauses, unless it is further proved "that the result of the election in so far as it concerns the returned candidate has been materially affected".
The expression "any nomination" occurring in sub clause (i) of clause (d) in the second part may include nomination of a returned candidate as well, but in the case of a returned candidate whose nomination has been improperly accepted, the effect on the result of the election so far as it concerns him, is obvious.
However, if the election is challenged on the ground that the nomination of a candidate, other than the returned candidate has been improperly accepted, the petitioner in order to succeed will be required to prove under clause (d) (i), in addition to improper acceptance the further fact that thereby the result of the election so far as it concerns the returned candidate has been materially affected.
Clause (a) of sub section (1) appears to require that the disqualification or lack of qualification of the returned candidate is to be judged with reference to "the date on his election", which date, according to Section 67A, is "the date on which a candidate is declared by the returning officer under the provisions of Section 53 or Section 66, to be elected to a House of Parliament or of the Legislature of a State".
But, the word "disqualified" used in clause (a) is capable of an expansive construction also, which may extend the scope of the inquiry under this clause to all the earlier steps in the election process.
As already noticed, Section 7(b) defines "disqualified" to mean "disqualified for being chosen as, and for being, a member of either House of Parliament etc.
" The words "for being chosen" in that definition have been interpreted by this Court in Chatturbhujs case (ibid) to include the whole "series of steps starting with the nomination and ending with the announcement of the election.
It follows that if a disqualification attaches to a candidate at any one of these stages he cannot be chosen".
But this definition of "disqualified" is in terms of Section 7(b) meant for Chapter III, in Part II of the Act; while Section 100 falls in Chapter III of Part VI.
If the expression "for being chosen" which is a central limb of the definition of "disqualified", is given such an extensive interpretation which will bring in its train the whole series of steps and earlier stages in the election process commencing with the filing of the nominations.
it will 653 be repugnant to the context and inconsistent with "the date of his election".
Such a construction which will introduce disharmony and inconsistency between the various limbs of clause (a) has to be eschewed.
In the context of clause (a), therefore, the ambit of the words "for being chosen" in the definition of "disqualified" has to be restricted to "the date of his election" i.e. declaration of the result of the election under Section 53 or Section 66, and such date is to be the focal point of time in an inquiry under this clause.
In contrast with clause (a), in a case falling under clause (d) (i) of Section 100, if an objection is taken before the Returning Officer against the nomination of any candidate on the ground of his being not qualified, or being disqualified for being chosen the crucial date as per Section 36 (2) (a) with reference to which the existence or nonexistence of such disqualification is to be enquired into is the date of scrutiny of the nomination of the candidate.
The first question is whether on facts admitted or proved on record, the case falls under Section 100(1) (a) or Section 100(1) (d), or both? The burden of Shri Kacker 's arguments is that the case falls under clause (d) (i) and not under clause (a) of Section 100(1).
Learned counsel has conceded that if clause (a) were applicable, the case would have been within the ratio of Manni Lal 's case and that was why at the stage of arguments before the High Court, the challenge under clause (a) of the sub Section was given up.
We will therefore, assume that technically, the election petitioner 's case that survives is one under clause (d) (i), and not under clause (a) of Section 100(1).
Even so, the fact remains, that, in substance, the election of the appellant is being challenged on the ground that on account of his conviction and sentence exceeding two years, the appellant was under Article 102(1)(e) of the Constitution read with Sections 8(2) and 36 (2) (a) of the Act, disqualified for being chosen to fill the seat concerned.
Such being the real ground of challenge, apart from sub clause (i) sub clause (iv) of clause (d) of Section 100 (1) will also be attracted.
This is so, because the phrase, non compliance with the provisions of the Constitution or of this Act etc.", according to the decision of this Court in Durga Shanker Mehta 's case (ibid), is wide enough to cover a case where the improper acceptance of rejection of the nomination is challenged on the ground of the candidate being disqualified for being chosen.
The controversy thus narrows down into the issue: Whether on facts undisputed or proved on record, the present case falls within the ratio of Manni Lal vs Shri Parmai Lal & Ors., even if the challenge is considered to be one under clause (d) (i) and (iv) of Section 100(1).
654 Before examining the facts and ratio of Manni Lal 's case it will be worthwhile to notice here a general principle of criminal law bearing on this issue.
This principle as reiterated by this Court in Dilip Kumar Sharma 's case, ibid, (at page 289), is as follows: An order of acquittal particularly one passed on merits wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed.
An order of acquittal annulling or voiding a conviction operates from nativity.
As Kelson puts it, "it is a true annulment an annulment with retroactive force".
So when the conviction (for the offence) was quashed by the High Court (in appeal). "it killed the conviction not then, but performed the formal obsequies of the order which had died at birth '.
In Manni Lal vs Parmai Lal (ibid), this Court applied this principle to the question of the disqualification of a candidate for being chosen to fill a seat in State Legislative Assembly.
In that case, the last date for filing nominations from the U.P. Legislative Assembly Constituency, Hardoi was January 9, 1969.
The returned candidate was convicted two days later on January 11, 1969 and sentenced, inter alia, to 10 years ' rigorous imprisonment under Section 304, Indian Penal Code.
On January 16, 1969, he filed an appeal against his conviction in the High Court.
Polling took place on February 9, 1969 and the result of the election was declared on February 11, 1969, and he was successful in the election.
His election was challenged by an election petition primarily on the ground that he was disqualified under Section 8(2) of the Representation of the People Act, because on the date of his election he stood convicted for an offence of imprisonment exceeding two years.
Before the election petition was decided, the returned candidate 's appeal was allowed on September 30, 1969 by the High Court and his conviction and sentence were set aside.
The question for decision before the Court was: What was the effect of the acquittal in appeal of the returned candidate before the decision of the election petition, on his conviction and sentence, which was the main ground on which he was alleged to be disqualified for being chosen ? The bench presided over by J. C. Shah, J. (as he then was) answered this question thus: ". it is clear that, though the conviction of respondent No. 1 was recorded by the trial court on 11th January, 1969, he was acquitted on 30th September, 1969 in appeal which acquittal had the effect of completely wiping out the conviction.
The appeal having once been allowed, it has to be held that the conviction and sentence were vacated with effect 655 from the date on which the conviction was recorded and the sentence awarded.
In a criminal case, acquittal in appeal does not take effect merely from the date of the appellate order setting aside the conviction; it has the effect of retrospectively wiping out the conviction and the sentence awarded by the lower court.
The disqualification relied upon by the appellant was laid under section 8(2) of the Act read with Article 102(1) (e) of the Constitution.
The provision is that a person convicted by a court in India for any offence and sentenced to imprisonment for not less than two years shall be disqualified for a further period of five years since his release.
The argument on behalf of the appellant was that, though respondent No. 1 was not disqualified at the time of filing of nomination, he was, in fact, disqualified on 9th February, 1969, the date of polling, as well as on 11th February, 1969, when the result was declared. .
The argument overlooks the fact that an appellate order of acquittal takes effect retrospectively and the conviction and sentence are deemed to be set aside with effect from the date they were recorded.
Once on order of acquittal has been made, it has to be held that the conviction has been wiped out and did not exist at all.
The disqualification, which existed on the 9th or 11th February, 1969 as a fact, was wiped out when the conviction recorded on 11th January, 1969 was set aside and that acquittal took effect from that very date.
It is significant that the High Court, under Section 100(1) (a) of the Act, is to declare the election of a returned candidate to be void if the High Court is of opinion that, on the date of his election, a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or the Act.
It is true that the opinion has to be formed as to whether the successful candidate was disqualified on the date of his election; but this opinion is to be formed by the High Court at the time of pronouncing the judgment in the election petition.
In this case, the High Court proceeded to pronounce the judgment on 27th October, 1969.
The High Court had before it the order of acquittal which had taken effect retrospectively from 11th January, 1969.
It was therefore, impossible for the High Court to arrive at the opinion that on 19th or 11th February 1969, respondent No. 1 was disqualified.
The conviction and sentence had been retrospectively wiped out, so that the opinion required to be formed by the High Court to 656 declare the election void could not be formed.
The situation is similar to the one that could have come into existence if Parliament itself had chosen to repeal s.8(2) of the Act retrospectively with effect from 11th January, 1979." (emphasis added) The essence of the decision is in the sentences which have been underlined by us in the above extract.
In sum, what was laid down in Manni Lal 's case was that if the disqualification of the returned candidate, viz., his conviction and sentence exceeding two year 's imprisonment which existed as a fact at the date of the election, is subsequently set aside by the Appellate Court, then a challenge to his election on the ground under Section 100(1) (a) of the Act, in an election petition pending in the High Court at the date of such acquittal, must fail because the acquittal has the effect of retrospectively wiping out the disqualification as completely and effectively as if it never had existed.
In other words, the ratio decidendi logically deducible from the above extract, is that if the successful candidate is disqualified for being chosen, at the date of his election or at any earlier stage of any step in the election process on account of his conviction and sentence exceeding two years ' imprisonment, but his conviction and sentence are set aside and he is acquitted on appeal before the pronouncement of judgment in the election petition pending against him, his disqualification is annulled and rendered non est with retroactive force from its very inception, and the challenge to his election on the ground that he was so disqualified is no longer sustainable.
Learned counsel for the respondent has tried to distinguish Manni Lal 's case from the one before us on three grounds.
First, that in Manni Lal 's case, the election was challenged under clause (a) or Section 100(1); whereas in the instant case, the challenge is only on the ground under clause (d) (i) of the Section, since the plea in the election petition on the ground under said clause (a) of Section 100(1) was given at the time of arguments in the High Court.
Second, in Manni Lal 's case, the disqualification on account of conviction and sentence of the candidate concerned did not exist on the date of the scrutiny of the nomination papers, but was incurred subsequently to the acceptance of his nomination, whereas in the present case, such disqualification existed as a fact even at the date of the scrutiny of the nomination papers.
Third, in view of the mandate in Section 36(2) (a), for the purpose of an enquiry under Section 100(1) (d) (i), the existence or non existence of the disqualification is to be judged as on the date of the scrutiny of the nominations, whereas in Manni Lal, 657 the legislative mandate of Section 36(2) (a) was inapplicable, the challenge to the election being one under Section 100(1) (a) only.
It appears to us that this three fold feature pointed out by the learned counsel amounts no more than to a distinction without a difference.
The basic ground of challenge and material factual constituents thereof are common in both these cases.
In both these cases what has been challenged is the election of the successful candidate.
Although at the time of arguments in the High Court the ground under clause (a) of Section 100(1) was not pressed and no arguments were addressed with reference to that clause, it had been pleaded and proved by the election petitioner that both at the date of the scrutiny of nominations and at the date of the election, the appellant 's disqualification existed as a fact.
Another undisputed fact apparent on the record is that the appellant was acquitted by the appellate court before the decision of election petition in the High Court.
As here, in Manni Lal also, such disqualification of the successful candidate existed not only at the date of his 'election ' as defined in Section 67A, but also at the date of the poll, which was an earlier step in the process of "being chosen".
As here, there also, such disqualification had been wiped out with retroactive force on account of his acquittal after the elections but before the decision of the election petition by the High Court.
Similar to the third point raised here, in Manni Lal also, it was contended that under section 100(1) (a), the question whether the successful candidate was disqualified on the date of his election was to be determined with reference to the situation obtaining on that date only.
This contention was repelled with the observation that such opinion had to be formed by the High Court at the time it proceeds to pronounce the judgment in the election petition and High Court had at that time before it the order of acquittal which had taken effect retrospectively from the date on which the conviction had been recorded by the trial court.
Although the Court did not specifically say so, this reasoning employed by the Court in negative the contention of the election petitioner in that case, appears to have been spelled out from a construction of the phrase "if the High Court is of opinion" used by the Legislature in the opening part of Section 100(1).
This phrase, be it noted, qualifies not only clause (a), but also clause (d) of the sub section.
Thus, the ratio of Manni Lal squarely and fully applies to the present case.
On the application of that rule, the acquittal of the appellant herein by the appellate court, during the pendency of the election petition must be held to have completely and effectively wiped out the disqualification of the appellant with retrospective effect from the date of the conviction, so that in the eye of law it existed neither at the date of scrutiny of nominations, nor at the date of the 'election ' or at any other stage of the process of "being chosen".
658 In short, the acquittal of the appellant before the decision of the election petition pending in the High Court, had with retrospective effect, made his disqualification non existent, even at the date of the scrutiny of nominations.
This being the position, the High Court could not at the time of deciding the election petition form an opinion as to the 'existence ' of a non existent ground and sustain the challenge to the appellant 's election under Section 100(1) (d) (i).
It is true that in order to adjudicate upon the validity of the challenge to the appellant 's election under clause (d) (i) of Section 100(1), what was required to be determined by the High Court was whether the nomination of the appellant was properly or improperly accepted by the Returning Officer.
But, in order to determine this question, it was necessary for the High Court to decide, as a preliminary step, whether the appellant was disqualified at the date of scrutiny of the nomination papers, for if he was disqualified, his nomination could not be said to have been properly accepted by the Returning Officer and if, on the other hand, he was not disqualified, his nomination would have to be regarded as properly accepted by the Returning Officer.
The primary question before the High Court, therefore, was whether or not the appellant was disqualified at the date of scrutiny of the nomination papers and it is difficult to see how the determination of this question could be made on any principle other than that governing the determination of a similar question under clause (a) of Section 100(1).
If, as laid down in Manni Lal 's case, the returned candidate cannot be said to be disqualified at the date of the election, if before or during the pendency of the election petition in the High Court his conviction is set aside and he is acquitted by the appellate court, it must be held, on the application of the same principle, that, in like circumstances, the returned candidate cannot be said to be disqualified at the date of the scrutiny of the nomination papers.
On this view.
the appellant could not be said to be disqualified at the date of scrutiny of the nomination paper since his conviction was set aside in appeal by this Court and if that be so, the conclusion must inevitably follow that the nomination of the appellant was properly accepted by the Returning Officer.
The position is analogous to that arising where a case is decided by a Tribunal on the basis of the law then prevailing and subsequently the law is amended with retrospective effect and it is then held by the High Court in the exercise of its writ jurisdiction that the order of the Tribunal discloses an error of law apparent on the face of the record, even though having regard to the law as it then existed, the Tribunal was quite correct in deciding 659 the case in the manner it did, vide Venkatachalam vs Bombay Dyeing & Manufacturing Company Limited.
Amritlal Ambalal Patel(ibid) cited by Shri Kacker is not a parallel case.
It is clearly distinguishable.
The facts therein were materially different from Manni Lal 's case or the one before us.
In that case, the election of Amritlal Ambalal Patel to Gujarat Legislative Assembly was challenged on the ground that he was on the date of scrutiny of nominations less than 25 years of age which was the minimum age prescribed under Article 173(b) of the Constitution and, as such, not being qualified for being chosen, his nomination was wrongly accepted.
The candidate attained the age of 25 years on the date of election.
Notwithstanding this subsequent fact, it was held by the Court that the nomination of the candidate had been "improperly accepted" within the meaning of Section 100 (1)(d).
The rationale of the decision was that the attainment of the prescribed age by the candidate after the date of scrutiny of nominations did not operate retrospectively to remove his disqualification for being chosen, with effect from the date of the scrutiny of the nominations.
The disqualification on the date of the scrutiny remained unaffected.
That was not a case like the present one where the disqualification of the candidate existing as a fact at the date of the nominations, due to his conviction and sentence exceeding two years, was retrospectively wiped out owing to his subsequent acquittal by the appellate court, during the pendency of the elections petition in the High Court.
It is possible that, difficult and anomalous situations may arise if the rule in Manni Lal vs Parmai Lal is applied to a converse hypothetical case wherein the candidate whose nomination is rejected on account of his disqualification, viz., conviction and sentence exceeding two years ' imprisonment existing as a fact on the date of scrutiny of nominations, brings an election petition to challenge the election of the returned candidate on the ground that his nomination was improperly rejected, as his disqualification had been, as a result of his subsequent acquittal by an appellate court, annulled and obliterated with retroactive force.
But we do not think it necessary to indulge in this hypothetical and academic exercise.
Firstly, the instant case is not one where the election is being challenged under Section 100(1) (c) on the ground that the election petitioner 's nomination was improperly rejected.
Secondly, it has not been urged before us by the learned 660 counsel for the respondent, that Manni Lal 's case was wrongly decided and that its ratio needs reconsideration by a larger Bench.
All efforts of the learned counsel have been directed to show that the principle enunciated in Manni Lal 's case is inapplicable to the present case because on facts, between these two cases, there is a difference and a distinction, where, in reality, none that matters, really exists.
In this situation therefore, we would abide by the principle of stare decisis and follow the ratio of Manni Lal 's case, and in the result, hold that the acquittal of the appellant in appeal prior to the pronouncement of the judgment by the High Court in the election petition had the result of wiping out his disqualification as completely and effectively as if it did not exist at any time including the date of the scrutiny of the nomination papers and that his nomination paper was properly accepted by the Returning Officer.
The challenge to the election of the appellant on the ground under clause 100(1) (d) (i) must, therefore, fail.
For all the foregoing reasons, we allow this appeal, set aside the judgment of the High Court and dismiss the election petition of the respondent.
In view of the law point involved, we will leave the parties to pay and bear their own costs throughout.
V.D.K. Appeal allowed.
| IN-Abs | The appellant had been convicted and sentenced to imprisonment exceeding two years by the Sessions Judge, Delhi, on February 26/27, 1979.
By his Order dated February 27, 1979, passed under section 389(3) of the Code of Criminal Procedure, the Sessions Judge who had convicted the appellant suspended the execution of the sentence to afford the appellant time to file an appeal.
On March 21, 1979 the High Court of Delhi admitted his appeal and by an order of the same date directed that his sentence shall remain suspended provided the appellant furnished a personal bond and surety in the amount of Rs. 5,000/ to the satisfaction of the Sessions Judge, which was complied with.
The respondent and the appellant contested the election as rival candidates to the Lok Sabha from No. 18 Mahasamund Parliamentary Constituency in Madhya Pradesh.
The last date for filing nominations was December 7, 1979.
The scrutiny of the nomination papers took place on December 11, 1979.
The Returning Officer by his Order dated December 11, 1979 rejected the objection of the respondent that the appellant was disqualified from being chosen as a candidate in view of sub section (2) of section 8 of the Representation of the People Act, 1951 and accepted the appellant 's nomination as valid.
The result of the election was declared on January 7, 1980.
The election result was notified on January 10, 1980.
The appellant was declared elected and the respondent was defeated.
Thereafter, on February 18, 1980 the respondent filed an election petition 1 of 1980 in the High Court of Madhya Pradesh to get the election of the appellant declared void under section 100(1)(a) and 100(1)(b)(i) of the Act challenging that at the date of the election including the date of the scrutiny of the nomination papers the appellant was disqualified by virtue of section 8(2) of the Act from being chosen as candidate on account of his aforesaid conviction and sentence.
The appellant 's appeal pending in the High Court was transferred to the Supreme Court under the .
The Supreme Court by its judgment dated April 11, 1980 allowed the appeal set aside the conviction and sentence of the appellant and acquitted him of charges against him.
Subsequent 638 to this decision of the Supreme Court, by its judgment dated September 5, 1980 the High Court of Madhya Pradesh allowed the election petition with costs and declared the appellant 's election to be void on the ground contained in section 100(1)(d)(i) of the Act, hence the appeal.
Allowing the appeal, the Court ^ HELD: (1).
Abiding by the principle of stare decisis and following the ratio decidendi of Manni Lal 's case; , , the acquittal of the appellant in appeal prior to the pronouncement of the judgment of the High Court in the election petition had the result of wiping out his disqualification as completely and effectively as if it did not exist at any time including the date of the scrutiny of the nomination papers and that his nomination paper was properly accepted by the Returning Officer.
[660B C] Manani Lal vs Shri Parmai Lal & Ors. ; , applied (2) An order of acquittal particularly one passed on merits wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed.
An order of acquittal annulling or voiding a conviction operates from nativity.
[654B] Manni Lal vs Shri Parmai Lal & Ors.
, ; ; Dilip Kumar Sharma & Ors.
vs State of Madhya Pradesh, ; , followed.
(3) The ratio decidendi logically deducible from Manni Lal 's case is that if the successful candidate is disqualified for being chosen, at the date of his election or at any earlier stage of any step in the election process on account of his conviction and sentence exceeding two years ' imprisonment, but his conviction and sentence are set aside and he is acquitted on appeal before the pronouncement of judgment in the election petition pending against him, his disqualification is annulled rendered non est with retroactive force from its very inception, and the challenge to his election on the ground that he was so disqualified is no longer sustainable.
[656D E] (4) A plain reading of section 100(1) of the Act shows that it can be conveniently divided into two parts.
Clauses (a), (b) and (c) of the sub section fall in the first part and clause (d) along with its sub clauses falls in the second part.
The distinction between clauses (a), (b) and (c) in the first part and clause (d) in the second part lies in the fact that whereas on proof of any of the grounds mentioned in clauses (a), (b) and (c), the election has to be declared void without any further requirement, in a case falling under clause (d) the election cannot be declared void merely on proof of any of the grounds mentioned in its sub clauses, unless it is further proved "that the result of the election in so far as it concerns the returned candidate has been materially affected".
The expression "any nomination" occurring in sub clause (i) of clause (d) in the second part may include nomination of a returned candidate as well; but in the case of a returned candidate whose nomination has been improperly accepted, the effect on the result of the election so far as it concerns him, is obvious.
However, if the election is challenged on the ground that the nomination of a candidate, other than the returned candidate, has been improperly accepted, the petitioner in order to succeed will be required to prove under clause (d)(i) in addition to improper acceptance the further fact that thereby 639 the result of the election so far as it concerns the returned candidate has been materially affected.
[651H 652D] Clause (a) of sub section (1) requires that the disqualification or lack of qualification of the returned candidate is to be judged with reference to "the date of his election", which date, according to section 67A is "the date on which a candidate is declared by the returning officer under the provisions of section 53 or section 66, to be elected to a House of Parliament or of the Legislature of a State".
But, the word "disqualified" used in clause (a) is capable of an expensive construction also, which may extend the scope of the inquiry under this clause to all the earlier steps in the election process.
Section 7(b) defines "disqualified" to mean "disqualified for being chosen as and for being, a member of either House of Parliament etc.
" The words "for being chosen" in that definition have been interpreted by the Supreme Court in Chatturbhuj 's case; , , to include the whole "series of steps starting with the nomination and ending with the announcement of the election.
It follows that if a disqualification attaches to a candidate at any one of these stages he cannot be chosen." But this definition of "disqualified" is in terms of section 7(b) meant for Chapter III, in Part II of the Act; while section 100 falls in Chapter III of Part VI.
If the expression "for being chosen" which is a central limb of the definition of "disqualified", is given such an extensive interpretation which will bring in its train the whole series of steps and earlier stages in the election process commencing with the filing of the nominations, it will be repugnant to the context and inconsistent with "the date of his election".
Such a construction which will introduce disharmony and inconsistency between the various limbs of clause (a) has to be eschewed.
In the context of clause (a), therefore, the ambit of the words "for being chosen" in the definition of "disqualified" has to be restricted to "the date of his election" i.e. declaration of the result of the election under section 53 or section 66, and such date is to be the focal point of time in an inquiry under this clause.
[652H 653D] In contrast with clause (a), in a case falling under clause (d)(i) of section 100, if an objection is taken before the Returning Officer against the nomination of any candidate on the ground of his being not qualified, or being disqualified for being chosen the crucial date as per section 36(2)(a) with reference to which the existence or non existence of such disqualification is to be enquired into is the date of scrutiny of the nomination of the candidate.
[653C] Assuming that technically, the election petitioner 's case that survives is one under clause (d)(i), and not under clause (a) of section 100(1).
Even so, the fact remains that, in substance, the election of the appellant is being challenged on the ground that on account of his conviction and sentence exceeding two years, the appellant was under Article 102(1)(e) of the Constitution read with section 8(2) and 36(2)(a) of the Act, disqualified for being chosen to fill the seat concerned.
Such being the real ground of challenge, apart from sub clause (i), sub clause (iv) of clause (d) of section 100(1) will also be attracted, because the phrase "non compliance with the provisions of the Constitution or of this Act etc.
" according to the decision of this Court in Durga Shankar Mehta 's case is wide enough to cover a case where the improper acceptance or rejection of the nomination is challenged on the ground of the candidate being disqualified for being chosen.
[653E G] 640 Durga Shanker Mehta vs Thakur Raghuraj Singh & Ors.
[1955] 1 SCR 267 and Chatturbhuj Vithaldas Jasani vs Nareshwar Parashram Ors., , followed.
(a) It is true that in order to adjudicate upon the validity of the challenge in the appellant 's election under clause (d) (i) of section 100(1), what was required to be determined by the High Court was whether the nomination of the appellant was properly or improperly accepted by the Returning Officer.
But, in order to determine this question, it was necessary for the High Court to decide, as a preliminary step, whether the appellant was disqualified, at the date of scrutiny of the nomination papers, for if he was disqualified, his nomination could not be said to have been properly accepted by the Returning Officer and if, on the other hand, he was not disqualified, his nomination would have to be regarded as properly accepted by the Returning Officer.
The primary question before the High Court therefore, was whether or not the appellant was disqualified at the date of scrutiny of the nomination papers and it is difficult to see how the determination of this question could be made on any principle other than that governing the determination of a similar question under clause (a) of section 100(1).
If, as laid down in Manni Lal 's case, the returned candidate cannot be said to be disqualified at the date of the election, if before or during the pendency of the election petition in the High Court his conviction is set aside and he is acquitted by the appellate court, on the application of the same principle, that, in like circumstances, the returned candidate cannot be said to be disqualified at the date of scrutiny of the nomination papers.
On this view, the appellant could not be said to be disqualified on the date of scrutiny of the nomination paper since his conviction was set aside in appeal by this Court and if that be so, the conclusion must inevitably follow that the nomination of the appellant was properly accepted by the Returning Officer.
The position is analogous to that arising where a case is decided by a Tribunal on the basis of the law then prevailing and subsequently the law is amended with retrospective effect and it is then held by the High Court in the exercise of its writ jurisdiction that the order of the Tribunal discloses an error of law apparent on the face of the record, even though having regard to the law as it then existed, the Tribunal was quite correct in deciding the case in the manner it did.
[656C H] Venkatachalam vs Bombay Dyeing & Manufacturing Company Limited, ; , referred to.
|
N: Criminal Appeal No. 499 of 1976.
Appeal by Special Leave from the Judgment and Order dated 22 7 1975 of the Punjab & Haryana High Court in Criminal Appeal No. 166/75 and Murder Reference No. 10/75.
O.P. Sharma and M. section Dhillon for the Appellant.
R.K. Jain for Respondents Nos. 1 and 3 to 6.
R.K. Kohli and R. C. Kohli for the complainant.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by the State of Punjab is directed against a judgment, dated July 22, 1975, of the High Court of Punjab and Haryana, whereby the appeal of the respondents (hereinafter referred to as the accused) was accepted and they were acquitted of the double murder charge against them.
The prosecution story narrated by Resham Singh (P.W. 2), who claims to be an eyewitness of the occurrence, runs as follows.
Resham Singh (P.W.2) used to live with his brother in law, Hazara Singh deceased, in a hamlet in the fields outside the habitation of village Cheema.
One Ajit Singh of village Dhual was murdered, and Wassan Singh accused and his party men were tried therefor.
At the trial, Hazara Singh deceased appeared as an eyewitness of that murder.
The trial court convicted Wasson Singh and his companions in that case.
They went in appeal to the High Court.
Pending the appeal the High Court enlarged Wasson Singh accused on bail.
The occurrence now in question in the instant case took place when Wasson Singh was on bail.
The lands of Avtar Singh, Mukhtar Singh and Harbhajan Singh accused (respondents) adjoin the lands of Hazara Singh deceased.
Three or four days prior to the incident in question, the cattle of these accused persons trespassed on the land of Hazara Singh and damaged his cotton crop.
Thereupon, a sharp altercation took place 620 between Hazara Singh and Resham Singh on one side and Harbhajan Singh and Mukhthar Singh on the other.
Gajjan Singh son of Gopal Singh resident of the village interceded and pacified the parties.
Joginder Singh accused respondent is the brother of Mukhtar Singh accused respondent while Harbhajan Singh Respondent is their first cousin.
Mukhtar Singh and Harbhajan Singh accused are alleged to be partyman of Wasson Singh.
On August 4, 1973 at about 3.30 p.m., Resham Singh (P.W.2).
Resham Singh (deceased) son of another Hazara Singh and Hazara Singh deceased were proceeding by the foot path from the Bus Stand Amarkot to their hamlet.
On the way Bachan Singh, brother of Hazara Singh, met them and proceeded along with them.
When they reached near the fields of Jarmaj Singh Sarpanch of Mahmoodpura, all the six accused, namely, Wasson Singh, Baj Singh, Meja Singh, Joginder Singh, Mukhtar Singh and Harbhajan Singh emerged from the sann crop and came to the bank of the watercourse.
Baj Singh was armed with a pistol and the other five accused were armed with rifles.
Wasson Singh, Joginder Singh and Mukhtar Singh fired their rifles at Hazara Singh.
The rifle shots hit Hazara Singh on the left side of his head, and he dropped dead.
Resham Singh (P.W.2), Bachan Singh and Resham Singh deceased started running towards the ploughed fields.
Meja Singh, Harbhajan Singh and Baj Singh chased them.
Meja Singh and Harbhajan Singh encircled Resham Singh deceased and shot him dead with rifle shots.
Baj Singh chased Resham Singh (P.W. 2) and Bachan Singh (P.W. 3) and fired at them with his pistol.
When these two were running away, the other two accused also fired at them.
Resham Singh and Bachan Singh, however, succeeded in escaping unhurt.
Resham Singh (P.W. 2) immediately reached the Bus Stand Amarkot, picked up his motor cycle which was lying there at a shop and drove fast to Police Station Valtoha, where he lodged the First Information Report (exhibit PE) at 4.30 p.m.
Police Sub Inspector Bishambar Lal recorded the report of Resham Singh and sent a copy of the same as a special report to the superior officers, including the Judicial Magistrate, First Class at Patti, who received the copy of the F.I.R. at 6.30 p.m., on the same day.
While running away from the spot Resham Singh (P.W. 2) had left behind his shoe (exhibit P 1) near the scene of murders.
Sub Inspector Bashambar Lal reached the scene of occurrence at 5.30 p.m. and started investigation.
He prepared the inquest reports regarding the deaths of Hazara Singh and Resham Singh deceased persons.
He also took into possession blood stained earth 621 and other relevant articles lying near the two dead bodies.
He found two empty cartridge cases at the scene of Hazara Singh 's murder.
He took them into possession and sealed them into a parcel.
He also seized two pairs of shoes lying at the spot.
After his arrest, Mukhtar Singh accused was interrogated by the Investigating Officer on August 31, 1973.
After making a statement, Mukhtar Singh accused, in the presence of witnesses, led the police to the discovery of the rifle (exhibit P 7) and some live cartridges.
The rifle and the empty cartridges earlier found at the scene of crime were sent to the ballistic expert for examination and opinion.
After examination, the ballistic expert of the Forensic Science Laboratory, Chandigarh, reported (vide exhibit P. 9) that the 303 fired cartridge, marked C, had been fired through the 303 rifle marked `A ' by him.
But no definite opinion could be given regarding the linkage of the fired cartridge marked C, with the 303 rifle marked `A ' due to lack of sufficient individual characteristic marks on C2.
Joginder Singh accused was arrested on August 24, 1973 and Baj Singh accused on December 18, 1973.
The post mortem examination of the dead body of Resham Singh was performed by Dr. Gursharan Kaur on August 5, 1973 at 8 a.m.
The Doctor found five gun shot injuries on his body.
Two of these were wounds of entry, with everted margins on the back of the left chest.
No charring was present on any of these gun shot wounds.
The death in the opinion of the Doctor was due to shock and haemorrhage resulting from gun shot injuries on the chest which were sufficient to cause death in the ordinary course of nature.
On the same day, Dr. Gursharan Kaur conducted the autopsy on the dead body of Hazara Singh and found four fire arm injuries, two of which were wounds of entry and two were wounds of exit.
All these injuries were on the skull.
They involved fracture of the skull and damage to the brain.
These injuries had been caused with firearm and were sufficient to cause death instantaneously, in the ordinary course of nature.
At the trial, the main stay of the prosecution was the testimony of the two eye witnesses, Resham Singh (P.W.2) and Bachan Singh (P.W.3).
Examined under Section 342, Cr.
P.C., Wasson Singh accused admitted that he along with others was tried for the murder of Ajit Singh of village Dhual and Hazara Singh deceased had appeared against him as eye witness of that murder; and that he (Wasson Singh) was convicted by the Court of Session, but had been released on bail 622 pending his appeal in the High Court.
He denied the rest of the prosecution case and stated that he had been falsely implicated by the relations of Ajit Singh deceased on suspicion; and that on the day of occurrence, he was working as a Conductor on a truck at Muzaffarnagar.
The plea of Baj Singh was one of plain denial of the prosecution case.
He stated that his brothers Punjab Singh, Narinder Singh and Bagicha Singh had been prosecuted for the murder of one Puran Singh who was a relation of Bachan Singh (P.W.3); that Punjab Singh and his companions were acquitted in that case.
Baj Singh added that he used to look after the defence of the accused in Puran Singh 's murder case; and that on account of this, he had been falsely implicated.
He further stated that at the time of occurrence, he was residing in U.P. Meja Singh accused, also, denied the prosecution case.
He stated that one Balkar Singh of Village Wan had been murdered.
He (Meja Singh) used to look after the defence of Jarnail Singh (his wife 's brother, who was being tried for the murder of Balkar Singh; that on account of this, the relation of the said Balkar Singh had, in connivance with the complainant party, falsely implicated him in the instant case.
The remaining accused, also, denied the circumstances appearing in evidence against them.
The learned Additional Sessions Judge, Amritsar, who tried the case against these six accused persons, found that Wasson Singh had a strong motive to murder Hazara Singh deceased, because the latter had appeared as an eye witness against Wasson Singh in Ajit Singh 's murder case.
The trial Judge further accepted the prosecution evidence in regard to the fact that a few days before this occurrence in question, there was a: quarrel between Hazara Singh deceased and Resham Singh (P.W. 2) on one side and Mukhtar Singh, and Harbhajan Singh accused on the other, when the cattle of the accused had trespassed on the land of the deceased and damaged his cotton crop; and that on account of this ill will, Joginder Singh, Mukhtar Singh and Harbhajan Singh accused had a sufficient motive to join hands with Wasson Singh accused to murder Hazara Singh deceased.
The trial Judge further found that the prosecution had failed to establish the exact nature of the motive which might have actuated Meja Singh and Baj Singh to murder Resham Singh deceased.
The trial Judge further held that the F.I.R. which had been lodged by Resham Singh with great promptitude at Police Station Valtoha, which was about three miles from the place of occurrence, furnished valuable corroboration of the evidence of Resham Singh (P.W. 2).
623 He accepted the evidence of Resham Singh and Bachan Singh.
He further found that Sub Inspector Bishambar Lal had tried to favour Joginder Singh accused by fabricating a note in his zimini at some subsequent stage.
This note is to the effect, that Joginder Singh was, in fact, present irrigating his nearby fields and he joined the police investigation on the very day of occurrence and had remained with the police till the investigation by the Deputy Superintendent of Police.
The trial Judge disbelieved the plea of alibi set up by Meja Singh accused.
In the absence of independent evidence, the trial Judge was unable to hold from the bare testimony of Bishamber Lal, Sub Inspector, that the rifle (exhibit P 7) had been recovered from Mukhtar Singh accused.
He, however, criticised the conduct of Sub Inspector Bishamber Lal in not sending the empty cartridges found at the spot to the ballistic expert of the Forensic Laboratory, Chandigarh, with due promptitude.
In the result, the trial Judge held that Wasson Singh, Joginder Singh and Mukhtar Singh accused had fired their rifles at Hazara Singh deceased, and had caused his death.
He therefore, convicted these three accused for the substantive offence under Section 302, Penal Code.
He further held that the common object of the unlawful assembly constituted by the six accused was to murder Hazara Singh deceased.
He therefore, further convicted all the six accused under Section 302 read with Section 149, Penal Code, for the murder of Hazara Singh.
The trial Judge found that the murder of Resham Singh did not appear to have been caused in prosecution of the common object of the said unlawful assembly.
He therefore, convicted Baj Singh, Meja Singh and Harbhajan Singh accused only under Section 302 read with Section 34, Penal Code, for the murder of Resham Singh deceased and sentenced each of them to imprisonment for life and a fine of Rs. 200/ .
In respect of the murder of Hazara Singh, Wasson Singh was sentenced to death, while each of the other five accused were sentenced to imprisonment for life and a fine.
The trial Judge referred the case to the High Court for confirmation of the death sentence of Wasson Singh.
All the accused, also appealed against their conviction and sentences.
The High Court allowed the appeal, declined the reference and rejected the evidence of the eye witnesses, Resham Singh (P.W. 2) and Bachan Singh (P.W. 3), for these reasons: (i) Both these witnesses are closely related to the deceased Hazara Singh, who was the principal target of the accused.
(ii) (a) Excepting in the case of Wasson Singh who had undoubtedly a grudge against Hazara Singh deceased, it has not been 624 satisfactory established by the prosecution that the other five accused had any motive to commit the murders in question.
(b) Gajjan Singh, who is said to have interceded and pacified both the parties at the time of the alleged quarrel over cattle trespass, three or four days prior to the occurrence, between Mukhtar Singh and Harbhajan Singh on one hand and Hazara Singh deceased and Resham Singh (P.W. 2) on the other, has not been examined by the prosecution.
(c) There was no mention about this earlier incident in the statement of Bachan Singh (P.W. 3) before the police during investigation.
(iii) Both Resham Singh and Bachan Singh, P.Ws.
had earlier been involved in cases of serious crime, and Bachan Singh was admittedly registered as a bad character with the Police.
On account of their antecedents, Resham Singh and Bachan Singh do not appear to be reliable people.
(iv) The prosecution story is highly unnatural.
The presence of these two eye witnesses along with the deceased persons was unlikely.
Had these witnesses been with Hazara Singh deceased, they would have been the target of attack after Hazara Singh was killed and not Resham Singh deceased against whom the accused had no grudge.
(v) Hazara Singh deceased, Bachan Singh and Resham Singh, P.Ws.
, all admittedly reside in the hamlet of Hazara Singh deceased, and if they had to go to Amarkot for making purchases, they would have in all probability gone together.
Bachan Singh 's version, that he had gone to Amarkot to make enquiries regarding the availability of diesel and on his return journey in the way, met and joined the company of his brother Hazara Singh deceased, and his companions, was not believable, because there was no need for Bachan Singh to have gone to Amarkot for the purchase of diesel as he could have asked Hazara Singh to make the necessary enquiries.
(vi) There is a material inconsistency in the testimony of the two eye witnesses as to when Hazara Singh deceased and Resham Singh (P.W. 2) had left their behak (hamlet).
From the statement of Resham Singh (P.W. 2), it appears that from their behak they had gone to Amarkot that very day for purchasing cloth and on the return journey they met Bachan Singh.
As against this, the story told by Bachan Singh is that a day earlier Hazara Singh deceased and Resham Singh, P.W. had left their behak for some unknown destination and that a day later they had met him at the adda, after their departure from the behak the previous day.
This version completely belies the version of Resham Singh (P.W. 2) that they had left their behak 625 in order to make purchases of cloth and other articles.
(vii) Another odd feature brought out from the evidence of Resham Singh (P.W. 2) is the presence of motor cycle at Amarkot on that day.
It is surprising that he could afford to maintain a motorcycle from the meagre income that he would have got from his 5 or 6 acres of land.
His explanation as to why he left the motor cycle at Amarkot, is also not convincing.
(viii) The investigation of the case conducted by the Sub Inspector Bishamber Lal (P.W. 13) does not inspire confidence.
(a) The evidence relating to the recovery of empty cartridges (vide exhibit P.G.) and pair of shoes from the spot near the dead body of Hazara Singh, was not reliable, because P.W. 13 did not mention about the presence of these articles in the inquest report (exhibit PDZ).
(b) Though the empty (crime) cartridges recovered from the spot were sent to the ballistic expert earlier, they were returned to the Police Station on the plea that the test cartridges had not been sent along with those empties.
"Even if it was so, there was no need of sending the crime cartridges to the Police Station, as the test cartridges could be sent for through a separate letter.
In this situation, the suggestion that the crime cartridge had been later on fired through rifle (exhibit P7) when it was recovered cannot be considered improbable".
(ix) "On arrival at the scene of the incident, P.W. 13 found Joginder Singh accused at a distance of about 100 yards irrigating his field.
According to Bishamber Lal, he interrogated Joginder Singh there and then, but did not arrest him.
If Joginder Singh accused had been found near the scene of the crime within a short time, engaged in his normal activities, his participation in the crime would be highly improbable".
Learned counsel for the appellant vehemently contends that the reasoning of the High Court is manifestly unsound, if not wholly perverse.
Great emphasis has been laid on the fact that the First Information Report, in this case was lodged by Resham Singh (PW 2) with utmost promptitude, and even its copy had reached the Magistrate at about 6 or 6 30 p.m. at Patti, on the same day.
In the First Information Report, proceeds the argument, all the material facts including the names of the accused and of the witnesses have been mentioned It is submitted that since this F.I.R. was made without delay in circumstances in which the informant had no time to concoct a false story, it furnished valuable corroboration of the evidence of Resham Singh (P.W. 2), and made his evidence safe enough to be 626 accepted.
It is further maintained that in the first place, the prosecution had established that Mukhtar Singh, Harbhajan Singh and Joginder Singh had also a motive to join hands with Wasson Singh to murder Hazara Singh deceased, and that even if it was held that such motive on the part of the companions of Wasson Singh accused had not been substantiated as the High Court has held then P.Ws. 2 and 3 had also no motive or animus to falsely implicate them.
Counsel have criticised the failure of the High Court to discuss the value and effect of the F.I.R. lodged by P.W. 2.
It is emphasised that the circumstance that the F.I.R. was made without delay was a circumstance of paramount importance in evaluating Resham Singh 's evidence in particular and the prosecution evidence in general.
It is argued that the omission on the part of the High Court to deal with and discuss the F.I.R. has caused serious aberration in its approach and vitiated its appreciation of the evidence of the eye witnesses.
On the other hand, Shri R. K. Jain, learned counsel for the respondents, has submitted that since the reasons given by the High Court in support of the acquittal of the accused cannot be called perverse, this Court should not, in keeping with its practice, disturb the acquittal even if it feels inclined to hold that the view of the evidence taken by the trial court is also reasonable.
Shri Jain has further tried to support the reasoning of the High Court.
We have carefully considered the contentions canvassed on both sides.
We are also not unmindful of the fact that we are dealing with an appeal against an order of acquittal in a double murder case.
Even so, we find that the reasons given by the High Court for holding that Resham Singh (P.W. 2) was not an eye witness of these murders, are utterly unsustainable.
The mere fact that Resham Singh (P.W. 2) had succeeded in escaping unhurt, or that there are discrepancies in the statements of Resham Singh (P.W. 2) and Bachan Singh (P.W. 3), as to whether they had gone to Amarkot with Hazara Singh deceased on the very day of occurrence or a day earlier, was no ground for jumping to the conclusion that P.W. 2 was not in the company of the deceased or nearabout the scene of occurrence when Hazara Singh and Resham Singh were shot dead.
The occurrence took place on August 4, 1973, While Resham Singh (P.W. 2) and Bachan Singh (P.W. 3) were examined at the trial on December 27, 1974, that is to say, 17 months after the incident.
Such discrepancies in regard to collateral or subsidiary facts or matters of detail occur even in the statements of truthful witnesses, particularly when they are examined to depose to events which happened long before their examination.
Such discrepancies are 627 hardly a ground to reject the evidence of the witnesses when there is general agreement and consistency in regard to the substratum of the prosecution case.
As rightly observed by the trial court, Resham Singh (P.W.2) was never cross examined by the defence regarding his whereabouts and that of Hazara Singh deceased on the previous night.
The mere fact that P.W. 2 did not make any purchases at Amarkot could hardly be a reason to hold that his being in the company of Hazara Singh deceased at the material time, was improbable.
It is common ground that there was no love lost between Wassan Singh appellant and Hazara Singh deceased.
Wassan Singh, though convicted by the trial court for the murder of Ajit Singh, was released on bail by the High Court pending his appeal.
P.W. 3 is the brother and P.W. 2 a relation of the deceased.
All these three were living together in the same hamlet in the fields.
It is in the evidence of these witnesses that the other accused are partymen of Wasson Singh.
It is further in evidence that sometime before the occurrence both Hazara Singh and Resham Singh,(P.W. 2) were arrested and handcuffed by Darshan Singh, Police Sub Inspector on the allegation that they were indulging in smuggling and would be liquidated.
Both of them however, escaped and appeared with handcuffs on before the Deputy Home Minister and complained against the Police Sub Inspector.
Both were prosecuted for smuggling betel leaves across the border.
It was therefore, not improbable that this trio consisting of Hazara Singh deceased, P.W. 2 and P.W. 3 was, as usual, moving about or carrying on their activities together.
Moreover, the deceased Hazara Singh must have known that Wasson Singh accused who was inimically disposed towards him, was at large on bail.
This was an added reason for this troika to move about for their security, if not for anything else, in the company of each other.
Nor could P.W. Bachan Singh 's presence at the scene of crime be discounted and his evidence discarded merely on the score that there was no necessity for him to go to Amarkot for enquiring about the availability of diesel.
There is one towering circumstance which goes a long way to lend assurance to the claim of P.W. 2 that he was an eye witness of the occurrence.
It is that the F.I.R. (exhibit P.E.) was lodged by him at Police Station Valtoha, so promptly that he had practically no time to spin out a false story.
628 The learned trial Judge has accepted, and rightly so, the sworn testimony of Resham Singh (P.W. 2) and Sub Inspector Bishamber Lal (P.W. 13), who was then Station House Officer, Valtoha, to the effect, that the F.I.R. (exhibit P.E.), was recorded in the Police Station at 4.30 p.m. Police Station Valtoha is three miles from Bus Stand Amarkot.
According to Resham Singh, the occurrence took place at about 3.30 p.m. On seeing the occurrence and after eluding the pursuit, Resham Singh, as he says, ran to Adda Amarkot through the fields covering a distance of about one kilometre.
According to P.W. 2, his motor cycle was lying at a shop in Amarkot.
He picked up his motor cycle from there and drove to the Police Station, Valtoha and without loss of time lodged the first information, there.
The endorsement on exhibit PE, bears out that the copy of the First Information was in the hands of Shri K. K. Garg, Judicial Magistrate, First Class, Patti, at 6.30 p.m.
This circumstance assures the truth of the prosecution evidence on the point that the First Information Report was made by Resham Singh (P.W. 2) at the Police Station at 4.30 p.m., that is within two hours of the occurrence without undue delay.
The learned Judges of the High Court have not at all dealt with the F.I.R. or the promptitude with which it was made.
They doubted Resham Singh 's version that from Amarkot he went on his own motor cycle to Valtoha Police Station.
The argument employed by the High Court is that Resham Singh owned only four or five killas of land, and could not acquire and maintain a motor cycle from the income of his petty holding.
However, this was not the defence case.
In cross examination, the defence themselves, brought out and tried to establish that he was earning by smuggling betel or other things to Pakistan.
Thus, according to the own showing of the defence, P.W. 2 had a source of income other than his agricultural income.
It was, therefore, nothing improbable if Resham Singh owned a motor cycle.
Sub Inspector Bishamber Lal (P.W. 13) was not questioned in cross examination as to whether or not Resham Singh had come to the Police Station on a motor cycle.
He (P.W. 13) was however, questioned as to what transport he had used for going from the Police Station to the scene of murders.
The witness replied that he went on a motor cycle upto Amarkot and from there went on foot to the scene of occurrence.
Resham Singh stated that since it had recently rained, the kacha path from Amarkot to their hamlet in village Ban, had became muddy and unsafe for riding a motor cycle because of the high risk of skidding.
That was why, the witness had left the motor cycle at Adda Amarkot with a shopkeeper.
629 It may be noted that the occurrence took place on August 4, 1973 when the rainy season would be in full swing.
This explanation of Resham Singh (P.W. 2) regarding the kacha path from Amarkot to the scene of occurrence, being non motorable on the day of occurrence, receives inferential support from the fact appearing in the evidence of Bishamber Lal (P.W. 13), that he had to cover the distance from Adda Amarkot to the place of occurrence, on foot.
Thus, the reason employed by the High Court for disbelieving the version of Resham Singh (P.W. 2) regarding his owning and going on a motor cycle from Amarkot to Police Station Valtoha was manifestly unsound.
It was argued before the trial court on behalf of the accused that the occurrence might have taken place at about 2 p.m. when Resham Singh (P.W. 2) was about 400 or 500 yards away in his hamlet, and that on hearing the report of gun fire he was attracted to the scene of crime, and he having seen the dead bodies lying there, went home, took his motor cycle and then drove to the Police Station Valtoha and brought Sub Inspector Bishamber Lal to the scene of occurrence and the Sub Inspector prepared the F.I.R. at the spot after deliberation with Resham Singh and others.
This contention was rightly rejected by the trial court.
As observed earlier, since it had rained a day prior to the occurrence, the kacha path from Amarkot to the scene of occurrence and to the hamlet of the deceased must have been muddy and slippery.
Therefore, the very suggestion that from village Ban to Amarkot and thereafter to Valtoha, Resham Singh went on his motor cycle, was improbable.
Moreover, from the conduct of the Investigating Officer, Bishamber Lal, it appears that he was not favourably disposed towards the deceased and the informant.
Indeed, a suggestion was put to Bishamber Lal (P.W. 13) by the Public Prosecutor, that he has been unfair in the investigation of the case and tried to favour Joginder Singh and Meja Singh accused.
The learned trial Judge found that the investigation conducted by Sub Inspector Bishamber Lal was biased in favour of Joginder Singh and Meja Singh accused persons, and that the Sub Inspector fraudently interpolated a note in his zimini to help Joginder Singh accused.
The High Court has, also, found that this note in the zimini was a fraudulent insertion.
This being the case, Sub Inspector Bishamber Lal would be least disposed to join hands with Resham Singh informant in preparing the First Information Report, after deliberation with him (P.W.2) at the spot.
630 Dr. Gursharan Kaur (P.W. 1) who performed the post mortem examination of the dead bodies of Resham Singh and Hazara Singh on August 4, 1973 between 8 a.m. and 9 a.m. respectively, opined that the time which elapsed between these deaths and their post mortem examination was about 18 hours.
Thus, according to the Doctor 's opinion, also, the deaths took place at about 2 or 3 p.m. on August 4, 1973.
The opinion of the medical witness thus corroborated the version of Resham Singh (P.W. 2) in as much as the latter has testified that the murders took place at about 3.30 p.m.
This means, that the statement of Resham Singh (P.W. 2) in the First Information Report was made without undue delay, and, as such, furnished very valuable corroboration of his testimony at the trial, in all material particular.
If the presence of Resham Singh (P.W. 2) and Dalip Bachan Singh (P.W. 3) at the time and place of murders was probable the further question would be, how far their evidence could be safely accepted against each of the accused persons ? It is true that both these witnesses are related to the deceased, and, as such, are interested witnesses.
Their antecedents, also, are of a questionable nature.
But their antecedents or mere interestedness was not a valid ground to reject their evidence.
Persons with such antecedents are not necessarily untruthful witness.
Nor mere relationship with the deceased was a good ground for discarding their testimony, when, as we have already held, their presence at the scene of occurrence was probable.
All that was necessary was to scrutinise their evidence with more than ordinary care and circumspection with reference to the part or role assigned to each or the accused.
An effort should have been made to sift the grain from the chaff; to accept what appeared to be true and to reject the rest.
The High Court did not adopt this methodology in appreciating their evidence.
Instead, it took a short cut to disposal, and rejected their evidence whole sale against all the accused, for reasons which, as already discussed, are manifestly untenable.
Keeping the principle enunciated above, we have scrutinised the entire material on record with particular focus on the evidence of P.W.2 and P.W.3, against each of the accused.
Excepting the immaterial discrepancies considered earlier, the evidence of P.W. 2 and P.W. 3 was consistent, and their presence as already mentioned, at the time and place of murders was probable.
Even so, as a matter of abundant caution, it will be safe to act on their interested evidence 631 to the extent to which some assurance is coming forth from surrounding circumstances or other evidence.
The story narrated by the eye witnesses, Resham Singh and Bachan Singh is that Wasson Singh, Mukhtar Singh and Joginder Singh first fired a volley of rifle shots at Hazara Singh deceased as a result of which he dropped dead at the spot.
The evidence of the Doctor who performed the autopsy on the dead body of Hazara Singh is to the effect that there were two bullet wounds of entry on the left side of the head.
These wounds were located at a distance of 2 1/2 cms.
from each other.
There were two corresponding wounds of exit.
There was no blackening or charring around these wounds of entry.
This indicates that these injuries were caused by bullets fired almost simultaneously from two separate rifles from a distance beyond 6 feet.
This means at least the rifles fired by two of the three aforesaid accused did find their mark, causing instantaneous death of the deceased.
Now, both the courts below have concurrently found that Wasson Singh had a strong motive to murder Hazara Singh deceased.
This circumstance, by itself, is sufficient to lend the necessary assurance to the evidence of Resham Singh (P.W. 2) and Bachan Singh (P.W. 3) and make it a safe basis for convicting Wasson Singh accused for the murder of Hazara Singh.
The trial court had accepted the evidence of Resham Singh (P.W.2) in regard to the quarrel over cattle trespass that took place 3 or 4 days prior to these murders between Mukhtar Singh and Harbhajan Singh accused on one side, and Hazara Singh deceased and P.W. 2 on the other.
This story finds particular mention in the F.I.R. (exhibit PE) which was lodged by P.W. 2 without undue delay.
The High Court has rejected this story about this previous quarrel on the three fold ground, namely: (a) Gajjan Singh who interceded and pacified the parties has not been examined, (b) No evidence of the extent of damage done to the crop or of any complaint made to village Panchayat has been produced, (c) Bachan Singh (P.W.3), did not mention about this earlier incident in his police statement.
In our opinion, none of these was a valid ground for rejecting the evidence of Resham Singh (P.W.2) in regard to this incident.
Resham Singh 's consistent testimony on this point corroborated by the F.I.R. (exhibit PE) was sufficient to establish this fact beyond doubt.
Thus, it was proved by the prosecution that Mukhtar Singh accused had also a motive to join Wasson Singh accused in killing Hazara Singh.
The circumstance that Mukhtar Singh had also a motive to participate in the murder of Hazar Singh deceased lends assurance to the 632 testimony of Resham Singh (P.W.2) and Bachan Singh (P.W.3), and strengthens the inference of guilt against the said accused, also.
It is in the evidence of Sub Inspector Bishamber Lal (P.W.13) that Mukhtar Singh was arrested on August 18, 1973 and on August 31, 1973 Mukhtar Singh accused, whilst under Police custody, made a disclosure statement in the presence of Ajit Singh and Sardul Singh Constables, that he had kept concealed a 303 rifle with 5 cartridges wrapped in a piece on cloth in a bundle of reeds lying inside the courtyard of his house at village Thathiwala and he could get the same discovered.
P. W. 13 recorded that statement (exhibit P 1).
Thereafter, the accused was taken to village Thathiwala where he led the Sub Inspector in the presence of Sardul Singh and Ajit Singh Constables, to that bundle and got discovered the rifle (exhibit P7) and the cartridges (exhibit P8 to 12) therefrom.
The Sub Inspector prepared the sketch of the rifle and the memo (exhibit PM) which was attested by the aforesaid Constables.
The rifle and the cartridges were sealed into parcels and were thereafter sent through Constable Ajit Singh, with seals intact, to the Police Station where they were received by the Moharrir Head Constable Natha Singh (P.W. 10).
P.W. 13 has also, stated that he had on August 4, 1973 on inspecting the scene of murders, found two empty cartridges (exhibit
P3 and exhibit P4) from near the dead body of Hazara Singh.
The witness took them into possession and sealed them into a parcel in the presence of Anokh Singh and Gajjan Singh witnesses, and prepared the memo (exhibit PG).
The parcel containing the empties was later deposited by the Sub Inspector, with seals in tact, in the Malkhana of the Police Station.
The evidence of Sub Inspector Bishamber Lal, with regard to the seizure of the empty (crime) cartridges from the scene of occurrence on August 4, was supported by Anokh Singh (P.W.4) who is an attesting witness of the memo, Ex.PG.
The witness is a resident of village Cheema.
In cross examination, he revealed that these two fired cartridges were lying at a distance of 1.5 karams (8 or 9 feet) from the dead body of Hazara Singh.
Nothing was brought out in cross examination to show that the witness was in any way interested in the prosecution or was related to the deceased or had any animus against the accused.
Thus, it has been clearly proved that two fired cartridges were picked up from the scene of crime and sealed into parcels which were later deposited with seals intact in the Police Station.
In the memo (exhibit PG), it is mentioned that these fired cartridges were of 303 bore rifle.
633 Ajit Singh Moharrir Head Constable (P.W.11) swore in his affidavit that on August 4, 1973, he received the sealed parcel of 2 empty cartridges from Sub Inspector Bishamber Lal.
The seals on the parcel remained intact so long as the parcel remained in his custody.
Then, there are the affidavits of Avtar Singh Constable (P.W. 9) and Natha Singh Moharir Head Constable showing that on September 24, 1973, the sealed parcels containing the rifle (exhibit P7) and the five live cartridges were sent through P.W. 9 to the Forensic Science Laboratory Chandigarh, who delivered the same in the said Laboratory with seals intact.
The evidence of P.W. 13 regarding the discovery of the rifle (exhibit P7) from Mukhtar Singh accused was fully corroborated by Constable Sardul Singh (P.W. 12).
His cross examination reveals that Mukhtar Singh was interrogated in the Police Station at 4 5 A.M. when he made the statement (exhibit PL), leading to the discovery of the rifle (exhibit P7).
Sub Inspector Bishamber Lal (P.W. 13) has stated that the sealed parcel containing the empty cartridges, that had been found at the scene of crime, was sent to the Forensic Science Laboratory Chandigarh at a date earlier than the one on which the parcel containing the rifle (exhibit P7) and the five live cartridges was sent to the said Laboratory, but it was returned with the objection that it should have been sent along with the test cartridges.
Consequently, this parcel containing the empties was again sent to the Forensic Laboratory along with the sealed parcel containing the rifle (exhibit P7) and the live cartridges recovered from Mukhtar Singh accused.
In the Report (exhibit PQ) of the Ballistic Expert (L. A. Kumar) which was tendered in evidence and admitted without objection, it is opined that the empty (crime) cartridge, marked C1, had been fired through the rifle (exhibit P7).
In cross examination, the defence suggested to P.W. 13, that he had purposely recalled the parcel containing the empty cartridges from the Forensic Science Laboratory for creating evidence against the accused and he did so by firing one cartridge through the rifle (exhibit P7).
The oblique suggestion was that the cartridge, marked C1 which in the opinion of the Ballistic Expert had been fired through the rifle (exhibit P7) was substituted for the original empty cartridge that had been found at the scene of murder.
The Sub Inspector emphatically denied the suggestion.
It was further suggested to P.W. 13 that the rifle (exhibit P7) had, in fact, been handed over to the Police by the relations of the deceased after procuring it from some source.
This was also stoutly denied by P.W. 13.
634 The learned trial Judge discarded this evidence relating to the discovery of the rifle (exhibit P7) at the instance of the accused, Mukhtar Singh, for the reason that Sub Inspector Bishamber Lal, for no good reason, had failed to join respectables of the locality to witness the discovery of the rifle, and that he (P.W. 13) "has tried to be a defence witness rather than the investigating officer".
The trial Judge accepted Anokh Singh 's statement regarding the recovery of the two fired cartridges from the scene of Hazara Singh 's murder on August 4, but he adversely commented on the conduct of Bishamber Lal in delaying the despatch of those crime cartridges to the Forensic Science Laboratory Chandigarh till after the recovery of the rifle.
He observed: "In all probability, Sub Inspector Bishamber Lal wanted to help the accused by creating suspicion with respect to the identity of the firing impressions" (on the empties).
For this reason, according to the trial Judge, the ballistic evidence "will not be corroborative evidence for the prosecution.
" We agree with the trial Court that the investigating officer did not deliberately join with him respectables of the locality to attest the statements (exhibit PL) made by Mukhtar Singh, and to witness the sub sequent discovery of the rifle (exhibit P7) at the instance of Mukhtar Singh.
There was substance in the observation of the trial Judge that the investigation was biased in favour of the accused.
If that was so, the failure of Bishamber Lal (P.W. 13) to join with him respectables of the locality was, by itself, no ground for ruling out the evidence of the discovery of the rifle, altogether.
The partiality of Bishamber Lal towards the defence, rather assures the genuineness of the discovery He was least disposed to 'collaborate ' or 'cooperate ' with the relations of the deceased to procure this rifle (exhibit P7) from some other source and then foist it on Mukhtar Singh.
For the same reason, it is not possible to hold that he recalled the sealed parcel containing the fired (crime) cartridges from the Laboratory at Chandigarh, for substituting a cartridge fired through the rifle (exhibit P7) or for fabricating evidence in support of the prosecution.
Moreover, the parcel containing the two empties must have been returned by the Director of the Forensic Laboratory on his own initiative and not at the instance of the Sub Inspector (P.W. 13).
The omission on the part of this investigating officer to join with him some independent persons or respectables of the locality to witness the recovery devalues that evidence but does not render it inadmissible.
Although a suggestion of "planting" the rifle, and fabricating the evidence of the empty cartridge (C1) was put to Sub Inspector Bishamber Lal in cross examination, no such allegation was 635 made, nor any such plea was set up by Mukhtar Singh accused when the evidence relating to the recovery of the two empties from the spot, the discovery of the rifle (exhibit P7) at his instance and the opinion (exhibit PQ) of the Ballistic Expert was put to this accused in his examination under Section 342, Cr.
P.C. The circumstance of the recovery of the rifle (exhibit P7) and the opinion of the Ballistic Expert that the empty cartridge (marked C1) (found on August 4, at the scene of murder) had been fired through the rifle (exhibit P7), though feeble it might be was relevant and furnished a further pointer to the participation of Mukhtar Singh in the commission of Hazara Singh 's murder by rifle fire.
In sum, sufficient assurance of the testimony of P.W. 2 and P.W. 3, was available from the circumstantial evidence discussed above, regarding the participation of Wasson Singh and Mukhtar Singh accused in the murder of Hazara Singh.
The evidence of the eyewitnesses therefore, could safely be acted upon for convicting Wasson Singh and Mukhtar Singh accused respondents for the murder of Hazara Singh.
But such assurance of the evidence of these eyewitnesses was not available against the remaining accused regarding either of the murders in question.
Joginder Singh accused admittedly was not present when the quarrel over cattle trespass took place between Hazara Singh deceased and P.W. 2 on one side, and Mukhtar Singh and Harbhajan Singh accused on the other.
It has neither been alleged nor proved that Joginder Singh had any motive of his own to murder Hazara Singh deceased.
Although, the investigation betrays a tilt in favour of the accused, and P.W. 13 made a fraudulent insertion in the zimini to help Joginder Singh accused, it cannot be said that the version of P.W. 13 to the effect that when he went to the scene of murders at 5.30 P.M., he found Joginder Singh irrigating his nearby fields at a distance of about 100 yards therefrom and he (P.W. 13) interrogated him there and then, but did not think it necessary to arrest him, is necessarily false.
The absence of motive, and the presence of Joginder Singh near the scene of crime shortly after the murders, engaged in normal agricultural activities does cast a doubt about his participation in the commission of these murders.
P.W. 2 and P.W. 3 have stated that they started running away from the spot, immediately after Hazara Singh was shot dead.
The surrounding circumstances, natural probabilities and the normal course of human conduct also suggest the same inference, that 636 immediately on seeing Hazara Singh being shot down, these witnesses who were following Hazara Singh, ran fast for their lives.
Had they tarried for a while at the scene of Hazara Singh 's murder, it would have been too late for them to escape unhurt.
In such a situation, when they were being pursued by persons armed with fire arms, they could, if at all they turned and looked behind have only a fleeting glimpse in the distance of the assailants of Resham Singh deceased.
That is why, Resham (P.W. 2) is not consistent in his statements as to which of the accused had fired at him when he was running away for his life.
Moreover, it has not been established that any of the six accused had any motive, whatever, to murder Resham Singh deceased.
For the foregoing reasons, we partly allow this appeal by the State, set aside the acquittal of Wassan Singh and Mukhtar Singh accused (respondents) and convict them under Section 302 read with Section 34, Penal Code for the murder of Hazara Singh deceased and sentence each of them to imprisonment for life.
We would, however, accord the benefit of doubt to the rest of the accused (respondents) and maintain their acquittal on all the counts.
Wasson Singh and Mukhtar Singh shall surrender to their bail bonds to serve out the sentences inflicted on them.
N.V.K. Appeal partly allowed.
| IN-Abs | The prosecution case against the six accused (Respondents) was that prior to the incident in question, there was an altercation between the two deceased on one side and the six accused on the other over trespass of cattle of the accused persons on the land of the deceased, which damaged his cotton crop.
On the day of the incident when P.W. 2, P.W. 3 and the two deceased were going by a foot path, the six accused suddenly emerged out of a field and fired.
The two deceased fell dead, while P.W. 2 and 3 ran and escaped unhurt.
P.W. 2 reached the bus stand, picked up his motor cycle parked at a shop and drove to the nearest police station to lodge the F.I.R.
The Additional Sessions Judge found that one of the accused had a strong motive to murder one of the deceased because of an old feud and that on account of this ill will, some of the accused had a strong motive in joining hands with the others to murder the deceased, but that no motive could be established for murdering the second deceased.
He also found that the fact that the F.I.R. was lodged by P.W. 2 with the utmost promptitude furnished valuable corroboration of his evidence and also disbelieved the evidence of the police Sub Inspector (P.W. 13).
In the result he convicted all the six accused under section 302 read with section 149 I.P.C. for murder of one of the deceased and sentenced them to imprisonment.
In the case of first accused however, he was sentenced to death for the murder of one of the deceased.
All the accused appealed against their conviction and sentence to the High Court which allowed the appeal and rejected the reference.
It rejected the evidence of the eye witnesses, P.W. 2 and P.W. 3 on the ground that these witnesses were closely related to the first deceased who was the principal target of the accused and that it had not been satisfactory established by the prosecution that the other five accused had any motive to commit the murders in question.
It found that the prosecution story was highly unnatural and that the presence of the two eye witnesses alongwith the deceased persons was un 616 likely.
It further held there was material inconsistency in their testimony, as to when the first deceased and P.W. 2 had left the hamlet, and that the investigation of the case conducted by the Sub Inspector (P.W. 13) did not inspire confidence.
In the appeal by the State to this Court it was contended on behalf of the State that the reasoning of the High Court was manifestly unsound, if not wholly perverse.
The fact that the F.I.R. was lodged by P.W. 2 with utmost promptitude and all the material facts including the names of the accused and of the witnesses having been mentioned therein, indicated that there was no time to concoct a false story.
On behalf of the respondents it was submitted that the acquittal could not be disturbed, as the reasons given by the High Court could not be called perverse.
^ HELD : 1(i) The acquittal of respondent Nos. 1 and 2 are set aside and they are convicted under section 302 read with section 34 Indian Penal Code for the murder of the first deceased and sentenced to imprisonment for life.
The benefit of doubt to the rest of the accused (respondents) and their acquittal on all the counts maintained.
[636 C D] (ii) Sufficient assurance of the testimony of P.W. 2 and P.W. 3 was avail able from the circumstantial evidence regarding the participation of respondents Wasson Singh and Mukhtar Singh in the murder of deceased Hazara Singh.
The evidence of the eye witnesses therefore, could safely be acted upon for convicting these respondents for the said murder.
[635 C D] 2.
The reasons given by the High Court for holding that P.W. 2 was not an eye witness of these two murders are utterly unsustainable.
The reason that P.W. 2 had succeeded in escaping unhurt, or that there are discrepancies in the statements of P.W. 2 and P.W. 3 as to whether they had gone with the deceased on the very day of occurrence or a day earlier was no ground for the conclusion that P.W. 2 was not in the company of the deceased or near about the scene of occurrence when the two deceased were shot dead.
[626 F G] 3.
Discrepancies in regard to collateral or subsidiary facts or matters of detail occur even in the statements of truthful witnesses, particularly when they are examined to depose to events which happened long before their examination.
Such discrepancies are hardly a ground to reject the evidence of the witnesses when there is general agreement and consistency in regard to the substratum of the prosecution case.
[626H 627A] In the instant case the occurrence took place on August 4, 1973, while P.W. 2 and P.W. 3 were examined at the trial on December 27, 1974 i.e. seventeen months after the incident.
The trial court has rightly observed that P.W. 2 was never cross examined by the defence regarding his whereabouts and those of the deceased on the previous night.
The mere fact that P.W. 2 did not make any purchase at Amarkot could hardly be a reason to hold that his being in the company of the deceased at the material time was improbable.
[626G, 627B] 4.
P.W. 3 is the brother and P.W. 2 relation of the deceased.
All three were living together in the same hamlet in the fields.
It is in the evidence of 617 these witnesses that the other accused are partymen of respondent No. 1.
It is further in evidence that sometime before the occurrence both the deceased and P.W. 2 were arrested and handcuffed by a police Sub Inspector on the allegation that they were indulging in smuggling and would be liquidated.
It was, therefore, not improbable that this trio consisting of first deceased, P.W. 2 and P.W. 3 were as usual moving about or carrying on their activities together.
Moreover the deceased must have known that Respondent No. 1 who was inimically disposed towards him was at large on bail.
This was an added reason for this troika to move about for their security, if not for anything else, in the company of each other.
[627C F] 5.
(i) The High Court has not all dealt with the First Information Report or the promptitude with which it was made.
[628D] (ii) The towering circumstance which lends assurance to the claim of P.W. 2 that he was an eye witness of the occurrence is that the First Information Report was lodged by him at the Police Station so promptly that he had practically no time to spin out a false story.
The reason employed by the High Court for disbelieving the version of P.W. 2 regarding his owning and going on a motor cycle to the Police Station was manifestly unsound.
The Sub Inspector P.W. 13 was not questioned in cross examination as to whether or not P.W. 2 had come to the Police Station on a motor cycle.
He was, however, questioned as to what transport he had used for going from the Police Station to the scene of murders.
The witness replied that he went on a motor cycle upto Amarkot and from there went on foot to the scene of occurrence.
This explanation of P.W. 2 regarding the kacha path from Amarkot to the scene of occurrence, being non motorable on the day of occurrence, receives inferential support from the fact appearing in the evidence of P.W. 13 that he had to cover the distance from Adda Amarkot to the place of occurrence, on foot.
[627H, 629E, 628G 629A] 6.
The conduct of the Investigation Officer (P.W. 13) indicates that he was not favourably disposed to the deceased and P.W. 2.
A suggestion was also put to P.W. 13 by the Public Prosecutor that he had been unfair in the investigation of the case and tried to favour the 3rd and 4th respondent.
The High Court found that the note in the zimini was a fraudulent insertion.
This being the case, Sub Inspector (P.W. 13) would be least disposed to join hands with P.W. 2 informant in preparing the First Information Report, after deliberation with P.W. 2 at the spot.
[629F H] 7.
The opinion of the medical witness P.W. 1 corroborates the version of P.W. 2 in as much as the latter has testified that the murders took place at about 3.30 p.m.
This means that the statement of P.W. 2 in the F.I.R. was made without undue delay, and, as such, furnished very valuable corroboration of his testimony at the trial in all material particulars.
[630B C] 8.
(i) Both P.W. 2 and P.W. 3 are related to the deceased, and as such are interested witnesses.
Their antecedents, also, are of a questionable nature.
But their antecedents or mere interestedness was not a valid ground to reject their evidence.
All that was necessary for the Court was to scrutinise their evidence with more than ordinary care and circumspection with reference to the part or role assigned to each of the accused.
An effort should have been made to sift the grain from the chaff; to accept what appeared to be true and to reject the 618 rest.
The High Court did not adopt this methodology in appreciating their evidence.
Instead it took a shortcut to disposal and rejected their evidence whole sale against all the accused for reasons which are manifestly untenable.
[630E G] (ii) Excepting for immaterial discrepancies the evidence of P.W. 2 and P.W. 3 was consistent and their presence at the time and place of murders was probable.
Even so, as a matter of abundant caution it will be safe to act on their interested evidence to the extent to which some assurance is coming forth from surrounding circumstances or other evidence.
[630H 631A] 9.
The prosecution has proved that the respondent No. 2 had also a motive to participate in the murder of the second deceased.
This lends assurance to the testimony of P.W. 2 and P.W. 3 and strengthens the inference of guilt against the said accused also.
P.W. 2 's consistent testimony corroborated by the F.I.R. was sufficient to establish this fact beyond doubt.
[631H 632A] 10.
It had been clearly proved that two fired cartridges were picked up from the scene of crime and sealed into parcels which were later deposited with seals intact in the Police Station.
On the memo it is mentioned that these fired cartridges were of 303 bore rifle.
[632H] 11.
There was substance in the observation of the trial Judge that the investigation was biased in favour of the accused.
If that was so, the failure of P.W. 13 to join with him respectables of the locality was by itself no ground for ruling out the evidence of the discovery of the rifle, altogether.
The partiality of P.W. 13 towards the defence, rather assures the genuineness of the discovery.
He was least disposed to 'collaborate ' or cooperate with the relations of the deceased to procure this rifle from some other source and then foist it on respondent Mukhtar Singh.
The omission on the part of this Investigating Officer to join with him some independent persons or respectables of the locality to witness the recovery devalues that evidence but does not render it inadmissible.
[634D F, H] 12.
The circumstance of the recovery of the rifle (exhibit P. 7) and the opinion of the Ballistic Expert that the empty cartridge (C1) had been fired through the rifle though feeble it might be was relevant and furnished a further pointer to the participation of Mukhtar Singh in the commission of Hazara Singh 's murder by rifle fire.
[635B] 13.
Although the investigation betrays a tilt in favour of the accused, and P.W. 13 made a fraudulent insertion in the zamini to help Joginder Singh accused, it cannot be said that the version of P.W. 13, that when he went to the scene of murders at 5.30 p.m. he found Joginder Singh irrigating his nearby fields at a distance of about 100 yards therefrom and he interrogated him there and then but did not think it necessary to arrest him is necessarily false.
The absence of motive and the presence of Joginder Singh near the scene of crime shortly after the murders, engaged in normal agricultural activities does cast a doubt about his participation in the commission of these murders.
[635 F G] 14.
P.W. 2 and P.W. 3 have stated that they started running away from the spot, immediately after deceased Hazara Singh was shot dead.
The surrounding circumstances, natural probabilities and the normal course of human conduct 619 also suggest the same inference, that immediately on seeing Hazara Singh being shot down, these witnesses who were following him ran fast for their lives.
Had they tarried for a while at the scene of the murder, it would have been too late for them to escape unhurt.
In such a situation, when they were being pursued by persons armed with fire arms, they could if at all they turned and looked behind have only a fleeting glimpse in the distance of the assailants of Resham Singh deceased.
That is why P.W.2 is not consistent in his statements as to which of the accused had fired at him when he was running away for his life.
Moreover it has not been established that any of the six accused had any motive, whatever to murder Resham Singh deceased.
[635H 636C]
|
N: Criminal Appeal No. 163 of 1979.
Appeal by Special Leave from the Judgment and Order dated 23 8 1978 of the Allahabad High Court in Criminal Appeal No. 1264/78 and Murder Reference No. 9/78.
R. C. Kohli for the Appellant.
O. P. Rana and K. K. Bhatta for the Respondent.
Yogeshwar Prasad and Mrs. Rani Chhabra for the Complainant.
773 The Judgment of the Court was delivered by CHANDRACHUD, C.J.
A college going boy called Vijay Bhan Kishore was shot dead on the morning of November 2, 1976 near the Hathi Park, Dayanand Marg, Allahabad.
The appellant was convicted for that offence under section 302 of the Penal Code by the learned Third Additional Sessions Judge, Allahabad and was sentenced to death.
The order of conviction and sentence having been confirmed by the High Court of Allahabad by its judgment dated August 23, 1979, the appellant has filed this appeal by Special Leave.
Vijay Bhan Kishore alias Pappoo was the son of an Advocate called Brij Bhan Kishore who died in about 1967 leaving behind a widow, three daughters and Pappoo.
The youngest of the three daughters was married while the two elder were working as school teachers.
Out of those two, Ranjana Kishore was a teacher in the St. Anthony 's Convent.
The appellant, Dudh Nath Pandey, who was a motor car driver by occupation, used to live as a tenant in an out house of a sprawling bungalow belonging to the family of the deceased, situated at 17, Stanley Road, Allahabad.
The appellant developed a fancy for Ranjana who was about 20 years of age when he came to live in the out house.
The overtures made by the appellant to Ranjana created resentment in her family and its only surviving male member, her brother Pappoo, took upon himself the task of preventing the appellant from pursuing his sister.
As a first step, the appellant was turned out of the out house.
Soon thereafter, he filed an application before the City Magistrate, Allahabad, asking for the custody of Ranjana, alleging that she was his lawfully wedded wife.
That application was dismissed by the learned Magistrate after recording the statement of Ranjana, in which she denied that she was married to the appellant.
The appellant thereafter filed a habeas corpus petition in the Allahabad High Court alleging that Ranjana was detained unlawfully by the members of her family, including her uncle K. P. Saxena, and asking that she be released from their custody.
Ranjana denied in that proceedings too that she was married to the appellant or that she was unlawfully detained by the members of her family.
The habeas corpus petition was dismissed by the High Court on November 8, 1973.
On August 1, 1975, the Principal of St. Anthony 's Convent made a complaint to the police that the appellant had made indecent overtures to Ranjana.
The appellant was arrested as a result of that complaint.
774 On November 1, 1976, Ranjana was having an evening stroll with her brother, the deceased Pappoo, in the compound of their house.
The appellant came there in a rickshaw, abused Pappoo and is alleged to have threatened to kill him, if he dared oppose his, the appellant 's marriage with Ranjana.
As a result of these various incidents and the family 's growing concern for Ranjana 's safety, Pappoo used to escort Ranjana every morning to the school where she was teaching.
On the following day, i.e. on November 2, 1976, Pappoo took Ranjana to her school on his scooter as usual.
The classes used to begin at 9 30 A.M. but Ranjana used to go to the school 30 to 40 minutes before time for correcting the students ' home work.
After dropping Ranjana at the school, Pappoo started back for home on his scooter.
While he was passing by the Children 's Park, known as the Hathi Park, the appellant is alleged to have fired at him with a country made pistol.
Pappoo fell down from his scooter and died almost instantaneously.
The occurrence is said to have been witnessed by Harish Chandra (P. W. 3), a domestic servant of the family of the deceased and by Harish Chandra 's friend Ashok Kumar (P. W. 1).
Harish Chandra used to live in the out house of the deceased 's bungalow at 17, Stanley Road, while Ashok Kumar, who generally lived at Kanpur, is said to have come to Allahabad the previous day in search of employment.
Almost immediately after Pappoo and Ranjana left the house on the scooter, Ashok Kumar and Harish Chandra too left the house as the former wanted to see the Hathi Park.
They were near about the gate of the park, which is a few steps away from the scene of occurrence, when the deceased Pappoo was passing along on his scooter, after dropping Ranjana at the St. Anthony 's Convent.
Ashok Kumar and Harish Chandra are alleged to have seen the appellant, who was standing near the northern boundary of the park, firing a shot at Pappoo.
The appellant re loaded his pistol and is said to have run away to wards the south east.
Ashok Kumar and Harish Chandra rushed to St. Anthony 's Convent in a rickshaw and informed Ranjana Kishore about the murder of her brother.
Ranjana went to the scene of incident along with them and on finding that her brother was dead, she went straight to the Cannington police station which is about 2 kms.
She wrote out the report (exhibit Ka 1) in her own hand and submitted it to the officer in charge of the police station at 9 45 A.M.
In the meantime, information of the murder had reached the police station of Colonelganj, within the 'jurisdiction ' of which the murder had taken place.
775 The police deserve a word of appreciation because they did not, as usual, enter into a squabble as to in whose 'jurisdiction ' the offence had taken place.
H. R. L. Srivastava, the sub inspector attached to Colonelganj police station, went within minutes to the scene of offence and, believing that Pappoo was alive, sent him in a jeep to the Tej Bahadur Sapru hospital.
A little later, P. section I. Chandrapal Singh of the Cannington police station arrived on the scene and started the investigation.
He took charge of an empty cartridge shell and the bloodstained earth and later, he sent the dead body of Pappoo for postmortem examination.
P. section I. Srivastava arrested the appellant at about 2 30 P.M. while he was standing near a pan shop in front of the Indian Telephone Industries, Naini, where he used to work.
The appellant was taken to the scene of offence where he made a certain statement and took out a loaded pistol from a heap of rubbish lying on the Kamla Nehru Road, being the direction in which he had run away after killing Pappoo.
The Ballistic expert, Budul Rai, opined that the empty cartridge shell, which was lying at the scene of offence, was fired from that particular pistol.
Dr. G. section Saxena, who conducted the postmortem examination found a single gun shot injury on the left side of the chest of the deceased, below the armpit.
The injury had caused seven pellet wounds, each measuring 1/3 inch in diameter.
Seven pellets were recovered from the body.
The injury, according to Dr. Saxena, was sufficient in the ordinary course of nature to cause death.
The appellant stated in his defence that he used to live in the house of the deceased as the guest of the family and not as a tenant and that Ranjana got intimate with him during that period.
He left the house because she told him that there was danger to his life.
The murder of Pappoo, according to the appellant, was engineered by Dr. K. P. Saxena, the maternal uncle of the deceased.
The appellant denied his hand in the murder, saying that he had no reason to do so since the deceased 's mother and the other members of the family desired that he should marry Ranjana.
The appellant examined five witnesses to prove his alibi, his contention being that he was on duty at the Indian Telephone Industries, right from 8 30 A.M. on the date of the incident and that he was arrested from inside the factory at about 2 30 P.M. while on duty.
776 The learned Additional Sessions Judge, Allahabad, examined the Deputy Superintendent of Police, R. P. Bhanu, and the General Manager of the Indian Telephone Industries as Court witnesses.
The prosecution examined 13 witnesses in support of its case that the appellant had committed the murder of Pappoo.
Ashok Kumar (P.W. 1) and Harish Chandra (P.W. 3) were examined as eyewitnesses to the incident.
Ranjana Kishore (P.W. 2) was examined to prove the motive for the murder as also for showing that the deceased Pappoo had taken her to the school on his scooter and that, soon thereafter, she was informed by the two eye witnesses of the murder.
Ram Kishore (P.W. 4) was examined to prove the arrest of the appellant and the recovery of the loaded pistol.
P. section I. Srivastava (P.W. 9) and P.S.I. Chandrapal Singh (P.W. 10) deposed about the various steps taken during the course of investigation.
Dr. G. section Saxena (P.W. 11) was examined in order to show the nature of the injuries suffered by the deceased while Budul Rai (P.W. 12) stated that the empty cartridge shell which was lying at the scene of offence was fired from the particular pistol which is stated to have been recovered at the instance of the appellant.
The other prosecution witnesses are mostly of a formal nature.
Were this a case of circumstantial evidence, different considerations would have prevailed because the balance of evidence after excluding the testimony of the two eye witnesses is not of the standard required in cases dependent wholly on circumstantial evidence.
Evidence of recovery of the pistol at the instance of the appellant cannot by itself prove that he who pointed out the weapon weilded it in offence.
The statement accompanying the discovery is woefully vague to identify the authorship of concealment, with the result that the pointing out of the weapon may at best prove the appellant 's knowledge as to where the weapon was kept.
The evidence of the Ballistic expert carries the proof of the charge a significant step ahead, but not near enough, because at the highest, it shows that the shot which killed Pappoo was fired from the pistol which was pointed out by the appellant.
The evidence surrounding the discovery of the pistol may not be discarded as wholly untrue but it leaves a few significant questions unanswered and creates a sense of uneasiness in the mind of a Criminal Court, the Court of conscience that it has to be: How could the appellant have an opportunity to conceal the pistol in broad day light on a public thoroughfare ? If he re loaded the pistol as a measure of self protection, as suggested by the prosecution, why did he get rid of it so quickly by throwing it near the Hathi Park itself ? And how come that the police hit upon none better that Ram Kishore (P.W. 4) to witness the discovery of the pistol ? Ram Kishore had already 777 deposed in seven different cases in favour of the prosecution and was evidently at the beck and call of the police.
But the real hurdle in the way of the appellant is the evidence of the eye witnesses: Ashok Kumar (P.W. 1) and Harish Chandra (P.W. 3).
Shri R. C. Kohli who appears for the appellant made a valiant attempt to demolish their evidence but in spite of the counsel 's able argument, we find it difficult to hold that the eye witnesses have perjured themselves by claiming to be present at the time and place of the occurrence.
It is true that Harish Chandra, who was working as a domestic servant with the deceased 's family, should normally have been doing his daily morning chores.
Few masters would permit a household servant to go away on a sight seeing spree right in the morning.
But there are at least two plausible reasons which lend assurance to the claim that Harish Chandra left the house almost immediately after the deceased Pappoo drove away with his sister Ranjana.
Ashok Kumar had come to Allahabad the previous evening and he wanted to go to the Hathi Park where, though it is called a children 's park, adults too find their merriment.
There is nothing fundamentally improbable in Ashok Kumar coming to Allahabad in search of employment and equally, nothing inherently strange in the two friends going out on a frolic.
And though a small consideration, it is relevant that the normal morning routine of Harish Chandra was to help in the kitchen but the 2nd November, 1976 was an Ekadashi day and therefore, there was not much to do for him.
The second reason is more weighty and almost clinches the issue.
The evidence of Ranjana (P.W. 2) shows beyond the manner of doubt that Harish Chandra and Ashok Kumar broke to her the news of her brother 's murder, while she was in the school.
The events after the murder happened in such quick succession that there was no time for any one to contrive and confabulate.
Within ten minutes of the occurrence, Ranjana was informed of the incident by the two eyewitnesses and within a few moments thereafter she went to the scene of the tragedy.
Her F.I.R. (exhibit Ka 1) was recorded at the police station at 9 45 a.m. A fact of preponderating importance is that the story which Ranjana disclosed in the F.I.R. is precisely the same as the witnesses, including herself, narrated in the Court.
The F.I.R. is a brief document of a page and half.
But it is remarkable that it mentions (1) that the appellant wanted to marry Ranjana and was harassing her towards that end; (2) that there was a quarrel between the appellant and Pappoo the previous evening, in which the former gave a threat of life to the latter (3) that Ranjana left for the school on the day of occurrence at 8 45 A.M.; and (4) that soon thereafter Harish 778 Chandra and Ashok Kumar met her at the school and conveyed to her that they had gone to see the Hathi Park when, while Pappoo was passing along the road, the Appellant fired a shot at him.
We consider it beyond the normal range of human propensities that Ranjana could have built up the whole story within three quarters of an hour which intervened between the time that she learnt of her brother 's murder and the lodging by her of the F.I.R. She could not have taken the risk of creating a false witness by placing Ashok Kumar, who normally, resided in Kanpur, alongside Harish Chandra.
With the death of her brother, her own house was left without a male member.
At home was an ailing mother and two other sisters, more or less of her own age.
There was no one to advise her upon the hatching of a conspiracy to involve the appellant and she could not have been in a proper frame of mind to do anything of the kind on her own.
Her inexperience of life, the promptness with which she gave the F.I.R. and the wealth of details she mentioned therein afford an assurance that the story of the eye witnesses is true in so far as it goes.
Shri Kohli 's submission that Ranjana 's F.I.R. is anti timed and must have been recorded late in the evening leaves us cold.
Shri Kohli has pointed a defect here and an improbability there in the evidence of the eye witnesses but it has to be borne in mind that the Trial Court and the High Court have concurrently believed that evidence.
We do not suggest that the mere circumstances that two or more courts have taken the same view of facts shuts out all further inquiry into the correctness of that view.
For example, concurrence is not an insurance against the charge of perversity though a strong case has to be made out in order to support the charge that findings of fact recorded by more than one court are perverse, that is to say, they are such that no reasonable tribunal could have recorded them.
The merit of the normal rule that concurrent findings ought not to be reviewed by this Court consists in the assumption that it is not likely that two or more tribunals would come to the same conclusion unless it is a just and fair conclusion to come to.
In the instant case, the view of the evidence taken by the Sessions Court and the High Court is, at least, a reasonable view to take and that is why we are not disposed, so to say, to re open the whole case on evidence.
We have indicated briefly why we consider that the eye witness account accords with the broad probabilities of the case.
Counsel for the appellant pressed hard upon us that the defence evidence establishes the alibi of the appellant.
We think not.
The evidence led by the appellant to show that, at the relevant time, he was on duty at his usual place of work at Naini has a certain amount 779 of plausibility but that is about all.
The High Court and the Sessions Court have pointed out many a reason why that evidence cannot be accepted as true.
The appellant 's colleagues at the Indian Telephone Industries made a brave bid to save his life by giving evidence suggesting that he was at his desk at or about the time when the murder took place and further, that he was arrested from within the factory.
We do not want to attribute motives to them merely because they were examined by the defence.
Defence witnesses are entitled to equal treatment with those of the prosecution.
And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses.
Quite often, they tell lies but so do the prosecution witnesses.
Granting that D. Ws. 1 to 5 are right, their evidence, particularly in the light of the evidence of the two Court witnesses, is insufficient to prove that the appellant could not have been present near the Hathi Park at about 9 00 A.M. when the murder of Pappoo was committed.
The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place.
The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.
The evidence of the defence witnesses, accepting it at its face value, is consistent with the appellant 's presence at the Naini factory at 8 30 A.M. and at the scene of offence at 9.00 A.M.
So short is the distance between the two points.
The workers punch their cards when they enter the factory but when they leave the factory, they do not have to punch the time of their exit.
The appellant, in all probability, went to the factory at the appointed hour, left it immediately and went in search of his prey.
He knew when, precisely, Pappoo would return after dropping Ranjana at the school.
The appellant appears to have attempted to go back to his work but that involved the risk of the time of his re entry being punched again.
That is how he was arrested at about 2 30 P.M. while he was loitering near the pan shop in front of the factory.
There is no truth in the claim that he was arrested from inside the factory.
That settles the issue of guilt.
We agree with the view of the High Court and the Sessions Court and uphold the appellant 's conviction under section 302 of the Penal Code.
The question of sentence has gravely agitated our minds.
A young college going boy was murdered because he was trying to wean away his sister from the influence of the appellant who had set his heart upon her.
But there are two reasons why we are not disposed to confirm the death sentence.
In the first place, the appellant was smarting 780 under the insult hurled at him by the deceased Pappoo, the previous evening.
As stated by Ranjana in the F.I.R., when the appellant proclaimed his determination to marry her, Pappoo retorted: "You are a man of two Paisa 's worth.
How can you dare to marry my sister ? I will break your hands and feet.
" A poor motor car driver that the appellant was, he must have been offended enormously that his poverty was being put up as the reason why Ranjana would not be allowed to marry him.
The dispute thus assumed the proportions of a feud over social status, the poor man fretting that the rich man 's daughter would not be allowed to marry him for the mere reason that he did not belong to an equal class of society.
And it is evident that he believed, rightly or wrongly, that Ranjana was not unwilling to take him as a husband.
It is in the immediate background of the previous evening 's incident that the question of sentence has perforce to be considered.
That incident cannot certainly be considered as affording "sudden" provocation to the appellant for the crime committed by him the next morning and, therefore, it cannot reduce the offence of murder into a lesser offence.
But, the mental turmoil and the sense of being socially wronged through which the appellant was passing cannot be overlooked while deciding which is the appropriate sentence to pass, the rule being that for the offence of murder, the normal sentence is the sentence of life imprisonment and not of death.
Secondly, Harish Chandra and Ashok Kumar do not appear to have revealed the whole truth to the Court.
If the appellant had fired a shot at Pappoo while the latter was driving along on his scooter, and if Pappoo, as is alleged, dropped dead, his scooter would have dragged him ahead and in that process he would have received some injury.
The scooter too would have been damaged, howsoever slightly.
But it is strange that apart from the gun shot wound, Pappoo had no other injury on his person except an abrasion on the left side of the chest which was evidently caused by the gun shot itself.
The scooter was not dragged at all, except for the mark of pellets.
And, most importantly, the scooter was not lying on the road but was "standing".
Pappoo seems to have stopped on seeing the appellant and quite clearly, there was an exchange of hot words between them which culminated in Pappoo 's murder.
The death of the brave, young lad which has deprived the family of the succour of its only male member is to be deeply lamented.
But, if witnesses on whose evidence the life of an accused hangs in the balance, do not choose to reveal the whole truth, the Court, while dealing with the question of sentence, has to step in interstitially and take into account all reasonable possibilities, having regard to the normal and natural course of human affairs.
781 Since a part of the crucial event has been screened from the Court 's scrutiny and the possibility of an altercation between the appellant and the deceased cannot reasonably be excluded, we consider it unsafe to sentence the appellant to the extreme penalty.
In the result, we confirm the conviction of the appellant under section 302 of the Penal Code but set aside the sentence of death imposed upon him.
We sentence the appellant to imprisonment for life.
The appeal is, accordingly, allowed partly.
P.B.R. Appeal allowed partly.
| IN-Abs | The prosecution alleged that when the appellant, a motor car driver who was living as a tenant in the out house of the bungalow belonging to the family of the deceased, developed a fancy for the sister of the deceased.
His overtures created resentment in the family and the deceased took upon himself the task of preventing the appellant from pursuing his sister.
The appellant 's effort to take custody of the deceased 's sister through legal proceedings had failed; sometime later on a complaint to the police that the appellant had been making indecent overtures towards her he was arrested.
A day before the day of the occurrence the appellant was alleged to have threatened to kill the deceased if he opposed his (appellant 's) marriage with his sister.
It was further alleged that while the deceased was returning home on his scooter after leaving his sister in the school where she was working as a teacher, the appellant fired a shot at him with a pistol at which the deceased fell dead instantaneously.
He was convicted under section 302 I.P.C. and sentenced to death.
The order of conviction and sentence was confirmed by the High Court.
On the question of sentence ^ HELD: 1.
The Sessions Court and the High Court were right in convicting the appellant under section 302 I.P.C. [779 G] (a) The mere circumstance that two or more courts have taken the same view of facts does not shut out all further inquiry into the correctness of that view.
Concurrence is not an insurance against the charge of perversity though a strong case has to be made out in order to support the charge that findings of fact recorded by more than one court are perverse.
The merit of the normal rule that concurrent findings ought not to be reviewed by this Court consists in the assumption that it is not likely that two or more tribunals would come to the same conclusion unless it is a just and fair conclusion to come to.
[718 E G] 2.
While dealing with the question of sentence for the offence of murder, the normal sentence is the sentence of life imprisonment and not of death.
If in a same conclusion unless it is a just and fair conclusion to come to.
[778 E G] 772 balances do not choose to reveal the whole truth the Court while dealing with the question of sentence has to step in interstitially and take into account all reasonable possibilities having regard to the normal and natural course of human affairs.
In the instant case it would be unsafe, on the evidence on record, to sentence the appellant to the extreme penalty of death.
[780 H] The appellant, a poor motor car driver, must have been offended enormously when the deceased abused him that he was a man of two paise worth and that if he attempted to marry his sister he would break his hands and feet and that his poverty was being put up as the reason why his sister would not be allowed to marry him.
The dispute thus assumed proportions of a fued over social status.
The poor man was fretting that the rich man 's daughter would not be allowed to marry him for the mere reason that he did not belong to an equal class of society.
The appellant, rightly or wrongly, believed that the girl was not unwilling to marry him.
The incident of the previous evening could not be considered as affording "sudden" provocation to the appellant for the crime committed by him on the following morning.
It cannot reduce the offence of murder into a lesser offence, but the mental turmoil and the sense of being socially wronged through which the appellant was passing could not be overlooked while deciding the appropriate sentence.
[780 B D] Secondly the fact that, apart from the gun shot wound, the deceased had no other injury on his person except an abrasion on the left side of the chest evidently caused by the gun shot itself coupled with the fact that the scooter was found "standing" on the road showed that the deceased stopped on seeing the appellant and that there was an exchange of hot words between them culminating in the murder.
But since in the present case a part of the crucial evidence had been screened from the Court 's scrutiny the possibility of an altercation between the appellant and the deceased cannot reasonably be excluded.
[780 F H] (3) The evidence of the defence witnesses has failed to establish the alibi of the appellants.
The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place.
The plea therefore succeeds only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.
But in the present case the evidence of the defence witnesses, accepting it at its face value, is consistent with the appellant 's presence at the factory at the appointed hour and half an hour later at the scene of offence.
So short is the distance between the two points.
[778 H; 779 D]
|
Civil Appeal No. 318 of 1970.
From the Judgment and Decree dated 31 7 1969 of the Orissa High Court in Appeal from Original Decree No. 78/58.
P.K. Chatterjee and Rathin Dass for the Appellant.
G.S. Chatterjee for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by certificate granted under article 133 of the Constitution is directed against a Division Bench judgment dated July 31, 1969 of the Orissa High Court and arises in the following circumstances.
The appellants plaintiffs had instituted a suit under section 62(2) of the Orissa Religious Endowment Act, 1939 (Act No. 4 of 1939) (hereinafter referred to as the 'Act ') (this Act applies only to public endowments) to set aside the order dated 4 8 1950 of the respondent defendant by which the temple of the appellants, whose deity was Radhakanta Deb, was declared to be a public temple and a trust and the endowment was held to be of a public nature and, therefore, was to be governed by the Act.
The Subordinate Judge decreed the appellants plaintiffs suit holding that the deity installed in the temple was a family deity of the Pani family and the endowment being of a private nature, the Act had no application and the Order passed by the respondent regarding the management was set aside.
The Respondent (Commissioner of Hindu Religious Endowments, Orissa) filed an appeal in the High Court against the decision of the 828 Subordinate Judge which was heard by the Division Bench referred to above.
The High Court reversed the decision of the Subordinate Judge and held that the temple and the deity installed therein being a public endowment fell within the four corners of the Act and the respondent was fully entitled to pass orders for its management.
Hence, this appeal by certificate before us.
The sole question that falls for determination in this appeal is as to whether or not the appellant temple was a public endowment as alleged by the respondent or a family deity as alleged by the appellant.
The learned counsel for the appellants, P.K. Chatterjee, has submitted that the approach made by the High Court was wholly incorrect and it has misconstrued the evidence and documents produced in the case to show that the endowment was a private one and the deity installed in the temple was purely a family deity having nothing to do with the public.
The learned counsel for the respondent.
however, supported the judgment of the High Court that the endowment was of a public nature The concept of a private endowment or a private trust is unknown to English law where all trusts are public trusts of a purely charitable and religious nature.
Thus, under the English law what is a public trust is only a form of Charitable Trust.
Dr. Mukherjee in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts (1952 Edition) has pointed out that in English law the Crown is the constitutional protector of all properties subject to charitable trusts as these trusts are essentially matters of public concern.
The learned author has further pointed out that one fundamental distinction between English and Indian law lies in the fact that there can be religious trust of a private character under the Hindu law which is not possible in English law.
It is well settled that under the Hindu law, however, it is not only permissible but also very common to have private endowments which though are meant for charitable purposes yet the dominant intention of the founder is to instal a family deity in the temple and worship the same in order to effectuate the spiritual benefit to the family of the founders and his descendants and to perpetuate the memory of the founder.
In such cases, the property does not vest in God but in the beneficiaries who have installed the deity.
In other words, the beneficiaries in a public trust are the general public or a section of the same and not a determinate body of individuals as a result of which the remedies for enforcement of charitable trust are somewhat different from those which can be availed of by beneficiaries in a private trust.
The members of the public may not be debarred 829 from entering the temple and worshipping the deity but their entry into the temple is not as of right.
This is one of the cardinal tests of a private endowment.
Similarly, even the Mahomedan law recognises the existence of a private trust which is also of a charitable nature and which is generally called Waqf allal Aulad, where the ultimate benefit is reserved to God but the property vests in the beneficiaries and the income from the property is used for the maintenance and support of the family of the founder and his descendants.
In case the family becomes extinct then the Waqf becomes a public waqf, the property vesting in God.
A public Waqf under the Mahomedan law is called Waqf fi sabi lil lah.
The question as to whether the religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case and it is difficult to lay down any test or tests which may be of universal application.
It is manifest that where the endowment is lost in antiquity or shrouded in mystery, there being no document or revenue entry to prove its origin, the task of the court becomes difficult and it has to rely merely on circumstantial evidence regarding the nature of the user of the temple.
In the instant case, however, as there are two documents which clearly show the nature of the endowment, our task is rendered easier.
It is well settled that the issue whether a religious endowment is a public or a private one must depend on the application of legal concept of a deity and private endowment, as may appear from the facts proved in each case.
The essential distinction between a private and a public endowment is that whereas in the former the beneficiaries are specified individuals, in the latter they are the general public or class of unascertained people.
This doctrine is well known and has been accepted by the Privy Council as also by this Court in a large catena of authorities.
This being the essential distinction between the nature of a public or a private endowment, it follows that one of the crucial tests to determine the nature of the endowment would be to find out if the management of the property dedicated is in the hands of the strangers or members of the public or in the hands of the founders or their descendants.
Other factors that may be considered would be the nature of right of the worshippers, that is to say, whether the right to worship in the temple is exercised as of right and not as a matter of concession.
This will be the strongest possible circumstance to indicate that the endowment was a public one and the beneficiaries; are the worshippers and not particular family.
After all, an idol is a juristic person capable of holding property and the property dedicated to the temple vests in the deity.
If the main worshippers are the members of the public who worship as a matter of right then the real purpose is to confer benefit on God.
830 Some of the circumstances from which a public endowment can be inferred may be whether an endowment is made by a person who has no, issue and who after installing the deity entrusts the management to members of the public or strangers which is a clear proof of the intention to dedicate the temple to public and not to the members of the family.
Where, however, it is proved that the intention of the testator or the founder was to dedicate the temple merely for the benefit of the members of the family or their descendants, the endowment would be of a private nature.
The mere fact that members of the public are allowed to worship by itself would not make an endowment public unless it is proved that the members of the public had a right to worship in the temple.
In Deoki Nandan vs Murlidhar this Court observed as follows: "The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof.
While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. .
The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof.
In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals.
But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers." (Emphasis supplied) This view was reiterated in a later decision of this Court in Mahant Ram Saroop Dasji vs S.P. Sahi, Special Officer In Charge of the Hindu Religious Trusts & Ors.
where S.K. Das, J. as he then was, speaking for the Court clarified the law thus: 831 "But the most usual and commonest form of a private religious trust is one created for the worship of a family idol in which the public are not interested.
Dealing with the distinction between public and private endowments in Hindu law, Sir Dinshah Mulla has said at p. 529 of his principles of Hindu Law (11th edition) 'Religious endowments are either public or private.
In a public endowment the dedication is for the use or benefit of the public.
When property is set apart for the worship of a family god in which the public are not interested the endowments is a private one '.
" In Narayan Bhagwantrao Gosavi Balajiwale vs Gopal Vinayak Gosavi & Ors.
the same principles were reiterated and it was pointed out that the entries made in the Inam Register showing the nature of the endowment were entitled to great weight and taken with the vastness of the temple, the mode of its construction, the long user by the public as of right and grants by Rulers and other persons were clear pointers to the fact that the endowment was of a public nature.
In the case of Bihar State Board Religious Trust, Patna vs Mahant Sri Biseshwar Das,(2) this Court laid down some important tests to determine the nature of the endowment.
In this connection, the fol lowing observations need specific mention: "Therefore, evidence that sadhus and other persons visiting the temple are given food and shelter is not by itself indicative of the temple being a public temple or its proper ties being subject to a public trust.
Evidence that the mahants used to celebrate Hindu festivals when members of the public used to attend the temple and give offerings and that the public were admitted to the temple for darshan and worship is also not indicative of the temple being one for the benefit of the public.
The fact that members of the public used to come to the temple with out any hindrance also does not necessarily mean that the temple is a public temple, for members of the public do attend private temples.
Yet, the Privy Council held that the general effect of the evidence was that the family had treated the temple as family property and the mere fact of the members of the public having come to the temple and having made offerings and the mela having been held which 832 gave popularity to the temple and increased its esteem in the eyes of the public and the fact that they were never turned away were not enough to hold the temple and the properties as a public trust. .
Thus, the mere fact of the public having been freely admitted to that temple cannot mean that courtbs should readily infer therefrom dedication to the public.
The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right.
" It may thus be noticed that this Court has invariably held that the mere fact that the members of the public used to visit the temple for the purpose of worship without any hindrance or freely admitted therein would not be a clear indication of the nature of the endowment.
It is manifest that whenever a dedication is made for religious purposes and a deity installed in a temple, the worship of the deity is a necessary concomitant of the installation of the deity, and therefore, the mere factum of worship would not determine the nature of the endowment.
Indeed if it is proved that the worship by the members of the public is as of right that may be a circumstance which may in some cases conclusively establish that the endowment was of a public nature.
In Dhaneshwarbuwa Guru Purshottambuwa Owner of Shri Vithal Rukhamai Sansthan vs The Charity Commissioner State of Bombay all the aforesaid cases were summarised and the principles indicated above were reiterated.
In Gurpur Guni Venkataraya Narashima Prabhu & Ors.
vs B.G. Achia, Assistant Commissioner, Hindu Endowment, Mangalore & Anr.
Krishna Iyer, J., reiterated these very principles in the following words: "The law is now well settled that 'the mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public.
The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right '.
(See Bihar State Board Religious Trust, Patna vs Mahant Sri Biseshwar Das [1971] 3 SCR 680, 689).
" 833 Thus, on a conspectus of the authorities mentioned above, the following tests may be laid down as providing sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature: (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management.
Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature.
(4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.
Fortunately, in this case there are two important documents Ext.
A and Ext.
1 from which the nature of the endowment can be clearly spelt out and we would examine these documents in the light of the tests and the principles enunciated above because after going through the judgment of the High Court we are satisfied that the High Court has not properly construed some of the important features contained in the documents and the evidence and has in fact overlooked certain important aspects which completely negative the fact that the endowment was of a public nature.
A is an ancient document executed as far back as February 18, 1895.
The authenticity and the genuineness of this document is beyond question and the High Court itself has described this document as a document which has created the present endowment.
Even though the document may not be treated as having itself.
834 created the endowment but it gives clear indication that the endowment was created near about the date when this document was executed.
Some of the extracts of this document which are undisputed, in our opinion, clearly and conclusively show that the endowment was of a private nature and the intention of the founder was merely to instal a family deity in the temple.
In order to fortify our conclusions, it may be necessary to give certain important recitals from this document which may be extracted thus: "That I Gopinath Pani, my father Bhagyarathi Pani, Alekha Pani, father of Dinabandhu Pani and father 's brother of Basudeo Pani and Narsinha Pani father of Balabhadra Pani minor, having made the image of our family deity Sri Padhakanta Deb installed it in a temple which was built by them in Depur Sasan in Pipli Division and they endowed the Tanki Bajyapati, Tanki Baheli and Kharida Swata properties given below from the usufruct of which day to day Sibapuja and Janijatra of the deity was managed by them as the Sebait and Marfatdar and we are also managing in the same way.
For the proper management of the deity 's property and the Sebapuja of the deity in future, we lay down the following directions out of our own accord. . 1. we hereby appoint the said Adwait Charan Das Babaji, Sutradhari Gaudeswar Sampraday Baisnab by caste, worship and Sebapuja of the deity by profession as the Tatwabadharak and Sebait and hereby (appoint) him by this trust deed and we become aloof from those duties vesting in him the following properties of the deity. 2.
From this day the said Babaji will manage all the immovable and movable properties of the deity as the Sebait and Tatwabadharak.
He will realise the usufructs of the property and after giving the rent of the lands, he will manage the day to day Bhog and the festivities of the deity well according to the previous customs and rules and in the way we were doing and will keep the surplus amount in the store of the deity.
The day to day Bhoga and the festivities of the deity will be done according to the income of the properties of the deity and will never exceed the said income.
The said Babaji cannot incur any loan on behalf of he deity nor can he sell, mortgage, keep as surety or trust 835 any of the immovable or movable properties nor can he misappropriate any cash kind ornament or utensils of the deity. . 6.
If the said Babaji does anything contrary to the conditions laid down in items 4 & 5 written above he will be removed from his right of Sebaitship and Tatwabadharakship by us or cur heirs who will appoint another fit man in his place and take the charge of all the properties in the store of the deity . 9.
As the properties maintained herein have been endowed to the deity before, we or our successors had or will have no claim on this and any such claim made, shall be void. . 11.
Now or in future the man appointed as Tatwabadharak will work according to rules and directions mentioned herein and for the Sebapuja of the deity the directions and the menus are determined here for all days to come.
All other necessary expenses of the Jatra (festivals) repairing of the temple, utensils and the ornaments of the deity, etc. will be done according to the income. . 14.
Any pious man of our family at present and in future will see whether the work of the deity is being performed according to the direction as aforesaid by the appointed Tatwabadharak and will take proper action as mentioned above.
If in future there be no fit man in our family, any of the Baisnab Sampraday and any Hindu of reputation of the village and of the locality is entitled to take such action, we have no objection to this." (Emphasis supplied) The intention which can be gathered from this document is placed beyond doubt by a later document Ext.
1 which was executed on 17 11 1932 and is in the nature of a settlement Deed, the relevant portions of which may be quoted thus: "Our forefathers for the good of our family by making the family deity Sri Radhakanta Deb Thakur, erecting a 836 temple befitting.
His installation, installing Him therein and endowing the landed properties as described in the schedule below, used to carry out all the Sebapuja work of the deity in orderly manner by meeting the expenses from out of the income and yield of the said properties.
As the said Lalit Charan Das and Raghunath Pani a person of our family together misappropriated by utilising the income and yield of the properties of the deity in illegal expenditures and without carrying on the Sebapuja work in proper manner caused heavy damage to the movable and immovable properties of the deity in different unfair means, we have removed them from Sebapuja work of the deity and also from management and custody of the deity 's properties.
If the work of the deity is carried on for some time more in the manner in which the work is being managed now then the temple established by our forefathers as a mark of pride of our family and all the Debuttor properties of the deity will be destroyed in toto and the noble glory of the forefathers will perish .
We by this deed of trustee order determination appointed you as trustee for the Sebapuja work of our family deity Shri Radhakanta Deb Thakur and for the work of looking after His properties, according to the following conditions and terms, so that from today onwards on the strength of this deed of trustee order determination you from Chela to Bara chela by carrying on the Sebapuja, offerings, religious ceremonies and festivals and by preserving and looking after all the debuttor properties, realise the income and yield therefrom according to convenience. . 10.
If we or any body amongst us misappropriate any money or property by taking secretly from the tenants or borrowers, we and our successors will be liable for punishment according to criminal law and you can realise any compensation you intend to take either mutually or with the help of the court.
We and our sons and grandsons shall be bound and liable to pay. . 22.
But if you might have obtained, any amount on loan against the income of the debuttor property and anything that you might have spent from your own pocket for the improvement of the deity of the muth and to save the property, we will be bound and liable to repay the said 837 amount alongwith just and prescribed rate of interest, and we shall repay.
If we do not repay voluntarily you and your successors will realise from us and from our and from our son 's and grandsons existing and to be acquired movable and immovable properties and from the existing and to be acquired debuttor properties of the deity according to law." (Emphasis supplied) Considering the two documents together the fundamental features, which now from the recitals extracted above, may be summarised as follows: (1) That the deity was installed in the temple purely as a family deity and the dedication WAS made only for a group of individuals who may be connected with the family of the Panis who were the founders of the deity.
This clearly establishes that the intention of the founders was to dedicate their properties and instal the deity in the temple only for purposes of the Pani family, and their descendants.
A perusal of the recitals extracted above would unmistakably show that there can be no two opinions on this question.
(2) Extensive private properties belonging to the Pani family alone were dedicated for the maintenance Of the temple and the deity and there is nothing to show that any contribution was called for from members of the public nor is there any averment in the deed to show that there was any stipulation for taking offerings from the members of the public to worship in the temple.
(3) There was no provision for framing any scheme by associating the members of the public or consulting them.
In fact, Ext.
1 shows that even after the descendants of the founders had fallen on evil days and were not in a position to provide sufficient funds for the maintenance.
Of the temple yet they appointed Udayanath Pattanayak to manage the affairs of the deity and bound themselves personally to reimburse the Manager for any out of pocket expenses incurred in connection with the maintenance of the temple.
This circumstance manifestly proves that the endowment was of a purely private nature right from the time it was created till 1932 when the management 838 was changed and continued to be of the same nature.
Indeed, the personal undertaking contained in Ext.
1 clearly shows that there was never any intention to treat the temple as a public one but the intention was, if at all, to continue it in the name of the family so long as the family continued.
(4) There is no recital in any of the documents to show that the members of the public or the vil lagers of the place where the temple was situated were entitled to worship as of right.
On the other hand, PWs 1 to 6 who were examined by the appellants plaintiffs have categorically stated that members of the public were not allowed to worship in the temple as of right.
In this connection PW 1 stated as follows: "Members of the public have no right to have Darsan of, or to offer bhog to the deity.
The villagers do not make Kirtan before the deity or take any part in any festivity of the deity.
The deity has no Bahari Jatra.
No member of the public made any gift to the deity.
No khairat is ever given.
The properties of the Thakur are all (sic) with rent.
" PW. 5 stated that the disputed deity was installed by the family of the other Panis and not by his ancestors and that the deity was not their family deity and was not dedicated to the public.
As against this oral evidence, the defence examined DW 1, Raghunath Pani, whose evidence has been rejected both by the Trial court and the High Court.
Thus, apart from the unimpeachable documentary evidence discussed above, even the oral evidence to prove that the endowment was of a private nature is clear and has not been rebutted by the defence.
In this state of the evidence we are indeed surprised to find how the High Court could hold that the endowment was of a public nature.
The High Court seems to have been carried away by factors or considerations which are of a very minor nature and by themselves do not prove that the endowment was of a public nature.
For instance, one of the circumstances that weighed with the High Court was that the temple was a massive structure of about 25 yards in height.
That by itself, divorced from other things, could not prove that the temple was a public one.
So far as the oral evidence is concerned.
the High Court observed thus: 839 "Apart from the above features disclosed by the oral evidence which are indicative of the institution having been treated as a public one.
the recitals in some of the clauses of the two documents. (Exts.
A & 1) also unequivocally indicate an intention of dedication in favour of public." These observations are not at all borne out by the evidence of PWs 1 to 5 which is the only oral evidence led in the case, the evidence of DW 1 having been rejected by the trial court as also the High Court.
The High Court took into consideration the fact that certain properties were needed for the maintenance of the temple and Seba puja and other ceremonies were being performed by the Shebaits and Marfatdars.
The High Court overlooked the fact that Shebait or the Marfatdars were appointed by the founders of the endowment and the entire management and control of the temple was retained by the family.
We are unable to agree as to how in these circumstances could it be said that the endowment was of a public nature.
Another circumstance that weighed with the High Court was that bhogs were offered during the day which, according to the High Court, was in consonance with the rules observed by the public.
This circumstance also is not of much consequence because bhogs are offered even in private temples.
The High Court also seems to have relied on clause 15 of Ext.
A to come to its decision that the endowment was of a public nature.
The High Court was of the view that under this clause in certain contingencies any member of the Vaishnav sect or Hindu resident of the village was authorised to exercise the powers and functions mentioned in clause 7 of the deed.
We are, however, unable to agree with the interpretation placed by the High Court on clause 15 of Ext.
A. Clause 15 merely provides that if in future the family becomes extinct and no fit person could be found then any of the Baisnab Sampraday or any reputed Hindu of the village could take action, namely, to perform the work of the deity.
This was a contingent provision and here also the founders did not confer the duty of performing all the work on the members of the public but they chose or selected only a particular person belonging to a particular community which also shows that even if the family was to become extinct, the private nature of the endowment was not to be changed.
Indeed if the intention was to instal the idol in the temple by way of a public endowment, clause 15 would have clearly provided 840 that in cast the family became extinct the members of the public or of the brotherhood or the Government could have taken over the management.
On the other hand, the interpretation of the various clauses of the documents clearly shows that sufficient care has been taken by the Pani family to see that the dedication to the family deity is not changed even if the family becomes extinct.
Having, therefore, carefully perused the oral and the documentary evidence in the case we are satisfied that the conclusions arrived at by the High Court are wrong and are based on misinterpretation of Ext.
A and Ext.
1 and misreading of the oral evidence led in the case, which, as we have shown, runs counter to the conclusions arrived at by the High Court.
For the reasons given above, we allow this appeal, set aside the judgment of the High Court, decree the plaintiffs appellants suit and restore the judgment of the trial court.
In the peculiar circumstances of this case, the appellants will be entitled to costs of the appeal in this Court quantified at Rs. 4,000/ (Rupees four thousand only) S.R. Appeal allowed.
| IN-Abs | Allowing the appeal by certificate, the Court ^ HELD: The tests which provide sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature are: (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management.
Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature; (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.
[833 A E] Deoki Nandan vs Murlidhar, ; ; Mahant Ram Saroop Dasji vs S.P. Sahi, Special Officer in Charge of the Hindu Religious Trusts & Ors., [1959] 2 Supp.
SCR 583; Narayan Bhagwantrao Gosavi Balajiwale vs Gopal Vinayak Gosavi & Ors., ; ; Bihar State Board Religious Trust, Patna vs Mahant Sri Biseshwar Das, , Dhaneshwarbuwa Guru Purshottambuwa Owner of Shri Vithal Rukhamai Sansthan vs The Charity Commissioner, State of Bombay, ; ; Gurpur Guni Venkataraya Narashima Prabhu & Ors.
vs B.G. Achia, Asistant Commissioner, Hindu Endowment Mangalore & Anr., ; , followed.
In the instant case: (i) exhibit A, an ancient document executed as for back as February 18, 1895, the authenticity and the genuineness of which is beyond question, clearly and conclusively show that the endowment was of a private nature and the intention of the founder was merely to instal a family deity in the temple.
(ii) The fact that the temple was of a massive structure of about 25 yards in height, by itself, divorced from other things, could not prove that the temple was a public one.
(iii) The Shebaits or the Marfatdars were appointed by the founders of the endowment and the entire management and control of the temple was retained by the family.
(iv) The fact that bhogs 827 were offered during the day which was in consonance with the rules observed by the public is not of much consequence because bhogs are offered even in private temples.
(v) Clause 15 merely provides that if in future the family becomes extinct and no fit person could be found then any of the Baisnab Sampraday or any reputed Hindu of the village could take action, namely, to perform the work of the deity.
This was a contingent provision and here also the founders did not confer the duty of performing all the work on the members of the public but they chose or selected only a particular person belonging to a particular community which also shows that even if the family was to become extinct, the private nature of the endowment was not to be changed.
Indeed if the intention was to instal the idol in the temple by way of a public endowment, clause 14 would have clearly provided that in case the family become extinct the members of the public or of the brotherhood or the Government could have taken over the management.
On the other hand, the interpretation of the various clauses of the documents clearly shows that sufficient care has been taken by the Pani family to see that the dedication to the family deity is not changed even if the family becomes extinct.
[833 H, 834 A, 838 G H, 839 C, E H, 840 A B]
|
Civil Appeal Nos.
2602 2604 of 1980.
Appeals by special leave from the Judgment and Order dated 20 6 1980 of the Madras High Court in Writ Petition Nos. 4467 of 1977, 2933 and 4793 of 1978.
Lal Narain Sinha Att.
of India for the Appellant in CA 2602/80.
Soli J. Sorabjee for the Appellant in CA 2603/80.
R. Krishnamurthy Adv.
for the appellant in CA 2604/80.
A. V. Rangam and K. Venkatawani for the Appellant in all the matters.
Y. section Chitale (Dr.), Mrs. section Ramachandran and Mukul Mudgal for Respondent Nos. 11 and 42.
P. Chidambaram and A. section Nambiyar for the Respondents.
F. section Nariman, A. V. Rangam and R. N. Sachthey for the interveners.
V. Srinivasan, A. Venkatarayana and P. N. Ramalingam for Respondent No. 45.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Entry 23 of List II of the Seventh Schedule to the Constitution is, "Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union".
Entry 54 746 of List of the Seventh Schedule is "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".
Thus while 'regulation of mines and mineral development ' is ordinarily a subject for State legislation.
Parliament may, by law, declare the extent to which control of such regulation and development by the Union is expedient in the public interest, and, to that extent, it becomes a subject for Parliamentary legislation.
Parliament has accordingly enacted the .
By section 2 of the Act it is 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 thereafter provided.
It is now common ground between the parties that as a result of the declaration made by Parliament, by section 2 of the Act, the State legislatures are denuded of the whole of their legislative power with respect to regulation of mines and mineral development and that the entire legislative field has been taken over by Parliament.
That this is the true position in law is clear from the pronouncements of this Court in The Hingir Rampur Coal Co. Ltd. & Ors.
vs The State of Orissa & Ors.
State of Orissa vs M.A., Tulloch & Co. and Baijnath Kedia vs State of Bihar & Ors.
section 3 of the , defines various expressions occurring in the Act.
section 3 (a) defines 'minor minerals ' and it includes any mineral declared to be a minor mineral by the Central Government by a notification in the Official Gazette. 'Black granite ' has been so notified by the Central Government as a minor mineral.
Section 4 to 9A are grouped under the heading 'General Restrictions on undertaking prospecting and mining operations '.
These provisions as well as Sections 10 to 13 are made inapplicable to 'minor minerals ' by section 14.
section 4 prohibits all prospecting or mining operations except under a licence or a lease granted under the Act and the rules made thereunder.
S.4A(1) enables the State Government on a request made by the Central Government in the interest of regulation of mines and mineral development to terminate a mining lease pre maturely and grant a fresh mining lease in favour of a Government Company or Corporation owned or controlled by Government.
Perhaps because s.4A(1) is inapplicable to minor minerals because of the provisions of S.14, S.4A(2) has been expressly enacted making somewhat similar provision, as in S.4A(1), in respect of 'minor minerals ' also.
S.4A(2) 747 enables the State Government, after consultation with the Central Government, if it is of opinion that it is expedient in the interest of regulation of mines and mineral development so to do, to prematurely terminate a mining lease in respect of any minor mineral and grant a fresh lease in respect of such mineral in favour of a Government Company or Corporation owned or controlled by Government.
S.5 imposes certain restrictions on the grant of prospecting licences and mining leases.
S.6 prescribes the maximum area for which a prospecting licence or mining lease may be granted.
S.7 prescribes the period for which prospecting licences may be granted or renewed.
S.8 prescribes the period for which mining leases may be granted or renewed.
S.9 provides for the payment of royalty and S.9A for the payment of dead rent.
Sections 10, 11 and 12 constitute a group of sections under the title 'Procedure for obtaining prospecting licences or mining leases in respect of land in which the minerals vest in the Government '.
S.10 provides for making applications for prospecting licences or mining leases in respect of any land in which the minerals vest in the Government.
S.11 provides for certain preferential rights in favour of certain persons in the matter of grant of mining leases.
section 12 prescribes the Register of prospecting licences and mining leases to be maintained by the State Government.
S.13 empowers the Central Government to make rules for regulating the grant of prospecting licences and mining leases.
In particular we may mention that S.13(2) (a) empowers the Central Government to make rules providing for 'the persons by whom, and the manner in which, applications for prospecting licences or mining leases in respect of land in which the minerals vest in the Government may be made and the fees to be paid therefor".
S.13(2) (f), we may add, empowers the Central Government to make rules providing for 'the procedure for obtaining a prospecting licence or a mining lease in respect of any land in which the minerals vest in a person other than the Government and the terms on which, and the conditions subject to which, such a licence or lease may be granted or renewed '.
S.14 makes the provisions of Sections 4 to 13 inapplicable to minor minerals.
S.15 empowers the State Government to make rules for regulating the grant of quarry leases, mining leases and other mineral concessions in respect of minor minerals and purposes connected therewith.
S.15(3) provides for the payment of royalty in respect of minor minerals at the rate prescribed by the rules framed by the State Government.
S.16 provides for the modification of mining leases granted before October 25, 1949.
S.17 enables the Central Government, after consultation with the State Government to undertake prospecting or mining operations in any area not already held under any prospecting licence or mining lease, in which event the Central 748 Government shall publish a notification in the official Gazette giving the prescribed particulars.
The Central Government may also declare that no prospecting licence or mining lease shall be granted in respect of any land specified in the notification.
S.18 casts a special duty on the Central Government to take all necessary steps for the conservation and development of minerals in India.
Sections 19 to 33 are various miscellaneous provisions with which we are not now concerned.
Pursuant to the power vested in it under S.15 of the , the Government of Tamil Nadu has made the Tamil Nadu Minor Mineral Concession Rules, 1959.
Section II of the rules consisting of rules 3 to 16 is entitled "Government lands in which the minerals belong to the Government".
Rule 8 prescribes the procedure for the lease of quarries to private persons.
The ordinary procedure is to publish a notice in the District Gazette inviting applications, thereafter to hold an auction and finally to grant a lease to the highest bidder.
Rule 8A which was introduced by way of an amendment in 1972, provides for a special procedure for the sanctioning of leases in favour of applicants who require the minerals for their existing industries or who have an industrial programme for the utilisation of the mineral in their own industry.
Rule 8B was introduced in 1975 making special provision for the grant of leases for quarrying black granite.
The rule is as follows: "8 B. Lease of quarries in respect of black granite to private persons (1) Notwithstanding anything to the contrary contained in rules 8 and 8A, the authority competent to grant leases in respect of quarrying black granite shall be the State Government.
(2) An application for the grant of a quarrying lease in respect of any land shall be made to the Collector of the District concerned in the prescribed form in triplicate and shall be accompanied by a fee of Rs. 100/ .
The Collector shall after scrutiny, forward the application along with his remarks to the Director of Industries & Commerce who shall technically scrutinise the industrial programme given by the applicant and forward the application with his remarks to the Government." "(G. O. Ms. No. 993 Industries dt.
25 8 1975".
Rule 8 C was introduced by G. O. Ms. No. 1312 Industries dated December 2, 1977.
By this rule leases for quarrying black granite 749 in favour of private persons are banned.
Leases can only be granted in favour of a Corporation wholly owned by the State Government.
It is the vires of this rule which was under challenge before the High Court and is also under challenge now.
It will be useful to extract the same.
It is as follows: "8 C Lease of quarries in respect of black granite to Government Corporation, etc.
(1) Notwithstanding anything to the contrary contained in these rules, on and from 7th December, 1977 no lease for quarrying black granite shall be granted to private persons.
(2) The State Government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation wholly owned by the State Government.
Provided that in respect of any land belonging to any private person, the consent of such person shall be obtained for such quarrying or lease".
Rule 9 provides for renewal of leases and it is in the following terms: "9.
Renewal of lease. (1) The Collector may on application renew for a further period not exceeding the period for which the lease was originally granted in each case if he is satisfied that (i) such renewal is in the interests of mineral development, and (ii) the lease amount is reasonable in the circumstances of the case.
(2) Every application for renewal shall be made to Collector, sixty days prior to the date of expiry of the lease: Provided that a lease, the period of which exceeds ten years shall not be renewed except with the sanction of the Director of Industries and Commerce".
A proviso was added to rule 9(2) in 1975 and it said: "provided also that the renewal for quarrying black granite shall be made by the Government".
Several persons who held leases for quarrying black granite belonging to the State Government and whose leases were about to expire, applied to the Government of Tamil Nadu for renewal of their leases.
In some of the cases applications were made long prior 750 to the date of G. O. Ms. No. 1312 by which Rule 8 C was introduced.
Some applications were made after Rule 8 C came into force.
There were also some applications for the grant of fresh leases for quarrying black granite.
All the applications were dealt with after Rule 8 C came into force and all of them were rejected in view of Rule 8C.
Several Writ Petitions were filed in the High Court questioning the vires of Rule 8C on various grounds.
Apart from canvassing the vires of Rule 8C, it was contended that Rule 8C did not apply to grant of renewals of lease at all.
It was also argued that in any event, in those cases in which the applications for renewal had been made prior to the coming into force of Rule 8C, their applications should have been dealt with without reference to Rule 8C.
The Madras High Court while not accepting some of the contentions raised on behalf of the applicants, struck down Rule 8C on the ground that it exceeded the rule making power given to the State Government under S.15 which, it was said, was only to regulate and not to prohibit the grant of mining leases.
As a consequence all the applications were directed to be disposed of without reference to Rule 8C.
It was also observed that even if Rule 8C was valid it applied only to the grant of fresh leases and not to renewals.
It was also held that it was not open to the Government to keep the applications pending for a long time and then to dispose them of on the basis of a rule which had come into force later.
The State Government has come in appeal against the judgment of the Madras High Court while the respondent applicants have tried to sustain the judgment of the Madras High Court on grounds which were decided against them by the Madras High Court.
The learned Attorney General who appeared for the Government of Tamil Nadu submitted that the approach of the High Court was vitiated by its failure to notice the crucial circumstance that the minerals belonged to the Government and the applicants had no vested or indefeasible right to obtain a lease or a renewal to quarry the minerals.
There were good reasons for banning the grant of leases to quarry black granite to private parties and in the light of those reasons the Government could not be compelled to grant leases which would result in the destruction of the mineral resources of the country.
Shri K. K. Venugopal, learned counsel who led the argument for the respondents submitted that the question of ownership of the minerals was irrelevant.
In making the rules the State Government was acting as a delegate and not as the owner of the minerals.
He submitted that it was not open to the State Government to exercise its subordinate legislative function in a manner to benefit itself as owner of the minerals, nor was it open to the State Government to create a monopoly by such means 751 According to Shri Venugopal creation of a monopoly in the State was essentially a legislative function and was incapable of delegation.
It was claimed that there was violation of Articles 301 and 303 of the Constitution.
It was further claimed that section 15 of the , enabled the State Government to make rules to regulate the grant of leases and not to prohibit them.
In any case it was said that Rule 8G had no application to renewals and that in any event it would not have the effect of affecting applications made more than 60 days before it came into force.
Rivers, Forests, Minerals and such other resources constitute a nation 's natural wealth.
These resources are not to be frittered away and exhausted by any one generation.
Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way.
It is in the interest of mankind.
It is in the interest of the Nation.
It is recognised by Parliament.
Parliament has 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.
It has enacted the .
We have already referred to its salient provisions.
section 18, we have noticed, casts a special duty on the Central Government to take necessary steps for the conservation and development of minerals in India.
section 17 authorises the Central Government itself to undertake prospecting or mining operations in any area not already held under any prospecting licence or mining lease.
S.4A empowers the State Government on the request of the Central Government, in the case of minerals other than minor minerals, to prematurely terminate existing mining leases and grant fresh leases in favour of a Government Company or Corporation owned or controlled by Government, if it is expedient in the interest of regulation of mines and mineral development to do so.
In the case of minor minerals, the State Government is similarly empowered, after consultation with the Central Government.
The public interest which induced Parliament to make the declaration contained in section 2 of the Mines & Minerals (Regulation and Development) Act, 1957.
has naturally to be the paramount consideration in all matters concerning the regulation of mines and the development of minerals.
Parliament 's policy is clearly discernible from the provisions of the Act.
It is the conservation and the prudent and discriminating exploitation of minerals, with a view to secure maximum benefit to the community.
There are clear sign posts to lead and guide the subordinate legislating authority in the matter of the making of rules.
Viewed in the light shed by the other provisions of the Act, particularly sections 4A, 17 and 18 752 it cannot be said that the rule making authority under section 15 has exceeded its powers in banning leases for quarrying black granite in favour of private parties and in stipulating that the State Government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation wholly owned by the State Government.
To view such a rule made by the Subordinate legislating body as a rule made to benefit itself merely because the State Government happens to be the subordinate legislating body, is, but, to take too narrow a view of the functions of that body.
The reasons that prompted the State Government to make Rule 8 C were explained at great length in the common counter affidavit filed on behalf of the State Government before the High Court.
We find no good reason for not accepting the statements made in the counter affidavit.
It was said there: "I submit that the leases for black granite are governed by the Tamil Nadu Minor Mineral Concession Rules 1959 under which originally there was scope for auctioning of quarries of minor minerals.
In amendment issued in the G.O. dated 6 12 1972.
under Rule 8 A it was indicated that the Collector may sanction leases in favour of applicants who are having an industrial programme to utilise the minerals in their own industry.
This provision is applicable to all minerals including black granites.
However, it was found that there were several cases where lessees who obtained the black granite areas on lease by auction were not quarrying in a systematic and planned manner taking into consideration the welfare and safety measures of the workers as well as the conservation of minerals.
Even after the introduction of the amendment under Rule 8 A in most cases, the industry set up was of a flimsy nature more to circumvent the rule than to really introduce industry including mechanised cutting and polishing.
The lessees were also interested only in obtaining the maximum profit in the shortest period of time without taking into consideration the proper mining and development of the mineral.
There was also considerable wastage of new materials due to wasteful mining.
Therefore, Government issued a further amendment as Rule 8 B wherein the competent authority to grant leases in respect of the quarrying black granite was transferred from the Collector to the State Government level.
They also prescribed a standard form and an application fee to be paid with the application.
The amendment states that the Director of Industries and Commerce shall technically 753 scrutinise the industrial programme given by the applicant while forwarding the same to Government.
At the same time, in the G.O. issued along with amendment, it was stated that if any of the State Government Organisations like Tamil Nadu Small Industries Corporation Limited, Tamil Nadu small Industries Development Corporation Limited, Tamil Nadu Industrial Development Corporation Limited is interested to obtain a lease for black granite in a particular area, preference will be given to Government undertaking over other private entrepreneurs for granting the leases applied for by them.
However, in spite of these amendments to regulate the grant of mining lease, there were a large number of lessees (exceeding 140), who were engaged in mining without proper technical guidance or safety measures etc.
for the workers.
These lessees made a strong representation to the then Government in 1976 expressing that though they had given assurance to set up industries to use the granites they were not able to do so far various reasons.
They also represented that they should be allowed to export the raw blocks of black granites.
Therefore, Government had issued a Government Order dated 15 2 1977 relating to relaxation of the ban of export of raw blocks and provision for setting up a polishing or finishing unit was not made a pre requisite.
They have also stated that the terms and conditions for the existing losses would remain in force.
However, on an examination of the performance of the lessees over the past several years, it has been found that excepting in a very few cases, none of the lessees had set up proper industries or developed systematic mining of the quarries.
The exports continue to be mainly on the raw black granite materials and not out and polished slabs.
A large number of the leases were not operating either due to speculation or lack of finance from the lessees.
Therefore, Government decided that there should be no further grant of lease to private entrepreneurs for black granite.
This was mentioned in G.O.Ms.
No. 1312 Industries dated 2 12 1977.
We are satisfied that Rule 8C was made in bonafide exercise of the rule making power of the State Government and not in its misuse to advance its own self interest.
We however guard ourselves against being understood that we have accepted the position that making a rule which is perfectly in order to be considered a misuse of the rule making power, if it advances the interest of a State, which really means the people of the State.
754 One of the submissions on behalf of the respondents was that monopoly was a distinct legislative subject under entry 21 of List III of the Seventh Schedule to the Constitution and therefore monopoly, even in favour of a State Government can only be created by plenary and not subordinate legislation.
Parliament not having chosen to exercise its plenary power it was not open to the subordinate legislating body to create a monopoly by making a rule.
Our attention was invited to H. C. Narayanappa & Ors.
vs State of Mysore & Ors.(1) where it was held that the expression 'Commercial and industrial monopolies ' in entry 21 of List III of the Seventh Schedule to the Constitution was not confined to legislation to control of monopolies but was wide enough to include grant or creation of commercial or industrial monopolies in favour of the State Government, also We are unable to agree with Shri Venugopal 's submission.
The very decision cited by him furnishes the answer.
The validity of a scheme for nationalisation of certain routes made pursuant to the powers conferred by Chapter IVA of the Motor Vehicles Act was under attack in that case.
One of the grounds of attack was that "by Chapter IVA of the , "Parliament had merely attempted to regulate the procedure for entry by the States into the business of motor transport in the State, and in the absence of legislation expressly undertaken by the State of Mysore in that behalf, that State was incompetent to enter into the arena of motor transport business to the exclusion of private operators;" Sustenance for the submission was sought to be drawn from the language of article 19(6) (ii) which provides that nothing in article 19(1) (g) shall 'prevent the State from making any law relating to ' 'the carrying on by the State, or by a Corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise '.
The argument was that the State or a Corporation owned or controlled by the State could carry on a trade, business, industry or service to the exclusion, complete or partial, of citizens, only if the State made a law relating to it.
The argument was repelled by the Court in these words: "The plea sought to be founded on the phraseology used in article 19(6) that the State intending to carry on trade or business must itself enact the law authorising it to carry on trade or business is equally devoid of force.
The expression 'the State ' as defined in article 12 is inclusive of the Government and Parliament of India and the Government and the Legisla 755 ture of each of the States.
Under entry No. 21 of the Concurrent List, the Parliament being competent to legislate for creating commercial or trading monopolies, there is nothing in the Constitution which deprives it of the power to create a commercial or trading monopoly in the constituent States.
Article 19(6) is a mere saving provision: its function is not to create a Power but to immunise from attack the exercise of legislative power falling within its ambit.
The right of the State to carry on trade or business to the exclusion of others does not arise by virtue of article 19(6).
The right of the State to carry on trade or business is recognised by article 298; authority to exclude competitors in the field of such trade or business is conferred on the State by entrusting power to enact laws under entry 21 of List III of the Seventh Schedule, and the exercise of that power in the context of fundamental rights is secured from attack by article 19(6).
In any event; the expression 'law ' as defined in article 13(3) (a) includes any ordinance, order, bye law, rule, regulation, notification, custom, etc., and the scheme framed under s.68C may properly be regarded as 'law ' within the meaning of article 19(6) made by the State excluding private operators from notified routes or notified areas, and immune from the attack that it infringes the fundamental right guaranteed by article 19(1) (g)".
Earlier in Rai Sahib Ram Jawaya Kapur & Ors.
vs The State of Punjab, before the Seventh Amendment of the Constitution by which the present Article 298 was substituted for the old Article, the question arose whether it was beyond the competence of the executive Government to carry on a business without specific legislature sanction.
The answer was that it was not.
What was said by the Court in that case was incorporated in the Seventh Amendment of the Constitution.
In that case the facts were that the State of Punjab, by a series of executive orders had established for itself a monopoly in the business of printing and selling textbooks for use in schools.
The argument that legislative sanction was necessary to enable the State Government to carry on the business of printing and publishing text books was repelled and it was held that no fundamental right of the petitioners who had invoked the jurisdiction of the Court had been infringed.
Another of the submissions of the learned counsel was that G.O.Ms No. 1312 dated December 2, 1977 involved a major change of policy, which was a legislative function and therefore beyond the competence 756 of a subordinate legislating body.
We do not agree with the submission.
Whenever there is a switch over from private sector ' to 'public sector ' it does not necessarily follow that a change of policy requiring express legislative sanction is involved.
It depends on the subject and the statute.
For example, if a decision is taken to impose a general and complete ban on private mining of all minor minerals, such a ban may involve the reversal of a major policy and so it may require Legislative sanction.
But if a decision is taken to ban private mining of a single minor mineral for the purpose of conserving it, such a ban, if it is otherwise within the bounds of the authority given to the Government by the Statute, cannot be said to involve any change of policy.
The policy of the Act remains the same and it is, as we said, the conservation and the prudent and discriminating exploitation of minerals, with a view to secure maximum benefit to the community.
Exploitation of minerals by the private and/or the public sector is contemplated.
If in the pursuit of the avowed policy of the Act, it is thought exploitation by the public sector is best and wisest in the case of a particular mineral and, in consequence, the authority competent to make the subordinate legislation makes a rule banning private exploitation of such mineral, which was hitherto permitted we are unable to see any change of policy merely because what was previously permitted is no longer permitted.
One of the arguments pressed before us was that Sec.
15 of the authorised the making of rules for regulating the grant of mining leases and not for prohibiting them as Rule 8 C sought to do, and, therefore, Rule 8 C was ultra vires Act, section 15.
Well known cases on the subject right from Municipal Corporation of the City of Toronto vs Virgo and Attorney General for the Dominion General for the Dominion and the Distillers and Brewers Association of Ontario upto State of Uttar Pradesh & Ors.
vs Hindustan Aluminium Corporation Ltd. & Ors., were brought to our attention.
We do not think that 'Regulation ' has the rigidity of meaning as never to take in Prohibition '.
Much depends on the context in which the expression is used in the Statute and the object sought to be achieved by the contemplated regulation.
It was observed by Mathew J. in G. K. Krishnan etc.
vs The State of Tamil Nadu & Anr.
, "the word 'regulation has no fixed connotation.
Its meaning differs according to the nature of the thing to which it is applied".
In modern statutes concerned as they are with economic and social activities, 'regulation ' 757 must, of necessity, receive so wide an interpretation that in certain situations, it must exclude competition to the public sector from the private sector.
More so in a welfare State.
It was pointed out by the Privy Council in Commonwealth of Australia vs Bank of New South Wales(1) and we agree with what was stated therein that the problem whether an enactment was regulatory or something more or whether a restriction was direct or only remote or only incidental involved, not so much legal as political, social or economic consideration and that it could not be laid down in no circumstances could the exclusion of competition so as to create a monopoly, either in a State or Commonwealth agency, to be justified.
Each case, it was said, must be judged on its own facts and in its own setting of time and circumstances and it might be that in regard to some economic activities and at some stage of social development, prohibition with a view to State monopoly was the only practical and reasonable manner of regulation.
The statute with which we are concerned, the Mines and Minerals (Development and Regulation) Act, is aimed, as we have already said more than once, at the conservation and the prudent and discriminating exploitation of minerals.
Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation.
If you want to conserve for the future, you must prohibit in the present.
We have no doubt that the prohibiting of leases in certain cases is part of the regulation contemplated by Sec. 15 of the Act.
The submission of the learned counsel that the impugned rule contravened Articles 301 and 303 of the Constitution is equally without force.
Now, 'the restrictions freedom from which is guaranteed by article 301 would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade" (Atiabari Tea Co. Ltd. vs State of Asssam & Ors.).(2) And, "regulatory measures or measures imposing compensatory taxes for the use of trading facilities do not come within the purview of restrictions contemplated by article 301".
"They are excluded from the purview of the provisions of Part XIII of the Constitution for the simple reason that they do not hamper, trade, commerce or inter course but rather facilitate them" The Automobile Transport Rajasthan Ltd. vs State of Rajasthan & Ors.(3).
The is, without doubt a regulatory measure, Parliament having enacted it for the express purpose of "the regulation of mines and the development of minerals".
The Act and the rules 758 properly made thereunder are, therefore, outside the purview of article 301.
Even otherwise article 302 which enables Parliament, by law, to impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest also furnishes an answer to the claim based on the alleged contravention of article 301.
The is a low enacted by Parliament and declared by Parliament to be expedient in the public interest.
Rule 8C has been made by the State Government by notification in the official Gazette, pursuant to the power conferred upon it by Sec. 15 of the Act.
A statutory rule, while ever subordinate to the parent statute, is, otherwise, to be treated as part of the statute and as effective. "Rules made under the Statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction or obligation. (State of U.P. & Ors.
vs Babu Ram Upadhya)(1); (See also Maxwell; Interpretation of Statutes, 11th Edn.
49 50).
So, Statutory rules made pursuant to the power entrusted by Parliament are law made by Parliament within the meaning of article 302 of the Constitution.
To hold otherwise would be to ignore the complex demands made upon modern legislation which necessitate the plenary legislating body to discharge its legislative function by laying down broad guidelines and standards, to lead and guide as it were, leaving it to the subordinate legislating body to fill up the details by making necessary rules and to amended the rules from time to time to meet unforeseen and unpredictable situations, an within the framework of the power entrusted to it by the plenary legislating body.
State of Mysore vs H. Sanjeeviah(2) was cited to us to show that rules did not become part of the statute.
This was case where by reference to Sec. 77 of the Mysore Forest Act which declared the effect of the rules, it was held that the rules when made did not become part of the Act.
That was apparently because of the specific provisions of Sec. 77 which while declaring that the rules would have the force of law stopped short of declaring that they would become part of the Act.
In the absence of any express provision, as now, the ordinary rule as enunciated in Maxwell and State of Uttar Pradesh & Ors.
vs Babu Ram Upadhya (supra) would perforce apply.
The next question for consideration is whether Rule 8C is attracted when applications for renewal of leases are dealt with.
The argument was that Rule 9 itself laid down the criteria for grant of renewal of leases and therefore rule 8C should be confined, in its application, to 759 grant of leases in the first instance.
We are unable to see the force of the submission.
Rule 9 makes it clear that a renewal is not to be obtained automatically, for the mere asking.
The applicant for the renewal has, particularly, to satisfy the Government that the renewal is in the interests of mineral development and that the lease amount is reasonable in the circumstances of the case.
These conditions have to be fulfilled in addition to whatever criteria is applicable at the time of the grant of lease in the first instance, suitably adapted, of course, to grant of renewal.
Not to apply the criteria applicable in the first instance may lead to absurd results.
If as a result of experience gained after watching the performance of private entrepreneurs in the mining of minor minerals it is decided to stop grant of leases in the private sector in the interest of conservation of the particular mineral resource, attainment of the object sought will be frustrated if renewal is to be granted to private entrepreneurs without regard to the changed outlook.
In fact, some of the applicants for renewal of leases may themselves be the persons who are responsible for the changed outlook.
To renew leases in favour of such persons would make the making of Rule 8C a mere exercise in futility.
It must be remembered that an application for the renewal of a lease is, in essence an application for the grant of a lease for a fresh period.
We are, therefore, of the view that Rule 8C is attracted in considering applications for renewal of leases also.
Another submission of the learned counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of G.O.Ms.
No. 1312 (2 12 1977) should be dealt with as if Rule 8C had not come into force.
It was also contended that even applications for grant of leases made long before the date of G.O.Ms.
No. 1312 should be dealt with as if Rule 8C had not come into force.
The submission was that it was not open to the Government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8C came into force.
While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable tune clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application.
None has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions.
In the absence 760 of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application.
We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of G.O.Ms.
No. 1312 should be dealt with as if Rule 8C did not exist.
In the view that we have taken on the several questions argued before us all the appeals arising out of applications for the grant or renewal of leases for quarrying black granite in Government lands are allowed and the Writ Petitions filed in the High Court are dismissed.
Special leave is granted in cases in which leave had not been previously granted.
The appeals are allowed and disposed of in the same manner.
There are, however, a few appeals in which the applications were not for the grant or renewal of leases to quarry black granite in Government lands but were for permission to quarry black granite in Patta lands in which the right to minerals belonged to the applicants private owners themselves.
Apart from the fact that Rule 8C occurs in a group of Rules in Section II, which bears the head "Government lands in which the minerals belong to the Government" while the rules relating to lands in which the right to minerals belongs to private owners are dealt with in Section III.
The language of Rule 8C is clear that it cannot have any application to lands in which the right to minerals belongs to the applicants themselves.
Rule 8C is only concerned with leases for quarrying black granite and it cannot, therefore, have any application to cases where no lease is sought from the Government.
In the case of lands in which the right to minerals belongs to private owners and those owners seek permission to quarry black granite the applications will have to be dealt with under the relevant rules in Sec.
III of the Tamil Nadu Minor Mineral Concession Rules.
Rule 8C, it may be noted, does not impose a general ban on quarrying black granite but only imposes a bar on the grant of leases of quarrying black granite.
Appeals and Special Leave Petitions which arise out of applications for the grant of permission to quarry black granite in the Patta lands belonging to the applicants themselves, have therefore, to be dismissed.
The result is, Special Leave Petition Nos.
9257, 9259, 9260, 9271, 9273 to 9282 and 9284 of 1980 are dismissed and Special Leave Petition Nos 9234 to 9248, 9250 to 9256, 9258, 9261 to 9270,9272,9283,9285,9286,9288,9289 and 9290 of 1980 are granted and Appeals allowed.
Civil Appeal Nos. 2602 to 2604 of 1980 are allowed.
There will be no order as to costs.
N.K.A. Ordered accordingly.
| IN-Abs | The Mines and Minerals (Regulation & Development) Act, 1957 (Central Act) was enacted in the public interest to enable the Union to take under its control the regulation of mines and the development of minerals.
Exercising its power under this Act, the Central Government declared by a notification that black granite was a minor mineral.
Exercising power vested in it by section 15 of the Act, the State Government made the Tamil Nadu Minor Mineral Concession Rules, 1959.
Rule 8 of the Rules prescribes the procedure for lease of quarries to private persons.
By rule 8 C, introduced in 1977, leases for quarrying black granite in favour of private persons were banned.
Sub rule (2) of this rule enacts that the State Government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation wholly owned by the State Government.
Several applications for the grant of fresh leases as well as for the renewal of leases for quarrying black granite belonging to the State Government were submitted to the State Government, some prior to the introduction of rule 8C and some after the rule came into force.
The State Government considered all the applications and rejected all of them in view of rule 8C.
The respondents filed writ petition questioning the vires of Rule 8 C on various grounds.
The High Court struck down Rule 8 C on the ground that it exceeded the rule making power given to the State Government and held that it was not open to the appellant Government to keep the applications pending for a long time and then to dispose them of on the basis of a rule which had come into force later.
As a result all the applications were disposed of without reference to rule 8 C.
The appellant contended that: (I) The approach of the High Court was vitiated by its failure to notice the crucial circumstance that the minerals belonged to the Government, (II) The respondents had no vested or indefeasible right to obtain a lease or a renewal to quarry the minerals, (III) There were good reasons for banning the grant of lease to quarry black granite to private parties and (IV) The Government could not be compelled to grant leases which would result in the destruction of the mineral resources of the country.
On behalf of the respondent it was submitted that (I) the question of ownership of the minerals was irrelevant, (II) It was not open to the appellant 743 to exercise its subordinate legislative function in a manner to benefit itself as owner of the minerals, nor was it open to the appellant to create monopoly by such means, (III) There was violation of articles 301 and 303 of the Constitution, (IV) Rule 8 C had no application to renewals and (V) That in any event it would not have the effect of affecting applications made more than 60 days before it came into force.
Accepting the appeals, it was ^ HELD: Rule 8 C was made in bonafide exercise of the rule making power of the Appellant Government and not in its misuse to advance its own self interest.
Making a rule which is perfectly in order is not to be considered a misuse of the rule making power, if it advances the interest of State, which really means the people of the State.
Rivers, forests, minerals and as such other resources constitute a nation 's natural wealth.
These resources are not to be frittered away and exhausted by any one generation.
Every generation owes a duty to all succeeding generations to develop & conserve the natural resources of the nation in the best possible way.
It is in the interest of mankind.
It is in the interest of the Nation.
It is recognised by Parliament.
Parliament has 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.
[751C D, 753G H] 2.
The Public interest which induced Parliament to make the declaration contained in S.2 of the Mines & Minerals (Regulation and Development) Act, 1957 has naturally to be the paramount consideration in all matters concerning the regulation of Mines & Minerals.
Parliament 's Policy is clearly discernible from the provisions of the Act.
It is the conservation and the prudent and discriminating exploitation of minerals, with a view to secure maximum benefit to the community.
There are clear sign posts to lead and guide the subordinate legislating authority in the matter of the making of rules.
[751G H] 3.
The other provisions of the Act, particularly sections 4A, 17 and 18, indicate that the rule making authority under S.15 has not exceeded its powers in banning leases for carrying black granite in favour of private parties and in stipulating that the State Government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation wholly owned by the State Government.
To view such a rule made by the Subordinate legislating body as a rule made to benefit itself merely because the State Government happens to be the subordinate legislating body is, but, to take too narrow a view of the functions of that body.
[751H, 752A B] H. C. Narayanappa & Ors.
vs State of Mysore & Ors.
; @ 745, 752 753 referred to.
Whenever there is a switch over from 'private sector ' to 'public sector ' it does not necessarily follow that a change of policy requiring express legislative sanction is involved.
It depends on the subject and the statute.
But if a decision is taken to ban private mining of a single minor mineral for the purpose of conserving it, such a ban, if it is otherwise within the bounds of the authority given to the Government by the Statute, cannot be said to involve any change of policy.
The policy of the Act remains the same and it is, the conservation and the prudent and discriminating exploitation of 744 minerals, with a view to secure maximum benefit to the community.
Exploitation of minerals by the private and/or the public sector is contemplated.
If in the pursuit of the avowed policy of the Act, it is thought exploitation by the public sector is best and wisest in the case of a particular mineral and, in consequence, the authority competent to make the subordinate legislation makes a rule banning private exploitation of such mineral, which was hitherto permitted.
There is no change of policy merely because that was previously permitted is no longer permitted.
[756A D] Municipal Corporation of the City of Toronto vs Virgo , Attorney General for Ontario vs Attorney General for the Dominion and the Distillers and Brewers Association, , State of Uttar Pradesh and Others vs Hindustan Aluminium Corporation Ltd. and Ors., ; , G. K. Krishnan etc.
vs The State of Tamil Nadu and Anr. etc.
[1975] 2 SCR 715 @ 721, Commonwealth of Australia vs Bank of New South Wales referred to.
The restrictions, freedom from which is guaranteed by article 301 would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade.
The Act and the rules properly made thereunder are, therefore, outside the purview of article 301.
Even otherwise article 302 which enables Parliament, by law, to impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest also furnishes an answer to the claim based on the alleged contravention of article 301.
[757F H, 758A B] 7.
The Mines and Minerals (Regulation and Development) Act is a law enacted by Parliament and declared by Parliament to be expedient in the public interest.
Rule 8 C has been made by the appellant Govt.
by notification in the official Gazette, pursuant to the power conferred upon it by sec.
15 of the Act.
A statutory rule, while ever subordinate to the parent statute, is, otherwise, to be treated as part of the statute and as effective. "Rules made under the Statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the act and are to be judicially noticed for all purposes of construction or obligation.
[758B G] Atiabari Tea Co. Ltd. vs State of Assam & Ors. ; The Automobile Transport Rajasthan Ltd., vs State of Rajasthan & Ors.
[1963] 1 SCR 491 and State of U.P. & Ors.
vs Babu Ram Upadhya ; , referred to.
Rule 9 makes it clear that a renewal is not to be obtained automatically, for the mere asking.
The applicant for the renewal has, particularly, to satisfy the Government that the renewal is in the interests of mineral development and that the lease amount is reasonable in the circumstances of the case.
These conditions have to be fulfilled in addition to whatever criteria is applicable at the time of the grant of lease in the first instance, suitably adapted, of course, to grant of renewal.
Not to apply the criteria applicable in the first instance may lead to absurd results.
Therefore rule 8 C is attracted in considering applications for renewal of leases also.
[759A D] 9.
While the applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed 745 of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application.
No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions.
In the absence of any vested rights in any one, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application.
[759G H, 760A] 10.
The language of Rule 8 C is clear that it can not have any application to lands in which the right to minerals belongs to the applicants themselves.
In the case of lands in which the right to minerals belongs to private owners and those owners seek permission to quarry black granite the applications will have to be dealt with under the relevant rules in Sec.
III of the Tamil Nadu Minor Mineral concession Rules.
Rule 8 C does not impose a general ban on quarrying black granite but only imposes a bar on the grant of leases for quarrying black granite.
[760D F]
|
ition Nos.
3464 65, 5908 & 3231 of 1980.
(Under Article 32 of the Constitution) section N. Kacker, K. N. Bhatt and Surendara Raju for the Petitioners in W. P. Nos 3464 65/80 and 5908/80.
Soli J. Sorabjee, E. C. Agarwala, R. Satish and V. K. Pandita for the Petitioner in WP 3231,/80.
L. N. Sinha, Att.
and Altaf Ahmed for R. 1.
in WPs 3464 65/80.
Y. section Chitaley and Vineet Kumar for R. 14 in WP 3231/80 and for R. 2 in WPs 3464 65/80.
R. P. Bhatt and N. R. Chaudhary for R. 4 in WP 3464/80.
P. R. Mridul and Naunit Lal for R. 7 in WP 3231/80 and for R. 2 in WP 3464 65/80.
Anil Dev Singh and Ashok Grover for R. 15 in WP 3231/80 and R. 3 in WPs 3464 65/80.
section K. Bhattacharya and Suresh Sethi for R R. 6 and 12 in WP 3464 65/80.
Satish Vij for R. 15 in WP 3464 3465/80.
section Balakrishnan and section K. Bhattacharya for R. 16 in WP No. 3231/80.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
BY these writ petitions under Article 32 of the Constitution the petitioners have challenged the orders of the 843 first respondent (the State of Jammu and Kashmir) allotting quotas of resin to respondents.
According to the petitioners these orders denying similar treatment to them are arbitrary and violative of Article 14 of the Constitution of India.
The material facts in the four petitions are similar.
The industries of which the petitioners are partners are admittedly small scale industries for the manufacture of resin and turpentine oil.
The industries of the petitioners ' in Writ Petitions Nos.
3465 of 1980 and 3231 of 1980 were provisionally registered but revalidated for short periods.
The industry of the petitioner in Writ Petition No. 3464 of 1980 was provisionally registered, revalidation was applied for but was not granted.
The industry of the petitioner in Writ Petition No. 5908 of 1980 was formally registered.
It appears that the petitioners were applying to the Government for allotment of resin as well as raw material for their industries but the Government referring to their policy decision of March 20, 1978 refused to make any allotment of Oleo resin to them.
The petitioners in Writ Petition Nos.
3464 and 5908 of 1980 have alleged that they purchased raw material from the open market and somehow managed their industries to run for a certain period.
Resin is admittedly a forest product extracted from "Chir trees".
It has been alleged that only three States of India, namely, Himachal Pradesh, Uttar Pradesh and Jammu and Kashmir have Chir forests.
The petitioners have alleged that the State of Himachal Pradesh and Uttar Pradesh stopped selling resin for the last several years in view of establishment of factories in public and joint sectors and that the State of Jammu and Kashmir was selling resin by public auction.
Sometime after October 1978 the State of Jammu and Kashmir, it has been further alleged, virtually created monopoly in favour of three existing industrial units and committed to supply them about 17,000 M. T. of resin for long time to come.
There is a Public sector unit in Jammu which consumes about 3,000 tons of resin per year.
Several small scale industries, according to petitioners, were assured supply of resin even as late as 1979 notwithstanding the Government 's aforesaid industrial policy.
In such a situation, being unable to procure raw materials for their industries, the petitioners approached the relevant authorities including the Deputy Minister of Industry and the Chief Minister of Jammu and Kashmir for allotment of raw materials but to no avail.
(For the sake of convenience we shall hereinafter refer only to the respondents and Annexures in W. P. No. 3231 of 1980).
The petitioners further allege that while they were refused allotment of supply of raw materials, respondent No. 1 made allotments to respondents No. 4 to 16 (hereinafter called "allottee respondents") although most of them 844 were not even formally registered at the time of making the impugned orders of allotment.
The petitioners contend that in the circumstances they were adversely discriminated against while respondents Nos. 4 to 16 were favour ed and as such the impugned orders are liable to be struck down as , violative of Article 14 of the Constitution of India.
The impugned orders have been annexed as Annexures N to Z 1.
The letter of allotment (Annexure 'X ') in favour of M/s. Sud Pine Industries (respondent No. 27) is in the following terms: "Sub: Supply of resin to M/s. Sud Pine Industries Kunwani for their factory at Talab Jammu.
Government Order No. 175 DIC/1980 dated 30 5 1980.
In partial modification of Government order No. 2.
DIC of 1979 dated 20 1 1979 sanction is accorded to the supply of crude (oleo) resin 700 tonnes per annum by the Forest Deptt.
to M/s. Sud Pine Industries for their factory at Kunjwani Talab Jammu on the terms and conditions specified in the above said order.
The supply of resin shall be subject to its being reviewed by the Government with due regards to its availability from year to year.
By order of the Govt.
of J & K. Sd/ (Sheikh Ghulam Rasool) Secretary to Government.
" The orders as per annexures L to W in favour of respondents 17 to 26 are identical in material parts.
It will be sufficient if the material portion of Annexure N is quoted.
It runs thus.
"Sanction is accorded to the supply of crude (oleo) resin by the Forest Department to M/s. Kashmir R & T Works, Srinagar, for their factory at Srinagar, subject to the terms and conditions of the agreement to be entered into between the Forest Department and the party and on the following specific conditions: 1.
The Forest Department will supply Crude (oleo) resin @ 700 TPA to the firm from the date the Unit is formally registered subject to its being reviewed with due regard to its availability from year to year; 845 2.
The resin will be supplied @ Rs. 320/ per quintal, unless otherwise reviewed on year to year basis.
The cost of empty tin will be charged @ Rs. 5/ per tin in addition to the above rate; 4.
By order of the Government at Jammu and Kashmir.
Sd/ Sheikh Ghulam Rasool Secretary to Government." (emphasis added) 5.
It is obvious that the industries of these respondents were not formally registered at the time of the impugned orders of allotment.
The State of Jammu and Kashmir (Respondent No. 1) have filed a counter affidavit.
They have not denied the material allegations of the petitioners but they say that the allocations have been made in order to implement the industrial policy of the State Government as enunciated in a "Report of the Development Review Committee, Jammu and Kashmir" a committee headed by Shri L. K. Jha, the Governor of the State.
Respondent No. 1 has quoted from the report the 'Goals ' of the industrial policy which read: "The balanced economic development of the State will obviously, be one of the foremost concerns of the Government.
They would like to emphasis maximum self sufficiency and self reliance consistently with the need to promote the requisite and desirable degree of inter dependence with other parts of the country. 'The objective will be to secure the most prudent and beneficial utilization of the natural resources and skills peculiar to this State; to achieve the maximum possible F rate of economic growth, consistently with the need to secure a degree of balanced regional development as well as balance between the rural areas and the urban, to maximise State per capita income, and to generate the maximum employment potential.
Many areas of the State are as cut off, isolated and poor as they were at the dawn of independence.
We have to improve the living standards in these specially backward areas for whom in terms of the quickest mode of transportation, Srinagar is more distant than the State is from Kerala.
Many sections of the community similarly, like Scheduled Castes; Gujarat and Bakarwalas and other backward class need to be assisted in their speedy uplift.
846 Ladakh needs a visible acceleration of the tempo of its development so that our people in this far flung and difficult frontier area can realise the full fruits of development in the shortest possible time.
" Respondent No. 1 has given the district wise break up of the applications received from different regions.
It is as follows: Jammu 63 Udaypur 10 Rajouri 1 Poonch 1 Doda 1 Kathua 9 Anantnag 2 Srinagar 11 Outsiders 12 GRAND TOTAL 110 Applications They have also shown the allotments of resin districtwise.
The industries of the respondents No. 4 to 16 are also small scale industries.
The break up of the small scale industries as given in Annexure R.II (in W.P. No. 3464) shows that Jammu has the largest number of units namely, 10, Second comes Srinagar with 4, then come Udampur with 3, Kathua (in Jammu Division), Anantnag and Baramulla (in Kashmir Division), with one each.
Rajouri in Jammu Division has none.
It appears that the industries of the present applicants are also in the Jammu region and those of respondents No. 4 to 16 also appear to have been located in the Jammu region.
In their affidavit at para 3 respondent No. 1 has stated that all the applications for allocation of resin were considered from time to time at various levels by the State Government and it was decided on May 30, 1980 as follows: (a) The allotment of resin to the existing unit should be rationalised; (b) Applications received from various districts be considered for allotment of resin.
The State Government have submitted that they made no promise of supply of raw material in favour of any of the petitioners.
The petitioners have submitted, in our opinion, correctly, that as there were already 10 units functioning in small scale sector in the Jammu region and inasmuch as the allottee respondents ' industries were also located in the Jammu region, allocations in their favour would be inconsistent with the Government 's industrial policy.
847 7.
In the instant case, respondent No. 1 as well as the other parties has taken reliance on their industrial policy statement as stated above.
We have already quoted the relevant portions of the State Industrial policy statement.
The Government have stated that they have considered all the 110 applications including those of the petitioners coming from industrialists of different parts of the country.
They have stated, and their statement is corroborated by the documents, that there is preponderance of industries in the Jammu region and industries of the petitioners as well as respondents No. 4 to 16 were also functioning in the same region.
Respondent No. 1 has not explained as to how and on what basis, if any, the allotments were made by the impugned orders in favour of the new allottees whose industries were located in the Jammu region.
Pawan Kumar Sharma, the petitioner in W.P. No. 3231 of 1980 states that his industry was provisionally registered under the Provisional Registration Certificate dated 29 1 1976.
It was further extended for further short periods.
He says that as there was assurance from the authorities that raw materials will be allotted to him after he completed the installation of requisite machinery.
The J. K. Resin and Turpentine Industries of petitioner Om Prakash Sud, was provisionally registered in the year 1975.
He was also approaching the Government from time to time to get allotment of the raw materials but got no favourable reaction from the Government.
He states that he had already established his factory and got it insured for a sum of Rs. 6.80 lakhs.
He obtained raw material from the open market and was running his industry.
Petitioner, Ravindra Dutt of M/s. Dinesh Resin and Turpentines in W.P. No. 3465 of 1980 alleges that his industry was provisionally registered on 25 10 1975 which was extended upto April, 1979.
Letter of 31st May, 1979 shows that his industry was later on formally registered as a small unit.
This factory was producing resin and turpentine out of the resin which he purchased from open auction He was approaching the Government from time to time to get requisite quantity of raw materials but failed to get it.
Petitioner, Shamlal Kapoor, Director of Jammu Resin Enterprises Private Limited, alleges that his industry was formally registered with the Government of J & K.
He alleges that his industry was functioning for a long time and trying to get necessary quota of raw materials from respondent No. 1.
He was approaching the Government to get requisite quota.
Sud Pine Industries, was provisionally registered on 10 3 1978 and formally registered on 10 10 1978.
It appears from Annexure N, in respect of respondent M/s Kashmir R & T Works 848 (respondent No. 17), Annexure O in respect of M/s. Sun Shine R & T Industries (respondent No. 18), Annexure P in respect of M/s. Woolan Paints and Chemicals Scopore (respondent No. 19) Annexure Q in respect of M/s. Pine Wood Products Company (respondent No. 20), Annexure R in respect of M/s. Haji Mast Ali Slaria (respondent No. 21), Annexure S in respect of M/s. Phyto Chemicals (respondent No. n 22), Annexure T in respect of M/s. New Himalayan Paints and Chemicals (respondent No. 23), Annexure U in respect of M/s. section K. Chemical (respondent No. 24), Annexure V in respect of M/s. Rajindra R & T (respondent No. 25) and Annexure W in respect of M/s. Bharat Paints and Chemicals (respondent No. 26) that the allotments were made in their favour "from the date the unit is formally registered" which shows that industries were not even registered at the time of the impugned orders of this allotment.
Respondent M/s. Rajindra R & T Industries, Udhampur, appears to stand on a different footing.
He appears to have fulfilled all the conditions required for allocation of resin in accordance with the policy of the State of J & K. The industry is an experienced one and the factory started production of resin and turpentine at Hoshiarpur since 1948.
It is a firm registered under the Indian Partnership Act and has long experience in the business including resin and turpentine since 1948.
The industry set up a factory in 1970 in the rural industrial estate near Udhampur which is a backward area.
The industry was provisionally registered in 1970 and formal registration was granted on 29 2 1974.
It applied for adequate quantities of raw materials and was allotted only 200 tons although it had been sanctioned 1500 per ton per annum since 1975.
Respondent M/s. Sud Pine Industries, M/s. Kashmir R & T Works, Bakshi Resin & Turpentine and M/s. K. C. Soni Bakshi also appear to be on different footings.
It appears from Annexures 'X ' and 'Y ' that the first two industries have already been formally registered.
They are existing units having already started production.
So far as respondent M/s Bakshi Resin and Turpentine is concerned, it had already set up factory and started production.
It was provisionally registered as early as 1976 and the unit is located in a backward area.
So far as respondent K. C. Soni Resin & Turpentine is concerned, it was formally registered on 19 4 79.
This unit is located in a remote backward area of the State.
"Equality before the Law" or "equal protection of the laws" within the meaning of Article 14 of the Constitution of India means absence of any arbitrary discrimination by the law or in their administration.
No undue favour to one or hostile discrimination to another should be shown.
A classification is reasonable when it is not an arbitrary selection but rests on differences pertinent to the subject 849 in respect of which the classification is made.
The classification permissible must be based on some real and substantial distinction, a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis. . (See State of West Bengal vs Anwar Ali.
The classification must not be arbitrary but be rational, that is to say, it must not only be 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.
Those qualities or characteristics must have a reasonable relation to the object of the law.
In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) that differentia must have a rational relation to the object sought to be achieved by the Act.
The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them.
We are not unaware that the rule of equality does not mean mathematical equality and that it permits of practical inequalities.
But what is needed is that the selection of quota seekers as in the case in hand should have a rational relation to the object sought to be achieved in the industrial policy decision of the State.
If the selection or differentiation is arbitrary and lacks a rational basis it offends Article 14. 9.
In the instant case, although the State Government has taken reliance on the State Industrial Policy decision referred to above, they do not appear to have followed it in practice, except in the cases of the five respondents referred to above.
In fact no reasonable basis has been adopted in making the allotments in favour of the new allottees and denying allotments to the petitioners.
In the circumstances the petitions are partly allowed, the impugned orders of allotments except in favour of respondents, M/s Rajindra Resin and Turpentine Industries, M/s Sud Pine Industries, M/s Kashmir R & T Works, M/s Bakshi Resin & Turpentine and M/s K. C. Soni Resin & Turpentine are quashed.
The petitions are partly allowed.
The Rules are made absolute except as against these five respondents.
The respondent.
No. 1, the State of Jammu and Kashmir, is directed to make the other allotments of the raw materials to the applicants in the light of the observations made above.
Respondent No. 1 shall pay costs of Rs. 100.00 to each of the petitioners.
N.V.K. Petition partly allowed.
| IN-Abs | The petitioners in their writ petitions to this Court alleged that they were carrying on small scale industries for the manufacture of resin and turpentine oil and that they applied to the Government for allotment of resin for their industries but the Government referring to their policy decision of March 20, 1978 refused to make any allotment, and that they purchased raw material from the open market and managed to run their industries.
They further alleged that while they were refused allotment of supply of raw materials, the State, respondent No. I made allotments to respondent nos.
4 to 16 n although most of them were not even formally registered at the time of making the impugned orders of allotment and that they were consequently adversely discriminated against, while respondent nos.
4 to 16 were favoured and as such the impugned orders of allotment were liable to be struck down " violative of Article 14 of the Constitution of India.
The State, respondent No. 1 contested the writ petition, denied the material allegations of the petitioners and alleged that the allocations were made in conformity with the State Industrial Policy decision of securing the balanced economic and regional development of the State that there was a preponderance of industries in the Jammu Region, and that the industries of the petitioners as well as respondent nos.
4 to 16 were also functioning in that region.
Allotments of resin were made districtwise, 110 applications were received and considered and allotment was made to respondents nos.
4 to 16.
On the question whether the orders of the 1st respondent allotting quotas of resin to respondent nos.
4 to 16 were arbitrary and violative of Article 14 of The Constitution.
^ HELD : 1(i) Respondent No. 1 has not explained as to how and on what basis if any, the allotments were made by the impugned orders in favour of the new allottees respondent nos.
1 to 16 whose industries were located in the Jammu region.
[847 C] (ii) Although the State Government has taken reliance on the State Industrial Policy decision, it does not appear to have followed it in practice, except in the cases of five respondents.
No reasonable basis had been adopted in making the allotments in favour of the new allottees and denying the allotments to the petitioners.
[84913 F] 842 2.
The rule of equality does not mean mathematical equality.
It permits of practical inequalities.
What is needed is that the selection of quota seekers as in the instant case should have a rational relation lo the object sought lo be achieved in the industrial policy decision of the State.
If the selection or differentiation is arbitrary and lacks a rational basis it offends Article 14.
[849 D] 3.
"Equality before the Law" or "equal protection of the laws` ' within the meaning of Article 14 of the Constitution of India means absence of any arbitrary discrimination by the law or in their administration.
No undue favour to one or hostile discrimination to another should be shown.
A classification is reasonable when it is not an arbitrary selection but rests on differences pertinent to the subject in respect of which the classification is made.
The classification permissible must be based on some real and substantial distinction, a just and reasonable relation to the objects sought to be attained and cannot be made arbitrary and without any substantial basis.
[848 H 849 A] State of West Bengal vs Anwar Ali, [19521 SCR 284 referred to.
|
Civil Appeal No. 3351 of 1979.
Appeal by Special Leave from the Judgment and Order dated 27 2 1979 of the Delhi High Court in Civil Writ No. 1139/78.
Abdul Khader, section P. Nayar and Miss A. Subhashini for the Appellant.
P. R. Mirdul and P. N. Gupta for Respondents 1 5.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The question for consideration in this appeal is whether the Delhi Development Authority is a 'local Authority ' whose employees are taken out of the purview of the , by Sec.
32(iv) of that Act, which provides that I nothing in the Act shall apply to employees employed by an establishment engaged in any industry carried on by or under the authority of any Department of the Central Government or State Government or 857 a Local Authority.
It appears that for about ten years prior to 197374 bonus was paid to the employees of the Delhi Development Authority but it was stopped thereafter on the advice of the Ministry of Law.
The employees questioned the stoppage of the payment of bonus by filing Civil Writ Petition No. 1139/79 in the Delhi High Court.
The High Court allowed the Writ Petition and the Union of India and the Delhi Development Authority have preferred this appeal, after obtaining special leave of this Court under article 136 of the Constitution.
The expression 'Local Authority ' is not defined in the payment of Bonus Act.
One must, therefore, turn to the General Clauses Act to ascertain the meaning of the expression.
S.3(31) defines Local Authority as follows: "Local Authority shall mean a Municipal Committee, District Board, Body of Port Commissioners or other authority legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund". 'Local Fund ' is again not defined in the General Clauses Act.
Though the expression appears to have received treatment in the Fundamental Rules and the Treasury Code, we refrain from borrowing the meaning attributed to the expression in those rules as it is not a sound rule of interpretation to seek the meaning of words used in an Act, in the definition clause of other statutes.
The definition of an expression in one Act must not be imported into another.
"It would be a new terror in the construction of Acts of Parliament if we were required to limit a word to an unnatural sense because in some Act which is not incorporated or referred to such an interpretation is given to it for the purposes of that Act alone" (per Loreburn L.C. in Macbeth vs Chislett.
For the same reason we refrain from borrowing upon the definition of 'Local Authority ' in enactments such as the Cattle Trespass Act 1871 etc.
as the High Court has done.
Let us, therefore, concentrate and confine our attention and enquiry to the definition of 'Local Authority ' in Sec.3(3) of the General Clauses Act.
A proper and careful scrutiny of the language of Sec.3(31) suggests that an authority in order to be a local Authority, must be of like nature and character as a Municipal Committee, District Board or Body of Port Commissioners, possessing, therefore, many, if not all, of the distinctive attributes and characteristics of a Municipal Committee, District Board, or Body of Port Commissioners, but, possessing one essential feature, namely, that it is legally entitled to or entrusted by the Government with, the control and management.
Of a municipal or local fund.
What then are the distinctive attributes 858 and characteristics, all or many of which a Municipal Committee, District Board or Body of Port Commissioners shares with any other local authority? First, the authorities must have separate legal existence as Corporate bodies.
They must not be mere Governmental agencies but must be legally independent entities.
Next, they must function in a defined area and must ordinarily, wholly or partly, directly or indirectly, be elected by the inhabitants of the area.
Next, they must enjoy a certain degree of autonomy, with freedom to decide for themselves questions of policy affecting the area administered by them.
The autonomy may not be complete and the degree of the dependence may vary considerably but, an appreciable measure of autonomy there must be.
Next, they must be entrusted by Statute with such Governmental functions and duties as are usually entrusted to municipal bodies, such as those connected with providing amenities to the inhabitants of the locality, like health and education services, water and sewerage, town planning and development, roads, markets, transportation, social welfare services etc.
Broadly we may say that they may be entrusted with the performance of civic duties and functions which would otherwise be Governmental duties and functions.
Finally, they must have the power to raise funds for the furtherance of their activities and the fulfillment of their projects by levying taxes, rates, charges, or fees.
This may be in addition to moneys provided by Government or obtained by borrowing or otherwise.
What is essential is that control or management of the fund must vest in the authority.
In Municipal Corporation of Delhi vs Birla Cotton, Spinning & Weaving Mills Delhi & Anr., Hidayatullah, J., described some of the attributes of local bodies in this manner: "Local bodies are subordinate branches of governmental activity.
They are democratic institutions managed by the representatives of the people.
They function for public purposes and take away a part of the government affairs in local areas.
They are political sub divisions and agencies which exercise a part of State functions.
As they ale intended to carry on local self government the power of taxation is a necessary adjunct to their other powers.
They function under the supervision of the Government".
In Valjibhai Muljibhai Soneji and Anr.
vs The State of Bombay (Now Gujarat) & Ors.
one of the questions was 11 whether the State Trading Corporation was a local Authority as 859 defined by Sec. 3(31) of the .
It was held A that it was not, because it was not an authority legally entitled to or entrusted by the Government with, control or management of a local fund.
It was observed that though the Corporation was furnished with funds by the Government for commencing its business that would not make the funds of the Corporation 'local funds '.
Keeping in mind what we have said above, we may now take a close look at the provisions of the Delhi Development Act.
The Delhi Development Act, 1957, is 'an Act to provide for the development of Delhi according to plan and for matters ancillary thereto '.
The act extends to the whole of the Union Territory of Delhi.
2(d) defines "development" as meaning, with its grammatical variations "the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in any building or land and includes redevelopment '. ' Sec.
3 empowers the Central Government to constitute an authority to be called the Delhi Development Authority.
The Authority is to be a body corporate having perpetual succession and a common seal, with the usual corporate attributes.
The authority is to consist of a chairman, a Vice Chairman and a certain number of official and nonofficial members.
The non official members are to include two representatives of the Municipal Corporation of Delhi to be elected by the Councillors and aldermen of the Municipal Corporation from among themselves and three representatives of the Metropolitan Council for the Union Territory of Delhi to be elected by the members of the Metropolitan Council from among themselves.
The objects of the authority as set out in Sec. 6 are "to promote and secure the development of Delhi according to plan" and for that purpose to "have the power to acquire, hold and dispose Of land and other property", and "to carry out building, engineering, mining and other operations, to execute works in connection with supply of water and electricity, disposal of sewage and other services and amenities and generally to do anything necessary or expedient for purposes of such development and for purposes incidental thereto".
Sec.7 requires the Authority to carry out a civic survey of, and prepare a master plan for, Delhi.
The master plan is to define various zones into which Delhi may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out.
The master plan may also provide for any other matter which is necessary for the proper development of Delhi.
Sec.8 provides for the preparation of zonal development plans and Sec.8(2) prescribes what a zonal deve 860 lopment plan may contain or specify.
Sec.9 provides for the submission of all plans to the Central Government by the Authority for approval.
12 empowers the Central Government to declare any area in Delhi to be a 'development area ' for the purposes of the Act.
It further provides that after the commencement of the Act no development of land shall be undertaken or carried out, without the permission of the Authority, if the area is a development area, and without the approval or sanction of the local authority concerned if the area is an area other than a development area.
Sec.13 prescribes the procedure to be followed.
IT provides for a fee (to be prescribed by the Rules) to accompany every application to obtain permission under Sec.
empowers the Central Government to acquire any land which is required for the purpose of development or for any other purpose under the Act.
After acquiring the land the Central Government may transfer the land to the Authority or any local authority on payment by the Authority or the local authority of the compensation awarded under the Land Acquisition Act and all the charges incurred by the Government.
Thereafter, subject to any directions given by the Central Government the Authority or, as the case may be, the local authority concerned may dispose of the land, after or without undertaking or carrying out any development thereon, to such persons, in such manner any subject to such` terms and conditions as it considers expedient for securing the development of Delhi according to plan.
22 authorises the Central Government to place at the disposal of the Authority all or any developed and undeveloped lands in Delhi vested in the Union for the purpose of development in accordance with the provisions of the Act.
23 obliges the Authority to have and maintain its own fund to which are to be credited "(a) all moneys received by the Authority from the Central Government by way of grants, loans, advances or otherwise: (aa) all moneys received by the Authority from sources other than the Central Government by way of loans or debentures: (b) all fees and charges received by the Authority under this Act; (c) all moneys received by the Authority from the disposal of lands, buildings and other properties, movable and Immovable; and (d) all moneys received by the Authority by way of rents and profits or in any other manner or from any other source.
" 861 The fund is required by S.23(2) to be applied towards meeting the expenses incurred by the Authority in the administration of the Act and for no other purposes.
24 enjoins a duty on the authority to prepare a budget in respect of the financial year next ensuing showing the estimated receipts and expenditure.
Copies of the budget are to be forwarded to the Central Government.
25 requires the accounts of the Authority to be audited annually by the Comptroller and Auditor General of India.
26 requires the Authority to prepare a report of its activities and submit the same to the Central Government.
27 provides for the constitution of pension and Provident Funds.
28 empowers the authority to authorise any person to enter into or upon any land or building with or without assistance of workmen for the purposes specified in the Section.
Sec. 29 provides for penalties for persons undertaking or carrying out development in contravention of the master plan or zonal development plan or without permission, approval or sanction required by Sec.
provides for the making of an order of demolition of a building where development has been commenced or completed in contravention of the master plan, zonal plans or the permission, approval or sanction referred to in Sec.
enables the Authority to make an order requiring development to be discontinued where development has been commenced in contravention of the master plan or zonal development plan or without obtaining permission, approval or sanction as required by Sec.
33 provides that all fines realised in connection with prosecutions under the Act shall be paid to the Authority or, as the case may be, the local authority concerned.
36 empowers the Authority to require the local authority within whose local limits an area has been developed to assume responsibility for the maintenance of amenities which have been provided in the area by the Authority and for the provision of the amenities which have not been provided by the Authority.
37 empowers the Authority to levy upon the owner of a property or any person having an interest therein a betterment charge in respect of the increase in value of the property as a consequence of any development having been executed by the Authority in any development area or as a consequence of any area other than a development area having been benefited by the development, Sec.
38 provides for the assessment of betterment charge by the Authority and Sec.
39 provides for the settlement of betterment charges by Arbitrators to be appointed by the Central Government.
Sec.40(2) authorises the recovery of any arrear of betterment charge as an arrear of land revenue.
40A further provides that any money due to the Authority on account of fees or charges, or from the disposal of lands, buildings or other properties 862 to be recovered by the Authority as arrears of land revenue.
41 obliges the Authority to carry out such directions as may be issued to it from time to time by the Central Government.
42 requires the Authority to furnish reports, returns and other information to the Central Government as may be required from time to time.
46 provides for the authentication of permissions, orders, decisions, notices and other documents by the Secretary or any other officer authorised by the Authority in that behalf.
47 declares every member and every officer and other employee of the Authority to be a public servant within the meaning of Sec.
21 of the Indian Penal Code.
52 enables the Authority to delegate any power exercisable by it under the Act except the power to make regulations to such officer or local Authority as may be mentioned in the notification.
56 empowers the Central Government to make rules and Sec.
57 enables the Authority, with the previous approval of the Central Government to make regulations consistent with the Act and the rules made thereunder to carry out the purposes of the Act.
Every rule and every regulation made under the Act is required to be laid before each House of Parliament by Sec.
empowers the Central Government to dissolve the authority if it is satisfied that the purposes for which the authority was established have been substantially achieved so as to render unnecessary its continued existence.
We see that the Delhi Development Authority is constituted for the specific purpose of 'the development of Delhi according to plan '.
Planned development of towns is a Governmental function which is traditionally entrusted by the various Municipal Acts in different States to municipal bodies.
With growing specialisation, along with the growth of titanic metropolitan complexes, legislatures have felt the need for the creation of separate town planning or development authorities for individual cities.
The Delhi Development Authority is one such.
It is thus an authority, to which is entrusted by Statute a Governmental function ordinarily entrusted to municipal bodies.
An important feature of the entrustment of Governmental function is the power given to the Authority to make regulations (which are required to be laid before Parliament).
The power to make regulation is analogous to the power usually given to municipalities to frame bye laws.
The activities of the Authority are limited to the local area of the Union Territory of Delhi.
The High Court appears to have assumed that the Delhi Development Authority has extra territorial powers extending to peripheral areas in the adjoining States.
There is no basis in the Statute for the assumption made by the High Court.
863 There is then an element of popular representation in the constitution of the Authority.
Representatives of the inhabitants of the locality, three elected from among the members of the Delhi Municipal Corporation and two elected from among the members of the Delhi Metropolitan Council, figure among its members.
What of autonomy? The Master Plan and the Zonal plans prepared by the Authority have to be approved by the Central Government, the budget has to be forwarded to the Central Government, annual returns have to be submitted to the Government and the directions that the Central Government may give have to be carried out.
But within these bounds, the Authority enjoys a considerable degree of autonomy, as is seen from the summary of the provisions of the Act which has been set out by us.
The powers of the Central Government over the Delhi Development Authority are the usual supervisory powers which every State Government exercises over municipalities, district boards etc.
Such powers of supervision do not make the municipalities disautonomous and mere satellites.
We finally come to the important question whether the legislature has vested any power of taxation in the Authority.
One of the submissions of the learned counsel for the respondent was that the fund of the Authority, required to be maintained by Sec. 23 of the Delhi Development Act, was not a local fund as no part of it flowed directly from any taxing power vested in the Delhi Development Authority.
The submission of the learned counsel was that the fees collected under Sec.
12 of the Act and the charges levied under Sec.
37 of the Act did not part take the character of tax but were mere fees which were the quid pro quo for the services which were required to be performed by the Delhi Development Authority under the Act.
We were referred to Hingir Rampur Coal Co. Ltd. & Ors.
vs The State of Orissa & Ors.
We are unable to agree with the submission made on behalf of the respondents.
In the first place when it is said that one of the attributes of a local authority is the power to raise funds by the method of taxation, taxation is to be understood not in any fine and narrow sense as to include only those compulsory exactions of money imposed for public purpose and requiring no consideration to sustain it, but in a broad generic sense as to also include fees levied essentially for services rendered.
It is now well recognised that there is no generic difference between a tax and a fee; both are compulsory exactions of money by public authority.
In deciding the question whether an authority is a local authority, our concern is only to find out whether the public 864 authority is authorised by Statute to make a compulsory exaction of money and not with the further question whether the money so exacted is to be utilised for specific or general purposes.
In the second place the Delhi Development Authority is constituted for the sole purpose of the planned development of Delhi and no other purpose and there is a merger, as it were, of specific and general purposes.
The statutory situation is such that the distinction between tax and fee has withered away.
In the third place we see no reason to hold that the charge contemplated by Sec.
37 is a fee and not a tax.
The case cited: The Hingir Rampur Coal Co. Ltd. & Ors.
vs The State of Orissa & Ors., has no application.
That was a case where the Government was empowered to levy a cess for the purpose of the development of the mining areas in the State.
The cess levied was not to become a part of the consolidated fund and was not subject to an appropriation in that behalf; it went into the special fund earmarked for carrying out the purpose of the Act.
There was a definite correlation between the proposed services and the impost levied and it could e legitimately claimed that the rate payer in substance was compensating the State for the services rendered by it to him.
In the present case there is no consolidated fund and no separate development fund.
There is only one fund, the Fund of the Delhi Development Authority.
What is more important, nor is there any question of any co relation between the betterment charge and the expenditure incurred by the Authority in carrying out the purposes of the Act.
The charge is not levied on the basis of the expenditure incurred.
It is levied on the basis of the increase in the value of the property consequent on the development of the area; one may say the charge is on the accrued capital gain; it may bear no proportion whatsoever to the cost of development.
A submission of the learned counsel was that the Delhi Development Act itself referred in several places to local authorities as distinguished from Delhi Development Authority.
It is true that in Sections 12, 15, 30, 31, 34, 36, 42 and some other provisions we find a reference to 'local authority concerned ' meaning thereby the ordinary local authority functioning in the area discharging a multiplicity of civic functions.
The Delhi Municipal Corporation for example is one such local authority.
The Delhi Development Authority is constituted for performing one of the several functions which a local authority may perform.
That the local authorities performing other functions are referred to as 'local authorities ' in the Act by which the Delhi Development Authority is created, while the Delhi Development Authority is referred to as the Authority, is no ground for holding 865 that the Delhi Development Authority is not a 'local authority ' as defined by Sec.3(31) of the .
The Delhi Development Authority is endowed with all the usual attributes and characteristics of a 'local authority ' and there is no reason to hold that it is not a 'local authority '.
Another submission of the learned counsel which was pressed upon us was that every statute dealing with municipalities and providing for their supersession and/or dissolution invariably provided for reconstitution of the municipality after a stipulated period whereas dissolution in the case of the Delhi Development Authority meant a complete extinction of the authority since the Act did not provide for its reconstitution.
Our attention was drawn to the municipalities Acts of various States.
We are unable to see the force of the submission.
The very nature of the work entrusted by the legislature to the development authority is such that its life can be but transient.
When the work is accomplished and there is no need for its continued existence it is dissolved and its life becomes extinct.
It is by what it is during its life and not by the consideration whether there is life after death and whether it can have many lives, that we determine whether the Delhi Development Authority is a local authority as defined in S.3(31) of the .
On a consideration of all the aspects of the matter placed before us we are of the opinion that the Delhi Development Auhority is a Local Authority and therefore, the provision of the are not attracted.
The result, therefore, is that the appeal is allowed and the Writ Petition filed in the High Court is dismissed.
However, we do wish to observe that the Delhi Development Authority may not only be a model for development activities but may strive to be a model employer too.
Bonus was paid to the employees for over ten years and we were not told of any reason for withdrawing this benefit from the employees.
Merely because the Law Department advised that they were not bound to pay bonus, they were not obliged to withdraw the benefit.
The question which ought to have been considered was not whether they were legally bound to pay bonus but whether in the context of sound management labour relations, bonus should continue to be paid.
It is a matter which we earnestly desire the Delhi Development Authority may reconsider.
There is no order as to costs.
P.B.R. Appeal allowed.
| IN-Abs | Section 32(iv) of the Payment of Bonus Act provides that nothing in the Act shall apply to employees employed by an establishment engaged in any industry carried on by or under the authority of any department of the Central Government or State Government or a local authority.
The Delhi Development Authority, a statutory body created under the Delhi Development Act, 1957 for the development of Delhi according to plan, paid bonus to its employees for a period of ten years upto the year 1973 74, but later discontinued payment of bonus on the advice of the Ministry of law.
The employees ' petition impugning the action of the Authority in stop ping the payment of bonus was allowed by the High Court.
On the question whether the Delhi Development Authority is a "local authority" and whether the provisions of the Payment of Bonus Act are attracted: Allowing the appeal, ^ HELD: The Delhi Development Authority is endowed with all the usual attributes and characteristics of a 'local authority ' and therefore the provisions of the Payment of Bonus Act are not attracted.
[865 A] The expression 'local authority ' is not defined in the Payment of Bonus Act.
The General Clauses Act defines it to mean a municipal committee or other authority legally entitled to or entrusted by the Government with the control or management of a municipal or local fund.
It is not a sound rule of interpretation to import the definition of an expression in one Act into another.
The definition of 'Local Fund ' in the Fundamental Rules, Treasury Code and elsewhere cannot be imported into the definition of Local Authority in the General Clauses Act and thus into the Delhi Development Act.
An authority, in order to be a local authority, must be of like nature and character as a municipal committee etc.
possessing among others many, if not all, of the distinctive attributes and characteristics of a municipal committee.
It must possess one essential feature, namely, that it is legally entitled to or entrusted by the Government with the control and management of a municipal or local fund.
[857 B H] The distinctive attributes and characteristics of a local authority are: (i) It must have separate legal existence as a corporate body; (ii) it must not be a mere governmental agency but a legally independent entity; (iii) it must function in a defined area and must ordinarily be elected wholly or partly, 855 directly or indirectly by the inhabitants of the area; (iv) it must enjoy a certain degree of autonomy, which, though not complete, must be appreciable; (v) the statute must entrust the authority with such governmental functions and duties as are usually entrusted to a municipal body for providing such amenities, as health and education services, water and sewerage, town planning and development, roads, markets, transportation etc.
to the inhabitants; (vi) it must have power to raise funds in the furtherance of its activities and the fulfillment of the projects entrusted to it by levying takes, rates, charges, fees etc.
all of which may be in addition to the moneys provided by Government.
What is essential is that the control and management of the fund must vest in the authority.
Municipal Corporation of Delhi vs Birla Cotton, Spinning Weaving Mills Delhi & Anr. ; @ 288 and Valjibhai Muljibhai Soneji and Anr.
vs The State of Bombay (Now Gujarat) & Ors. , referred to.
The Delhi Development Authority is a body corporate.
It consists of a chairman, vice chairman and a certain number of official members and non official members who are representatives of the Municipal Corporation Delhi to be elected by the Councillors and the aldermen of the Municipal Corporation and three representatives of the Metropolitan Council to be elected by that Council.
The object with which the Authority is established is "to promote and secure the development of Delhi according to plan" in accordance with the provisions of the Act.
[859 D F] The Authority is required to maintain its own Fund which was not a Consolidated Fund or a separate Development Fund but is the Fund of the Development Authority.
To this Fund are to be credited all the moneys received from the Central Government by way of grants, loans, advances or otherwise; all moneys received by way of loans of debentures; all fees and charges received by the Authority, all moneys received from the disposal of lands, buildings and other properties, all moneys received by way of rents and profits or in any other manner.
The fund is required to be applied towards meeting the expenses incurred by the Authority in the administration of the Act and for no other purposes.
The Act empowers the Authority to impose penalties on persons for undertaking or carrying out development in contravention of the master plan or without permission approval or sanction required to be given l? by the Authority.
[860 E G] An equally important feature with which the Authority is clothed is its power to make regulations a power which is analogous to the power given to municipalities to frame bye laws.
[862 G] The salient features of the Act show that the Delhi Development Authority is constituted for the specific purpose of planned development of Delhi which is a governmental function ordinarily entrusted to municipal bodies.
It has an element of popular representation though some of the members are indirectly elected.
It enjoys a considerable degree of autonomy within the bounds prescribed by the Act.
The fact that some supervision is exercised by the Central Government does not detract from the autonomy because the supervision exercised is the usual supervisory power which every State Government exercises over municipalities, District Boards etc.
[863 A D] The term "taxation" used with reference to the power of a local authority to raise funds is to be understood not in any fine and narrow sense to include 856 only compulsory exactions but in a broad generic sense to include fees levied essentially for services rendered.
Today the distinction between a tax and a fee his withered away both being compulsory exactions of money by a public authority.
The crucial test is to see whether the public authority is authorised by statute to make a compulsory extension of money and not to see whether the money so exacted is to be utilised for specific or general purposes.
[863 G H] There is no valid reason to hold that the betterment charge which the Authority can impose upon an owner of a property in respect of the increase in the value of the property is a fee and not a tax.
The charge is not levied on the basis of the increase in the value of property consequent on the development of the area.
In other words it is a charge on the accrued capital gain which may bear no proportion whatsoever to the cost of development.
[864 E] The fact that the Delhi Development Act refers in several sections to "local authority concerned" meaning thereby the ordinary local authority (as for example the Delhi Municipal Corporation) functioning in the area discharging a multiplicity of civic functions as distinguished from the Delhi Development Authority, which performs one of the several functions that a local authority performs, is no ground for holding that The Delhi Development Authority is not a local authority.
The Authority is endowed with all the usual attributes and characteristics of a local authority.
[864 H] Nor does the fact that other Municipal Acts provide for the reconstitution of a dissolved or superseeded municipality while the Delhi Development Act does not provide for such reconstitution of the Authority after it fulfills its assigned functions make it any the less a local authority.
By the very nature of the work entrusted to it its life is transient; when the work is accomplished and there is no need for its continued existence it is dissolved.
It is by what it is during its life and not by what its shape would be after it has performed its assigned functions that it can be determined whether the authority is a local authority as defined in the General Clauses Act [865 B D]
|
Appeal No. 105 of 1954.
Appeal by special leave from the judgment and order dated November 6, 1952, of the Labour Appellate Tribunal, Calcutta in Appeal No. Cal 3 of 1952 773 arising out of the award dated September 25, 1951, of the Court of District Judge, Industrial Tribunal, Calcutta in Case No. VIII 23 of 1951.
section C. Isaacs, A. K. Datt and Sukumar Ghose, for the appellants.
M. C. Setalvad, Attorney General for India, D. B. Das and section N. Mukherji, for the respondent.
B. Sen and P. k. Bose, for Intervener (State of West Bengal).
October 11.
The Judgment of the Court was delivered by GOVINDA MENON J.
This appeal is by special leave against the decision of the Labour Appellate Tribunal of India, Calcutta, which modified the award, passed by the Industrial Tribunal, Calcutta, in the matter of a dispute referred to it by the Government of West Bengal, for adjudication with regard to the rates of dearness allowance for clerks and Depot cashiers, employed by the Calcutta Tramway 's Coy.
Ltd., numbering about 600, out of a total of 10,000 workmen.
Disputes having arisen between the workmen of the Calcutta Tramways Coy, Ltd. (which may hereafter be called 'The Company ') on the one hand, and the employers on the other, relating to the dearness allowance payable to the workmen, there were two previous awards, one dated May 16, 1947, by Sri section N. Guha Roy, and the other dated October 27, 1948, by Sri P. K. Sircar.
Both of these awards related to all the employees of the Company and not to the clerks and Depot cashiers alone.
Subsequently a reference was made by the West Bengal Government on June 13, 1951, concerning a dispute relating to the dearness allowance of the workmen of the Company, excluding clerks and Depot cashiers.
There was an award and an appeal, and in that appeal the Appel.
late Tribunal increased the dearness allowance by Rs. 7/8/ for workmen in the pay ranges below Rs. 50 and up to the pay range of Rs. 250 and by a flat rate 774 of Rs. 5 in the higher pay ranges taking the cost of living index of the workmen class at 370 points.
In the present award, which relates to the clerks and the Depot cashiers alone, the Industrial Tribunal gave Rs. 47/8/ as dearness allowance for a pay range of Rs. 51 to Rs. 100 and provided for a progressive increase of Rs. 5 for each slab of Rs. 50 in the pay range.
The Appellate Tribunalincreasedthe amounts so awarded by Rs. 2/8/ more than what was granted to the other workmen of the Company.
The cost of living index for the middle class families had been fixed by an investigating body of the Bengal Chamber of Commerce during the relevant year at 382 points, whereas the index in the case of working class was fixed at 370 points.
The increased amount awarded for the various pay ranges and shown in the decision of the Labour Appellate Tribunal which need not be repeated again, was founded on these cost of living indices though the amount was not the same as recommended by the Bengal Chamber of Commerce.
Before the Labour Appellate Tribunal, as well as the Industrial Tribunal, the claim put forward on behalf of the clerks and Depot cashiers was that the dearness allowance should be on the same rates as decided upon by the Bengal Chamber of Commerce of which the company is a member and no difference should have been made between the dearness allow ance recommended by the Bengal Chamber of Commerce and that to be awarded by the Industrial Tribunal.
In fact, what was urged was that the recommendation of the Bengal Chamber of Commerce ought to have been accepted in its entirety for the reason not only that the Company is a first class member of the Chamber but also that the class of persons, namely the middle classes for whom the recommendation was intended, includes clerks and Depot cashiers of the Company as well, and the same having been accepted ,by the Mercantile Tribunal which dealt with the dearness allowance payable to the employees of the mercantile firms in Calcutta, the Industrial Tribunal, as well as the, Labour Appellate Tribunal, should have 775 followed the same.
The learned Judges of the Appellate Tribunal held that those recommendations were made to the mercantile firms where the workmen consist practically of the clerical and subordinate staff as opposed to Tramways Company where the large percentage of workmen belong to other categories, the clerks and Depot cashiers being only a small minority, though they found that the cost of living index found by the Bengal Chamber of Commerce should be accepted as the criterion for awarding the increased dearness allowance in the case of the employees of the Company as well.
On behalf of the appellants it is urged before us that a different mode of treatment than the one recommended by the Bengal Chamber of Commerce should not have been resorted to in the case of the appellants, for the reason that those recommendations are intrinsically reasonable, considering the uniformity of life and modes of habit of the middle classes to which the clerks and Depot cashiers belong.
The, respondent Company being a member of the Bengal Chamber of Commerce should, instead of ignoring the recommendation have acted upon it as a mandate, so that its action as a member should not be inconsistent with that followed by others especially since there have been no valid reasons alleged for the non acceptance of the recommendation.
It is further urged that there is no acceptable defence put forward that the abovementioned recommendation will not apply to institutions having a mixed staff as the Company in question.
On the other hand, what is stated in the written statement of the Company is that according to the previous award it had been paying a uniform sliding scale of dearness allowance for all categories of workmen as detailed in Paragraph 6(b).
It is, therefore, contended that what the Industrial as well as the Appellate Tribunal should have done was to have evolved a principle to fix the dearness allowance in relation to the ' basic salaries and the cost of living index, as that alone would satisfy the recom mendations of the Bengal Chamber of Commerce.
776 ,We have, therefore, to see whether in following the course now adopted by the Tribunals below they have ignored any legal principle or acted in violation of any statute.
There can be no doubt whatever that if the scheme adumbrated by the Bengal Chamber of Commerce is adopted in the case of clerks and Depot cashiers, they would get amounts far in excess and out of all proportion to what were awarded to the other workmen whose appeal had already been disposed of by the Appellate Tribunal though it has to be recognized that the cost of living index in the case of the appellants has to be considered to be more than the index of workmen whose avocations are the result of physical labour rather than of mental faculties.
In short, the clerks and Depot cashiers should be considered as the white collared fraternity.
In these circumstances, we have to find out whether the procedure followed by the Labour Appellate Tribunal, namely leaving out 20 points un neutralised and allowing Rs. 5 per 20 points rise in the living cost index but taking into consideration a higher living cost index of 382 in the case of the appellants as compared with the average index of the workmen of 370, is a justifiable method to be adopted.
It is difficult to hold that the middle classes in this country can be said to form a separate stratum of society even in a city like Calcutta having the same mode of life, the same necessities, uniform requirements and comforts.
There are different grades even among the middle classes and it is unwise to predicate the same degrees of comforts and necessities for everyone who is said to belong to the middle classes.
Such being the case, to say that the clerks in the mercantile firms can be considered equal in all respects to the 600 clerks and Depot cashiers of the Company, is an argument which cannot be accepted as sound.
The Labour Appellate Tribunal has not completely ignored the recommendations of the Bengal Chamber of Commerce, for it is seen that in raising the amount awarded by the Industrial 777 Tribunal the Appellate Tribunal has based its conclusion on the higher cost of living index in the case of middle class employees.
Such being the case, the point for consideration is whether any question of principle is involved, so that this court might interfere with the conclusions arrived at by the Labour Appellate Tribunal.
Wide and undefinable with exactitude as the powers of the Court are (see Dhakeswari Cotton Mills Ltd. vs Commissioner of Income Tax, West Bengal(1)), it is now well settled that generally the necessary pre requisites for this court 's interference to set right decisions arrived at by Tribunals whose conclusions on questions of fact are final can be classified under the following categories, namely, (1) where ' the Tribunal acts in excess of the jurisdiction conferred upon it under the statute or regulation creating it or where it ostensibly fails to exercise a patent jurisdiction; (ii) where there is an apparent error on the face of the decision and (iii) where the Tribunal has erroneously applied well accepted principles of jurisprudence.
It is only when errors of this nature exist, that interference is called for.
In the present case the appellants have not been able to show that there is any deviation from those principles.
If the Tribunal below had failed to resort to a basic principle, then something might have been said but what has been done is, that in computing the dearness allowance it has considered various methods and adopted one of them.
That being the case, it is ' difficult to say that there is any question of principle at all.
The report of the Central Pay Commission at page 46, in Paragraph 71, made the following recommendation: "Without adopting such a complicated procedure, we think it sufficient to provide by slabs for persons on different levels of pay, as shown in the accompanying table which also provides for diminishing rates of dearness allowance as the cost of living index falls, taking the stages by 20 points at a time".
(1) ; , 949.
778 It refrained from recommending the neutralisation of the entire higher cost of living by means of dearness allowance.
The report of the Committee on Fair Wages appointed by the Government of India in Chapter IV, dealing with Wage Adjustments considered in paragraph 43 the various modes and methods of granting relief to meet the burden of increased cost Of living and came to the conclusion that there is no practice of uniformity in the extent of compensation given to employees to meet the increased cost of living.
It observed as follows: "The Pay Commission has accepted, the principle that the lowest paid employee should be reimbursed to the full extent of the rise in the cost of living and that, higher categories of employees should receive a diminishing but graduated scale of dearness allowance.
The Pay Commission has rejected the principal of a flat rate for all categories of employees, irrespective of their basic salaries".
Finally it came to the conclusion "that for the lowest categories of employees the target should obviously be compensation to the extent of 100 per cent.
of the increase in the cost of living.
For categories above the lowest we agree that the same consideration will not apply.
A flat rate equal to the rate allowed to the leastskilled worker is not likely to satisfy higher categories".
In the analysis regarding the Industrial Awards, issued by the Government of India, Ministry of Labour, the question of dearness allowance is considered somewhat elaborately.
At page 33 there is a discussion regarding the linking of dearness allowance to the cost of index numbers and as to whether a flat rate of dearness allowance irrespective of the income group should be allowed or not.
They further considered the linking of dearness allowance to the cost of living index numbers on the scale of income groups, but at rates diminishing with the income received.
A perusal of the fairly elaborate discussion in Chapter 779 III shows that there cannot be a hard and fast rule applicable to all kinds of employees.
Very much will depend upon the conditions of labour, the nature of the locality and the mode of living.
In Buckingham and Carnatic Company Ltd., Madras vs Workers of the Company(1) the Tribunal considered the question of neutralisation of the rise of the cost of living by the grant of dearness allowance and was of the opinion that cent per cent neutralisation cannot be allowed, as it would lead to a vicious circle and add fillip to the inflatory spiral.
It further held that there was no reason why the Industrial worker should not make sacrifices line all other citizens.
We can now take it as settled that in matters of the grant of dearness allowance except tothe very lowest class of manual labourers whose income is just ' sufficient to keep body and soul together, it is impolitic and unwise to neutralise the entire rise in the cost of living by dearness allowance.
More so in the case of the middle classes.
The criterion to be adopted in the fixation of dearness allowance is also considered in Mahomad Rai Akbarali Khan vs The Associated Cement Companies Limited(2) where similar principles are discussed.
On behalf of the appellants our attention was invited to certain observations contained in The Millowners ' Association, Bombay vs The Rashtriya Mill Mazdoor Sangh(3), but we do not think that any different principle is enunciated there at all.
Mr. Isaacs, the learned counsel for the appellants, laid great stress on the decision in Workmen of the Firestone Tyre and Rubber Company of India Ltd., Bombay vs Firestone Tyre and Rubber Company of India Ltd., Bomba(4) where the Tribunal expressed the opinion that dearness allowance is intended to neutralise rise in the cost of living and as there is a well recognised difference between the clerical staff and other workmen in their cost of living, the latter are not entitled.
(1) , 519, 520.
(2) (3) (4) 101 780 to claim the allowance on the same basis.
From this the learned counsel contends that the recommendations of the Bengal Chamber of Commerce should be accepted in toto.
In our opinion, the decision does not help the point of view put forward on behalf of ' the appellants.
In fact, the Labour Appellate Tribunal has made a distinction between the physical labourers and the clerks and Depot cashiers in whose work it is not alone the physical exertion that is essential but some kind of mental and brain work as well and accordingly the higher cost of living index taken into account.
In such circumstances, it seems to us that the Labour Appellate Tribunal has, after considering the various points of view, come to the correct conclusion in awarding the dearness allowance it did.
There is no question of law or principle involved and the appeal has to be dismissed with costs of the Calcutta Tramways Coy.
Ltd. The State of West Bengal, which has intervened during the appeal, will bear its own costs.
| IN-Abs | It is well settled that the decisions of a Tribunal on questions of fact are final and that the Supreme Court would interfere only in cases where (1) the Tribunal acts in excess of the jurisdiction conferred upon it under the statute or regulation creating it or where it ostensibly fails to exercise a patent jurisdiction; (2) there is an error apparent on the face of the decision; (3) the Tribunal has erroneously applied well accepted principles of jurisprudence.
The Bengal Chamber of Commerce of which the respondent Company was a member, had made an investigation into the cost of living index for the middle class families and, fixed the dearness allowance payable to the employees of the mercantile firms in Calcutta.
Before the Industrial Tribunal as well as the Labour Appellate Tribunal the claim was put forward on behalf of the appellants (the clerks of the respondent Company) that the dearness allowance for them should be at the same rates as those decided upon by the Bengal Chamber of Commerce in respect of the middle classes to which the appellants belonged and they contended that the procedure adopted by the Labour, Appellate Tribunal leaving out 20 points of the living cost index un neutralised was not justifiable.
Held, that in matters of the grant of dearness allowance there cannot be a hard and fast rule applicable to all kinds of employees and except in the very lowest class of manual labourers it is not proper to neutralise the entire rise in the cost of living by dearness allowance.
There are different grades among the middle classes and the appellants cannot claim to have the same rates of dearness allowance as those fixed for the clerks of the mercantile firms by the Bengal Chamber of Commerce.
|
Civil Appeal No. 2994 of 1979.
Appeal by Special Leave from the Judgment and Decree dated 11 7 1979 of the Patna High Court in Civil Writ Petition No. 1936 of 1979.
Dr. Y. section Chitale and P. P. Singh for the Appellant.
R. B. Datar and Miss A. Subhashini for the Respondent.
The Collector of Central Excise & Customs, Patna, invited, by an advertisement dated 30th July, 1975, applications for filling up some posts of Inspector of Central Excise.
Among those eligible for selection were "sportsmen who have represented the Universities in the Inter University Tournament conducted by the Inter University Sports Board.
" The appellant, who was studying in the M. A. (Political Science) in the Mithila University, was one of the applicants and he was directed to appear for a physical test and an interview.
On 12th December, 1975 the Collector of Central Excise and Customs issued a letter informing the appellant that he had been selected for appointment in a temporary vacancy of Inspector, and that he would be on probation for a period of two years.
The appellant joined the post and continued therein.
On 30th April, 1976 he received a letter from the Assistant Collector (Headquarters) Central Excise pointing out that he had submitted attested copies only of the sports certificates along with his application for appointment and he was directed to submit the original certificates.
The appellant forwarded the original certificates.
Nothing happened for some time, and the appellant continued in the post without any objection.
It was almost a year later that the Assistant Collector (Headquarters) wrote to the appellant to supply details of the tournament at 732 which he had represented the University.
On 27th February, 1978 the appellant referred to the Sports certificate date 28th July, 1975 issued by the Deputy Registrar of the L. N. Mithila University, Darbhanga.
The original certificate had been sent by him to the Collector, along with the other certificates on 5th May, 1976.
The appellant explained that he had qualified and was selected, to represent the Mithila University in the Inter University Tournament to be held at Banaras Hindu University, Varanasi, in the year 1972 but that a serious illness had intervened and prevented him from actually participating in the tournament.
He pointed out that this had been made clear by him during the interview for selection before the Appointments Committee and that as he had been discharging his duties to the satisfaction of his superior officers ever since December, 1975 and had, in fact, captained the sports team on behalf of the Excise Department at Calcutta for two years, he was astonished that the question should be raised now.
Another fourteen months later, on 16th June, 1979, the Assistant Collector (Headquarters) made an order, purporting to be under the proviso to sub rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules 1965, terminating the services of the appellant.
The appellant then applied for relief under Article 226 of the Constitution to the High Court against the order, but the High Court has summarily dismissed the writ petition.
In this appeal, the appellant contends that he fulfiled the conditions of eligibility and that there was no justification for terminating his services.
The case of the respondents is that the appellant was appointed under a mistake inasmuch as the condition of eligibility required actual representation of a University in an Inter University Tournament conducted by the Inter University Sports Board and that, therefore, the appellant was not entitled to any relief against the termination of his services.
Having given the matter our careful consideration, it seems to us that the respondents have proceeded on a technical view of the matter wholly unjustified by the intent behind the condition of eligibility.
The condition required that the applicant should have been a sportsman who had represented his university in an Inter University Tournament conducted by the Inter University Sports Board.
There is no dispute before us that the appellant did qualify, and was selected, for representing the Mithila University in the Inter University Tournament at the Banaras Hindu University in the year 1972.
All that remained was that he should have participated in the tournament.
Unfortunately, for him, he fell ill and was unable to do so.
The fact that he fell ill, 733 and for that reason was unable to represent his university, is not disputed.
There is nothing to show that but for that illness he would not have actually taken part in the tournament.
It seems to us that on a reasonable view of the facts the appellant should be taken to have fulfilled the condition of eligibility.
The terms and conditions of service are intended to be construed reasonably, and too technical a view can defeat the essential spirit and intent embodied in them.
The intention was to appoint meritorious sportsmen to the posts, and that object is served if a person who had qualified and was selected for representing his university in an Inter University Tournament conducted by the Inter University Sports Board is appointed, notwithstanding that he was actually prevented from participating because of reasons beyond his control.
We have no doubt that on the interpretation which has found favour with us the appellant will be entitled to a certificate of eligibility, a requirement postulated by the terms of his appointment.
The appeal is allowed, the order dated 16th June, 1979 made by the Assistant Collector (Headquarters) is quashed and the respondents are directed to treat the appellant as continuing in service.
The appellant is entitled to his costs throughout.
S.R. Appeal allowed.
| IN-Abs | The appellant was selected for and appointed in a temporary vacancy of Inspector of Central Excise, as he was found to be a "sportsman who has represented the Universities in the Inter University Tournament conducted by the Inter University Sports Board".
He joined duty and continued therein.
On 30 4 1976 the Assistant Collector (Head Quarters) Central Excise called for the original sports certificate on the ground that only attested copies were furnished by the appellant earlier.
The appellant furnished the original documents on 5 7 76.
After a year, he was directed to supply the details of the tournament at which he had represented the University.
On 27 2 78, the appellant referred to the sports certificate dated 28th July 1975 issued by the Deputy Registrar of Mithila University, Darbhanga.
The appellant explained that he had qualified and was selected, to represent the Mithila University in the Inter University Tournament to be held at the Banaras Hindu University, Varanasi, in the year 1972 but that a serious illness had intervened and prevented him from actually participating in the tournament.
He pointed out that this had been made clear by him during the interview for selection before the Appointments Committee and that as he had been discharging his duties to the satisfaction of his superior officers ever since December, 1975 and had, in fact, captained the sports team on behalf of the Excise Department at Calcutta for two years, he was astonished that the question should be raised later.
Another fourteen months thereafter, on 16th June, 1979, the Assistant Collector (Headquarters) made an order purporting to be under the proviso to sub rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules 1965, terminating the services of the appellant.
The appellant then applied for relief under Article 226 of the Constitution to the High Court against the order, but the High Court has summarily dismissed the writ petition.
Allowing the appeal on special leave, the Court ^ HELD: The terms and conditions of service are intended to be construed reasonably, and too technical a view can defeat the essential spirit and intent embodied in them.
The intention was to appoint meritorious sportsmen to the posts, and that object is served if a person who had qualified and was selected for representing his university in an Inter University Tournament conducted by the Inter University Sports Board is appointed, notwithstanding that he was actually prevented from participating because of reasons beyond his control.
[733 A C] In the instant case, the respondents have proceeded on a technical view of the matter wholly unjustified by the intent behind the condition of eligibility.
731 The condition required that the applicant should have been a sportsman who had represented his university in an Inter University Tournament conducted by the Inter University Sports Board.
The appellant did qualify, and was selected, for representing the Mithila University in the Inter University Tournament at the Banaras Hindu University in the year 1972.
All that remained was that he should have participated in the tournament.
Unfortunately, for him, he fell ill and was unable to do so.
The fact that he fell ill, and for that reason was unable to represent his university, is not disputed.
There is nothing to show that but for that illness he would not have actually taken part in the tournament.
On a reasonable view of the facts the appellant should be taken to have fulfilled the conditions of eligibility.
[732 G H, 733 A]
|
Civil Appeal No. 1098 of 1971 .
Appeal by Special Leave from the Judgment and order dated 23 7 1970 of the Bombay High Court in Appeal No. 13 of 1965.
Y. section Chitale, P. G. Gokhale and B. R. Agarwal for the Appellant.
V. section Desai, Mrs. Urmila Sirur far the Respondent Nos. 2 & 3.
Ex parte for the RR 4 and 5.
The Judgment of the Court was Delivered by FAZALALI, J.
: This appeal by special leave is directed against a judgment dated November 3, 1970 of the Bombay High Court dismissing the Letters Patent Appeal filed by the appellant Against a decision of a Single Judge allowing a writ petition filed by the first respondent.
The facts of the case lie within a narrow Compass and may briefly summarized as follows: The appellant was a private company which was carrying on the business of manufacture and sale of artificial marbles and tiles and other accessories at village Majas Mogra, Jogeshwari, East Bombay.
The Company Was spread over about 10 acres of land.
Sometime in 1957 or 1958 the company moved the Government for acquiring additional land for purposes of the Company.
Accordingly, on the 7th January, 1958, the Government issued a notification under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to 238 as the 'Act ') which was followed by a separate notice by the Land Acquisition officer acquiring the land in dispute.
This was followed by another notification under section 6 of the Act which was served on the respondent on the 25th January, 1960.
In pursuance of these notifications the acquisition proceedings went on which culminated in an award made under section 12 of the Act on April 11, 1961, which was published in the State Gazette on April 18, 1961.
On December 11, 1961, a letter was written on behalf of the Government informing the owner of the acquired land that possession would be taken on or about the 12th of January 1962.
The purpose of the acquisition, as mentioned in the notification, was 'public purposes for which the land is needed for Himalayan Tiles & Marbles (Pvt.) Ltd '.
The first respondent in the writ petition filed in the High Court before a Single Judge prayed that the entire land acquisition proceedings should be quashed because the land was not acquired for any public purpose as contemplated by section 4 of the Act.
It was contended before the Single Judge that the Government was not competent to acquire the land for purposes of a private company which could not be said to be a public purpose under section 4 of the Act.
The plea taken by the first respondent found favour with the Single Judge who allowed the writ petition and quashed the land acquisition proceedings alongwith the notifications mentioned above.
Thereafter, the appellant filed an appeal before the Letters Patent Bench which confirmed the view taken by the Single Judge and dismissed the appeal mainly on the ground that the appellant had no locus standi to file the appeal before the Bench inasmuch as it was not a person interested within the meaning of section 18(1) of the Act.
In support of this appeal, the learned counsel for the appellant, Dr. Chitale, has argued two points before us.
In the first place, it was submitted that the Division Bench of the High Court was wrong in holding that the appellant was not a person interested and therefore had no locus to file an appeal before the Letters Patent Bench.
Secondly, it was argued that in view of the various amendments in the Act, particularly in sections 40 and 41, it could not be said that the acquisition under section 4 was ultra vires of the Act.
We might mention here that in the case of R.L. Arora vs State of U.P. majority of the Judges of this Court took the view that a mere acquisition for the benefit of a company was not a public purpose and therefore the notification made in that case was struck down.
Sarkar, J., however, took a contrary view.
In view of the decision Parliament amended certain provisions of the Act particularly sections 40, 41, 44A, 44B and added a new sub 239 section 5A after section 5.
In other words, by virtue of the amendments, the basis of the decision of the Supreme Court in the first Arora case was removed.
By virtue of section 7 of the amending Act, retrospective effect was given to the amendment superseding any judgment, decree or order passed before July 20, 1962.
Section 7 of the amending Act may be extracted thus: Validation of certain acquisitions "7.
Notwithstanding any judgment, decree or older of any Court, every acquisition of land for a Company made or purporting to have been made under Part VII of the principal Act before the 20th day of July 1962, shall, in so far as such acquisition is not for any of the purposes mentioned in clause (a) or clause (b) of sub section (I) of section 40 of the principal Act, be deemed to have been made for the purpose mentioned in clause (a) of the said sub section, and accordingly every such acquisition shall be, and shall be deemed always to have been, as valid as if the provisions of sections 40 and 41 of the principal Act, as amended by this Act, were in force at all material times when such acquisition was made or proceeding was held or order was made or agreement was entered into or action I was taken. " This amending Act was also challenged in the case of R.L. Arora vs State of Uttar Pradesh & ors.
, 'where this Court upheld its constitutional validity subject to certain corrosions. 'The Appellant contended before us that in view of the later decision of the Supreme Court the previous decision of this Court stood superseded and the land acquisition proceedings taken even before the amendments were validated.
In support of this argument, Dr. Chitale drew our attention to various provisions of the Act.
Before, however, deciding the question as to whether or not the proceedings taken under section 4 were cured by the amending Act, we would first deal with the contention of Dr. Chitale that the High Court w IS wrong in holding that the company had no locus standi to file an appeal before the Letters Patent Bench.
Learned counsel submitted that the definition of 'a person interested ' in section 18 is an inclusive one and is wide enough to include the appellant for whose benefit the land was acquired and who had to pay the entire compensation in accordance with the agreement entered into by the Government with the appellant.
He argued that it could not be said that the appellant was not interested in defending the acquisition or in the 240 quantum of compensation which was to be awarded by the Court on a Reference made by the Collector.
The High Court was of the view that as the land was acquired by the Government, the company had no interest in the same and was, therefore, not entitled either to appear or to defend the proceedings before the court.
In order to decide this question it may be necessary to extract the relevant part of section 18(1) which runs thus: "18(1).
Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
" It seems to us that the definition of 'a person interested ' given in section 18 is an inclusive definition and must be liberally construed so as to embrace all persons who may be directly or indirectly interested either in the title to the land or in the quantum of compensation.
In the instant case, it is not disputed that the lands were actually acquired for the purpose of the company and once the land vested in the Government, after acquisition, it stood transferred the company under the agreement entered into between the company and the Government.
Thus, it cannot be said that the company had no claim or title to the land at all.
Secondly, since under the agreement the company had to pay the compensation, it was most certainly interested in seeing that a proper quantum of compensation was fixed so that the company may not have to pay a very heavy amount of money.
For this purpose, the company could undoubtedly appear and adduce IF evidence on the question of the quantum of compensation.
So far as this aspect of matter is concerned, there appears to be a general consensus of judicial opinion that even though the company may not have any title to the property yet it certainly has a right to appear and put forward its case in the matter of determination of the quantum of compensation.
In the case of Sunder Lal vs Paramsukh das(l) this Court observed as follows: "It will be noticed that it is an inclusive definition.
It is not necessary that in order to fall within the definition a person should claim an interest in land, which has been acquired.
A person becomes a person interested if he claims an interest in compensation to be awarded.
It seems 241 to us that Paramsukhdas is a "person interested" within section 3(b) of the Act because he claims an interest in compensation.
. . . . . It seems to us that Paramsukhdas was clearly a person interested in the objections which were pending before the Court in the references made to it and that he was also a person whose interest would be affected by the objections, within s.2l.
He was accordingly entitled to be made a party.
" In the case of The Hindustan Sanitaryware and Industries Ltd. Bhadurgarh & Anr.
vs The State of Haryana & Ors Pandit J. observed as follows: "From the facts stated above, it is apparent that the compensation amount has to be paid by the two companies.
If the said amount is increased by the learned Additional District Judge on a reference under section 18 of the Land Acquisition Act, it would be the two companies who would be prejudiced .
No authority even was cited by him that under similar circumstances any Court had ever held that the persons who had actually to pay the compensation, could not be allowed to lead evidence and say that the compensation amount be not enhanced.
" In the case of Comilla Electric Supple Ltd. vs East Bengal Bank Ltd., Comila & Ors while the High Court took the view that the company for whose benefit the land was acquired may not strictly be an interested person yet it had undoubtedly a right to appear and adduce evidence on the quantum of compensation.
In this connection, Mukherjea, J. Observed thus: "Section 50, cl.
(2) purports to remedy this disability and it lays down that in any proceeding held before a Collector or Court in such cases the local authority or company concerned may appear and adduce evidence for the purpose of determining the amount of compensation.
The reason is plain.
It is the company or the local authority who has got to pay the money in such cases and it would be unjust to deny them the right to appear and adduce 242 evidence which would have a bearing on the amount of the compensation money.
" Roxburgh, J. made the following observations: "Thus the first question for decision is clearly settled by the above decision and there can be no doubt that in the circumstances at present being considered the company is a person interested, as defined in the Act, and is entitled to require a reference under section 18 unless that right is restricted by the terms of the proviso to section 50(2).
" In the case of M. Kuppuswami vs The Special Tahsildar (L.A.) II Industrial Estate, Anzbathur at Saidapet, Madras Venkatadri, J. interpreting the definition of 'interested person ' observed as follows: "The only question for consideration therefore is whether the petitioner is a person interested, as defined in section 3(b) of the Land Acquisition Act.
The definition section says that the expression 'person interested ' includes all persons claiming an interest in compensation to be made on account of the acquisition of land under the Act.
The expression 'person interested ' is Every comprehensive and it does not profess to give an exhaustive definition.
The expression 'person interested ' has been interpreted by various Courts, and the trend of the opinion seems to be that I should give a liberal interpretation .
On a review of the case law on the subject, it seems to me that the expression 'person interested ' does not require that a person must really have an interest in the land sought to be acquired.
It is enough if he claims an interest in compensation, as distinguished from an interest in the property sought to be acquired.
As long as a person claims a interest in the compensation, he is a person interested within the meaning of the definition of that expression.
" The only case which appears to have taken a contrary view is a Division Bench decision of the Orissa High Court in the case of State of Orissa through the Land Acquisition Collector, Sambalpur vs Amarandra Pratap Singh & Anr., (2) where the High Court held that 243 the expression 'person interested ' did not include a local authority or a company on whose behalf acquisition is made by the State.
At the same time, it was clearly held that it was open to the company in any proceeding before the Collector or court to appear and adduce evidence for the purpose of determining the amount of compensation.
Thus, the preponderance of judicial opinion seems to favour the view that the definition of 'person interested ' must be liberally construed so as to ' include a body, local authority, or a company for whose benefit the land is acquired and who is bound under an agreement to pay the compensation.
In our opinion, this view accords with the principles of equity, justice and good conscience.
How can it be said that a person for whose benefit the land is acquired and who is to pay the compensation is not a person interested even though its stake may be extremely vital ? For instance, the land acquisition proceedings may be held to be invalid and thus a person concerned is completely deprived of the benefit which is proposed to be given to him.
Similarly if such a person is not heard by the Collector or a court, he may have to pay a very heavy compensation which, in case he is allowed to appear before a court, he could have satisfied it that the compensation was far too heavy having regard to the nature and extent of the land.
We are, therefore, unable to agree with the view taken by the Orissa High Court or even by the Calcutta High Court that a company, local authority or a person or whose benefit the land is acquired is not an interested person.
We are satisfied that such a person is vitally interested both in the title to the property as also in the compensation to be paid therefor because both these factors concern its future course of action and if decided against him, seriously prejudice his rights.
Moreover, in view of the decision of this Court referred to above, we hold that the appellant was undoubtedly a person interested as contemplated by section 18(1) of the Act.
The High Court, therefore, committed an error in throwing out the appeal of the appellant on the ground that it had no locus to file an appeal before the Bench.
The next point that was argued before us was as to whether the land acquisition proceedings are cured by section 7 of the amending Act referred to above.
Mr. V.S. Desai, appearing for the respondents, submitted that in the second Arora case (supra) while upholding the constitutional validity of section 4 and other amendments, this Court laid down certain conditions which had to be fulfilled if an acquisition made prior to July 20, 1962 was held to be valid.
In this connection, 11 reliance was placed by learned counsel for the respondents on the following passage from R.L. Arrora 's case (supra): 244 "Therefore before section 7 can validate an acquisition made before July 20, 1962, it must first be shown that the acquisition is complete and the land acquired has vested in Government.
This means that the land acquired has vested in Government either under section 16 or section 17(1) of the Act.
Thus section 7 of the Amendment Act validates such acquisitions in which property has vested absolutely in Government either under section 16 or section 17(1).
Secondly section 7 of the Amendment Act provides that where acquisition has been made for a company before July 20, 1962 or purported to have been made under cl.(a) or cl.
(b) of section 40(1) and those clauses do not apply in view of the interpretation put thereon in R.L. Arora 's case [1962 (2) Supp.
S.C.R. 149], it shall be deemed that the acquisition was for the purpose mentioned in cl.
(aa) as inserted in s.40(1) of the Act by the Amendment Act.
Thirdly section 7 of the Amendment Act provides that every such acquisition and any proceeding, order, agreement, or action in connection with such acquisition shall be, and shall be deemed always to have been, as valid as if the provisions of sections 40 and 41 of the Act as amended by the Amendment Act were in force at all material times when any action was taken for such acquisition.
Finally, this validity is given to such acquisitions and to all actions taken in connection therewith not with standing any judgment, decree or order of any court.
" A perusal of these observations would manifestly reveal that even under section 7 of the amending Act, an acquisition made for a company prior to July 20, 1962 must fulfil the following conditions: (a) that the land has been acquired and is vested in Government : (b) that the acquisition has been made under clauses (a) and (b) of section 40(I) (c) that every such acquisition and any proceeding, order, etc., shall be deemed always as valid as if the pro visions of sections 40 and 41 of the Act, as amending by the amending Act, were in force at all material times; and (d) that by virtue of section 7 validity to the acquisition is given to all actions taken in connection therewith inspite of any judgment.
decree or order of any court to the contrary.
245 We are, however, satisfied that in the instant case the first condition adumbrated by this Court, viz., that there must be a complete acquisition before section 7 could validate the same, has not been fulfilled at all.
In this view of the matter we need not go into the other conditions indicated by this Court.
It was contended by Mr. Desai that according to the unchallenged pleadings of the respondents, including the Government, which was a party before the District Court and also before the Single Judge of the High Court, there is nothing to show that after the issue of notification the Government had taken possession of the land so that it could be said that the land had vested in the Government in which case alone the acquisition proceedings would have been completed.
In this connection, our attention was drawn to para 1 of the petition filed by the respondents before the High Court, which runs thus: "The petitioners have.
become the owners of the said lands by inheritance, and the present lands records in respect of the said lands stand in the name of the petitioners.
There is no dispute between the petitioners and the respondents that the petitioners are the owners of the said immovable property.
The petitioners were at all times and still are in possession of the said immovable properties.
" According to this averment, it is clearly pleaded that inspite of the notifications, the possession had not been given to the Government and the respondents (petitioners before the High Court) were still in possession of the properties in question.
A similar averment has been made in para 15 of the petition which may be extracted thus: "The petitioners say that they are still in possession of the said lands and possession of the said lands has not been taken away from them and the tenants of the petitioners numbering about 53 at present are in physical] occupation of the same.
" It was also alleged that the Government had threatened the petitioners in the High Court that possession would be taken through police but despite such threats given by the Government, the petitioners were still in possession of the said lands and the structures were in possession of the tenants.
The Government in its reply affidavit did not deny these averments.
On the other hand, they admitted the same.
Para 8 of the reply affidavit may be extracted thus: "with reference to paragraph 1 of the petition, I believe the contents thereof to be substantially correct though as stated above the petitioners ' names do not appear as 246 occupants or owners in the record of rights relating to the land in question.
" Similarly, in para 21 of the reply, the contents of para 15 of the petition were admitted and further the fact that possession was with the petitioners, was not denied but was admitted to be correct.
Para 21 of the reply affidavit runs thus: "21.
With reference to paragraph 15 of the petition, I believe the contents thereof to be substantially correct." Learned counsel for the appellant, however, drew our attention to a letter sent by the respondents and went on to show that possession of only one acre of land has been taken by the Government.
Even the High Court clearly found that possession had not been fully delivered to the Government after the notification.
In this connection, the Division Bench observed as follows: "on the question of possession being delivered to the Government the petitioners specifically averred at the end of paragraph 15 of the petition.
"The Petitioners further say that notwithstanding the said letter and the threat therein contained the petitioners are still in possession of the said lands and their tenants are occupying the said structures standing thereon and possession thereof has not been taken by the respondents".
They made similar averments at the end of paragraph l of the petition, that "the petitioners were at all times and still are in possession of the said immovable properties".
" Admittedly, the appellant did not appear before the Single Judge in the writ petition filed by the respondents and the petition was con tested only by the State.
Perhaps the appellant may have thought that as its interests were fully safeguarded by the Government, it was not necessary for it at that stage to appear before the High Court.
Even so, the pleas of both the parties taken together clearly show that the entire possession of the property did not pass to the Government and thus no title vested in the Government despite the notification acquiring the land.
In these circumstances, therefore, it is unmistakably clear that the properties not having vested in the Government, the acquisition was not complete and its invalidity could not be cured by section 7 of the amendment Act as pointed out by this Court in the case referred to above.
On this ground alone the appellant must fail.
Dr. Chitale, however, suggested that out of 2.2 acres, possession of one acre may have been taken by the Government.
Assuming that to be so, until the possession of the entire land acquired was taken 247 by the Government, the acquisition could not be a complete acquisition so as to attract the operation of section 7 of the amending Act.
In this view of the matter, we are satisfied that the appellant has failed to prove that one of the essential conditions for application of section 7 of the amending Act, which would cure the infirmities from which the acquisition proceedings suffer, has been fulfilled.
The inescapable conclusion, therefore, is that the land acquisition proceedings were void and no benefit accrued to the appellant from the amending Act.
The result is that the appeal fails and is dismissed but in the circumstances of the case there will be no orders as to costs.
N.V.K. Appeal dismissed.
| IN-Abs | The appellant a private company was carrying on the business of manufacture and sale of artificial marbles and tiles.
In or about 1957 the company moved the Government for acquiring additional land for purposes of the company and the Government on January 7, 1958 issued a notification under section 4 of the Land Acquisition Act, 1894, which was followed by a separate notice by the Land Acquisition officer acquiring the land in dispute.
This was followed by another notification under section 6 of the Act which was served on the respondent on January 25, 1960.
The purpose of the acquisition was mentioned in the notification, as "public purposes for which the land is needed for Himalayan Tiles and Marble (Pvt) Ltd." The acquisition proceedings culminated in an award made under section 12 of the Act on April 11, 1961, which was published in the State Gazette on April 18, 1961.
On December 11, 1961 a letter was written on behalf of the Government informing the owner of the acquired land that possession would be taken on or about the 12th of January, 1962.
The first respondent in his writ petition to the High Court, contended that the Government was not competent to acquire the land for purposes of a private company which could not be said to be a public purpose under section 4 of the Act and prayed that the entire land acquisition proceedings should be quashed.
A Single Judge of the High Court accepted the plea, allowed the writ petition and quashed the land acquisition proceedings along with the notifications.
The appellant filed an appeal before the Letters Patent Bench which confirmed the view of the Single Judge and dismissed the appeal on the ground that the appellant had no locus standi to file the appeal, as it was not 'a person interested ' within the meaning of section 18(1) of the Act.
In the appeal to this Court it was contended on behalf of the appellant: (1) the Letters Patent Bench of the High Court was wrong in holding that the appellant was not 'a person interested ' and therefore had no locus standi to file an appeal, and (2) in view of the various amendments in the Land Acquisition Act, 1894 particularly in sections 40 and 41 it could not be said that the acquisition under section 4 was ultra vires of the Act.
236 Dismissing the appeal, ^ HELD: 1(i) The appellant was undoubtedly 'a person interested ' as contemplated by section 18(1) of the Act.
The High Court committed an error in throwing out the appeal of the appellant on the ground that it had no locus standi to file an appeal before the Bench.
[243F] (ii) The 'definition of 'a person interested ' given in Section 18 is an inclusive definition and must be liberally construed so as to embrace all persons who may be directly or indirectly interested either in the title to the land or in the quantum of compensation.
[240D] In the instant case, the lands were actually acquired for the purpose of the Company and once the land vested in the Government, after acquisition, it stood transferred to the Company under the agreement entered into between the Company and the Government.
Thus it cannot be said that the Company had no claim or title to the land at all.
Secondly, since under the agreement the Company had to pay the compensation, it was most certainly interested in seeing that a proper quantum of compensation was fixed so that the Company may not have to pay a very heavy amount of money.
For this purpose, the Company could undoubtedly appear and adduce evidence on the question of the quantum of compensation.
[240E F] (iii) The preponderance of judicial opinion seems to favour the view that the definition of person interested must be liberally construed so as to include a body, local authority, or a company for whose benefit the land is acquired and who is bound under an agreement to pay the compensation.
This view accords with the principles of equity, justice and good conscience.
[243 B] (iv) The view taken by the Orissa High Court or even by the Calcutta High Court that a company, Local authority or a person for whose benefit the land is acquired is not an interested person is not correct.
Such a person is vitally interested both in the title to the property as also in the compensation to be paid thereof because both these factors concern its future course of action and if decided against him seriously prejudice his rights.
[243E] Sunder Lal vs Paramsukhdas ; referred to; The Hindustan Sanitryware and Industries Ltd. Bahadurgarh & Anr.
vs The State of Haryana & Ors A.I.R. [1972] Punjab & Haryana 59, M. Kurpuswami vs The Special Tahsildar (L.A.) II Industrial Estate Ambathur at Saidapet, Madras {1967] approved; Comilla Electric Supply Ltd. vs East Bengal Bank Ltd. Comilla & ors.
A.I.R. [1939] Calcutta 669; State of orissa through the Land Acquisition Collector, Sambalpur vs Amarandra Pratap Singh & Anr.
A.I.R. [1967] orissa, 180 over ruled.
2(i) The properties not having vested in the Government the acquisition was not complete and its invalidity could not be cured by section 7 of the amendment Act.
[246 G] (ii) The basis of the decision in R. L. Arora vs State of U. P. [1962] Supp. 2 SCR 149 was removed by the .
By virtue of Section 7 of the amending Act, retrospective effect was given to the amendment superseding any judgment, decree or order passed before July 20, 1962.
The validity of the amending Act was upheld in R. L. Arora vs State of Uttar Pradesh ; [239 A, E] (iii) Even under section 7 of the amending Act, an acquisition made by a company prior to July 20, 1962 must fulfil the following conditions: (a) that 237 the land has been acquired and is vested in Government, (b) that the acquisition has been made under Clauses (a) and (b) or section 41, (c) that every such acquisition and any proceeding, order etc.
shall be deemed always as valid as if the provisions of sections 40 and 41 of the Act, as amended by the amending Act, were in force at all material times; and (d) that by virtue of section 7 validity to the acquisition is given to all actions taken in connection there with in spite of any judgment, decree or order of any court to the contrary.
[244F H] In the instant case the first condition that there must be a complete acquisition before section 7 could validate the same has not been fulfilled at all.
[245A] (iv) Until the possession of the entire land acquired was taken by the Government, the acquisition could not be a complete acquisition so as to attract the operation of section 7 of the amending Act.
[246H 247A] In the instant case the appellant did not appear before the Single Judge in the writ petition filed by the. respondents and the petition was contested only by the State.
Perhaps the appellant may have thought that as his interests were fully safeguarded lay the Government, it was not necessary for it at that stage to appear before the High Court.
The pleas of both the parties taken together clearly show that the entire possession of the property did not pass to the Government and thus no title vested, in the Government despite the notification acquiring the land.
[246F G]
|
ition Nos.
692,937 1063, 1111 1115, 1558/80, 5441 62, 6217/80 and 6529 6551/80.
(Under Article 32 of the Constitution.) AND Civil Appeal Nos. 3297 & 2689 of 1979.
Appeals by special leave from the Judgment and Orders dated 25 5 1979 & 22 1 1979 of the Karnataka High Court in Regular Second Appeal No. 551/77 & W.P. Nos. 551/77 and 6555/78.
871 WITH Civil Appeal No. 1895 of 1979.
Appeal by special leave from the Judgment and Order dated 22 1 1979 of the Karnataka High Court in W.P. No. 35/76.
AND Civil Appeal No. 1507 of 1980.
Appeal by Special Leave from the Judgment and Order dated 2 5 1980 of the Patna High Court in Civil Writ Jurisdiction Case No. 394 of 1980.
AND Civil Appeal No. 1715 1716 of 1980.
Appeals by special from the Judgements and Orders dated 30 8 1979 and 2 5 1980 of the Patna High Court in C.W.J.C. Nos. 5136/78 & 840/80.
section V. Gupte, V. M. Tarkunde, Soli J. Sorabjee, K. K. Venugopal, K. N. Bhatt and T. section Sundrajan for the Petitioners in WP Nos. 692, 937 1063 and 1111 1115/80.
Dr. Y. section Chitale, R. P. Bhatt and A. K. Goel for the Petitioner in W. P. No. 1558/80.
section G. Sundraswamy, Ravindran, Vijay Kumar Verma and K. N. Bhat for the Appellant in CA Nos.
1895/79 & 2689/79.
V. M. Tarkunde, K. R. Nagaraja, P. K. Rao and Aloke Bhattacharya for the Appellant in CA No. 3297/79.
Soli J. Sorabjee, B. P. Maheshwari, Suresh Sethi and Miss Asha Jain for the Appellant in CA No. 1507/80.
Lal Narain Sinha, attorney General, O. P. Rana and M. N. Shroff for Respondent No. 1 in WP Nos. 692, 937 1063 and 1111 1115/80.
A. K. Goyal for the Petitioner in WP 5441 62 of 1980.
K. K. Singhvi, A. K. Gupta, Brij Bhushan and N. P. Mahindru for RR 3 in WP 692, 937 1063, 1111 1115/80 and RR in WP No. 1558/80.
Lal Narain Sinha, Attorney General and N. Nettar for RR 1 in CA 1895 and 2689/79.
B. Keshava Iyengar, Advocate General and N. Nettar for State of Karnataka in CA 1895 & 2689/79.
872 H. B. Datar, Miss Madhu Moolchandani and R. B. Datar for RR 2 in CA 1895 & 2689/79.
K. K. Singhvi, N. P. Mahindru and A. K. Gupta for RR No. 3 in WP Nos. 5441 62/80.
section section Javali, B. P. Singh, Ranjit Kumar and Ravi Prakash for Intervener in CA Nos.
1895/79.
Lal Narain Sinha, Attorney General, R. B. Mehto, B. P. Sinha and Naresh K. Sharma for the Intervener in WP No. 692/80.
Lal Narain Sinha, Attorney General, R. B. Mehto, B. P. Singh Ravi Prakash, Ranjit Kumar and Naresh K. Sharma for RR 3 5 in CA 1507/80.
K. G. Bhagat and D. Goburdhan for State of Bihar in CA 1507/80.
section section Ray and M. P. Jha for the Appellant in CA 1715 1716/80.
Lal Narain Sinha, Attorney General, R. B. Mehto, B. P. Singh.
Ravi Prakash, Ranjit Kumar, Naresh K. Sharma and J. section Rathore for RR 3 5 in CA Nos.
1715 1716/80.
V. M. Tarkunde, K. R. Nagaraja, P. K. Rao and Aloke Bhattacharya for Petitioner in WP 6217/80, 6529 6551/80.
H. B. Datar, Miss Madhu Moolchandani and R. B. Dattar for the Respondent (Market Committee).
H. B. Datar and N. Nettar for RR (State of Karnataka).
K. G. Bhagat and D. Goburdhan for the State of Bihar in CA 1715 1716/80.
V. M. Tarkunde, P. K. Rao, Aloke Bhattacharya and K. R. Nagaraja for the Petitioner in WP 6529 51/80.
N. Nettar for the Respondent in WP No. 6529 51/80.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Reluctant traders, unwilling to move their places of business into the markets or market yards, as they are differently called in the States of Maharashtra, Bihar and Karnataka, set up by respective Market Committees under various State Agricultural Produce Marketing Acts, offer their resistance through these Writ Petitions and Civil Appeals.
We will first recite the facts in one of the cases (Writ Petition No. 692 of 1980) and thereafter consider the questions raised in that as well as the other cases.
The Petitioner in Writ Peti 873 tion No. 692 of 1980 is a trader presently carrying on business in 'Gur ' and other commodities at 1221 Bhavani Peth, Pune.
In exercise of the powers conferred by Sec.
4A(2) of the Bombay Agricultural Produce Markets Act, 1939, by a notification dated July 6, 1961, the locality known as Bhavanipeth and Nanapeth of the Pune City was declared as one of the principal market yards for the market area consisting of Pune City and Haveli Talukas.
The market area had been so declared by a notification dated May 1, 1957, pursuant to a declaration that it was intended to regulate the purchase and sale of 'gur ' in the market area.
The Bombay Agricultural Produce Markets Act, 1939, was repealed and replaced by the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963.
By Sec.
64 of the Act the notifications previously issued etc.
under the provisions of the repealed Act were kept alive for the purposes of the new Act.
On March 23, 1971, the present Market Committee known as Krishi Utpanna Bazar Samiti, Pune, was constituted under Sec.
4(1) of the 1963 Act.
On April 21, 1971, the Director of Agricultural Marketing published a notification declaring his intention to regulate marketing of a large number of commodities in the market area of Haveli and Pune City Taluks.
On October 4, 1975, the Director of Agricultural Marketing, Maharashtra State, exercising his powers under Sec.
5(2) of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963, declared the locality known as Market Yard Gultekadi as the principal market for the market area for the marketing of various commodities specified in the notification.
Thereafter on October 8, 1975, a Circular was issued to all Adatis, merchants, and licence holders, particularly wholesale dealers dealing in Gur, Halad, Dhania, etc.
in the vicinity of Bhavanipeth Nanapeth informing them that Bhavanipeth Nanapeth will cease to be a market from the midnight of October 13, 1975 and that the market yard Gultekadi had been declared as the principal market for the market area.
The circular went on to say that anyone carrying on business anywhere except Gultekadi was liable to be prosecuted.
The result of the notification dated October 4, 1975, and the Circular dated October 8, 1975 was that it was not permissible for anyone to carry on trade in any of the notified agricultural commodities outside the Gultekadi market yard on and after October 14, 1975.
It meant that traders like the petitioner who had for generations been carrying on business in these commodities in Bhavanipeth Nanapeth had perforce to move into Gultekadi market yard if they wanted to stay in the business.
Consequent upon representations made by the Pune Merchants Chamber and the interim order in a Writ petition filed in the Bombay High Court by the Chamber the date notified for the commencement of the functioning of the Principal Market in Gulekadi 874 was postponed from time to time, Finally, by a public notice dated March 6, 1980, all wholesale traders, commission agents and others dealing in agricultural produce in Bhavanipeth Nanapeth and surrounding areas were informed that with effect form March 17, 1980, wholesale trade in the regulated agricultural produce could be carried on in the Gultekadi market yard only.
The petitioner seeks to resist the situation thus sought to be forced upon him and challenges the notification dated October 4, 1975, and the consequential notices requiring him to carry on business in regulated agricultural produce in the Gultekadi market yard and at no other place.
Similarly, in Writ Petition Nos. 937 to 1063 of 1980 and Writ Petition Nos. 1111 to 1115 of 1980, 132 other traders who are presently carrying on business in the existing market of Bhavanipeth Nanapeth question the notification and the notices following the notification.
In Writ Petition Nos. 1558 of 1980 and 5441 to 5462 of 1980 the petitioners are wholesale traders in onions and potatoes who carry on their business in the Maulana Azad Road Market in Bombay.
They complain against a notification dated December 5, 1978 by which it was declared that after January 26, 1979, marketing of potatoes and onions shall be carried on at the Principal Market at Turbhe and at no other place.
It appears that initially, for the market area comprising Greater Bombay and Turbhe Village in Thana Taluka, the newly established market at Turbhe was declared as the Principal Market and the existing markets at Maulana Azad Road and Mahatma Phule Mandai were declared subsidiary markets.
This was by a notification dated January 15, 1977.
Later by the impugned notification dated December 5, 1978, the subsidiary markets were abolished and the market at Turbhe alone was declared as the Principal Market for the area comprising Greater Bombay and Turbhe village.
It was argued on behalf of the petitioners that the Maharashtra Agricultural Produce Marketing (Regulation) Act 1963 did not invest the Director of Marketing or the Market Committee with any power to compel a trader to transfer his activity from a previously existing market to a principal or subsidiary market established under Sec.
5 of the Act.
There was no provision in the Act by which a trader could be compelled to market declared agricultural produce in the principal or subsidiary market established under Sec.
5 and in no other place.
This was a feature which distinguished it from the Bombay Act of 1939 and the Agricultural Produce Marketing Acts of some other States.
Rule 5 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967, which purported to provide that no person shall market any declared agricultural produce 875 in any place in a market area other than the Principal Market or subsidiary market established therein was ultra vires.
It was also submitted that once a principal or subsidiary market was established at one place there was no provision in the Act which enabled the principal or subsidiary market to be transferred to another place.
In any event it was urged that the notification was an unreasonable restriction on the right of the petitioners to carry on their trade.
It was also submitted.
and this appeared to be the main thrust of the argument of most of the counsel for the various petitioners that the Act did not cover transactions between trader and trader and transactions by which the agricultural produce was imported into the market area from outside the market area.
5 and 6 and Rules 5 and 6 had to be so read the language permitted such a construction as to make a distinction between a sale of agricultural produce by a producer to a trader which had to be within a market and a subsequent sale by a trader to a trader which could be anywhere in the market area.
It was submitted that if Sections 5 and 6 and Rules 5 and 6 were to be construed as compelling transactions between trader and trader also to take place within a market they were invalid.
In the petitions of the Bombay merchants it was further urged that Sec.
13(1A) which was a special provision declaring Greater Bombay and Turbhe village a Market Area was unreasonable and invalid.
For a proper appreciation of the submissions made, it is necessary to refer to some of the relevant provisions of the Maharashtra Agricultural Produce Marketing (Regulation) Act 1963 and the Maharashtra Agricultural Produce Marketing (Regulation) Rules 1967.
The long title of the Act is "An Act to regulate the marketing of agricultural and certain other produce in market areas and markets to be established therefor in the State; to confer powers upon Market Committees to be constituted in connection with or acting for purposes connected with such markets; to establish Market Fund for purposes of the Market Committees and to provide for purposes connected with the matters aforesaid".
2(1)(h) defines "market" as meaning "any principal market established for the purposes of this Act and also a subsidiary market".
2(1)(i) defines "market area" as meaning "an area specified in a declaration made under Sec. 4".
2(1)(o) defines "retail sale" as meaning "in relation to any agricultural produce, sale of that produce not exceeding such quantity as a Market Committee may by bye laws determine to be a retail sale".
2(1)(t) defines "trader" as meaning "a person who buys or sells agricultural produce, as a principal or as duly authorised agent of one or more persons".
3 empowers the Government to declare its intention of regulating the marketing of such agricultural produce, in such area as may be 876 specified in a notification to be published in the official Gazette.
Objections or suggestions which may be received by the State Government within a specified period are to be considered by the State Government.
Thereafter, Sec. 4 provides, the State Government may declare, by another notification that the marketing of the agricultural produce specified in the notification.
The area specified shall be the market area.
5(1) provides that there shall be a principal market for every market area and there may also be one of more subsidiary markets.
Sec 5(2) empowers the Director, by notification, to establish any place in any market area to be the principal market for the marking of agricultural produce specified in the notification.
Subsidiary markets may also be established likewise.
5 is important and it may, therefore, be extracted here: "5(1) For every market area, there shall be established a principal market, and there may be established one or more subsidiary markets.
(2) The Director shall, as soon as possible after the issue of a notification under sub section (1) of section 4, by a notification in the Official Gazette establish any place (including any structure, enclosure, open place or locality) in any market area to be the principal market for the marketing of the agricultural produce specified in that notification; and may by the same notification, or by like notification, establish in any other like places in the market area, subsidiary markets for the marketing of such agricultural produce".
6 provides that, no person shall use any place in the market area for the marketing of the declared agricultural produce or operate in the market area or in any market therein as a trader, commission agent, broker, processor, weighman, measurer, surveyor, warehouseman or in any other capacity in relation to the marketing of the declared agricultural produce, on and after the date on which the declaration under Sec.
4(1) is made, except in conformity with the terms and conditions of a licence granted by the Market Committee or by the Director when a Market Committee has not yet started functioning.
It is important to mention here that Sec.
6(1) is expressly made subject to the rules providing for regulating the marketing of agricultural produce in any place in the market area.
6(2) also provides that Sec.
6(1) shall not apply to sales by retail; sales by an agriculturist who sells his own produce; and sales 877 by a person to another for the latter 's personal consumption.
6 also may be extracted here: "(6) (1) Subject to the provisions of this section and of the rules providing for regulating the marketing of agricultural produce in any place in the market area, no person shall, on and after the date on which the declaration is made under sub section (1) of section 4, without, or otherwise than in conformity with the terms and conditions of, a licence (granted by the Director when a Market Committee has not yet started functioning; and in any other case, by the Market Committee) in this behalf, (a) use any place in the market area for the marketing of the declared agricultural produce, or (b) operate in the market area or in any market therein as a trader, commission agent, broker, processor, weighman, measurer, surveyor, warehouseman or in any other capacity in relation to the marketing of the declared agricultural produce.
(2) Nothing in sub section (1) shall apply to sales by retail; sales by an agriculturist who sells his own produce; nor to sales by a person where he himself, sells to another who buys for his personal consumption or the consumption of any member of his family.
" Sec. 7 empowers the Market Committee, subject to rules made in that behalf and after making such enquiry as it thinks fit to grant or renew a licence for the use of any place in the market area for marketing of the agricultural produce or for operating therein as a trader etc.
The Market Committee may refuse to grant or renew any licence for reasons to be recorded in writing.
Sec. 8 enables the Market Committee to suspend or cancel any licence.
10 makes provision for the constitution of a Board by the Market Committee for the settlement of disputes between buyers and sellers or their agents inclusive of disputes relating to quality, weight, payment etc.
11 provides for the establishment of a Market Committee by the State Government.
Sections 12 and 13 deal with the incorporation and constitution of Market Committees.
13(1A) makes special provision for Greater Bombay and Turbhe village.
The area comprising Greater Bombay and Turbhe village is deemed to be a market area for the purposes of the Act and a Market Committee is constituted with a different composition from other Market Committees.
enumerates the powers and duties of Market Committees.
It is the duty of a Market Committee to implement the provisions of the Act, the rules and bye laws made thereunder in the market area, to provide such facilities for marketing of agricultural produce therein as the Director may from time to time direct and to do such other acts as may be required in relation to the superintendence, direction and control of markets or for regulating marketing of agricultural produce in any place in the market area.
The Market Committee is also empowered to maintain and manage the market, including admissions to, and conditions for use of, markets; to regulate marketing of agricultural produce in the market area of the market; to establish centres for the collection of such agricultural produce in the market area as the State Government may notify from time to time; to collect, maintain, disseminate and supply information in respect of production, sale, storage, processing, prices and movement of agricultural produce (including information relating to crops, statistics and marketing intelligence); to take all possible steps to prevent adulteration; to promote grading and standardization of agricultural produce; and, to enforce the provisions of the Act, rules and bye laws and conditions of licences.
10A enables the Market Committee to open Collection Centres for marketing of notified produce.
Any person wishing to sell any notified produce in a market area may tender such produce at the collection centre.
31 makes it competent to a Market Committee to levy and collect fees from every purchaser of agricultural produce marketed in the market area.
35 enables a Market Committee to employ a Secretary and such other officers and servants as may be necessary for the management of the market, for the collection, maintenance, dissemination and supply of information relating to crops, statistics and marketing intelligence and for carrying out its duties under the Act.
36 provides for the creation of Market Fund and Sec.
37 enumerates the purposes for which the Market Fund may be expended.
Among those purposes are the acquisition of a site or sites for the market, maintenance, development and improvement of the market, construction of, and repairs to buildings necessary for the purposes of such market and the health, convenience and safety of persons using it, maintenance of standard weights and measures, collection and dissemination of information, propaganda for agricultural improvement and orderly marketing etc.
Section 60 makes a contravention of the provisions of Section 6(1) punishable.
Section 60 empowers the State Government to make rules for carrying into effect the purposes of the Act.
Pursuant to the power conferred by Sec.
60 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963, rules have 879 been made.
Rule 5 prescribes that no person shall market any declared agricultural produce in any place in a market area other than principal market or subsidiary market established therein.
The proviso to Rule 5 enables the Direct of Marketing to authorise a Market Committee to permit a trader or Commission Agent to market declared agricultural produce or to permit any other market functionary to operate at any place within the market area as may be mentioned by the Market Committee in the licence granted to such trader.
This is obviously, a reserve power vested in the Market Committee to be exercised but in exceptional cases, and, on an express authorisation from the Director, subject to the terms and conditions imposed by him.
Rule 6 prescribes the procedure by which any person desiring to use any place in a market area for marketing of any declared agricultural produce or for operating therein as a trader, commission agent or broker may obtain a licence.
He is required to make an application in the prescribed form and submit with the application a solvency certificate, cash security or bank guarantee and a character certificate.
The Director or the Market Committee as the case may be, may grant or renew a licence, after satisfying himself or itself about the solvency certificate, cash security or bank guarantee, the capacity of the applicant for providing adequate equipment for smooth conduct of the business and the conduct of the applicant.
If the licence is refused, reasons are required to be recorded in writing.
Rule 7 deals with the grant of licences to warehousemen, measurers, surveyors, processors, weighmen, etc.
Rule 8(2) bans the employment of a broker in relation to marketing of any declared agricultural produce except in relation to marketing of such produce by a trader with another trader.
Rule 12 stipulates that every declared agricultural produce shall be sold by public auction.
Rule 15 requires every declared agricultural produce to be weighed by licensed weighmen or measurer.
Rule 16, 17 and 18 deal with the preparation of records in connection with the transactions of purchase of declared agricultural produce.
Rule 20 obliges every purchaser of declared agricultural produce to make payment to the seller or his commission agent immediately after the sale on the same day.
Rule 21 prohibits the adulteration of declared agricultural produce in the market area or market.
Rule 22 provides for grading and standardization of agricultural produce.
Rule 25 provides for inspection of weights and measures.
Rule 27 requires the Market Committee to publish a daily list of prices of the different varieties and grades of declared agricultural produce marketed in the market area.
There are several other rules providing for the constitution of Market Committees, preparation of their budgets, discharge of their other duties etc., but for our purpose it may not be necessary to refer to them.
880 We have seen that Sec.
5 authorises the establishment of a principal market and one or more subsidiary markets.
Quite obviously the power to establish a principal market or a subsidiary market carries with it the power to disestablish (if such an expression may be used) such market.
Quite obviously again, the power given by Sec. 5 to establish a principal or subsidiary market may be exercised from time to time.
These follow from Sections 14 and 21 of the Maharashtra General Clauses Act.
So, Sec.
5 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963, read with Sections 14 and 21 of the Maharashtra General Clauses Act vest enough power in the Director to close an existing market and establish it elsewhere.
4A(2) of the Bombay Agricultural Produce Markets Act, 1939, (the Act which preceded the Maharashtra Agricultural Produce Marketing Regulation) Act, empowered the State Government to declare any enclosure, building or locality in any market area to be a principal market yard for the area and other enclosures, buildings or localities to be one or more sub market yards for the area.
There was a proviso to Sec.
4A(2) which provided that out of the enclosures, buildings or localities declared to be market yards before the commencement of the Bombay Agricultural Produce Markets (Amendment) Act 1954, one shall be declared to be the principal market yard for the market area and others, if any, to be one or more sub market yards for the area Before the 1954 amendment Act Vakhar Bagh was the market yard for a certain market area.
In October 1954, (after the 1954 amendment came into force) Vakhar Bagh was declared as the principal market yard for the market area under the proviso to section 4A(2) of the Act.
A few days later another notification was issued declaring some other place as the principal market yard for the market area.
Vakhar Bagh was not even declared as a sub market yard.
The effect was that Vakhar Bagh Market Yard ceased to be a market yard.
This was questioned in Bapubhai Ratanchand Shah vs The State of Bombay.
The argument was that Vakhar Bagh had necessarily to be declared as a Principal Market Yard since there was no sub market yard under the proviso to Sec.
4A(2) and that once having been so declared another market yard could not be substituted in its place.
This argument was repelled by Chagla, C. J. and Tendolkar, J.
It was observed (at p. 903, 904): "Now, section 4A(2) confers upon the Government the power to declare any enclosure, building or locality in any market area to be a principal market yard for the area and other enclosures, buildings or localities to be one or more sub 881 market yards for the area.
It is clear that by reason of section 14 of the General Clauses Act any power that is conferred on Government can be exercised from time to time as occasion requires.
Therefore, it would be clearly competent to the State Government to declare from time to time which should be the principal market yard and which should be sub market yards.
It is also clear under section 21 of the General Clauses Act that when a power to issue notifications, orders, rules, or bye laws is conferred, then that power includes a power to exercise in the like manner and subject to the like sanction and conditions, if any, to add to, amend, vary or rescind any notifications, orders, rules or bye laws so issued". . . . . "under section 4A(2) Government can by issuing notifications from time to time after the principal market yards which have been set up and which did not exist before the passing of the Amending Act".
We agree.
Any other construction may frustrate the very object of the legislation.
Nothing may be expected to remain static in this changing world of ours.
A market which is suitably and conveniently located today may be found to be unsuitable and Inconvenient tomorrow on account of the development of the area in another direction or the congestion which may have reduced the market into an Impossible, squalid place or for a variety of other reasons.
To so interpret the provisions of the Agricultural Produce Marketing Regulation Act as prohibit the abolition of a market once established and bar the transfer of the market to another place would, as we said, be to defeat the very object of the Act.
Neither the text nor the context of the relevant provisions of the Act warrant such a prohibition and bar and there is no reason to imply any such.
On the other hand Sections 14 and 21 of the Maharashtra General Clauses Act warrant our reading into Sec. 5 a power to close a market and establish it elsewhere.
The submission that Rule 5 of the Maharashtra Agricultural Produce Marketing Regulation Rules 1967 which provides that no person shall market any declared agricultural produce in any place in a market area other than the principal market or subsidiary market established therein is ultra vires, is, in our opinion, equally without force.
60 of the Act empowers the State Government to make rules for carrying into effect the purposes of the Act.
It cannot but be said that the establishment of a principal and subsidiary markets for the marketing of declared agricultural produce and the bar against marketing operations being carried on elsewhere than in the markets so 882 established is only to further and to give effect to the purposes of the Act.
The scheme of the Act shows that the agricultural produce whose marketing is proposed to be regulated should first be notified, a market area has to be declared in respect of the notified agricultural produce, a Market Committee has to be constituted for the market area, a principal market and one or more subsidiary markets have to be established for every market area, traders etc.
have to be licensed and the Market Committee is required to provide facilities for marketing of agricultural produce, to superintend, direct and control the markets and regulate marketing of agricultural produce.
Regulation of marketing of notified agricultural produce and the establishment of principal and subsidiary markets are among the prime objects of the Act.
If for the more effective regulation of marketing it is thought that all marketing operations in respect of declared agricultural produce should be carried on only in the principal and subsidiary markets established under the Act, we do not see how it can possibly be said that a rule made for that purpose is beyond the competence of the rule making authority under the Act.
It is not difficult to visualise the impossibility of effective regulation if marketing operations are allowed to be carried on outside the principal and subsidiary markets, anywhere in the market area.
The submission was that all the regulatory measures contemplated by the Act and the rules may be enforced equally effectively wherever business in agricultural produce is carried on in the market area outside the principal and subsidiary markets as within the principal and subsidiary markets.
On the face of it, it is difficult to accept this submission.
The regulation will become impossible and will soon be reduced to a farce if traders are allowed to carry on marketing operations in every nook and corner of the market area.
The Market Committee will be forced to employ an unduly large number of officers who will have to run hither and thither, all over the market area.
The regulation and control will soon become unmanageable.
Nor will the producers ' interests be properly served.
Where a producer brings his produce to the market, he will deal face to face not with one but with several traders, with a greater chance of getting the best price for his produce.
This cannot happen if he is persuaded to take his produce to the place of business of an individual trader outside the principal or subsidiary market.
There is a greater possibility of abuse and greater likelihood of the object of the Act being frustrated.
Fair price to the agriculturist will soon be a mirage and the evil sought to be prevented will persist.
In Kewal Krishan Puri & Anr.
vs State of Punjab & Ors.(1) this Court had occasion to observe: 883 "No body can be allowed to establish a purchasing centre of his own at any place he likes in the market area without there being such a permission or authority from the Market Committee.
After all the whole object of the Act is the supervision and control of the transactions of purchase by the traders from the agriculturists in order to prevent exploitation of the latter by the former.
The supervision and control can be effective only in specified localities and places and not throughout the extensive market area.
" One of the submissions of the learned Counsel was that Section 6 of the Act contemplated the use of any place in the market area for the marketing of the declared agricultural produce on obtaining a licence from the Market Committee and, therefore, Rule 5 which banned marketing at any place outside the principal and subsidiary markets though such place was within the market area was inconsistent with Section 6 and hence ultra vires.
The submission ignores the circumstance that Section 6 is applicable to both the situations before and after the establishments of markets.
Where a market area is specified under Sec. 4 of the Act but no markets are yet established, marketing is regulated by licensing the traders etc.
under Sec. 6.
After markets are established also, traders have to be licensed under Sec. 6.
But Sec. 6 is expressly declared to be subject to the rules providing for regulating the marketing of agricultural produce in any place in the market area.
Rule 5 is a rule providing for regulating the marketing of agricultural produce in the market area by stipulating that the marketing shall be carried in the market established in the market area.
Section 6 is, therefore, subject to Rule 5.
There can be no question of any inconsistency between Section 6 and Rule 5.
Yet another submission of the learned counsel was that the Bombay Agricultural Produce Markets Act 1939 and the Agricultural Produce Marketing Acts of other States such as Karnataka provided or indicated by express provision that once a market was established it was not permissible to market or trade in agricultural produce outside the market, and that the absence of such an express provision in the Maharashtra Act showed that no such ban was contemplated by the Act.
We are unable to agree with the submission.
Absence of an express provision in the Act itself merely means that greater latitude is given to the rule making authority to introduce regulation of marketing by stages and to ban all marketing activity outside the market.
The latitude given to the rule making authority cannot lead to the 884 inference that the rule making authority has no power to make a rule banning marketing activities outside the market once the market is established, even when such a ban is found to be necessary.
We therefore, hold that the rule prescribing that no marketing operation in any declared agricultural produce shall be carried on outside the principal or subsidiary markets is consistent and in consonance with the scheme of the Act and is within the competence of the rule making authority and that it is reasonable.
Next we pass on to the main submission made on behalf of the petitioners that the transactions between trader and trader and transactions by which the agricultural produce was imported into the market area from outside the market area were outside the purview of the Act and that if Sec. 5 and Rule 5 were intended to cover such transactions also they were invalid.
The basic assumption of the submission was that the Maharashtra Agricultural Produce Marketing Regulation Act was conceived in the interests of the agriculturists only and intended for their sole benefit.
This basic assumption is not well founded.
It is true that one of the principal objects sought to be achieved by the Act is the securing of a fair price to the agriculturist.
As the long title of the Act itself says, the Act is intended to regulate the marketing of agricultural and certain other produce.
The marketing of agricultural produce is not confined to the first transaction of sale by the producer to the trader but must necessarily include all subsequent transactions in the course of the movement of the commodity into the ultimate hands of the consumer, so long, of course, as the commodity retains its original character as agricultural produce.
While middlemen are sought to be eliminated, it is wrong to view the Act as one aimed at legitimate and genuine traders.
Far from it.
The regulation and control is as much for their benefit as it is for the benefit of the producer and the ultimate consumer.
The elimination of middlemen is as much in the interest of the trader as it is in the interest of the producer.
Promotion of grading and standardization of agricultural produce is as much to his benefit as to the benefit of the producer or consumer.
So also proper weighment.
The provision for settlement of disputes arising out of transactions connected with the marketing of agricultural produce and ancillary matters is also for the benefit of the trader.
It is because of these and various other services performed by the Market Committee for the benefit of the trader that the trader is required to pay a fee.
It is, therefore, clear 885 that the regulation of marketing contemplated by the Act involves benefits to traders too in a large way.
It is also clear to our mind that the regulation of marketing of agricultural produce, if confined to the sales by producers within the market area to traders, will very soon lead to its circumvention in the guise of sales by traders to traders or import of agricultural produce from outside the market area to within the market area.
The Shirname Committee which was appointed by the Maharashtra Government to review the working of the Bombay Agricultural Produce Marketing Act, 1939 considered the matter and reported as follows: (para 86): "They (the traders) have argued that imported produce has nothing to do with the legislation meant to confer benefits on the agriculturist.
We are afraid that this view is untenable.
In our opinion, the benefits sought to be conferred by the Act are not compartmental inasmuch as a regulated market seeks to benefit the agriculturist within its area only.
The problem of regulation is to be viewed in the wider context.
This was well emphasised by the Royal Commission on Agriculture which stated that 'the establishment of properly regulated markets can act as a powerful agent in bringing about a reform which is much needed, primarily in the interest of the cultivator, and secondly, in that of all engaged in trade and commerce in India '.
It is in this larger perspective that an answer to the question is to be found.
Moreover, no agricultural produce goes by a particular brand with the result that the produce brought from a particular source cannot be distinguished from the one secured from the other.
If the produce imported from outside the market area were to be exempted from the scope of the market regulation, it would only provide an additional opportunity for the traders to circumvent the provisions of the Act and Rules even in respect of the agricultural commodities produced within the market area.
We, therefore, recommend that once a commodity is regulated in a market, it should be subjected to regulation irrespective of its source or final destination.
" Again they said in paragraph 95 as follows: "We wish to record here that there appears to be a doubt among the traders as well as the Market Committees about the precise position of sales of commodities after they are brought from agriculturists by traders vis a vis the provisions of the Act and the Rules.
It has been the belief of 886 the traders that the law is for the benefit of agriculturists and on this ground they have pleaded that its scope should be restricted only to the dealings with them.
We are afraid that this plea is not tenable.
The benefit of a regulated market will no doubt primarily accrue to the agriculturists but traders also will be profited by it.
Furthermore, no market can be regulated effectively unless and until the regulation covers all the stages of marketing within a particular area.
Above all, it is not possible to distinguish between the agricultural produce subjected to resale or changing hands between the traders themselves and the one sold by the agriculturists through the commission agents to the traders.
We, therefore, recommend that all transactions including the resales between the traders and traders in respect of the agricultural commodities, which are regulated should be covered by the Act and the Rules.
Thus in a regulated market, trading in agricultural commodities irrespective of the fact as to whether they are produced in the market area or sold by the agriculturists or not, will be brought within the scope of the legislation.
" Nor are we without any guidance from this Court itself in answering the question posed.
In Mohammadbhai Khudabux Chhippa & Anr.
vs The State of Gujarat & Anr., it was pointed out while dealing with the provisions of the Bombay Agricultural Produce Markets Act, 1939, as follows (at p. 899): "Next it is urged that the provisions in the Act also affect transaction between traders and traders, and also affect produce not grown within the market area if it is sold in the market area.
That is undoubtedly so.
But if control has to be effective in the interest of the agricultural producer such incidental control of produce grown outside the market area and brought into the market yard for sale is necessary as otherwise the provisions of the Act would be evaded by alleging that the particular produce sold in the market yard was not grown in the market area.
For the same reasons transactions between traders and traders have to be controlled, if the control in the interest of agricultural producers and the general public has to be effective.
We are therefore of opinion that the Act and the Rules and Bye laws thereunder cannot be struck down 887 on this ground.
The contention under this head therefore must fail".
Again in Ram Chandra Kailash Kumar & Co. & Ors.
vs State of U.P. & Anr.
,(1) dealing with the contention that fee could be charged only on those transactions in which the seller was the producer and not on any other transaction this Court disapproved the view taken by the Mysore High Court and approved the view taken by the Patna High Court that fee could be levied on a transaction of buying and selling between a dealer and a dealer.
Dealing with the contention that the agricultural produce not produced in the market area was outside the purview of the Act, it was observed (at p. 1134): "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".
One of the submissions strenuously pressed before us was that the statute itself imposed and provided for such stringent supervision, and control, sufficient and more, to regulate transactions between traders and traders, that it was superfluous to insist that such transactions do take place in the market only.
We do not agree.
Human ingenuity is such that vents and escapes will always be found in any system of controls.
We are unable to say that the other supervisory measures for which there is provision in the Act are sufficient to make it unnecessary for the traders to move their places of business into the market.
No amount of supervision may be as effective as when all the transactions take place within the market.
Nor is effective supervision at all possible if traders are dispersed all over the market area.
Every Market Committee will then require a large contingent of officers for the purpose of supervision only.
The rendering of services to the traders also will be far easier and, in the ultimate analysis, it will be in the interests of the traders themselves, at any rate in the interests of the vast majority of the traders, that transactions between traders and traders also are carried on in the market only.
There cannot be any doubt 888 that localising marketing is helpful and necessary for regulation and control and for providing facilities.
If all transactions are carried on in the market under the watchful and at the same time, helpful vigil of the Market Committee and its officers, there is surely a greater chance of the success of the objectives of the statute.
We are therefore, not prepared to hold that the requirement that the locus of all transactions of sale and purchase of agricultural produce, including those between trader and trader, should be in the market is harsh and an excessive restriction on the Fundamental Right to carry on trade.
It was the submission of the learned counsel that Sec. 6 of the Maharashtra Act made a distinction between (a) the use of any place in the market area for the marketing of the declared agricultural produce and (b) the operation in the market area or in any market therein as a trader, commission agent, broker, etc.
in relation to the marketing of agricultural produce and that the distinction was in reality a distinction between a sale by a producer to a trader and a subsequent sale by a trader to a trader.
The argument was that Rule 5 which banned marketing of any declared market agricultural produce in any place in a market area other than the principal market or subsidiary market established therein applied only to a sale of the agricultural produce by a producer to trade.
We do not see any warrant for the submission of the learned counsel in the language employed in Sec. 6 or Rule 5.
If the legislature or the rule making authority wanted to make a distinction between a sale of agricultural produce by a producer to a trader and a subsequent sale by a trader to a trader, nothing would have been simpler than to say so instead of adopting the circumlocutous way in which the learned counsel claims it has been said.
The proviso to Rule 5 speaks of operating at any place within the market area by a trader, commission agent, or other market functionary after obtaining a licence while the main provision refers to the marketing of declared agricultural produce at any place in the market area.
Surely it cannot be contended that the proviso is unrelated to the main provision.
According to ordinary cannons of construction the proper function of a proviso is to except and deal with a case which would otherwise full within the general language of the main enactment.
It, therefore, shows that no such distinction as suggested by the learned counsel for the petitioners was in the mind of the legislature or the rule making authority.
The onion and potato merchants of Bombay advanced a special plea that Sec.
13(1A) which declared the area comprising Greater 889 Bombay and Turbhe village a market area for the purposes of the Act was invalid as it was wholly unreasonable to constitute such a large area into a single market area.
The validity of the notification establishing a market at Turbhe was attacked as unreasonable.
It was said that it was unreal and unreasonable to establish a single market for so large an area and that, at such an inconvenient place as Turbhe village.
It has been explained in the counter affidavit filed on behalf of the respondent that the existing markets in Maulana Azad Road and Mahatma Phule Mandal were highly congested and located in areas which were over crowded with the result that it took several hours to even unload onions and potatoes from the trucks which carried them.
It has become imperative in the public interest that the markets should be shifted from Maulana Azad Road and Mahatma Phule Mandai.
Turbhe village was chosen as an area free from congestion and conveniently located as it was on the main trunk road from Pune.
It was also very near the other trunk Road going towards the East.
A Railway linking the area with both the Western Railway and the Central Railway net works was fast coming up.
It was also pointed out that 60% of the population of Greater Bombay resided in the Northern suburbs and the new market was much nearer to the majority of the residents and traders of Greater Bombay.
We are unable to see anything unreasonable in the statutory declaration of Greater Bombay and Turbhe village as a market area; nor, are we able to see anything unreasonable, in view of the circumstances mentioned by the respondents, in the establishment of a single market in Turbhe village for the entire market area.
It was also said that neither the Gultekdi market nor the Turbhe market had any convenience or facility or was ready for use on the date on which it was notified as the Principal Market for the concerned market area.
On the material placed before us we are satisfied that all reasonable conveniences and facilities are now available in both the markets, whatever night have been the situation on the respective dates of notification.
We refrain for embarking into an enquiry as to the situation obtaining on the dates of notification.
We do say that a place ought not to be notified as a market unless it is ready for use as a market with all reasonable facilities and conveniences but we do not conceive it to be our duty to pursue the matter to the extreme limit of quashing the notification when we find that all reasonable facilities and conveniences are now available.
While a notification may be quashed if nothing has been done beyond publishing the notification, in cases where some facilities and conveniences 890 have been provided but not some others which are necessary the Court may instead of quashing the notification give appropriate time bound directions for providing necessary facilities and conveniences.
On the facts of the present case, we are satisfied that all reasonable facilities and conveniences are now provided.
We are also satisfied that the traders have been making one desperate attempt after another to avoid moving into the new markets and they have been successful in stalling the notifications from becoming effective for quite a number of years.
In the Writ Petitions and Civil Appeals from Karnataka State, similar questions have been raised.
Though the broad scheme of the Karnataka Act is the same as the Maharashtra Act, there are some differences which however are not basic.
Instead of a two tier scheme, Market Area and Markets, as under the Maharashtra Act, the Karnataka Act has a three tier scheme, Market Area, Market and sub market and market yard, sub market yard and sub yard.
Market Area is a larger area within which smaller areas are declared as a Market and sub markets.
Within a market are located a market yard and market sub yards and within a sub market is located a sub market yard.
The 'market yard ' in the Karnataka Act is what corresponds to a 'market ' in the Maharashtra Act.
Unlike the Maharashtra Act, the Karnatka Act itself [section 8(2)] expressly provides that no place in the Market or the sub market, except the market yard, sub yard or the sub market yard as the case may be, shall be used for the purchase or sale of notified agricultural produce.
Originally, after the words "purchase or sale of notified agricultural words" occurred the words "belonging to a producer" in Section 8(2).
The words "belonging to a producer" were omitted by a 1976 amendment and this makes the provisions of section 8(2) applicable to transactions between trader and trader too.
The shifting of market yard from one place to another and the application of the Act to transactions between traders and traders are what were principally questioned in the Karnataka cases.
Substantially the same submissions as in the Maharashtra cases were made and we have already dealt with them.
We my now turn to the Bihar cases.
The Bihar Agricultural Produce Markets Act, 1960, follows roughly the same pattern as the other Acts.
A market area has to be first declared within which the marketing of specified agricultural produce is proposed to be regulated.
For every market area there is to be a principal market yard and one or more sub market yards.
In between the market area and the market yard there is to be a market but market does not seem to play any part in the scheme of the Act as it now stands after the 1974 amendments.
However it should be mentioned here that Rule 80 891 which is still on the Statute Book, provides that a market shall be established for a market area and that after the establishment of a market, a notification under Sec. 5 (declaring market yards) shall be issued.
15 of the Act provides that no specified agricultural produce shall be bought or sold at any place within the market area other than the principal market yard or sub market yard established therein except such quantity as may be prescribed for retail sale or personal consumption.
The arguments advanced in the Maharashtra and Karnataka cases were advanced in the Bihar cases also.
For the reasons already mentioned we reject the submission.
In one of the Bihar cases it was further submitted that when a market yard was disestablished at one place and established at another place, it was the duty of the concerned authority to invite and hear objections.
Failure to do so was a violation of the principles of natural justice and the notification disestablishing the market yard at one place and establishing it elsewhere was therefore, bad.
It was said that even as there was express provision for inviting and hearing objections before a "market area" was declared under the Act, so should objections be invited and heard before a 'market yard ' was established at any particular place.
The principles of nature justice demanded it.
We are unable to agree.
We are here not concerned with the exercise of a judicial or quasi judicial function where the very nature of the function involves the application of the rules of natural justice, or of an administrative function affecting the rights of persons, wherefore, a duty to act fairly.
We are concerned with legislative activity; we are concerned with the making of a legislative instrument, the declaration by notification of the Government that a certain place shall be a principal market yard for a market area, upon which declaration certain statutory provisions at once spring into action and certain consequences prescribed by statute follow forthwith.
The making of the declaration, in the context, is certainly an act legislative in character and does not oblige the observance of the rules of natural justice.
In Bates vs Lord Hailsham, Megarry J., pointed out that the rules of natural justice do not run in the sphere of legislation, primary or delegated, and in Tulsipur Sugar Co. vs Notified Area Committee, our brothers Desai and Venkataramaiah JJ approved what was said by Megarry J., and applied it to the field of conditional legislation too.
In Paul Jackson 's Natural Justice (Second Edn.), it has been pointed out (at p.169): "There is no doubt that a Minister, or any other body, in making legislation, for example, by statutory instrument 892 or by law, is not subject to the rules of natural justice Bates vs Lord Hailsham of St. Mayleborne more than is Parliament itself; Edinburgh and Dalkeith Ry.
vs Wauchope (1842) 8 Cl. & F. 710, 720 per Lord Brougham; British Railways Board vs Pickin ; Prof. H. W. R. Wade has similarly pointed in his Administrative Law (4th Edn.): "There is no right to be heard before the making of legislation, whether primary or delegated, unless it is provided by statutes".
There is, therefore, no substance in the invocation of the rules of natural justice.
One of the submissions in the Bihar cases was that the declaration of places as market yards was made in such an erratic fashion that the exercise of the power could only be termed as an arbitrary misuse of power.
The facts in Civil Appeal No. 1507 of 1980 were that on September 16, 1964, a certain area was declared as a principal market yard and Amgola, Chandwara, Sarai Said Ali and Brahmpura were declared as Sub market yards.
On February 23, 1978 instead of the principal market yard declared by the notification of September 16, 1964, Muradpur Dulla was declared as principal market yard.
The sub market yards were abolished.
By another notification dated April 9, 1979, all the market yards notified on September 16, 1964 were allowed to continue as before, but it was also simultaneously made known that such market yards would be closed on specified dates and merchants were advised to move their business into the Muradpur Dulla principal market yard as early as possible.
Finally by a notification dated July 3, 1979, the previous notification dated April 9, 1979 was cancelled and Muradpur Dulla market yard was alone notified as the principal market yard.
The facts in the other two appeals were that on September 19, 1963, Gaya town was declared as a market area.
On April 6, 1964, Chandauti was declared as the market proper under Sec.5(2)(ii) of the Bihar Act.
By a notification dated April 7, 1964, Mohalla Purani Godown was declared as principal market yard and Kedarnath Market was declared as the sub market yard for the market area.
On October 19, 1973, Mohalla Purani Godown was once again declared as the Principal Market Yard.
Subsequently on February 28, 1978, Chandauti was declared as the Principal Market Yard.
This meant that Mohalla Purani Godown ceased to be a market yard and Kedarnath Market ceased to be a sub market yard.
But, again on April 9, 1979, another notification was issued, to the effect that Mohalla Purani Godown would continue as the market yard as before.
Finally on June 27, 1979, Chandauti was 893 declared as the Principal Market yard once more.
This was questioned in Writ Petitions filed in the Patna High Court.
The Patna High Court rejected all but one of the contentions raised.
The only contention which was accepted was that the procedure prescribed by Rule 80 was not followed before Chandauti was declared as the principal market yard by the notification dated February 28, 1978.
Rule 80, as already mentioned by us provides that a market shall be established for a market area and that after the establishment of a market a notification declaring the market yard shall be issued.
The contention which was accepted was that a market had not been established before a market yard was declared.
Against the judgment of the High Court the merchants have filed Civil Appeal No. 1715 of 1980 and the State of Bihar has filed Civil Appeal No. 36 of 1980.
Not withstanding the filing of the appeal, the State of Bihar chose to issue a fresh notification after observing the procedure prescribed by Rule 80.
This was again questioned in the High Court.
The High Court upheld the notification.
The merchants have preferred Civil Appeal No. 1716 of 1980 against the judgment of the High Court.
From the history of events it may appear as if declarations regarding market yards have been made in a most erratic fashion but as pointed out by the learned Attorney General who appeared for the State of Bihar it was not madness.
There was a method.
The old markets had existed from ancient days and it had become necessary to establish modern market yards with conveniences and facilities.
When this was sought to be done there were representations by the traders and the Government appears to have thought that it was advisable to give the traders sufficient time to enable them to prepare themselves to move into the new market yards.
The notifications establishing new market yards were therefore, cancelled and the old markets were allowed to function for some time.
Later when the time was thought to be ripe, notifications establishing new market yards were once again issued.
It is, therefore seen that the seeming confusion was not the result of any arbitrary or erratic action on the part of the Government but was the result of a desire to accommodate the traders as much as possible.
We, therefore, see no force in any of the submissions made on behalf of the petitioners.
All the Writ Petitions and Civil Appeals are therefore, dismissed with costs.
N.V.K. Petitions and Appeals dismissed.
| IN-Abs | The Maharashtra Agricultural Produce Marketing (Regulation) Act 1963 provides for the regulation of the marketing of agricultural produce in market areas to be established therefor in the State, Market Committees to be constituted for purposes connected with such markets, establishment of Market Fund for purposes of the Market Committees, and for purposes connected with these matters.
Section 3 empowers the Government by a notification to be published in the Official Gazette, to declare its intention of regulating the marketing of such agricultural produce in such areas as may be specified and section 4 provides that the marketing of the agricultural produce shall be regulated under the Act in the area specified in the notification.
Section(1) provides a principal market for every market area and one or more subsidiary markets, and section 5(2) empowers the Director to establish the principal market for the marketing of specified agricultural produce.
Section 6 provides that no person shall use any place in the market area for the marketing of the declared agricultural produce or operate in the market area or in any market therein as a trader, commission agent, broker, processor, weighman, measurer, surveyor, warehouseman or in any other capacity in relation to the marketing of the declared agricultural produce, on and after the date on which the declaration under section 4(1) is made.
Section 6(2) provides that section 6(1) shall not apply to sales by retail, sales by an agriculturist who sells his own produce; and sales by a person to another for the latter 's personal consumption.
The Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1963 were promulgated pursuant to the power conferred by section 60 of the Act.
Rule 5 provides that no person shall market any declared agricultural produce in any place in a market area other than the principal market or subsidiary 867 market established therein.
The proviso to the rule enables the Director of Marketing to authorise a Market Committee to permit a trader or commission agent to market declared agricultural produce or to permit any other market functionary to operate at any place within the market area as may be mentioned by the Market Committee in the licence granted to such trader.
The petitioners who were wholesale traders in onions and potatoes in their writ petitions to the Supreme Court assailed the notices requiring them to carry on business in regulated agricultural produce in the market yard at the specified areas of the State, and at no other place, contending that: (1) the 1963 Act, did not invest the Director of Marketing or the Market Committee with any power to compel a trader to transfer this activity from a previously existing market to a principal or subsidiary market established under section 5 of the Act (2) Rule 5 was inconsistent with section 6 and therefore ultra vires.
(3) The Bombay Agricultural Produce Markets Act, 1939 and the Agricultural Produce Marketing Acts of other States such as Karnataka provided or indicated by an express provision that once a market was established it was not permissible to market or trade outside the market and that the absence of such an express provision in the 1963 Act showed that no such ban was contemplated by the Act.
(4) The transactions between trader and trader and transactions by which the agricultural produce was imported into the market area from outside the market areas were outside the purview of the Act and if section 5 and rule 5 were intended to cover such transactions also they were invalid.
(5) The statue itself imposed and provided for stringent supervision and control, sufficient to regulate transactions between traders and traders, that it was superfluous to insist that such transactions do take place in the market only.
(6) Section 6 of the Act made a distinction between (a) the use of any place in the market area for the marketing of the declared agricultural produce, and (b) the operation in the market areas or in any market therein as a trader, commission agent, broker etc.
in relation to the marketing of agricultural produce and that the distinction was in reality a distinction between a sale by a producer to a trader and a subsequent sale by a trader to a trader, and consequently the ban imposed by Rule 5 applied only to a sale of the agricultural produce by a producer to a trader.
(7) Section 13(1A) which declared the area comprising greater Bombay a market area for the purposes of the Act was invalid as it was wholly unreasonable to constitute such a large area into a single market area.
(8) when a market yard was disestablished at one place and established at another place it was the duty of the concerned authority to invite and hear objections and failing to do so, was a violation of the principles of natural justice and the notification establishing the market yard elsewhere was bad.
Dismissing the writ petitions and appeals: ^ HELD: 1.
(i) The power conferred by section 5 of the Act to establish a principal market or a subsidiary market carries with it the power to disestablish such market.
Section 5 of the Act, read with sections 14 and 21 of the Maharashtra General Clauses Act vest enough power in the Director to close an existing market and establish it elsewhere.
The repealed Act of 1939 also empowered the State Government to declare any market area to be a principal market yard for the area.
The power to issue notifications, orders etc.
includes 868 the power to exercise in like manner to add to, amend, vary or rescind any notification, order, rule etc.
Any other construction would frustrate the object of the legislation.
[880 A C, 881 C, D] Bapubhai Ratanchand Shah vs State of Bombay LVII 1955 Bom.
L.R. p. 892, 903 904, approved.
(ii) Rule 5 is not ultra vires.
If for the more effective regulation of marketing it is thought that all marketing operations in respect of declared agricultural produce should be carried on only in the principal and subsidiary markets established under the Act, it cannot be said that a rule made for that purpose is beyond the competence of the rule making authority under the Act.
[881G, 882C] (iii) The submission that all regulatory measures contemplated by the Act and the Rules may be enforced equally effectively wherever business in agricultural produce is carried on in the market area outside the principal and subsidiary markets as within the principal and subsidiary markets is without force.
If that is done, the regulation will very soon be reduced to a farce.
The Market Committee will be forced to employ an unduly large number of officers.
The producer 's interest will not be properly served because a producer will not be able to deal face to face with several traders and would have little chance of obtaining the best price for his produce.
This cannot happen if he is persuaded to take his produce to the place of business of an individual trader outside the principal or subsidiary market.
There is a greater possibility of abuse and greater likelihood of the object of the Act being frustrated.
Fair price to the agriculturist will soon be a mirage and the evil sought to be prevented will persist.
[882 E H] Kewal Krishan Puri & Anr.
vs State of Punjab & Ors.
[1979] 3 S.C.R. p. 1217, 1247, referred to. 2.
There can be no question of any inconsistency between section 6 and rule 5.
Section 6 is applicable to both the situations before and after the establishment of markets, and is expressly declared to be subject to the rules providing for regulating the marketing of agricultural produce in the market area by stipulating that the marketing shall be carried on in the market established in the market area.
[883F, D E] 3.
The rule prescribing that no marketing operation in any declared agricultural produce shall be carried on outside the principal or subsidiary markets is consistent and in consonance with the scheme of the Act and is within the competence of the rule making authority and is reasonable.
Absence of an express provision in the Act to the effect that once a market is established it was not permissible to market or trade in agricultural produce outside the market itself merely means that greater latitude is given to the rule making authority to introduce regulation of marketing by stages and to ban all marketing activity outside the market.
This cannot lead to the inference that the rule making authority has no power to make a rule banning marketing activity 869 outside the market once the market is established even when such a ban is found to be necessary.
[884 B, 883 H 884 A] 4.
(i) The assumption that the Act was conceived in the interest of the agriculturists only and intended for their sole benefit is not well founded.
One of the principal objects sought to be achieved by the Act is the securing of a fair price to the agriculturist for his produce by the elimination of middlemen and other detracting factors.
But that is not the only object.
The Act is intended to regulate marketing of agricultural and certain other produce.
The marketing of agricultural produce is not confined to the first transaction of sale by the producer to the trader but must necessarily include all subsequent transactions in the course of the movement of the commodity into the ultimate hands of the consumer so long, of course, as the commodity retains its original character as agricultural produce.
While middlemen are sought to be eliminated, it is wrong to view the Act as one aimed at legitimate and genuine traders.[884D F] (ii) Promotion of grading, standardisation of agricultural produce, weighment, the provision for settlement of disputes arising out of transactions connected with the marketing of agricultural produce and ancillary matters are as much to the benefit of the producer as the consumer.
Clearly therefore the regulation of marketing contemplated by the Act involves benefits to the traders too in a large way.
Regulation of marketing of agricultural produce, if confined to the sales by producers within the marketing area to traders, will very soon lead to circumvention in the guise of sales by traders to traders or import of agricultural produce from outside the market area to within the market area.
[884G 885B] 5.
(i) It is not correct to say that the statute itself imposed and provided for such stringent supervision, and control sufficient and more, to regulate transactions between traders and traders, that it was superfluous to insist that such transactions do take place in the market only.
The other supervisory measures in the Act cannot be said to be sufficient to make it unnecessary for the traders to move their places of business into the market.
No amount of supervision may be as effective as when all the transactions take place within the market.
Nor is effective supervision at all possible if traders are dispersed all over the market area.
The rendering of services to the traders also will be far easier.
Therefore, localising marketing is helpful and necessary for regulation and control and for providing facilities.
[887E 888A] (ii) The requirement that the locus of transactions of sale and purchase of agricultural produce, including those between trade and trader, should be in the market cannot be said to be harsh or an excessive restriction on the Fundamental Right to carry on trade.
[888B] 6.
The proviso to rule 5 speaks of operating at any place within the market area by a trader, commission agent or other market functionary after obtaining a licence while the main provision refers to the marketing of declared agricultural produce at any place in the market area.
It cannot be contended that the proviso is unrelated to the main provision.
According 870 to ordinary canons of construction the proper function of a proviso is to accept and deal with a case which would otherwise fall within the general language of the main enactment.
[888F G] 7.
There was nothing unreal and unreasonable in establishing a single market for a large area.
It had become imperative in the public interest that the markets should be shifted from their former place to the new area.
The present village was chosen because it was free from congestion, conveniently located near another trunk road.
A railway line linking with both the Western Railway and the Central Railway and so on.
There is, therefore, nothing unreasonable in the statutory declaration of Greater Bombay and Turbhe Village as a market area; nor in the establishment of a single market in Turbhe Village for the entire market area.
[889B E] 8.
Where a market yard was disestablished at one place and established at another place, no exercise of a judicial or quasi judicial function is involved.
All that is involved is the declaration by a notification of the Government that a certain place shall be a principal market yard for a market area, upon which declaration certain statutory provisions at once spring into action and certain consequences prescribed by statute follow forthwith.
The making of the declaration in this context is an act legislative in character and does not obligate the observance of the rules of natural justice.
[891C F] Baits vs Lord Hailsham & Tulsipur Sugar Co. vs Notified Area Committee ; referred to.
The seeming confusion in the large number of notifications issued by the Government from time to time was not the result of any arbitrary or erratic action on the part of the Government but was the result of a desire to accommodate the traders as much as possible.
The old markets had existed from ancient days and it had become necessary to establish modern market yards with conveniences and facilities.
When this was sought to be done there were representations by the traders and the Government thought that it was advisable to give the traders sufficient time to enable them to prepare themselves to move into the new market yards.
The notifications establishing new market yards were therefore, cancelled and the old markets were allowed to function for sometime.
Later when the time was thought to be ripe, notifications establishing new market yards were once again issued.
[893 F, D E]
|
Civil Appeal NO.
383 Of 1976.
Appeal by special leave from the Judgment and Order dated 12 6 1975 of the Andhra Pradesh High Court in Writ Appeal NO. 313 of 1975.
Connected with Civil Appeal NOS.
1434 85/77, 2669/79 & 2670/79, 1763 1781/ 77, 2511, 2625, 2679, 2776/77, 332, 333, 909 & 930/78 and S.L.Ps. 70/76, 1769/77, 4246, 4379/77 and 251/79.
P. Rama Reddy, G. section Narayana and G. N. Rao for the Appellant in all the matters.
B. Parthasarthy for the Respondent in CAs 383/76, 1443/77, 1444/77 (for R. (for RR.
2 & for R.17), CA 1463/77 for RR l & 2 and R. 10 in CA 1464/77 for R.1 in CA 1466/77 for R.1, 1468/77 for both the Respondents, 1470/ 77 for R. for R. 2, 1481 for RR, 1767/77 for R. 1, 932 1768/77 for RR 1, 2, 4, and 5 8, 1773/77 for RR 1 4 and 5, 2625/ 77 for R.1, 2511/77 for all the RRs.
332/78 for R.3, 930/78 for RR.
SLP 1769/76 for RR 1 4, 5 & 7.
K. Ram Kumar and Mrs. J. Ramachandran for the RR in CA 1472/77, CA 1473/77 for RR 1 5, 7, 8, 14, 15 and CA 1485 for all RRs.
A. Subba Rao in CA 1434 for RR1, 3, 4, 7, 8, 9 & 11, in CA 1440/77 for RR 1, 2, 3, 4, 6, 7, 10, 11, 13 & 16, in CA 1457/77 for Respondent (Sole), CA 1459/77 for RR 2, 3 and for RR 1 2, 16 20, 22, 23, 28, 30, 32, 35 and in CA 1764/77 for Respondent (Sole).
G. Narasimhulu for all the Respondents in CA 1781/77.
B. Kanta Rao for RR 1 3 in CA 1441/77, in CA 1442/77 for RR 4, 8 11, 14, 15, 23 and 24, in CA 1769/77 for RR 1 35, 37 47, 49 62, 64, 65, 67 79, 81 83, 85, 87, 89, 91 99, 101 104, 106 108, 110 114, 116 117, 119 123, in CA 2670 for RR 1 5, 7 12 and 14 16 and 19 20 and in SLP 251/79 for RR 1 8.
The Judgment of the Court was delivered by SEN, J.
This and the connected 81 appeals by special leave and seven special leave petitions directed against various judgments and orders of the Andhra Pradesh High Court and the Andhra Pradesh Administrative Tribunal, raise a common question: Whether it is permissible for the State Government of Andhra Pradesh to enforce sub r.
(2) of r. 5 of the Andhra Pradesh Revised Scales of Pay Rules, 1969 (hereinafter referred to as 'the Rules ') issued by the State Government under proviso to article 309 of the Constitution.
That depends on whether the Government is competent to withhold the Selection Grade pay scales contrary to FR 22(a) (ii) to which the respondents were entitled on their being appointed to Selection Grade posts.
The Government tries to justify such fixation of pay at a lower level than the minimum of the Selection Grade pay scales on the basis that it was to ensure that seniors holding higher posts do not draw in such higher posts a pay less than what is drawn by their juniors in the lower posts in the Selection Grade.
The litigative propensities of the Government know no bounds.
The Government still assumes that it is within their powers to fix the pay of the respondents lower than the minimum of the pay scales of the Selection Grade posts to which they were promoted although the High Court has unequivocally struck down the impugned sub r.
(2) of r. 5 of the Rules as ultra vires the State Government being violative 933 of articles 14 and 16 of the Constitution and being contrary to FR 22 (a) (ii).
It is somewhat unfortunate that the Government should have embarked upon this course of action, thereby subjecting thousands of their employees into this fruitless litigation, which is nothing but an exercise in futility, resulting in wasteful expenditure of public money.
We wish to impress upon the Government that they are in duty bound to respect the judgments and orders of the courts pronouncing upon the constitutional validity of the various rules, orders and notifications issued by the Executive.
To bring out the point involved, it is necessary to state a few facts.
By G.O. MS. 173, Finance, dated June 13, 1969, the State Government issued the Andhra Pradesh Revised Scales of Pay Rules, 1969, providing for revision of pay and creation of Selection Grade posts, the number of such Selection Grade posts for every category being limited to 15% of the total number of posts in that category with a view to implement the recommendations of the One man Pay Commission appointed for the purpose.
The Selection Grade scale was fixed by adding three increments to the maximum of the revised scale of pay.
The pay scales for the Selection Grade so fixed were found to have a higher start than the minimum pay prescribed for the next higher category of posts.
Some of the senior persons holding permanent posts in one category, but holding posts in the next higher category on promotion were found to draw less pay in the higher posts as compared to their juniors in the lower category who were given the Selection Grade scale of pay.
The Government felt that this would result in serious discontentment among the senior employees holding higher posts but drawing less pay than the minimum prescribed for the Selection Grade in the lower category.
At a meeting of the Secretaries to Government held on June 24, 1969, it was decided to set right this anomalous position, by the issue of an executive order.
Consequently, the Government issued a departmental instruction in U.O. Note No. 808/PC/69 I dated July 26, 1969, directing that the pay of an employee placed in the Selection Grade shall be so fixed as not to exceed the pay of his seniors working in the higher post on promotion.
Para 3 (iii) of the U.O. Note was as follows: (iii) Since in many cases, the minimum of the 'selection grade ' is higher than the minimum of the next higher grade, there is a possibility of a junior appointed to 'selection grade ' hereafter drawing more pay than his senior who has already been promoted to higher grade.
With a view to avoid such an anomaly, it will be necessary to prescribe that a person promoted to a 'selection grade ' shall draw the minimum of the remedy was by way of an appeal.
That judgment has attained a 934 promotion category should be drawing less than such mini mum his pay shall be limited to the pay being drawn by such senior, in his own scale.
The direction contained in para 3(iii) of the aforesaid U.O. Note was struck down by Chinnappa Reddy, J. in section A. Prabhakar & Ors.
vs Government of Andhra Pradesh by his judgment dated December 26, 1973, on the ground that the executive instruction could not pre vail over FR 22(a) (ii) and secondly, fixation of pay at anything lower than the minimum of the scale of pay sanctioned for the Selection Grade posts was violative of articles 14 and 16 and was also contrary to the Directive Principles of State Policy enshrined in article 39 of the Constitution, according to which there shall be equal pay for equal work.
The learned Judge was of the view that the Government having created Selection Grade posts carrying a certain scale of pay and having appointed persons to those posts, it was not open to them to allow that pay to some and deny to others on the ground that their seniors working elsewhere were not drawing the same scale of pay.
The Government preferred a Letters Patent Appeal against the judgment of Chinnappa Reddy, J., and made a grievance that while the writ petition was pending the offending U.O. Note (No. 808/PC/ 69 I dated July 26, 1969) had been substituted by sub r.
(2) of r. 5 of the Rules issued under GO MS 215, Finance, dated September 5, 1973, with retrospective effect from March 19, 1969.
That being so, the Division Bench dismissed the appeal observing that the appropriate remedy was to file a review petition.
Against the judgment of the Division Bench, the Government preferred a petition for grant of special leave in the Supreme Court under article 136 of the Constitution, being SLP (Civil) No. 1878 of 1975 and this Court issued a show cause notice to the respondents on September 28, 1975.
But the Special Leave Petition was ultimately dismissed as withdrawn on October 27, 1978, in view of the fact that a review petition had been filed.
Sub r.
(2) of r. 5 of the Rules, inserted by G.O. MS. 215, Finance, dated September 5, 1973, reads: (2) Notwithstanding anything contained in sub rule (1) or any other rule relating to fixation of pay, if a person in any post is promoted or appointed to the selection grade in that post he shall draw the minimum of such selection grade provided that if any of his seniors, who is promoted or appointed by transfer to a higher post, draws a pay in that 935 higher post less than such minimum, his pay shall be limited to the pay so drawn by his senior.
Explanation.
For the purpose of this sub rule, a person shall be deemed to be a senior to another even though both of them belong to two different classes, categories/grades, provided these two are sources for promotion or appointment by transfer to a higher post.
In D. Krishnamurthy & Ors.
vs State of Andhra Pradesh & Anr.
(Writ Petition No. 4459 of 1972), Muktadar, J., by his judgment dated August 12, 1974, struck down the rule as it was violative of articles 14 and 16 of the Constitution.
The learned Judge observed that in view of the decision of this Court in B. section Vadera vs Union of India, Ors it was settled law that rules framed under the proviso to Art 309 of the Constitution, whether retrospective or prospective in effect, must be enforced, if framed by the appropriate authority, unless it can be shown that the rules so framed are in violation of any of the rights guaranteed under Part III or any other provision of the Constitution.
He was of the view that sub r.
(2) of r.5 of the Rules does not satisfy the test because it takes away the rights to equality before the law and equality of opportunity in matters of public employment, guaranteed under articles 14 and 16 and was, therefore, void and unconstitutional.
He was dealing with the case of Deputy Tahsildars in the Nizamabad District who were promoted to the Selection Grade but could not draw their pay of Selection Grade because it exceeded the pay of their immediate seniors working as Tahsildars, by reason of sub r.
(2) of r.5 of the Rules.
The learned Judges observed that if FR 22(a) (ii) was applicable, and there was no reason why it should not be made applicable, the pay of the Deputy Tahsildars in the Selection Grade could not be fixed at less than Rs. 500 which was the minimum of the time scale fixed for the Selection Grade of Deputy Tahsildars.
According to him, sub r.
(2) of r.5 was per se discriminatory because a Deputy Tahsildar in the Selection Grade with no seniors promoted to a higher post could draw minimum pay of such Selection Grade; but a Deputy Tahsildar in the Selection Grade who unfortunately had a senior promoted to a higher post who drew a pay in that higher post which was less than the minimum of the scale of pay of Selection Grade Deputy Tahsildar, could not draw more pay than that drawn by his senior, although he was performing the same duties and discharging the same responsibilities attached to such Selection Grade posts for which higher emoluments had been prescribed.
The learned Judge observed: "To put in the words Chinnappa Reddy, J. it amounts to denial of the 936 principle of 'equal pay for equal work ' enshrined in article 39 of the Constitution as one of the Directive Principles of State Policy and violates articles 14 and 16 which guarantee equality before the law and equal opportunity in the matter of public employment." The appellant, in the supplementary affidavit filed by the Deputy Secretary to Government of Andhra Pradesh, Finance and Planning: Department (Finance Wing) admits that the judgment of Muktadar, J., in Krishnamurthy 's case supra had become final because steps were not taken in time to go in appeal; but, nonetheless, asserts that since the matter before the learned Judge related to Selection Grade Deputy Tahsildars, it was wrong to suggest that all the judgments of the High Court involving a similar question had become final, or that the Government had lost its right of appeal in other similar matters.
We are really at a loss to appreciate this attitude on the part of the Government in showing scant respect to the High Court although the judgments had become final and the point involved was one and the same.
There has been total failure on the part of the Government to realise that the replacement by sub r.
(2) of r.5 of the Rules, of the executive instruction contained in the U.O. Note, does not cure the constitutional vice inherent in the governmental action.
This is nothing but a plea of justification for the Government had, in the meanwhile, on the strength of the offending U.O. Note and sub r.
(2) of r. 5, promoted thousands of their employees to Selection Grade posts in different departments, but fixed their pay at a point lower than the pay drawn by their seniors in the next higher grade.
There have been several judgments of the High Court and of the Andhra Pradesh Administrative Tribunal on writ petitions filed by the persons so affected.
The Government, instead of following a uniform policy, have refixed the pay of some of the employees holding Selection Grade posts, in compliance with the directions of the High Court, but declined to do so in the case of others on the pretext that the re fixation would be done only in the case of employees who have secured such directions.
It is impressed upon us that the Government wants a decision on merits as the matter involved a question of principle.
We were asked to determine the validity of sub r.
(2) of r.5.
It was urged that the Government wants a clear pronouncement on the extent of their powers in the matter relating to fixation of pay of a person appointed to the Selection Grade, in accordance with sub r.(2) of r.5.
We are afraid, the question does not arise in these appeals.
It is quite clear from the judgments under appeal that the validity of sub r.
(2) of r.5 was not in question.
We are constrained to observe that if the Government wanted 937 to question the correctness of the judgment in D. Krishnamurthy 's case, the 'selection grade ' provided that if his senior in the higher finality which cannot now be upset.
In that judgment, Muktadar, J., struck down sub r.
(2) of r.5 as ultra vires the Government as being violative of articles 14 and 16 of the Constitution and as being not in conformity with FR 22(a)(ii).
The effect of the judgment of Muktadar, J., in Krishnamurthy 's case (supra) is that sub r.
(2) of r.5 is wiped out for all purposes and the re fixation will have to be done as if sub r.
(2) of r. 5 never existed.
The whole attempt of the Government in filing these appeals is to retrieve the lost ground which cannot be permitted.
In the result, the appeals and the special leave petitions are dismissed.
There shall be no order as to costs.
N.V.K. Appeals & Petitions dismissed.
| IN-Abs | To implement the recommendations of a one man Pay Commission, the State Government issued the Andhra Pradesh Revised Scales of Pay Rules 1969 providing for the revision of pay and creation of selection grade posts.
The selection grade scale was fixed by adding three increments to the maximum of the revised scale of pay.
While implementing the pay scales, the Government realised that a senior holding a permanent post in one category but holding a; post in the not higher grade on promotion would draw less pay in the higher post than a junior in the lower category who was given the selection grade.
To avoid the anomalous situation thus created the Government by an executive order direct ed that the pay of an employee placed in selection grade shall be so fixed as not to exceed the pay of his senior working in the higher post on promotion.
This executive instruction was struck down by the High Court as being violative of Articles 14 and 16 and also on the ground that the executive instruction could not prevail over Fundamental Rule 22 (a) (ii).
The Government thereupon introduced Rule 5(2) in the Rules with retrospective effect from the date of the original order.
In D. Krishnamurthy & Ors vs State of Andhra Pradesh & Anr.
this rule was struck down by the High Court as being violative of Articles 14 and 16.
No appeal was, however, preferred from the judgment of the High Court striking down the rule.
Instead of following a uniform policy in revising the pay of all employees in compliance with the direction of the High Court, the Government re fixed the pay of some of the employees holding selection grade posts but declined to do so in the case of others on the ground that the re fixation would be done only in the case of employees who had secured such directions.
In the appeals by the Government to this Court it was contended that it was wrong to suggest that since no appeal had been preferred against the judgment of the High Court in D. Krusgbanurthy 's case all the judgments of the High Court involving a similar question had become final become D. Krishnamurthy 's case related to an altogether different category of employees of the State Government.
931 Dismissing the appeals, ^ HELD: 1.
When the High Court issues a writ, direction or order under article 226 of the Constitution, it is not open to the State Government to implement the decision with regard to some and deny relief to others, although they belong to the same class of persons, and are equally governed by the principles laid down.
The State Government is expected to adopt a uniform policy In regard to all its employees.
[936 C D] 2.
Replacement of an executive instruction by the State Government by a rule framed under article 309 of the Constitution, for the fixation of pay of a person promoted to the Selection Grade at a stage lower than the minimum of the scales of pay of such Selection Grade so as not to exceed the pay of his seniors working in the higher posts on promotion, does not cure the constitutional ice inherent in the Government action as the provision is violative of articles 14 and 16 of the Constitution.
[935 G H] 3.
The judgment of the High Court, by which sub r.
(2) of r. 5 of the Andhra Pradesh Revised Scales of Pay Rules, 1969 having been struck down as offending articles 14 and 16 of the Constitution and as being not in conformity with FR 22(a)(ii) not having been appealed from, had attained a finality and the re fixation of pay, if any, had to be done as if sub r.
(2) of r. 5 never existed [937 B] 4.
It is not open to the Government to question the correctness of the judgment of the High Court when it had attained finality, particularly when in compliance with the directions, it had re fixed the pay of some of the employees in the Selection Grade posts, on the pretext that the right of appeal was not lost in the case of others in respect of whom no such direction has been issued.
At any rate, the point not having been taken before the High Court, could not be allowed to be raised for the first time under article 136 of the Constitution.
[936 H]
|
Civil Appeal No. 322 of 1970.
From the Judgment and Decree dated 25 3 1969 of the Madras High Court in Appeal No. 1195 of 1970.
U.R. Lalit, P.H. Parekh and Miss Manik Tarkunde for the Appellant.
The Judgment of the Court was delivered by KOSHAL J.
A preliminary objection has been raised by Mr. Rangam to the effect that the certificate granted by the court under sub clauses (a) and (c) of clause (1) of Article 133 of the Constitution of India, as it then stood, does not conform to legal requirements in as much as (a) it does not specify the substantial question of law which the High Court states require determination; and (b) no reasons in support of the issuance of the certificate appear therein.
949 The preliminary objection is well founded in view of the decisions of this Court in Sohan Lal Naraindas vs Laxmidas Raghunath Gadit and in Sardar Bahadur section Indra Singh Trust vs Commissioner of Income Tax, Bengal.
Faced with this situation Mr. Lalit wanted us to treat the appeal as one by special leave and prayed that such leave be granted now after condoning the delay.
That would have been certainly a reasonable course to follow if it was made out that a substantial question of law really requires determination.
We have gone through the impugned judgment and find that no such question is involved at all.
We, therefore, refuse special leave, revoke the certificate granted by the High Court and dismiss the appeal but with no order as to costs.
P.B.R. Appeal dismissed.
| IN-Abs | If the certificate granted by the Court under sub clauses (a) and (c) of clause (1) of Article 133 of the Constitution, as it then stood, did not conform to legal requirements in as much as it did not specify the substantial question of law which, according to High Court, required determination and no reasons in respect of issuance of the certificate appeared therein, the certificate could be revoked.
[948 H] Sohan Lal Naraindas vs Laxmidas Raghunath Gadit ; Sardar Bahadur section Indra Singh Trust vs Commissioner of Income Tax, Bengal ; followed.
In such a situation if it could be made out that a substantial question of law really required determination, this Court could treat the appeal as one by special leave after condoning the delay.
In the instant case no such question is involved at all and, therefore, special leave cannot be granted.
[949 B C]
|
Civil Appeal No. 1947 of 1970.
From the Judgment and Order dated 17.3.1970 of the Gauhati High Court in Civil Rule No. 1151/69.
section N. Chowdhary for the Appellant.
D. N. Mukherjee for Respondent No. 2.
V. section Desai, B. P.Maheshwari and Suresh Sethi and Miss Asha Jain for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
This is an appeal by certificate granted under sub clause (a) of clause (1) of article 133 of the Constitution of India by the High Court of Assam and Nagaland against its judgment dated 17th March, 1970 accepting a petition under article 226 of the Constitution of India which arose in the circumstances that follow.
Land measuring 7.60 acres and situated at Lawshtun, Bishnupur, Shillong, belonged to the 5 respondents when a notification under section 4 of the Land Acquisition Act (hereinafter referred to as the 851 Act) was published in respect thereof on 27th March 1967.
Three days later the possession of the land was taken over by the Collector, United Khasi and Jaintia Hills, Shillong.
Proceedings for the award of compensation to the respondents were pending when negotiations took place between the Chief Secretary to the Government of Assam and two of the respondents who agreed to the reduction of the cost of acquisition of the land from Rs. 6,17,683.50 to Rs. 4,63,262.57 (inclusive of cost of establishment and contingency amounting to Rs. 22,060.12).
Thereafter the Under Secretary to the Government of Assam in the Home and Political/Department wrote to respondent No. 2 a letter dated 21st February, 1969 detailing the agreement arrived at between the Chief Secretary and the respondents and requesting them "to please submit immediately a written document signed by all the co sharers of the land to the effect that yourself and all other co sharers are agreeable to accept the L. A. cost of Rs. 4,41,202.45 for land at Bishnupur and that you and your co shares will make no further claim for the land thus acquired by Government." The respondents lost no time in sending their reply which was dated 24th February 1969 and in which they stated that the delay in payment had caused to them great hardship and that they had agreed to reduce the cost of the acquisition in the course of their discussion with the Chief Secretary whom they had urged "at the same time that the payment should be made immediately.
" The reply was signed by all the five respondents and was accompanied by an agreement (also signed by all of them), the text of which may be set out in extense: "We, all the co shares interested in the land acquisition case for construction of quarters for Special Branch Staff of Police Department at Lawsohtun, Bishnupur, Shillong, hereby agree in response to the Government Letter No. 356/ 66/55 dated the 21st February, 1969 to accept the land acquisition cost of Rs. 4,41,202.45P (Rupees four lakhs forty one thousand two hundred and two and forty five paise only) subject to Government making payment within the 31st March, 1969 for our land measuring more or less 7.60 acres at Lawsohtun, Bishnupur, Shillong.
"We further agree that we will make no further claim in regard to compensation for the same land provided actual 852 payment is received within the above period of 31st March, 1969.
" The agreement between the parties was reduced by the Collector to an award dated the 25th March 1969 and on the very next day the sum of Rs. 4,41,202.45 was paid to the respondents.
On 31st March 1969 the respondents made an application to the Chief Secretary claiming interest at the rate of 12 1/2 percent per annum on the amount last mentioned.
As there was no response from the Chief Secretary, the respondents applied to the Collector on 7th July, 1969 requesting him to pay interest On the amount awarded at the rate of 6% per annum for the period from 30th March 1967 to 26th March 1969 under section 34 of the Act which runs thus: "When the amount of such compensation is not paid or deposited on or before taking possession of the land, the collector shall pay the amount awarded with interest thereon at the rate of six per cent per annum from the time of so taking possession until it shall have been so paid or deposited.
" The Collector informed the respondents by a letter dated 31st July 1969 that no action was necessary "at this stage".
It was then that the respondents knocked at the door of the High Court.
The High Court was of the opinion that the agreement between the parties covered only the amount of "compensation" as described in the various sections of the Act including sections 23 and 34 and that interest had to be paid on such compensation by reason of the statutory requirement enacted in that behalf by section 34.
The High Court, therefore, accepted the petition filed before it and held that the Collector was bound to pay to the respondents interest on the amount covered by the award at the rate of 6 per cent per annum from 30th March 1967 (being the date on which the possession of the land was taken over by the Collector) to the date of payment, i.e., 26th March 1969.
It directed the Collector to dispose of the petition dated the 7th July 1969 made to him by the respondents in accordance with law.
The short point requiring determination by us is whether the agreement arrived at between the parties in February 1969 embraced only the "Compensation" within the meaning of that term as used in the Act or covered also the payment of interest under section 34 there of.
Having heard learned counsel for the parties we are of the opinion that the interpretation placed on the agreement by the High Court can not be sustained and that the respondent are not entitled to any interest on the sum already paid to them.
853 4.
Although it is true that in the agreement dated the 24th A February 1969 which the respondents signed and sent to the Government along with their letter of that date they stated that they would not make any further claim in regard to "compensation", but that expression, in our opinion, was clearly used by them not in the sense in which it is used in sections 23 and 34 of the Act but more comprehensively, meaning reimbursement in full satisfaction of their claim in respect of the acquisition.
That this was 60 was made clear in the letter addressed to them by the Under Secretary in which he expressly stated that "you and your co sharers will make no further claim for the land thus acquired by the Government.
" The Under Secretary did not use the word "compensation" in his letter nor did the respondents use it in their reply in which, on the other hand, they made a grouse of the hardship which the delay in payment bad caused to them and brought it to the pointed attention of the under Secretary that immediate payment was an essential part of the bargain.
In the agreement signed by them (as pointed out above) they no doubt used the word "compensation" but they added that they would make no further claim in regard to it if actual payment was received by them before the 31st March, 1969.
The condition thus attached by them to the agreement would show that by the acceptance of the quantified sum of Rs. 4,41,202.45 they condoned the delay in payment and also relinquished all future claims to interest.
If it were otherwise, there is no reason why the respondents would not have expressly reserved their right to claim interest under section 34 of the Act.
The tenor of the two letters coupled with the agreement leads to no other conclusion.
In the result the appeal succeeds and is accepted.
The judgment of the High Court is set aside and the respondents ' petition decided by it is dismissed but with no order as to costs.
S.R. Appeal allowed.
| IN-Abs | Accepting the State appeal, negativing the claim for interest and dismissing the original writ petition, the Court, ^ HELD: The expression "would not make any further claim in regard to compensation" in the agreement dated the 24th February, 1969 was clearly used by the petitioners respondents not in the sense in which it is used in sections 23 and 34 of the Land Acquisition Act but more comprehensively Meaning reimbursement in full satisfaction of their claim in respect of the acquisition.
The condition attached by them to the relinquishment of their claim was that the agreed amount must be paid to them before 31st March 1969, which agreement would show that by the acceptance of the quantified sum of Rs. 4,41,202.45 they condoned the delay in payment and also relinquished all future claims to interest.
If it were otherwise, the respondents would have expressly reserved their right to claim interest under section 34 of the Act.
[853 A B, D F]
|
N: Criminal Appeal No. 761 of 1980.
Appeal by Special Leave from the Judgment and Order dated 20 10 1978 of the Allahabad High Court in Criminal Misc.
Case No. 822 of 1978.
Jagdish Kumar Aggarwal for the Appellant.
Nemo for the Respondent.
The Judgment of Murtaza Fazal Ali & A. Vardarajan JJ was delivered by Fazal Ali, J., A. D. Koshal, J. gave a concurring Opinion.
FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated October 20, 1978 of the Allahabad High Court (Lucknow Bench) by which a revision filed by the respondent for setting aside an order of maintenance passed by the trial Magistrate was accepted and the said order was quashed.
The facts of the appeal lie within a narrow compass but the case involves a substantial question of law.
Unfortunately, as the respondent did not appear despite service, we had to rely mainly on the arguments of the learned counsel for the appellant and had also to consider various aspects that could be stressed by the respondent if he had appeared.
The appellant, Mst.
Zohara Khatoon, was a legally married wife of Mohd. Ibrahim.
As Mohd. Ibrahim soon after the marriage willfully neglected her she filed an application before the trial Magistrate on September 17, 1974 under section 125 of the Code of Criminal Procedure 1973 (hereinafter referred to as the '1973 Code ') in order to fix maintenance for her and her minor son.
The Special Judicial Magistrate, Barabanki (U.P.), after hearing the parties, allowed the application by his order dated December 29, 1976 and fixed the maintenance at Rs. 100/ (Rupees one hundred) per month both for the wife and the child.
The Magistrate also accepted the allegation of the appellant that she had been neglected by the husband without reasonable or probable cause.
The order of the Magistrate was upheld by the Sessions Judge in revision.
914 Before the Magistrate, the respondent husband had taken the defence that as the appellant had brought a suit for dissolution of marriage on the ground of cruelty and willful neglect which was decreed by the civil court on 15 1 1973 and she was living separately, she ceased to be the wife of the respondent and was, therefor, not entitled to maintenance under section 125 or section 127 of the 1973 Code.
Ultimately, the husband moved the High Court under section 482 of the 1973 Code for quashing the order of the Magistrate as it was vitiated by an error of law.
In the High Court, the argument of the appellant was that in view of clause (b) of the Explanation to section 125(1) of the 1973 Code, she continued to be the wife despite obtaining a decree for dissolution of marriage and thus her right to maintenance would not be affected by the decree passed by the civil court.
The High Court after hearing the parties was of the view that clause (b) of the Explanation referred to above would apply only if the divorce proceeded from the husband, that is to say, the said clause would not apply unless the divorce was given unilaterally by the husband or was obtained by the wife from the husband.
In other words, the High Court thought that as, in the instant case, the dissolution of marriage was brought about by the wife under the (hereinafter referred to as the '1939 Act ') the decree under the said Act did not amount to a divorce by the husband because the marriage was dissolved by operation of law only.
Hence clause (b) of the Explanation to section 125(1) had no application and the appellant was not entitled to any maintenance under section 125 of the 1973 Code, so far as she was concerned.
The High Court, however, maintained the order of the Magistrate so far as the minor son was concerned and fixed his maintenance at Rs. 40/ per month.
The learned counsel for the appellant submitted before us that the view taken by the High Court is legally erroneous and is based on a wrong interpretation of clause (b) of the Explanation to section 125(1) of the 1973 Code.
After having gone through the various provisions of the 1973 Code, particularly sections 125 and 127 we are satisfied that the contentions raised by the counsel for the appellant are well founded and must prevail.
In order to decide the issue in question it may be necessary to give a brief survey of the corresponding provisions of the Code of Criminal Procedure, 1898 (hereinafter referred to as the '1898 Code ') to show the nature and ambit of the provisions relating to the award of maintenance.
Sections 488 and 489 were the corresponding provisions of the 1898 Code which were couched almost in the same language as 915 sections 125 and 127 of the 1973 Code minus some important additions that have been made under the 1973 Code.
The relevant portion of section 488 of the 1898 Code may be extracted thus: "If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub Divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding (five hundred rupees) in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.
" It is not necessary to refer to the other provisions of section 488 of the said Code as the same are not germane for the purpose of deciding this appeal.
It may, however, be noted that a provision like clause (b) of the Explanation to section 125(1) of the 1973 Code was conspicuously absent from section 488 and has been added by the 1973 Code.
We shall deal with the legal effect of this provision a little later.
A perusal of section 488 would clearly reveal that it carves out an independent sphere of its own and is a general law providing a summary machinery for determining the maintenance to be awarded by the Magistrate under the circumstances mentioned in the section.
The provisions may not be inconsistent with other parallel Acts in so far as maintenance is concerned, but the section undoubtedly excludes to some extent the application of any other Act.
At the same time, it cannot be said that the personal law of the parties is completely excluded for all purposes.
For instance, where the validity of a marriage or mode of divorce or cessation of marriage under the personal law of a party is concerned that would have to be determined according to the said personal law.
Thus, the exclusion by section 488 extends only to the quantum of the maintenance and the circumstances under which it could be granted.
The scope of section 488 of 1898 Code was considered by this Court in Nanak Chand vs Shri Chandra Kishore Agarwala & Ors.
where the following observations were made: "We are unable to see any inconsistency between the Maintenance Act and section 488 Cr.
P.C. .
The law was substantially similar before and nobody ever suggested that Hindu Law, as in force immediately before the commencement of this Act, insofar as it dealt with the maintenance of children, was in any way inconsistent with section 488 Cr.
P.C. 916 The scope of the two laws is different.
Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.
Recently the question came be fore the Allahabad High Court in Ram Singh vs State (AIR 1963 All. 355), before the Calcutta High Court in Mahabir Agarwalla vs Gita Roy and before the Patna High Court in Nalini Ranjan vs Kiran Rani (AIR 1965 Pat. 442).
The three High Courts have, in our views, correctly come to the conclusion that section 4(b) of the Maintenance Act does not repeal or affect in any manner the provisions contained in section 488, Cr.
P.C." It would be seen that this Court approved of the decisions in the cases of Ram Singh, Mahabir Agarwalla and Nalini Ranjan mentioned in the observations extracted above.
In order to understand the proper scope of section 488 of the 1898 Code which is almost the same as that of section 125 of the 1973 Code, it may be necessary to examine the decisions which were referred to with approval by this Court in Nanak Chand 's case (supra).
In Ram Singh vs State & Anr., Kailash Prasad, J. observed as follows: "There is nothing in the Hindu Adoptions and Maintenance Act to suggest expressly or by necessary implication that the Act is intended to be a substitute for the provisions of section 488 Cr.
In fact the provisions of sec.
18 of the Act cannot be a substitute for section 488 Cr.
The latter provision is general and is applicable to a wife, irrespective of her religion, but the former is applicable to the case of Hindus only.
It could not, therefore, be intended to be a substitute for section 488 Cr. P. C." To the same effect is the decision of the Patna High Court in Nalini Ranjan Chakravarty vs Smt.
Kiran Rani Chakravarty where the following observations were made: "Before the enactment of 1956, it was well settled that the right conferred by section 488 Cr.
P.C. was independent of the personal law of the parties.
The right of maintenance under section 488 was irrespective of the nationality or creed of the parties, the only condition precedent to the possession of that right being in the case of a wife the acceptance of the conjugal relation.
Further, section 488 provided for only 917 a speedy remedy and a summary procedure before a Magistrate against starvation of a deserted wife or child.
This section did not cover the civil liability of a husband or a father under his personal law to maintain his wife and children.
" The Calcutta High Court also took the same view in Mahabir Agarwalla vs Gita Roy where the following observations were made: "An alternative but not inconsistent summary remedy was provided by section 488 of the Code of Criminal Procedure not only to the Hindu wife but generally to wives irrespective of religion for recovery of maintenance from the husband.
The two remedies were, however, not coextensive." Thus, on a consideration of the authorities mentioned above, it is clear that the 1898 Code by virtue of section 488 provided a summary remedy for awarding maintenance to neglected wives irrespective of caste, creed, community or religion to which they belonged.
It was in this context that the Courts referred to above considered the effect of Hindu Adoption and Maintenance Act and other similar Acts.
This, however, does not conclude the controversy.
The important question still remains: Was the Magistrate competent to award maintenance if under the personal law of the Mahomedans the wife had been validly divorced and had completed the period of Iddat ? In fact, section 489 of the 1898 Code, as amended by the 1955 Amending Act, had empowered the Magistrate to make any alteration in the payment of the maintenance on proof of a change in the circumstances.
Similarly, section 489(2), which is extracted below, provided that the Magistrate could cancel the maintenance in consequence of a decision of any competent court: "(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly." Thus, considering the scheme of sections 488 and 489 it was generally accepted as good law by all the High Courts that where a woman governed by the Mahomedan law was awarded maintenance, the same would cease from the date of divorce given by the husband and the completion of the period of Iddat.
That this is the Mahomedan law on 918 the subject admits of no doubt and has not been controverted before us.
We would however, refer to a few decisions on this point to support our point of view.
In re Shekhanmian while defining the consequences of a divorce and its impact on section 488 of the 1898 Code a division Bench of the Bombay High Court observed thus: "A talak when it becomes irrevocable puts an end to conjugal relationship which had subsisted between the parties, and the divorced wife would not be entitled to claim maintenance from her husband beyond the period of iddat from the date of such irrevocable divorce.
section 488 Criminal P.C., has in no manner abrogated this part of the personal law of the parties.
The existence of conjugal relations in the case of Mahomedans has to be determined by reference to the provisions of the Mahomedan Law and not by considerations of equity and good conscience as understood in any other system of law.
" To the same effect is the decision of the Madras High Court in Syed Said vs Meeram Bee (2) where in division Bench observed thus: "A Magistrate, however, exercising summary powers conferred on him by section 488, Code of Criminal Procedure, can make or enforce an order to that effect only if the relationship of husband and wife exists between the two, but in order to determine this, and only to that extent, we must ascertain the effect in Mahomedan law of an irreversible divorce on conjugal relations.
" It was further held in that case that a divorce becomes irrevocable after the wife has observed the period of iddat which is usually three months or if she was pregnant, the date of delivery so that she may be free to marry again.
This view was reiterated by the Madras High Court in a later decision in In re Mohamed Rahimullah & Anr.
(3) where Yahya Ali, J. Observed thus: "The foundation upon which Ss. 488 & 489, Criminal P.C. rest, so far as granting of maintenance by the husband to the wife is concerned, is that the relationship of husband and wife subsists between them.
When that relationship is lawfully dissolved and there is no marital tie either in reason or upon any canon of justice or even upon the language of 919 Ss. 488 and 489 how the husband can be directed to continue to maintain his divorced wife.
" The Hyderabad High Court also took the same view in Rahimunissea & Ors.
vs Mohd. Ismail and after considering the entire law on the subject Bilgrami, J. Observed thus: All these grounds can be sufficient or valid for refusal of maintenance to a wife with whom the tie of marriage subsists, but when this tie is dissolved, all these defences cannot be set up and the right of the wife to maintenance during the "iddat" period is absolute under the Mahomedan law; the only obligation which binds a wife during this period is that she should not remarry.
" In a very early case of the Allahabad High Court Din Mahommad 's case (2) Mahmood, J. pointed out that while the enactment regarding maintenance was of a general nature being applicable to Mahomedans as also to Hindus, Buddhists, and other communities yet the legislature never intended to restrict the Mahomedan law of Divorce.
The Judge, further held that the right to maintenance came to an end when the conjugal relationship between the husband and the wife ceased to exist.
In this connection, Mahmood, J. Observed as follows: "The enactment under which that order was made does not relate more especially to Muhammadans than to Hindus, Buddhists, Indo Britons, Europeans, or any other branch of the general community, and the Legislature could never have intended by it to interfere with or restrict the Muhammadan law of divorce.
The whole of Chapter XLI, Criminal Procedure Code, so far as it relates to the maintenance of wives, contemplates the existence of the conjugal relation as a condition precedent to an order of maintenance and, on general principles, it follows that as soon as the conjugal relation ceases, the order of maintenance must also cease to have any enforceable effect.
When and in what manner a cessation of the conjugal relation takes place, is a question which, ex necessitate rei, must be determined according to the personal law to which the parties concerned are subject.
The right to maintenance conferred by section 536 of the Criminal Procedure Code is a statutory right, which the Legislature has framed irrespective of the nationality or creed of the parties, the only condition precedent to the possession 920 of that right, in the case of a wife, being the existence of the conjugal relation.
" Thus, a review of the decisions referred to above clearly reveals that although a Mahomedan wife had a right to be awarded maintenance by the Magistrate under section 488 of the Code, the said right ceased to exist if she was divorced by her husband and had observed the period of iddat.
This was the undoubted position of law under the 1898 Code as amended by the 1955 Amending Act.
The serious question to be determined in this appeal is as to how far the 1973 Code has made a distinct departure from the previous Code and changed the legal position of a woman after divorce.
Section 125 of the 1973 Code is couched almost in the same language as section 488 of the earlier Code with the important exception that an Explanation has been added after sub clause (1) of section 125 which runs thus: "Explanation For the purposes of this Chapter. (a) "minor" means a person who, under the provisions of the is deemed not to have attained his majority; (b) "wife includes a woman who has been divorced by or has obtained a divorce from, her husband and has not remarried." (Emphasis supplied) We are however not concerned with clause (a) of the Explanation.
Clause (b) has made a distinct departure from the earlier Code in that it has widened the definition of wife and, to some extent, overruled the personal law of the parties so far as the proceedings for maintenance under section 125 are concerned.
Under clause (b), the wife continues to be a wife within the meaning of the provisions of the Code even though she has been divorced by her husband or has otherwise obtained a divorce and has not remarried.
The decision in this case turns upon the interpretation of clause (b).
The High Court has construed the words 'who has been divorced or has obtained a divorce from her husband ' as signifying that in both cases the divorce must proceed from the husband and should be the act of the husband and not that of the wife.
In taking this view, the High Court obviously seems to have been guided by the consideration that a dissolution of marriage brought about at the instance of the wife under the 1939 Act does not amount to a divorce by the husband under the Mahomedan law and hence the second limb of clause (b) also does not apply.
Although there may be some substance in the view taken by the High Court yet what it 921 overlooked was whereas a dissolution of marriage under the Hindu Marriage Act may not necessarily end in a divorce but other consequences such as declaration that the marriage was a nullity, a decree for judicial separation, etc.
but under the 1939 Act when the marriage is dissolved by the Court at the instance of the wife, the only result that follows is that the wife stands divorced from the husband by operation of law and no other relief can be granted by the court under the 1939 Act after a decree for dissolution is passed.
It follows, therefore, that the divorce resulting from the aforesaid dissolution of the marriage is also a legal divorce under the Mahomedan law by virtue of the statute(1939 Act).
That this is so would be manifest from the circumstances which we shall mention hereafter.
There can be no doubt that under the Mahomedan law the commonest form of divorce is a unilateral declaration of pronouncement of divorce of the wife by the husband according to the various forms recognised by the law.
A divorce given unilaterally by the husband is especially peculiar to Mahomedan law.
In no other law has the husband got a unilateral right to divorce his wife by a simple declaration because other laws, viz., the Hindu law or the , contemplate only a dissolution of marriage on certain grounds brought about by one of the spouses in a Court of law.
Before the enactment of the Act of `1939 a woman under pure Mahomedan law had no right to get a decree for divorce from the husband if he refused to divorce her.
This was unboubtedly the fundamental concept of divorce as laid down by the Mahomedan law.
As, however, some of the Muslim Jurists and Theologists were of the view that where a husband becomes important or disappears for a large number of years or treats his wife with great cruelty, the wife should have some right to approach the Qazi for dissolving the marriage.
Relying on these authorities the legislature intervened and passed the under which the wife was conferred a legal right to move the civil court for a decree for dissolution of marriage on the grounds specified in section 2 of the Act of 1939.
This is spelt out from the statement of Objects and Reasons of the Act of 1939, the relevant portion of which may be extracted thus: "There is no proviso in the Hanafi Code of Muslim Law enabling a married Muslim woman to obtain a decree from the Court dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her or absconds leaving her unprovided for and under certain other circumstances.
The absence of such a provision has entailed unspeakable misery to innumer 922 able Muslim women in British India.
The Hanafi Jurists.
however, have clearly laid down that in cases in which the application of Hanafi Law causes hardship, it is permissible to apply the provisions of the "Maliki, Shafii or Hambali Law".
Acting on this principle the Ulemas have issued fatwas to the effect that in cases enumerated in clause 3, Part A of this Bill (now see section 2 of the Act), a married Muslim woman may obtain a decree dissolving her marriage .
As the Courts are sure to hesitate to apply the Maliki Law to the case of a Muslim woman, legislation recognizing and enforcing the above mentioned principle is called for in order to relieve the sufferings of countless Muslim women.
" One of the grounds was that a suit could be brought if the husband had neglected or failed to provide maintenance for the wife for a period of two years.
After the Act of 1939, a wife thus had a statutory right to obtain divorce from the husband through the Court on proof of the grounds mentioned in the Act.
The Act provided for the wife an independent remedy which could be resorted to by her without being subjected to a pronouncement of divorce by the husband.
It is, therefore, in the background of this Act that the words 'has obtained a divorce from her husband ' in clause (b) of the Explanation have to be constructed.
Thus the High Court in considering the effect of these words seems to have overlooked the dominant object of the statutory remedy that was made available to the wife under the Act of 1939 by which the wife could get a decree for dissolution of marriage on the grounds mentioned in the 1939 Act by petitioning the civil court without any overt act on the part of the husband in divorcing her.
The High Court also failed to consider the legal consequences flowing from The decree passed by the court dissolving the marriage, viz., a legal divorce under the Mahomedan law.
In these circumstances we are therefore, satisfied that the interpretation put by the High Court on the second limb of clause (b) is not correct.
This seems to be borne out from the provisions of Mahomedan law itself.
It would appear that under the Mahomedan law there are three distinct modes in which a muslim marriage can be dissolved and the relationship of the husband and the wife terminated so as to result in an irrevocable divorce.
(1) Where the husband unilaterally gives a divorce according to any of the forms approved by the Mahomedan law, viz, Talaq ahsan which consiss of a single pronounce 923 ment of divorce during tuhar (Period between menstruations) followed by abstinence from sexual intercourse for the period of iddat; or Talak hasan which consists of three pronouncement made during the successive tuhrs, no intercourse taking place between three tuhrs; and lastly Talak ul bidaat or talalk i badai which consists of three pronouncements made during a single tuhr either in one sentence or in three sentences signifying a clear intention to divorce the wife, for instance, the husband saying 'I divorce thee irrevocably ' or 'I divorce thee, I divorce thee, I divorce thee '.
The third form referred to above is however not recognised by the Shiah law.
In the instant case, we are concerned with the appellant who appears to be a Sunni and governed by the Hanafi law (vide Mulla 's Principles of Mahomedan Law, Sec. 311, p. 297).
A divorce or talaq may be given orally or in writing and it becomes irrevocable if the period of iddat is observed though it is not necessary that the woman divorced should come to know of the fact that she has been divorced by her husband.
(2) By an agreement between the husband and the wife whereby a wife obtains divorce by relinquishing either her entire or part of the dower.
This mode of divorce is called 'khula ' or Mubarat.
This form of divorce is initiated by the wife and comes into existence if the husband gives consent to the agreement and releases her from the marriage tie.
Where, however, both parties agree and desire a separation resulting in a divorce, it is called mubarat.
The gist of these mode is that it comes into existence with the consent of both the parties particularly the husband because without his consent this mode of divorce would be incapable of being enforced.
A divorce may also come into existence by virtue of an agreement either before or after the marriage by which it is provided that the wife should be at liberty to divorce herself in specified contingencies which are of a reasonable nature and which again are agreed to be the husband.
In such a case the wife can repudiate herself in the exercise of the power and the divorce would be deemed to have been pronounced by the husband.
This mode of divorce is called 'Tawfeez ' (vide Mulla 's Mohmedan Law, Sec. 314.
p. 300.
(3) By obtaining a decree from a civil court for dissolution of marriage under section 2 of the Act of 1979 which also 924 amounts to a divorce (under the law) obtained by the wife.
For the purpose of maintenance, this mode is governed not by clause (b) but by clause (c) of sub section (3) of section 127 of the 1973 Code; whereas the divorce given under modes (1) and (2) would be covered by clause (b) of sub section (3) of section 127.
These are the three distinct modes in which a dissolution of marriage can be brought about.
It is, therefore, manifest that clause (b) Explanation to section 125 envisages all the three modes, whether a wife is divorced unilaterally by the husband or where she obtains divorce S under mode numbers 2 and 3, she continues to be a wife for the purpose of getting maintenance under section 125 of the 1973 Code.
In these circumstance the High Court was not at all justified in taking the two separate clauses 'who has been divorced ' and 'has obtained a divorce from her husband ' conjunctively so as to indicate a divorce proceeding from the husband and the husband alone and in not treating a dissolution of marriage under the 1939 Act as a legal divorce.
We might like to mention here that the 1973 Code has by extending the definition of wife, not excluded the various modes of divorce but has merely abrogated that part of the Mahomedan law under which the wife ceased to get maintenance if the conjugal relationship of the husband and wife came to an end.
Nevertheless, the personal law is applied fully and kept alive by clause (b) of sub section (3) of section 127 which may be extracted thus: "(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was pay able on such divorce, cancel such order: (i) in the case where such sum was paid before such order, from the date on which such order was made, (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman.
" This clause refers to Mode No. 1, that is to say, where the husband unilaterally divorces his wife.
For the application of clause (b) two conditions are necessary (1) that an application for cancellation of the maintenance is made by the husband under section 127(2), and 925 (2) that after the wife has been divorced by the husband she has received the whole of the sum which under any customary or personal law applicable to the parties was payable on divorce.
In other words, under the Mahomedan Law the husband could still get the maintenance cancelled after divorcing his wife according to personal law if he paid the entire dower specified at the time of marriage.
We would however? Like to point out one peculiar aspect of the provisions of section 127.
While clause (b) of sub section (3) of section 127 does provide for cancellation of the maintenance on payment of dower if a woman has been divorced, the said clause does not contemplate cancellation of maintenance where a woman obtains divorce from her husband through a civil court under the provisions of the Act of 1939.
In this connection clause (c) of sub section (3) of section 127, which is extracted below, clearly provides that where a woman obtains a divorce from her husband the amount of maintenance cannot be cancelled until she voluntarily relinquishes or surrenders her rights to the same: "the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof." Thus, a clear distinction has been made between dissolution of marriage brought about by the husband in exercising his unilateral right to divorce and the act of the wife in obtaining a decree for the dissolution of marriage from a civil court under the Act of 1939.
We might further add that our conclusion that the second limb of clause (b) of the Explanation to section 125 applies also to a situation, where a dissolution of marriage resulting in a decree for divorce brought about by the Act and at the instance of the wife, is fortified and reinforced by the language of clause (c) of sub section (3) of section 127 under which maintenance cannot be cancelled on the application of the husband unless the wife voluntarily surrenders her rights to maintenance or relinquishes the same and not otherwise.
Thus, tho two limbs of clause (b) of the Explanation to section 125(1) have separate and different legal incidents one is reflected in clause (b) of subsection (3) of section 127 and the other in clause (c) of sub section (3) of section 127.
In view of the reasons given and the circumstances discussed by us, it is manifest that in the instant case section 127 does not at all 926 because the husband has not given any application for cancellation of the maintenance on the grounds enshrined in section 127(3)(b) of the 1973 Code but this case is squarely covered by clause (b) of the Explanation to section 125(1) of the 1973 Code as a result of which the appellant in the eye of law continues to be the wife of the respondent, despite the decree for dissolution of marriage.
The Magistrate was, therefore, fully justified in granting maintenance to the appellant.
The High Court, therefore, erred in quashing the order of the Magistrate, we, therefore, allow this appeal, set aside the order of the High Court and restore that of the Magistrate granting maintenance of a consolidated amount of Rs. 100/ per month for the appellant and her minor child.
It would be open to the appellant to apply to the Magistrate for a warrant to realise the arrears of maintenance, if any KOSHAL, J. I have had the advantage of perusing the judgment prepared by my learned brother Fazal Ali, J., with whom I find myself in general agreement.
However, as I would like to highlight a particular aspect of the matter, I am appending a short note of my own.
Sub section (1) of section 125 of the Code of Criminal Procedure (hereinafter referred to as the Code) confers on a Magistrate of the First Class the jurisdiction, inter alia, to order maintenance to be paid by a husband to his wife or his minor or destitute children.
The case propounded by the wife in the present proceedings is that in spite of the decree of dissolution of marriage passed in her favour by a Civil Court on the 15th January, 1973, she continues to be the wife of the respondent for the purposes of the said sub section (1) by reason of the definition of the term "wife" contained in clause (b) of the Explanation appended to that sub section.
That clause runs thus: "Explanation: For the purposes of this chapter, '(a). . . . . . '(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not re married.
" The claim of the wife has been turned down by the High Court on the ground that this clause is inapplicable to her case inasmuch as (i) the appellant has obtained only a decree of dissolution of marriage and not a divorce, and (ii) the expression "from the husband" as used in the clause extracted above envisages divorce by voluntary action of the husband which is missing in this case, the dissolution of marriage having been obtained from the court, and, therefore, not from the husband.
927 3.
The word 'divorce ' is not defined in the Code and may legitimately be regarded as having been used in clause (b) above extracted in the dictionary sense.
Webster 's Third New International Dictionary states it to mean, amongst other things, "(a) legal dissolution in whole or in part of marriage relation usually by a court or other body having competent authority; "(b) an absolute dissolution in a valid marriage made by decree of court for lawful cause arising after the marriage (distinguished from annulment); "(c) a formal separation of man and wife by the act of one party or by consent according to established custom.
" As ordinarily understood, therefore, divorce is nothing more nor less than another name for dissolution of marriage, whether the same results from act of parties or is a consequence of proceedings at law, and it would, in our opinion, be wrong to regard the two terms as not being synonymous with each other, unless the legislature makes a direction to the contrary.
We need hardly point out that section 125 of the Code contains no such direction.
Deacock vs Deacock, supports the view just expressed.
In that case the English Court of Appeal was called upon to interpret sections 16(1) and 19(3) of the Matrimonial Causes Act, 1950 which posed a similar problem.
The relevant portions of those provisions are reproduced below: "16(1) Any married person who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may present a petition to the court to have it presumed that the other party is dead and to have the marriage dissolved, and the court, if satisfied that such reasonable grounds exist, may make a decree of presumption of death and of dissolution of the marriage.
"19(3) On any decree for divorce or nullity of marriage, the court may, if it thinks fit, by order direct the husband to pay to the wife, during their joint lives, such monthly or weekly sum for the maintenance and support of the wife as the court may think reasonable. " An argument was raised that a decree for dissolution of marriage as envisaged in section 16(1) does not amount to a decree for divorce mentioned in section 19(3) and that, therefore, there was no jurisdiction in the Court to direct the husband to any the wife any main 928 tenance in pursuance of the latter section.
Hodson, L.J., with whom Morris, L.J., and Vaisey J., fully agreed, repelled the argument thus: 'It is said (and I confess that this argument does not produce very much impact on my mind) that there is a distinction between the words "dissolution of marriage" and "divorce", and that, as section 19 contains the word "divorce" and section 16 does not, there is no statutory power to apply for maintenance at 811 in the case of presumption of death.
In my view the word "dissolution relates to the marriage bond itself, whereas the word "divorce" relates to the parties to tile marriage bond; and it is apt to refer to "divorce" when speaking of parties "and dissolution" when speaking of the bond. 'As the decree in this case shows, what has been done, or what has been purported to be done, by the court was to dissolve the marriage; and the word "dissolved" is used in this and in all other decrees, as it has been used for years: the word "divorce" is not used".
Thus according to the Court of Appeal the expressions "divorce" and "dissolution" were really two facets of the same situation.
The matter may be looked upon from another angle in so far as section 125 of the Code is concerned.
According to its provisions a full fledged wife is obviously entitled to maintenance.
By reason of clause (b) above extracted, even a divorced wife has that right provided that she has not re married.
Could then it be argued with any plausibility that a wife who has been granted a decree of dissolution of marriage by a Civil Court but has not been divorced by a voluntary act of her husband was intended by the legislature not to be entitled to the benefit of clause (b)? The answer must be an emphatic no and this answer follows from the terms of clause (b) itself.
If that clause envisaged only decree by voluntary action of the husband, the second limb of the clause which makes the definition of "wife" inclusive of a woman who has 'obtained a divorce from the husband ' would be rendered otiose.
The word obtained ' may well be used in the sense of 'procured with effort ' and would certainly describe correctly a situation where something is achieved by a person through his exertion in spite of opposition from others.
According to Webster, again the word 'obtain ' signifies: "(a) to gain or attain possession or disposal of, usually by some planned action or method, "(b) to bring about or call into being, etc.
" 929 If a person sues another person for the recovery of property and the suit is resisted but ultimately decreed and the plaintiff recovers possession of the property from the defendant he may properly be described as having obtained the property from the defendant although this result has come about not because the defendant obliged the plaintiff but because of the coercive process of the court.
Similarly information contained In a statement brought about by coercive methods used against a helpless person would still be information obtained from him even though he is not a willing party to the statement.
There is another good reason why the narrow interpretation placed by the High Court on clause (b) above extracted cannot be accepted.
Divorce by the act of the husband is, broadly speaking, not recognised by any system of law except that applicable to Muslims (barring variations of personal law by custom).
Members of the other main communities inhabiting India, i.e., Hindus, Sikhs, Buddhists, Jains, Christians, etc., have perforce to go to courts in order to obtain divorce.
If clause (b) was intended to embrace only cases of divorce brought about by the act of the husband, its applicability would be limited, by and large, only to Muslims, which per se appears to us to be an absurd proposition.
For the reasons stated I would interpret the expression "a woman who has obtained a divorce from her husband" as including a wife who has been granted a decree of dissolution of marriage by the Court.
That such is the case here is admitted on all hands.
In the result, therefore, the appeal is accepted, the Judgment of the High Court is set aside and the order of the learned Magistrate granting an amount of Rs. 100/ per month as maintenance to the appellant and her minor child is restored.
N.K.A. Appeal allowed.
| IN-Abs | The appellant was the legally married wife of the respondent.
As he willfully neglected her, she filed an application before the Magistrate for maintenance under Section 125 of the Code of Criminal Procedure 1973.
The Magistrate accepted the allegation of the appellant that she had been neglected by the respondent without reasonable or probable cause and awarded maintenance at Rs. 100/ per month for the appellant and the minor child.
The High Court held that clause (b) of the explanation to Section 125(1) of the Code had no application to the facts of the case and that so far as the appellant was concerned, she was not entitled to any maintenance.
It however affirmed the order of the Magistrate fixing Rs. 40/ per month as maintenance for her minor son.
In the appeal, it was contended that the view taken by the High Court is legally erroneous and is based on wrong interpretation of clause (b) of the explanation to Section 125(1) of the Code.
Accepting the Appeal, (Per Fazal Ali & Vardarajan, JJ.) ^ HELD: 1.
In the instant case Section 127 does not apply at all because the respondent has not filed any application for cancellation of the maintenance on the grounds mentioned in Section 127(3)(b) of the 1973 Code but this case is squarely covered by Clause (b) of the Explanation to section 125(i) of that Code as a result of which the appellant in the eye of law continues to be the wife of the respondent, despite the decree for dissolution of marriage.
[925 H, 926 A B] 2.
It is clear that the 1898 Code by virtue of section 488 provided a summary remedy for awarding maintenance to neglected wives irrespective of the caste, creed, community or religion to which they belonged.
Sections 488 and 489 were the corresponding provisions of the 1898 Code which were couched almost in the same language as sections 125 and 127 of the 1973 Code having some important additions that have been made under the 1973 Code.
A provision like clause (b) of the Explanation to section 125(1) of the 1973 Code was conspicuously absent in section 488 of the old Code and has been added by the 1973 Code.
[914 H, 915 A, D, 917 C D] 911 Nanak Chand vs Shri Chandra Kishore Agarwala & Ors. ; , Ram Singh vs State & Anr.
AIR 1963 All.
355, Nalini Ranjan Chakravarty vs Smt.
Kiran Rani Chakravarty AIR 1965 Pat.
442, Mahabir Agarwalla vs Gita Roy , referred to.
The Mohomedan Law on the subject was that where a woman governed by the Mohomedan Law was awarded maintenance, the same would cease from the date of divorce given by the husband and the completion of the period of Iddat.
[917 G H] In re Shekhanmian AIR 1930 Bombay 178, Syed Said vs Meera Bee , Mohamed Rahimullah & Anr.
AIR 1947 Madras 416, Aahimunnissa & Ors.
vs Mohd. Ismail AIR , Din Mohmmad 's V.I.L.R. 1883 226, referred to.
Although a Mohomedan wife had a right to be awarded maintenance by the Magistrate under section 488 of the old Code, the said right ceased to exist if she was divorced by her husband and had observed the period of Iddat.
This was the undoubted position of law under the 1898 Code as amended by the 1955 Amending Act.
[920 A B] 5.
Clause (b) has made a distinct departure from the earlier Code in that it has widened the definition of wife and, to some extent, over ruled the personal law of the parties so far as proceedings for maintenance under Section 125 are concerned.
Under Clause (b), the wife continued to be a wife within the meaning of the provisions of the Code even though she has been divorced by her husband or has otherwise obtained a divorce and has not remarried.
It follows, therefore, that the divorce resulting from the aforesaid dissolution of the marriage is also a legal divorce under the Mohomedan Law by virtue of the statute (1939 Act).
[920 E F, 921 B] 6.
Under the Mohomedan Law the commonest form of divorce is a unilateral pronouncement of divorce of the wife by the husband according to the various forms recognised by the law.
A divorce given unilaterally by the husband is especially peculiar to Mohomedan Law.
In no other law has the husband got a unilateral right to divorce his wife by a simple declaration because other laws, viz., the Hindu Law or the , contemplate only a dissolution of marriage on certain grounds brought about by one of the spouses in a court of law.
[921 C D] 7.
A wife thus had a statutory right to obtain divorce from the husband through the court on proof of the grounds mentioned in the Act.
The Act provided for the wife an independent remedy which could be resorted to by her without being subjected to a pronouncement of divorce by the husband.
It is, therefore, in the background of this Act that the words 'has obtained a divorce from her husband ' in clause (b) of the Explanation have to be construed.
Thus the High Court in considering the effect of these words seems to have over looked the dominant object of the statutory remedy that was made available to the wife under the Act of 1939 by which the wife could get a decree for dissolution of marriage on the grounds mentioned in the 1939 Act by petitioning the civil court without any overt act on the part of the husband in divorcing her.
The High Court also failed to consider the legal consequences flowing from the 912 decree passed by the Court dissolving the marriage, viz., a legal divorce under the Mohomedan law.
[922 D F] 8.
The interpretation put by the High Court on the second limb of clause (b) is not correct.
This seems to be borne out from the provisions of Mohomedan law itself.
It would appear that under the Mohomedan law there are three distinct modes in which a Muslim marriage can be dissolved and the relationship of the husband and wife terminated so as to result in an irrevocable divorce.
[922 F G] 9.
It is, therefore, manifest that clause (b) of Explanation to section 125 envisages all the three modes, whether a wife is divorced unilaterally by the husband or whether she obtains divorce under the mode numbers 2 and 3, she continues to be a wife for the purpose of getting maintenance under section 125 of the 1973 Code.
In these circumstances the High Court was not at all justified in taking the two separate clauses 'who has been divorced ' and 'had obtained a divorce from her husband ' conjunctively so as to indicate a divorce proceeding from the husband and the husband alone and in not treating a dissolution of marriage under the 1939 Act as a legal divorce.
[924 B D] 10.
A clear distinction has been made between dissolution of marriage brought about by the husband in exercising his unilateral right to divorce and the act of the wife in obtaining a decree for dissolution of the marriage from a civil court under the Act of 1939.
[925 E F] 11.
The two limbs of clause (b) of the Explanation to section 125(1) have separate and different legal incidents one is reflected in clause (b) of sub Section (3) of section 127 and the other in clause (c) of sub section (3) of section 127.
[925 G H] (Per A. D. Koshal, J. concurring) 1.
The word 'divorce ' is not defined in the Code of Criminal Procedure and may legitimately be regarded as having been used in clause (b) of sub section 1 of Section 125 in the dictionary sense.
As ordinarily understood, 'divorce ' is nothing more nor less than another name for dissolution of marriage, whether the same result from the act of parties or is a consequence of proceedings at law.
It would be wrong to regard the two terms as not be synonymous with each other, unless the legislature makes a direction to the contrary.
[927A, C D] 2.
According to Section 125 of the Code of Criminal Procedure, a full fledged wife is entitled to maintenance.
By reason of clause (b) even a divorced wife has that right provided that she has not re married.
If that clause envisaged only divorce by voluntary action of the husband, the second limb of the clause which makes the definition of 'wife ' inclusive of a woman who has 'obtained a divorce from the husband ' would be rendered otiose.
The word obtained may well be used in the sense of 'procured with effort ' and would certainly describe correctly a situation where something is achieved by a person through his exertion in spite of opposition from others.
[928 E, F G] 3.
Divorce by the Act of the husband, is not recognised by any system of law except that applicable to Muslims.
Members of the other main communities inhabiting India, i.e. Hindus, Sikhs, Buddhists, Jains, Christians, etc.
have perforce to go to courts in order to obtain divorce.
If clause (b) was intended to 913 embrace only cases of divorce brought about by the Act of the husband, its applicability would be limited, by and large, only to Muslims, which per se appears to be an absurd proposition.
[929 C D] 4.
The expression 'a woman who has obtained a divorce from her husband ' has therefore to be interpreted as including a wife who has been granted a decree of dissolution of marriage by the Court.
[929 E] Deacock vs Deacock referred to.
|
: Criminal Appeal No. 23 of 1976.
From the Judgment and Order dated 21 11 1973 of the Punjab and Haryana High Court in Criminal Appeal No. 396/72.
O.P. Sharma and M.S. Dhillon for the Appellant.
K.K. Manchanda and B. Datta for the Respondent.
990 The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The respondent was convicted by the learned Special Judge, Ludhiana, of an offence under Sec.
5(1)(d) read with Sec.
5(2) of the Prevention of Corruption Act and sentenced to suffer rigorous imprisonment for a period of one year and to pay fine of Rs. One hundred.
On appeal, a learned Single Judge of the High Court acquitted the respondent on the ground that there was noncompliance with the provisions of Rule 16.38 of the Punjab Police Rules, 1934.
An application for the grant of a Certificate under article 134 (1) (c) of the Constitution was moved before the learned Single Judge and was granted.
The learned Single Judge observed that when the case was argued before him, an earlier judgment of a Division Bench of the Punjab High Court in Hoshiar Singh vs The State was not brought to his notice and that had the decision been brought to his notice he would not have allowed the appeal merely on the ground that there was no compliance with Rule 16.38 of the Punjab Police Rules.
The learned Single Judge of the High Court was clearly wrong in acquitting the respondent on the ground that there was noncompliance with the provisions of Rule 16.38.
A perusal of Chapter XVI of the Punjab Police Rules shows that the provisions of the Chapter deal with Departmental punishments and the procedure to be followed in imposing such punishments.
Guidance is given as to how Police Officers guilty of misconduct and criminal offences may be dealt with.
The Chapter begins with Rule 16.1, the first clause of which is as follows: "No police officer shall be departmentally punished other wise than as provided id these rules".
Thereafter the rules refer in some detail to the various punishments which may be imposed and provide for suspension, subsistence etc.
Rule 16.24 makes exhaustive provision for the procedure in Depart mental enquiries.
Provision for review and appeal is made in the sub sequent rules.
Rule 16.38 prescribes more correctly we may say Rule 16.38 lays down the guide lines of the procedure to be followed when a Superintendent of Police receives any complaint about the commission of a criminal offence by a police officer "in connection with his official relations with the public".
The Superintendent of Police is enjoined to give immediate information to the District Magistrate who is thereupon to decide whether the investigation of the complaint shall be conducted by a Police Officer or by a Magistrate.
It is stated that though 'a judicial prosecution shall normally follow ', the matter may be disposed of departmentally if the District Magistrate so orders, 991 for reasons to be recorded.
The further Departmental procedure is prescribed by the remaining clauses.
It is clear that Rule 16.38 is not designed to be a condition precedent to the launching of a prosecution in a Criminal Court; it is in the nature of instructions to the Department and is not meant to be of the nature of a sanction or permission for a prosecution.
Nor can it override the provisions of the Criminal Procedure Code and the Prevention of Corruption Act.
We agree with the observations of Dua and Mahajan JJ.
in Hoshiar Singh vs The State (supra) where they said: ".
I do not think Rule 16.38 was intended or could have the effect of imposing as a condition precedent to the trial of a police officer in a Court of law, a sanction or an order by the District Magistrate, as contemplated therein.
The language appears to me to be confined only to depart mental enquiries.
The investigation for establishing a prima facie case is merely meant to guide the District Magistrate, uncontrolled by the opinion of the Superintendent of Police, whether or not a departmental proceeding should be initiated against the guilty party, and it is the procedure and the punishment controlling the departmental proceedings alone, which appear to have been prescribed by this rule".
We have, therefore, no option but to set aside the order of acquittal passed by the High Court and remand the matter to the High Court for fresh disposal in accordance with law.
It is so ordered.
P.B.R. Appeal allowed.
| IN-Abs | The Punjab Police Rules, 1934 lay down the procedure to be followed in imposing punishment on police officer found guilty of mis conduct or a criminal offence and make an exhaustive provision for departmental inquiries.
Rule 16.38 lays down the guidelines to be followed by the Superintendent of Police in dealing with a complaint about the commission of a criminal offence by a Police officer in connection with his official relations with the public.
It enjoins upon the Superintendent to give immediate information to the District Magistrate who thereupon has to decide whether investigation of the complaint should be conducted by a police officer or by a Magistrate.
The respondent, a police officer, was convicted of an offence under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act and sentenced to suffer imprisonment.
On the ground that there was non compliance with the provisions of Rule 16.38 of the Rules a single Judge of the High Court acquitted the respondent.
Setting aside the order of acquittal and remanding the case to the High Court for fresh disposal in accordance with law. ^ HELD: The High Court was wrong in acquitting the respondent.
[990 D] Rule 16.38 is not designed to be a condition precedent to the launching of a prosecution in a Criminal Court.
It is in the nature of instructions to the department and is not meant to be of the nature of a sanction or permission for a prosecution; nor can it override the provisions of the Criminal Procedure Code and the Prevention of Corruption Act.
[991 A B] Hoshiar Singh vs The State LXVII 1965 Punjab Law Reporter 438 @ 442, approved.
|
Municipal Corporation Act, cannot be interpreted so as to justify imposition of terminal tax even on goods which merely passed through the territory of Delhi, although their destination is not Delhi but places beyond Delhi.
[908 F G] 3.2.
Merely because the goods after having been unloaded in the godown of appellant Tuli are sorted, reloaded in different trucks and thereafter pass through the territory of Delhi, they do not become exigible to terminal tax.
[908 G H] 3.3.
Rule 26 of the Terminal Tax cannot be interpreted so that exemption could be granted only if the goods are exported immediately which means within a very short time irrespective of any other consideration.
Terminal tax can be leviable only if it is proved that the goods remained at the godown for an indefinite and unexplained period which could not be said to be reasonable in the circumstances.
[908 H, 909 A B] 3.4.
Where the goods are carried by trucks into the territory of Delhi and unloaded there and are also meant for Delhi and soon thereafter may be re booked by the receiver of the goods to some other place, terminal tax would be leviable because in this case there are two separate transactions (i) by which the goods are meant for Delhi and (ii) by which after having reached and having been unloaded at Delhi they are rebooked and reloaded for some other place and which therefore is a fresh and different transaction.
In such a case, terminal tax would be leviable at the entry point in the territory of Delhi.
[909 B C] 3.5.
The direction given by the High Court to the Terminal Tax Officer to fix a reasonable time for unloading, sorting and reloading the goods which are 897 meant for different destinations taking into consideration the quantity of the goods.
the time for unloading, sorting etc.
and for further reloading and transhipment should be done within a time to be fixed by a Terminal Tax Officer is correct.
[909 E F] & CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
2004 2005 Of 1980.
Appeals by Special Leave from the Judgment and Order dated 13 10 1978 of the Delhi High Court in LPA Nos.
73/77 and 103/77.
Madan Bhatia and Sushil Kumar for the Appellant in both the appeals.
R.B. Datar, Lalit Bhardwaj and Miss Madhu Mulchandani for Respondent Nos.
P.R. Rao, S.R. Venkataraman, P.C. Kapur, R.C. Bhatia and S.L. Sharma for Respondent No. 5 in Civil Appeal No. 2004/80.
N.B. Sinha and S.K. Sinha for Respondent No. 4.
The Judgment of the Court was delivered by FAZAL ALI, J.
These appeals by special leave are directed against a Division Bench common judgment dated October 13, 1978 of the High Court of Delhi by which the Letters Patent Appeals were allowed and the impugned Orders dated May 23, 1975 and July 7, 1975 passed by the Terminal Tax Officer, Municipal Corporation of Delhi were quashed.
The facts of the case lie within a very narrow compass and may be summarized as follows.
Manmohan Tuli, appellant in C.A. No. 2004/80, is the owner of a piece of land situate on the Grand Trunk Road near the sixth milestone as one goes from Delhi to Ghaziabad.
Appellant Tuli has constructed various buildings on his land for use as godowns and has rented them out to various transport companies engaged in bringing good from other States and storing them before their transhipment to Delhi and other States beyond Delhi.
The trucks carrying the goods for various destinations pass along the G.T. Road and move into Tuli 's land.
It is not disputed that after the trucks enter the land, the goods are unloaded into the godowns, sorted out and reloaded into the respective trucks meant for various destinations.
Thereafter the trucks move out of the land and passing through the Union Territory of Delhi after crossing the border line, proceed to their destinations.
The Municipal Corporation of Delhi (hereinafter referred to as the Corporation,) by its Orders dated May 23, 1975 and July 7, 1975 (hereinafter referred to as the "inpugned orders ') directed that a Terminal Tax post be sets up at the entrance to Tuli 's land in order to collect 898 terminal tax on goods carried into that land.
The Ghaziabad Nagar Palika also purported to levy terminal tax on such goods but this levy was neither assailed before the High Court nor has been challenged before us and is therefore left out of consideration.
A writ was filed before the High Court by the owners of transport companies as also by Tull for quashing the orders of the Corporation seeking to levy terminal tax on the goods which were not meant for Delhi but for places beyond Delhi.
Further details are not necessary for the decision of these appeals and both the appeals (C.A. Nos. 2004 and 2005 of 1980) will be disposed of by a common judgment.
The High Court vide the impugned judgment was of the opinion that even though the goods were stored in the godown of Tull, sorted out and reloaded but as they while passing through the territory of Delhi undoubtedly entered the said territory, the Corporation was legally entitled to levy terminal tax at the point of entry into the Union Territory of Delhi.
The case of the appellant was that the goods were not meant either to be used or consumed in Delhi nor was Delhi the final destination of the goods.
It was a different matter that as the goods were to be sent to destination beyond Delhi the transport carrying the goods had perforce to pass through the territory of Delhi.
It was thus contended that the goods were not carried into the territory of Delhi but were merely carried through the territory of Delhi to other destinations which were beyond Delhi.
It was argued that section 178 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the 'Act ') had in terms no application to the case and that therefore the terminal tax imposed by the impugned orders was legally invalid.
The counsel for the respondent, however, submitted that even though the goods may have been meant for other destinations but as they were unloaded in the godown and reloaded in various trucks and actually entered into the territory of Delhi, they were factually carried into the Delhi territory and that was sufficient to empower the Corporation to levy the terminal tax.
According to the argument of the counsel for the Corporation, the question of destination was not at all germane for the purpose of adjudicating the competency of the Corporation to levy terminal tax at the point of entry into Delhi.
Thus, the entire question turns upon the interpretation of s.178 of the Act and some Rules framed under the Act.
Relevant portion of section 178 runs thus: "178(1).
On and from the date of the establishment of the Corporation under section 3, there shall be levied on all goods carried by railway or road into the Union Territory of Delhi 899 from any place outside thereof, a terminal tax at the rates specified in the Tenth Schedule." (Emphasis supplied) The crucial words which have to be interpreted are: 'goods carried by railway or road into the Union Territory of Delhi from any place outside Delhi '.
The contention of the appellant is that the words 'goods carried into the Union Territory ' clearly indicate that the final destination of the goods must be Delhi and by virtue of this fact, the natural consequence would be that the goods should be carried from other places either by rail or by road into the territory of Delhi.
This argument was reinforced by the words 'terminal tax ' used in section 178 which imply that the terminus of the journey of the goods must be Delhi and only in that event the Corporation would be competent to levy a terminal tax.
This argument was sought to be rebutted by the respondents on the ground that the words 'carried into the Union Territory of Delhi ' should be interpreted independently and literally so as to indicate that even if the goods passed through Delhi, the moment they entered into the territory of Delhi terminal tax became exigible.
So far as this aspect of the argument is concerned, we are unable to accept the same because it is well settled that taxing statutes must be strictly interpreted giving every benefit of doubt to the tax payer.
Before, however, examining the respective contentions of the parties it may be necessary to refer to the authorities dealing with the history of terminal tax or octroi duty.
To begin with, it is not disputed that the power to subject the goods either to octroi or to terminal tax squarely falls within entries numbers 52 and 56 of List II to the Seventh Schedule of the Constitution.
In Punjab Flour & General Mills vs Lahore Corporation the Court while drawing a distinction between the type of taxes referred to as terminal taxes in Entry No. 58 of List I of Schedule 7 to the Government of India Act, and those described as cesses in Entry No. 49 of List II thereof observed as follows: "There appears to us a definite distinction between the type of taxes referred to as terminal taxes in Entry No. 58 of List I of Sch. 7 and the type of taxes referred to as cesses on the entry of goods into a local area in Entry No. 49 of List II.
The former taxes must be (a) terminal (b) confined to goods and passengers carried by railway or air.
They must be chargeable at a rail or air terminus and be 900 referable to services (whether of carriage or otherwise) rendered or to be rendered by some rail or air transport organisation.
The essential features of the cesses referred to in Entry No. 49 of List II are on the other hand simply (a) the entry of goods into a definite local area and (b) the requirement that the goods should enter for the purpose of consumption, use or sale therein.
The grounds of taxation under the two entries are, as indicated above, radically different, and there is no case for suggesting that taxation under the one entry limits or interferes in any way with taxation under the other." In The Central India Spinning & Weaving & Manufacturing Co. Ltd., The Empress Mills, Nagpur vs The Municipal Committee, Wardha this Court examined the entire matter exhaustively and after giving the history of terminal tax or octroi observed as follows: "If `terminal ' besides the above meaning has an additional meaning also and that meaning signifies the termini or the jurisdictional limits of the municipal area even then the construction to be placed on the term should be the one that favours the tax payer, in accordance with the principle of construction of taxing statutes, which must be strictly construed and in case of doubt must be construed against the taxing authorities and doubt resolved in favour of the tax payer." . . "The legislative history of this tax thus shows that octroi was leviable on the entry of goods in a local area when the goods were for consumption, use or sale therein.
The substituted tax was terminal tax on goods imported into or exported from a local area and by rules this tax in the case of Wardha Municipal Committee was imposed on certain class of goods imported and on others exported by railway or road." . . "That by the substitution of terminal tax on goods imported into a local area the nature of the tax had not been altered from what it was when octroi was in force or when instead of "terminal tax" octroi (without refund) was substituted . .
Therefore terminal tax on goods imported or exported is similar in its incidence and is payable on 901 goods on their journey ending within the municipal limits or commencing therefrom and not where the goods were merely in transit through the municipal limits and had their terminus elsewhere." . . "Therefore, according to the Federal Court "terminal" has reference to the terminus of the railway or air, i.e., the end of journey.
" A close analysis of this decision, therefore clearly discloses that a terminal tax signified that there must be a terminus for the journey of the goods.
The word 'terminus ' according to Oxford Dictionary means a point situated at or forming the end or extremity of something, situated at the end of a line of railway.
In other words, terminus means the point to which main action tends, goal, end, finishing point, the point at which something comes to an end.
In Corpus Juris Vol.
62 at p. 729 the word 'terminal ' in connection with transportation means the fixed beginning or ending point of a given run.
It would thus appear that a terminal tax could be levied only by the Corporation or the State which is the final destination of the goods sent from any other area.
A similar view was taken by a later decision of this Court in Bangalore Woollen, Cotton & Silk Mills Co. Ltd. Bangalore vs Corporation of the City of Bangalore where Kapur, J., speaking for the Court observed as follows: "The history of these taxes therefore shows that in the Devolution Rules under the Government of India Act, 1915 octroi, terminal tax and taxes on professions and callings were three distinct heads of taxation.
Therefore, when section 142 A was added in the Government of India Act, 1935, its operation was limited to entry 46 of List II and had no reference to entry 49 which deals with cesses on entry of goods.
The position under the Constitution is exactly the same and therefore neither section 142 A of the Government of India Act, 1935 nor article 276 has any effect on entry 49 in the Government of India Act, 1935 or entry 52 in the Constitution.
" In this case also a distinction between a terminal tax and octroi was clearly brought out.
In Diamond Sugar Mills Ltd. & Anr.
vs The State of Uttar Pradesh & Anr.
while defining a local area within 902 the meaning of Entry 52 of List II of Seventh Schedule to the Constitution, the Court observed as follows: "We are of opinion that the proper meaning to be attached to the words 'local area ' in Entry 52 of the Constitution, (when the area is a part of the State imposing the law) is an area administered by a local body like a municipality, a district board, a local board, a union board, a Panchayat or the like." In Burmah Shell Oil Storage & Distributing Co. India Ltd. vs The Belgaum Borough Municipality this Court again fully discussed the matter and Hidayatullah, J., speaking for the Court stressed the essential distinction between octroi and terminal tax in the following words: "Octrois and terminal taxes were different taxes though they resembled in one respect, namely, that they were leviable in respect of goods brought into a local area.
While terminal taxes were leviable on goods 'imported or exported ' from the Municipal limits denoting thereby that they were connected with the traffic of goods, octrois, according to the legislative practice then obtaining were, leviable in respect of goods brought into a Municipal area for consumption or use or sale. .
The history of these two taxes clearly shows that while terminal taxes were a kind of octroi which were concerned only with the entry of goods in a local area irrespective of whether they would be used there or not; octrois were taxes on goods brought into the area for consumption, use or sale.
They were leviable in respect of goods put to some use or other in the area but only if they were meant for such user." In Khyerbari Tea Co. Ltd. & Anr.
vs The State of Assam Gajendragadkar, J. speaking for the Court drew a very apt distinction regarding the concept of import and observed as follows: "In that connection, the legislative history of the octroi duty was examined and it was held that the concept of import requires that the goods which are brought into must mix up with the mass of the property in the local area where the goods are alleged to have been imported.
If the goods are just carried and not mixed with the mass of the property in the area through which they are carried, they cannot be said 903 to have been imported into that area. .
The word "carried" is of much wider denotation, and it would be unreasonable to limit its scope by introducing considerations which are relevant in dealing with the question of import.
" Thus, from a consideration of the cases cited above, the following propositions emerge: (1) Terminal tax and octroi are similar kinds of levies which are closely interlinked with (1) destination of the goods, (2) the user in the local area on arrival of the goods.
Where the goods merely pass through a local area without being consumed therein the mere fact that the transport carrying the goods halt within the local area for transhipment or allied purposes would not justify the levy of either the terminal tax or octroi duty.
This is because the halting of the goods is only for an incidental purpose to effectuate the journey of the goods to the final destination by unloading, sorting and reloading them at a particular place.
(2) There is a very thin margin of difference between a terminal tax and octroi.
In the case of the former (terminal tax) the goods reach their final destination and their entry into the area of destination immediately attracts payment of terminal tax irrespective of their user.
In the case of octroi, however the tax is levied on goods for their use and consumption.
(3) But at the same time, the goods while halting at a local area should leave for their destination within a reasonable time which may depend on circumstances of each case and if the goods are kept within the area for such a long and indefinite period that the purpose of reaching the final destination lying in a different area is frustrated or defeated, they may be exigible to terminal tax.
(4) Where the goods enter into a local area which is also the destination of the goods either temporarily or otherwise, the terminal tax would be leviable.
For instance, if A consigns goods from Patna in Bihar to Delhi in the name of X and X after having received the goods at Delhi re books or reloads the same on a transport for Chandigarh in the name of Y, terminal tax would be leviable by the Corporation at Delhi because the goods in the first instance was Delhi and that by itself would attract the imposition of terminal tax.
The fact that X 904 rebooks them to Chandigarh would not make any difference because the act of rebooking by X at Delhi would constitute a fresh transaction by which the goods after having been carried into Delhi are further exported to Chandigarh.
On the other hand, when there is one continuous journey of the goods from Patna to Chandigarh without any break, the final destination would be halted in Delhi for the purpose of unloading, sorting and reloading and may have to be kept in Delhi for a reasonable time.
In such a case terminal tax would not be exigible.
These principles are also spelt out by the American law on the subject which deals with inter state transport of goods.
In American Jurisprudence (2d, Vol.
15, p.689, para 49) the following statement is made, which is spelt out from various American decisions including those of the U.S. Supreme Court: "In the determination of whether a transportation of persons or property constitutes interstate or intrastate commerce, the essential character or unity of the movement is the decisive factor, While the intention of the shipper or passenger is probably the most important single factor in determining whether transportation is interstate or intra state intention alone has been said not to be a controlling factor in making such determination.
Inter state journeys are to be measured by the commonly accepted sense of the transportation concept. .
The parties cannot, by descriptive terms of contract, convert a local business, serving as an agency of a transportation company, into an interstate commerce business, nor, conversely, may a through shipment be transformed into intrastate commerce by separating the rate into its component parts, charging local rates, and issuing local waybills" Similar observations are to be found in the same volume of American Jurisprudence (p. 697, para 56) which relate to the continuity of transit of goods, and may be extracted thus: "The crucial question to be settled in determining whether Personal property moving in interstate commerce is subject to local taxation is that of its continuity of transit and this question is to be determined by various factors, among which are the intention of the owner, the control he retains to change destination.
the agency by 905 which the transit is effected, and the occasion or purpose of the interruption during which the tax is sought to be levied, Intent, while not alone conclusive, is probably the most important single determinant of continuous carriage.
If a break in the interstate journey is caused by the exigencies or conveniences of the safety of the goods during transit, or natural causes over which the taxpayer has no control, the continuity of the transit remains unimpaired".
The following statement of law occurs in the same volume(para 57, p. 698): "If during transit, property is stored for an indefinite time for other than natural causes or for lack of facilities for immediate transportation, it is subject to state or local laws, including inspection laws.
On the other hand, if the entry of goods into a warehouse is a convenient in termediate step in the process of getting them to their final destination, they remain in interstate or foreign commerce until they reach those points".
In the case of Champlain Realty Co. vs Town of Brattleboro one important aspect of the matter has been dealt with, viz., the fact that if the goods halt in an intermediate State whilst on their journey to their destination for a long period due to circumstances beyond the control of the owner, whether or not the goods lose the nature of the interstate transaction and could be free from the state taxation, was clearly highlighted by he following observations: "Longs of pulp wood which have been placed in a river to be floated into another state are in interstate commerce, so as to be free from state taxation, although, because of the high water in a connecting river into which they will ultimately pass, it is unsafe to permit them to enter that river, and they are temporarily held in a boom near the mouth of its tributary".
In the same case, C.J. Taft indicated the various aspects of interruptions in the journey and the incidence thereof and observed as follows: "The doubt arises when there are interruptions in the journey, and when the property, its transportation, is 906 under the complete control of the owner during the passage If the interruptions are only to promote the safe or convenient transit, then the continuity of the interstate trip is not broken.
. . . .
Chief among these are the intention of the owner, the control he retains to change destination, the agency by which the transit is effected, the actual continuity of the transportation, and the occasion or purpose of the interruption during which the tax is sought to be levied".
In Volume 78 L Ed at p. 138 the test laid down was that if the shipment was made in good faith to a destination and the interruption was not indefinite but reasonable the continuity of the journey cannot be said to be broken.
It was also pointed out that where the interruption of the movement of commodities at an intermediate point is not incidental to the transportation, the shipment loses the character of interstate commerce so as to be exigible to local taxation.
In this connection, the following observations were made: "If the shipment has been made in good faith to a destination the interruption is not indefinite, but is reason able and solely in furtherance of the intended transportation of the shipment to its ultimate destination, then the continuity of the journey is not broken by the delay nor by the mere power of the owner there to destroy its character as interstate commerce. .any interruption of the movement of commodities at an intermediate point between origin and final destination that is not incidental to the transportation or the means of transportation or, being so incidental, is used or extended for purposes of the owner not incidental to the transportation or the means used therefor, breaks the continuity in transit and subjects the shipment to local taxation at the point of interruption".
We have laid special stress on the circumstances under which the terminal tax becomes leviable if the halt or interruption of the goods at an intermediate point is for an indefinite and unexplained period.
The answer to the question as to what would be a reasonable time for interruption of the goods or halting in the instant case at the godown of Tuli, will naturally depend on the special features or circumstances of each case, viz., the nature of the goods, 907 the time taken in loading, sorting and unloading, the obstacles or difficulties which may be faced by the transporters and similar other factors.
Normally, a time of two to three days or even a week should be sufficient to clear the goods for its journey to the ultimate destination.
It may sometimes happen that goods may have to be kept in the godowns in the territory of Delhi for circumstances beyond the control of the consignee or the consignor, e.g., while the goods are lying in a godown at Delhi a dispute occurs between the concerned parties as a result of which an injunction is issued by a court restraining the transporters from moving the goods.
In considering what is reasonable time these circumstances would have to be taken into consideration.
It, was however, argued before us that according to the Terminal tax Rules framed under the Act, Rule 26 exempts goods from terminal tax if the same are exported immediately and are declared to be intended for immediate export.
In view of the interpretation we have placed on section 178 it is obvious that the word "immediately "appearing in Rule 26 has to be liberally construed so as to imply a reasonable period and if the export is delayed the rules may apply if a reasonable explanation has been given.
So far as rules regarding taking of passes, etc, at the barrier are concerned they would, of course, apply but subject to the conditions under which terminal tax can be imposed under s.178 of the Act which is the main charging section.
The High Court appears to have placed some reliance on Amrit Banspati Co. Ltd. vs The Union of India in coming to the conclusion that in the instant case the Corporation was legally entitled to levy terminal tax.
With due respect to the Judges of the High Court who decided the Appeals, we would like to point out that the case just above referred to is clearly distinguishable from the present appeals.
The most crucial fact in the Delhi decision was that the goods were being carried into the Union Territory of Delhi for the purpose of sale at Delhi.
Thus, the case proceeded on the admitted position that the goods were carried from Ghaziabad into the Delhi territory for sale at Delhi.
The final destination of the goods being Delhi, there can be no doubt that the Corporation was fully entitled to levy terminal tax on such goods.
In this connection, the High Court observed as follows: "The Petitioner company was incorporated under the companies Act, 1956, and it had its registered office at G.T.Road, Ghaziabad, in the State of Uttar Pradesh. 908 It has a factory, inter alia, at Ghaziabad for manufacturing the said Vanaspati products.
In the course of its business, the company carried and still carries its products by railway and/or road into the Union Territory of Delhi from Ghaziabad for the purpose of sale at Delhi.
. . . . The words "shall be levied on all goods carried by rail way or road" in sub section (1) show clearly that the section imposes terminal tax on the carriage or movement of goods from outside the Union Territory of Delhi into the said Territory.
In other word, the taxable event is the carriage or movement of goods into the Union Territory of Delhi".
The observations last extracted must be understood in the light of the admitted facts in Amrit Banaspati Company"s case (supra).
We are unable to accept that case as an authority for the proposition that even if the final destination of the goods was not Delhi but as the goods were carried through the territory of Delhi, they would still be exigible to terminal tax.
In the impugned Judgment the High Court, however, seems to have laid undue emphasis and special stress on the fact that the goods were carried into the Union territory of Delhi, the moment they passed through it even though the destination of the goods may be some other area.
This appeared, according to the High Court.
the real purport and intention of section 178.
We are, however, unable to agree with this view which is patently wrong and does not at all flow from the plain and unambiguous language of section 178 of the Act nor does s.178 warrant such an interpretation.
Thus, our conclusions are follows: (1) The High Court was wrong in interpreting section 178 of the Act so as to justify imposition of terminal tax even on goods which merely passed through the territory of Delhi, although their destination is not Delhi but places beyond Delhi.
(2) The High Court was wrong in holding that merely because the goods after having been unloaded in the godown of appellant Tuli are sorted, reloaded in different trucks and thereafter pass through the territory of Delhi, they become exigible to terminal tax.
(3) The High Court was wrong in interpreting Rule 26 literally and holding that exemption could be grant 909 ed only if the goods are exported immediately which means within a very short time irrespective of any other consideration.
In view of our interpretation of section 178, Rule 26 must be interpreted in the light of the object of section 178 and terminal tax can be leviable only if it is proved that the goods remained at the godown for an indefinite and unexplained period which could not be said to be reasonable as discussed by us in the circumstances.
(4) Where the goods are carried by trucks into the territory of Delhi and unloaded there and are also meant for Delhi and soon thereafter may be rebooked by the receiver of the goods to some other place, terminal tax would be leviable because in this case there are two separate transactions (1) by which the goods are meant for Delhi, and (2) by which after having reached and having been unloaded at Delhi they are rebooked and reloaded for some other place and which therefore is a fresh and different transaction.
In such a case, terminal tax would be leviable at the entry in the territory of Delhi.
We might mention that the High Court while holding that terminal tax is exigible has construed the word 'immediately ' in Rule 26 literally and directed the Terminal Tax Officer to fix a reasonable time for unloading, sorting and reloading the goods which are meant for different destinations taking into consideration the quantity of the goods, the time for unloading, sorting, etc., and has further directed that reloading or transhipment should be done within a time to be fixed by the Terminal Tax Officer.
Though the directions given are correct but they will have to be construed in the light of the various factors which we have referred to.
Rule 26 will have to be interpreted on the footing that section 178 of the fact does not contemplate levy of terminal tax for goods meant for destinations other than Delhi.
For the reasons given above, we allow these appeals, set aside the impugned judgment except the portion quashing the impugned orders.
That portion we uphold (though on grounds different from the ones given by the High Court) in the light of the decision given and the observations made by us regarding the interpretation of section 178 of the Act.
In the special circumstances of the case there will be no order as to costs.
| IN-Abs | Man Mohan Tuli, appellant in C.A. 2004/80, is the owner of a piece of land situate on the Grand Trunk Road near the sixth milestone as one goes from Delhi to Ghaziabad.
Appellant Tuli has constructed various buildings on his land for use as godowns and has rented them out to various transport companies engaged in bringing goods from other States and storing them before their transhipment to Delhi and other States beyond Delhi.
The trucks carrying the goods for various destinations pass along the G.T. Road and move into Tuli 's land.
After the trucks enter the land, the goods are unloaded into the godowns, sorted out and reloaded into the respective trucks meant for various destinations.
Thereafter, the trucks move out of the land and, passing through the Union Territory of Delhi after crossing the border line, proceed to their destinations.
The Municipal Corporation of Delhi by its Orders dated May 23, 1975 and July 7, 1975 directed that a Terminal Tax post be set up at the entrance to Tuli 's land in order to collect terminal tax on goods carried into that land.
A writ was filed before the High Court by the owners of transport companies as also by Tuli for quashing the orders of the Corporation seeking to levy Terminal Tax on the goods which were not meant for Delhi but for places beyond Delhi.
The High Court held that the Corporation was legally entitled to levy Terminal Tax at the point of territory of the Union Territory of Delhi even though the goods were sorted out in the godown of Tuli, resorted out and re loaded since as they while passing through the territory of Delhi undoubtedly entered the said territory.
Hence the appeals by special leave by appellant Tuli and others.
Allowing the appeal in part, the Court ^ HELD: 1.
It is well settled that taxing statutes must be strictly interpreted giving every benefit of doubt to the tax payer.
A Terminal Tax could be levied only by the Corporation or the State which is the final destination of the goods sent from any other area.
A Terminal Tax signifies that there must be a terminus for the journey of the goods.
Terminus means the point to which main action tends, goal, end, finishing point, the point at which something comes to an end.
[899 D, 901 B D] 2.1 From a consideration of the decided cases of the Supreme Court, the following propositions emerge: (i) Terminal tax and octroi are similar kinds of levies which are closely interlinked with (a) destination of the goods (b) the user in the local area 895 on arrival of the goods.
Where the goods merely pass through a local area without being consumed therein the mere fact that the transport carrying the goods halt within the local area for transhipment or allied purposes would not justify the levy of either the terminal tax or octroi duty.
This is because the halting of the goods is only for an incidental purpose to effectuate the journey of the goods to the final destination by unloading, sorting and reloading them at a particular place.
[803 A C] (ii) There is a very thin margin of difference between a terminal tax and octroi.
In the case of the former (terminal tax) the goods reach their final destination and their entry into the area of destination immediately, attracts, payment of terminal tax irrespective of their user.
In the case of octroi, however, the tax is levied on goods for their use and consumption.
[903 D E] (iii) But at the same time, the goods while halting at a local area should leave for their destination within a reasonable time which may depend on circumstances of each case and if the goods are kept within the area for such a long and indefinite period that the purpose of reaching the final destination lying in a dicerent area is frustrated or defeated, they may be exigible to terminal tax.
[903 E F] (iv) Where the goods enter into a local area which is also the destination of the goods either temporarily or otherwise, the terminal tax would be leviable.
For instance, if A consigns goods from Patna in Bihar to Delhi in the name of X and X after having received the goods at Delhi rebooks or reloads the same on a transport for Chandigarh in the name of Y, terminal tax would be leviable by the Corporation at Delhi because the destination of the goods in the first instance was Delhi and that by itself would attract the imposition of terminal tax.
The fact that X rebooks them to Chandigarh would not make any difference because the act of rebooking by X at Delhi would constitute a fresh transaction by which the goods after having been carried into Delhi are further exported to Chandigarh.
On the other hand, when there is one continuous journey of the goods from Patna to Chandigarh without any break, the final destination would be Chandigarh even though the goods may have to be halted in Delhi for the purpose of unloading, sorting and reloading and may have to be kept in Delhi for a reosonable time.
In such a case terminal tax would not be exigible.
[903 G H, 904 A C] Punjab Flour & General Mills vs Lahore Corporation, ; The Central India Spinning & Weaving & Manufacturing Co. Ltd., The Empress Mills, Nagpur vs The Municipal Committee, Wardha, ; ; Bangalore Woollen, Cotton & Silk Mills Co. Ltd. Bangalore vs Corporation of the City of Bangalore, ; Diamond Sugar Mills Ltd. & Anr.
vs The State of Uttar Pradesh, ; ; Burmah Shell Oil Storage & Distributing Co. India Ltd. vs The Belgaum Borough Municipality, [1963] Supp. 2 SCR 216; Khyerbari Tea Co. Ltd. Champlain Realty Co. vs Town of Brattleboro, 67 L. Ed.
U.S. 309, quoted with approval.
896 2.2.
What would be a reasonable time for interpretation of the goods or halting, in the instant case, at the godown of Tuli, will naturally depend upon the special features or circumstances of each case, namely, the nature of the goods, the time taken in loading, sorting and unloading, the obstacles or difficulties which may be faced by the transporters and similar other factors.
Normally, a time of two to three days or even a week should be sufficient to clear the goods for its journey to the ultimate destination.
It may sometimes happen that goods may have to be kept in the godowns in the territory of Delhi for circumstances, beyond the control of the consignee or the consignor, for example, a garnishee order.
In considering what is reasonable time these circumstances would have to be taken into consideration.
[906 H, 907 A C] 2.3.
Rule 26 of the Terminal Tax Rules will have to be interpreted on the footing that section 178 of the Delhi Municipal Corporation Act, 1957 does not contemplate levy of terminal tax for goods meant for destinations other than Delhi.
The word "immediately" appearing in Rule 26 has to be liberally construed so as to imply a reasonable period and if the export is delayed the rules may apply if a reasonable explanation has been given.
So far as rules regarding taking of passes, etc., at the barrier are concerned they would, of course, apply but subject to the conditions under which terminal tax can be imposed under section 178 of the Act which is the main charging section.
[907 C E] Amti Banaspati Co. Ltd vs The Union of India I.L.R. 1973 Delhi 237, distinguished.
|
Civil Appeal No. 1146 of 1975.
Appeal by Special Leave from the Judgment and order dated 4 7 1974 of the Karnataka High Court in I.T.R. No. 38/72.
CONNECTED WITH Civil Appeal No. 1378 of 1976.
Appeal by Special Leave from the Judgment and Order dated 1 12 1975 of the Karnataka High Court in I.T.R.C. No. 32/74.
AND Civil Appeal No. 926 of 1973.
From the Judgment and Order dated 2 11 1972 of the Kerala High Court in Income Tax Reference No. 120/70.
No. 1146/75.
Soli J. Sorabjee, Addl.
General, B. B. Ahuja and Miss A. Subhashini for the Appellant.
T. A. Ramachandran, B. Partha Sarathi and Miss R. Vaigai for the Respondent.
K. K. Goswami, section P. Mehta, Dinesh Vyas, P. H. Parekh, C. B. Singh, Miss Vineeta Caprihan and B. L. Verma for the intervener.
C.A. No. 1378/76.
Soli J. Sorabjee, Addl.
General, B. B. Ahuja and Miss A. Subhashini for the Appellant.
Vineet Kumar and A. K. Srivastava for the Respondent.
C.A. No. 926/73.
V. section Desai, K. C. Dua and Miss A. Subhashini for the Appellant A. section Nambiar and P. P. Namboodiri for the Respondent.
941 The Judgment of the Court was delivered by PATHAK, J.
The question in these appeals is whether the transfer of the goodwill of a newly commenced business can give rise to a capital gain taxable under section 45, Income Tax Act, 1961.
The assessee, a registered firm, manufactured and sold agarbattis.
Clause (13) of the Instrument of Partnership executed on 28th July, 1954 showed that the goodwill of the firm had not been valued, and the valuation would be made on dissolution of the partnership.
The period of the partnership was extended by an instrument dated 31st March, 1964, and it contained a similar clause (13).
Subsequently, the assessee firm was dissolved by a deed dated 1st December, 1965.
At the time of dissolution, it seems, the goodwill of the firm was valued at Rs. 1,50,000/ .
A new partnership by the same name was constituted under an instrument dated 2nd December, 1965 and it took overall the assets, including the goodwill, and liabilities of the dissolved firm.
The Income Tax Officer made an assessment on the dissolved firm for the assessment year 1966 67 but did not include any amount on account of the gain arising on transfer of the goodwill.
The Commissioner, being of the view that the assessment order was prejudicial to the Revenue, decided to invoke his revisional jurisdiction and setting aside the assessment order directed the Income Tax Officer to make a fresh assessment after taking into account the capital gain arising on the sale of the goodwill.
In appeal before the Income Tax Appellate Tribunal, the assessee maintained that the sale did not attract tax on capital gains under section 45 of the Income Tax Act, 1961.
Accepting the contention, the Tribunal allowed the appeal.
At the instance of the Commissioner of Income Tax it referred a question of law to the High Court of Karnataka which, as reformed by the High Court, leads as follows: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that no capital gains can arise under section 45 of the Income Tax Act, 1961 on the transfer by the assessee firm of its goodwill to the newly constituted firm?" By its judgment dated 4th July, 1974 the High Court answered the question in the affirmative, holding that the value of the consideration received by the assessee for the transfer of its goodwill was not liable to capital gains tax under section 45 of the Act.
Civil Appeal No. 1146 of 1975 is directed against that judgment.
942 Civil Appeal No. 1378 of 1976 arises out of a judgment by the same High Court in which it has followed its earlier view.
Civil Appeal No. 926 of 1973 has been preferred against the judgment of the Kerala High Court where a similar opinion has been expressed, but in respect of the provisions of section 12 B, Indian Income Tax Act.
At the relevant time section 45, Income Tax Act, 1961 provided: "45.
(1) Any profits or gains arising from the transfer of a capital asset effected in the previous year shall, save as otherwise provided in sections 53 and 54, be chargeable to income tax under the head "Capital gains", and shall be deemed to be the income of the previous year in which the transfer took place.
" The section operates if there is a transfer of a capital asset giving rise to a profit or gain.
The expression "capital asset" is defined in section 2(14) to mean "property of any kind held by an assessee" It is of the widest amplitude, and apparently covers all kinds of property except the property expressly excluded by clauses (i) to (iv) of the sub section which, it will be seen, do not include goodwill.
But the definitions in section 2 are subject to an overall restrictive clause.
That is expressed in the opening words of the section: "unless the context otherwise requires".
We must therefore enquire whether contextually section 45, in which the expression "capital asset" is used, excludes goodwill.
Goodwill denotes the benefit arising from connection and reputation.
The original definition by Lord Eldon in Cruttwell vs Lye that goodwill was nothing more than "the probability that the old customers would resort to the old places" was expanded by Wood V.C. in Churton vs Douglas to encompass every positive advantage "that has been acquired by the old firm in carrying on its business, whether connected with the premises in which the business was previously carried on or with the name of the old firm, or with any other matter carrying with it the benefit of the business".
In Trego vs Hunt Lord Herschell described goodwill as a connection which tended to become permanent because of habit or otherwise.
The benefit to the business varies with the nature of the business and also from one business to another.
No business commenced for the first time possesses 943 goodwill from the start.
It is generated as the business is carried on and may be augmented with the passage of time.
Lawson in his "Introduction to the Law of Property" describes it as property of a highly peculiar kind.
In Commissioner of Income tax, West Bengal III vs Chunilal Prabhudas & Co., the Calcutta High Court reviewed the different approaches to the concept: "It has been horticulturally and botanically viewed as "a seed sprouting" or an "acorn growing into the mighty oak of goodwill".
It has been geographically described by locality.
It has been historically described by locality.
It has been historically explained as growing and crystalising traditions in the business.
It has been described in terms of a magnet as the "attracting force".
In terms of comparative dynamics, goodwill has been described as the "differential return of profit".
Philosophically it has been held to be intangible.
Though immaterial, it is materially valued.
Physically and psychologically, it is a "habit" and sociologically it is a "custom".
Biologically, it has been described as Lord Macnaghten in Trego vs Hunt as the "sap and life" of the business.
Architecturally, it has been described as the "cement" binding together the business and its assets as a whole and a going and developing concern.
" A variety of elements goes into its making, and its composition varies in different trades and in different businesses in the same trade, and while one element may preponderate in one business, another may dominate in another business.
And yet because of its intangible nature, it remains insubstantial in form and nebulous in character.
Those features prompted Lord Macnaghten to remark in Commissioner of Inland Revenue vs Muller & Co. 's Margarine Limited that although goodwill was easy to describe, it was nonetheless difficult to define.
In a progressing business goodwill tends to show progressive increase.
And in a failing business it may begin to wane.
Its value may fluctuate from one moment to another depending on changes in the reputation of the business.
It is affected by everything relating to the business, the personality and business rectitude of the owners, the nature and character of the business, its name and reputation, its location, its impact on the contemporary market, the prevailing socio economic ecology, introduction to old customers and agreed absence of competition.
There can be no account in value of the factors producing it.
It u also impossible to predicate the moment of its birth.
It comes silently 944 into the world, unheralded and unproclaimed and its impact may not be visibly felt for an undefined period.
Imperceptible at birth it exists enwrapped in a concept, growing or fluctuating with the numerous imponderables pouring into, and affecting, the business.
Undoubtedly, it is an asset of the business, but is it an asset contemplated by section 45 ? Section 45 charges the profits or gains arising from the transfer of a capital asset to income tax.
The asset must be one which falls within the contemplation of the section.
It must bear that quality which brings section 45 into play.
To determine whether the goodwill of a new business is such an asset, it is permissible, as we shall presently show, to refer to certain other sections of the head, "Capital gains".
Section 45 is a charging section.
For the purpose of imposing the charge, Parliament has enacted detailed provisions in order to compute the profits or gains under that head.
No existing principle or provision at variance with them can be applied for determining the chargeable profits and gains.
All transactions encompassed by section 45 must fall under the governance of its computation provisions.
A transaction to which those provisions cannot be applied must be regarded as never intended by section 45 to be the subject of the charge.
This inference flows from the general arrangement of the provisions in the Income tax Act, where under each head of income the charging provision is accompanied by a set of provisions for computing the income subject to that charge.
The character of the computation provisions in each case bears a relationship to the nature of the charge.
Thus the charging section and the computation provisions together constitute an integrated code.
When there is a case to which the computation provisions cannot apply at all, it is evident that such a case was not intended to fall within the charging section.
Otherwise one would be driven to conclude that while a certain income seems to fall within the charging section there is no scheme of computation for quantifying it.
The legislative pattern discernible in the Act is against such a conclusion.
It must be borne in mind that the legislative intent is presumed to run uniformly through the entire conspectus of provisions pertaining to each head of income.
No doubt there is a qualitative difference between the charging provision and a computation provision.
And ordinarily the operation of the charging provision cannot be affected by the construction of a particular computation provision.
But the question here is whether it is possible to apply the computation provision at all if a certain interpretation is pressed on the charging provision.
That pertains to the fundamental integrality of the statutory scheme provided for each head.
The point to consider then is whether if the expression "asset" in section 45 is construed as including the goodwill of a new business, it is 945 possible to apply the computation sections for quantifying the profits and gains on its transfer.
The mode of computation and deductions set forth in section 48 provide the principal basis for quantifying the income chargeable under the head "Capital gains".
The section provides that the income chargeable under that had shall be computed by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset: "(ii) the cost of acquisition of the capital asset. " What is contemplated is an asset in the acquisition of which it is possible to envisage a cost.
The intent goes to the nature and character of the asset, that it is an asset which possesses the inherent quality of being available on the expenditure of money to a person seeking to acquire it.
It is immaterial that although the asset belongs to such a class it may, on the facts of a certain case, be acquired without the payment of money.
That kind of case is covered by section 49 and its cost, for the purpose of section 48 is determined in accordance with those provisions.
There are other provisions which indicate that section 48 is concerned with an asset capable of acquisition at the cost.
section 50 is one such provision.
So also is sub section (2) of section 55.
None of the provisions pertaining to the head "Capital gains" suggests that they include an asset in the acquisition of which no cost at an can be conceived.
Yet there are assets which are acquired by way of production in which no cost element can be identified or envisaged.
From what has gone before, it is apparent that the goodwill generated in a new business has been so regarded.
The elements which create it have already been detailed.
In such a case, when the asset is sold and the consideration is brought to tax, what is charged is the capital value of the asset and not any profit or gain.
In the case of goodwill generated in a new business there is the further circumstance that it is not possible to determine the date when it comes into existence.
The date of acquisition of the asset is a material factor in applying the computation provisions pertaining to capital gains.
It is possible to say that the "cost of acquisition" mentioned in section 48 implies a date of acquisition, and that inference is strengthened by the provisions of sections 49 and 50 as well as sub section (2) of section 55.
It may also be noted that if the goodwill generated in a new business is regarded as acquired at a cost and subsequently posses to an assessee in any of the modes specified in sub section (1) of section 49, it will become necessary to determine the cost of acquisition to the previous owner.
Having regard to the nature of the asset, it will be impossible 946 to determine such cost of acquisition Nor call sub section (3) of section 55 be invoked, because the date of acquisition by the previous owner will remain unknown.
We are of opinion that the goodwill generated in a newly commenced business cannot be described as an "asset" within the terms of section 45 and therefore its transfer is not subject to income tax under the head "Capital gain".
The question which has been raised before us, has been considered by some High Courts, and it appears that there is a conflict of opinion.
The Madras High Court in Commissioner of Income tax vs K. Rathnam Nadar, the Calcutta High Court in Commissioner of Income Tax vs Chunilal Prabhudas & Co., (supra) the Delhi High Court in Jagdev Singh Mumick vs Commissioner of Income tax, the Kerala High Court in Commissioner of Income tax vs E.C. Jacob, the Bombay High Court in the Commissioner of Income tax v, Home Industries & Co. and Commissioner of Income tax vs Michel Postal and the Madhya Pradesh High Court in Commissioner of Income tax vs Jaswant Lal Dayabhai have taken the view that the receipt on the transfer of goodwill generated in a business is not subject to income tax as a capital gain.
On the other side lies the view taken by the Gujarat High Court in Commissioner of Income tax vs Mohanbhai Pamabhai, and the Calcutta High Court in R.N. Daftary vs Commissioner of Income tax that even if no cost is incurred in building up the goodwill of the business, it is nevertheless a capital asset for the purpose of capital gains, and the cost of acquisition being nil the entire amount of sale proceeds relating to the goodwill must be brought to tax under the head "Capital gains".
It is apparent that the preponderance of judicial opinion favours the view that the transfer of goodwill initially generated in a business does not give rise to a capital gain for the purposes of income tax.
Upon the aforesaid considerations, Civil Appeal No. 1146(T) of 1975 and Civil Appeal No. 1378 of 1976 must be dismissed.
947 Civil Appeal No. 926 of 1973 raises the same question with reference to section 12B, Indian Income Tax Act, 1922.
As the relevant statutory provisions of the Indian Income Tax Act, 1922 are substantially similar to the corresponding provisions of the Income Tax Act, 1961, that appeal is also liable to be dismissed.
Accordingly, the appeals are dismissed with costs.
S.R. Appeals dismissed.
| IN-Abs | The assesses, a registered firm, manufactured and sold agarbattis.
Clause (13) of the Instrument of Partnership executed on 28th of July, 1954 and subsequently extended by another instrument dated 31st March, 1964 showed that the goodwill of the firm had not been valued, and the valuation would be made on dissolution of the partnership.
The assesses firm was dissolved by a deed dated 31st December, 1965.
At the time of dissolution the goodwill of the firm was valued at Rs. 1,50,000/ .
A new partnership by the same name was constituted under an instrument subsequently and it took over all the assets including the goodwill and liabilities of the dissolved firm.
The Income Tax Officer made an assessment on the dissolved firm for the assessment year 1966 67 but did not include any amount on account of the gains arising on transfer of the goodwill.
The Commissioner, being of the view that the assessment order was prejudicial to the Revenue, decided to invoke his revisional jurisdiction and setting aside the assessment order directed the Income Tax Officer to make a fresh assessment after taking into account the capital gain arising on the sale of the goodwill.
The Income Tax Appellate Tribunal in appeal accepted the contention of the assesses that the sale did not attract tax on capital gains under section 45 of the Income Tax Act, 1961.
The High Court of Karnataka on a reference, at the instance of the Commissioner of Income Tax affirmed the Tribunal 's view and held that the value of the consideration receive ed by the assesses for the transfer of its goodwill was not liable to capital gains tax under section 45 of the Income Tax Act.
Hence the three appeals as to the taxability of the transfer of the goodwill to capital gain tax.
Dismissing the appeals, the Court ^ HELD: 1.
The goodwill generated in a newly commenced business cannot be described as an asset within the terms of section 45 of the Income Tax Act, 1961 and therefore its transfer is not subject to Income Tax under the head "capital gains".
[946 B C] 2.1.
Goodwill denotes the benefit arising from connection and reputation.
The benefit to the business varies with the nature of the business and also from one business to another.
No business commenced for the first time possesses goodwill from the start.
It is generated as the business is carried on and may be augmented with the passage of time.
A variety of elements goes into its making, and its composition varies in different trades and in different businesses in the same trade, and while one element may preponderate in one business, another may dominate in another business.
And yet because of its intangible 939 nature, it remains insubstantial in form and nebulous in character.
In a progressing business goodwill tends to show progressive increase.
And in a failing business it may begin to wane.
Its value may fluctuate from one moment to another depending on changes in the reputation of the business.
It is affected by everything relating to the business, the personality and business rectitude of the owners, the nature and character of the business, its name and reputation, its location, its impact on the contemporary market, the prevailing socioeconomic ecology, introduction to old customers and agreed absence of competition.
There can be no account in value of the factors producing it.
It is also Impossible to predicate the moment of its birth.
It comes silently into the world, unheralded and unproclaimed and its impact may not be visibly felt for an undefined period.
Imperceptible at birth it exists enwrapped in a concept, growing or fluctuating with the numerous imponderables pouring into, and affecting the business.
[942 F, H, 943 A, E H, 944 A] Cruttwell vs Lye, ; Churton vs Douglas, 1859 John 174; Trego vs Hunt, ; Commissioner of Inland Revenue vs Muller & Co 's Margarine Limited, quoted with approval.
Section 45 of the Income Tax Act operates if there is a transfer of a capital asset giving rise to & profit or gain.
The expression "capital asset" defined in section 2(14) to mean "property of any kind held by an assessee" is of the widest amplitude and covers all kinds of property except the property expressly excluded by clauses (i) to (iv) of the sub section which do nor include good will.
[942 D E] 3.2.
Section 45 is a charging section, charging the profits or gains arising from the transfer of a capital asset to income tax, according to the detailed provisions for computing the profits or gains under that head.
The charging section and the computation provisions together constitute an integrated code.
When there is a case to which the computation provisions cannot apply at all, it is evident that such a case was not intended to fall within the charging section.
[944 C, D E] 3.3.
The mode of computation and deductions set forth in section 48 provides the principal basis for quantifying the income chargeable under the head "capital gains".
Section 48 contemplates an asset in the acquisition of which it is possible to envisage a cost.
The intent goes to the nature and character of the asset, that it is an asset which possesses the inherent quality of being available on the expenditure of money to a person seeking to acquire it.
None of the provisions pertaining to the head "capital gains" suggests that they include an asset in the acquisition of which no cost at all can be conceived.
[945 A, C E] 3.4.
The date of acquisition of the asset is a material factor in applying the computation provisions pertaining to capital gains.
The "cost of acquisition mentioned in section 48 implies a date of acquisition, an inference as strengthened by the provision of sections 49, 50 and sub section (2) of section 55.
If the goodwill generated in a new business is regarded as acquired at a cost and subsequently passes to an assessee in any of the modes specified in sub section (1) of section 49, it will become necessary to determine the cost of acquisition to the previous owner.
Having regard to the nature of the asset, it will be impossible to determine such cost of acquisition.
Nor can sub section (3) of section 55 be invoked, because the date of acquisition by the previous owner will remain unknown.
[945 F G, H, 946 A] 940 Commissioner of Income tax vs K. Rathnam Nadar, ; Commissioner of Income tax vs Chunilal Prabhudas & Co., ; Jagdev Singh Mumick vs Commissioner of Income tax, ; commissioner of Income tax vs E. C. Jacob, Commissioner of Income tax vs Home Industries & Co., ; commissioner of Income tax vs Michel Postal, commissioner of Income tax vs Jaswant Lal Dayabhai, approved.
Commissioner of Income tax vs Mohanbhai Pamabhai, ; K. N. Daftary vs Commissioner of Income tax , overruled.
|
Appeal No. 74 of 1956.
Appeal by special leave from the judgment and order dated September 22, 1955, of the Nagpur High Court in Letters Patent Appeal No. 2 of 1955.
C.K. Daphtary, Solicitor General for India, J. N. Bannerji and P. C. Agarwala, for the appellant.
M.C. Setalvad, Attorney General for India and Naunit Lal, for respondent No. 1. 1956.
September 30.
The Judgment of the Court was delivered by SINHA J.
This is an appeal by special leave from the judgment and order, dated September 22, 1955, passed by the Letters Patent Bench of the Nagpur High Court reversing those of a single Judge of that Court, dated December 13, 1954, refusing to issue a writ in the nature of a certiorari.
The facts of this case lie in a short compass and may be stated as follows: The Suwarna Transport Company Limited, which will be referred to as the first respondent in the course of this judgment, held seven permits for running buses on the Buldana Malkapur route, as the 100 sole operator on that route.
It applied for another permit for the same route.
The appellant, The New Prakash Transport Co. Ltd., as also another party, called the Navjivan Transport Service (not cited in this Court) applied for a similar permit on that route.
On May 26, 1953, all the three applicants aforesaid were heard by the Regional Transport Authority of Amraoti, which is the third respondent in this Court, in connection with the permit applied for.
Consideration of the several applications was postponed, but a resolution was passed to the effect that "No one service should have monopoly on Buldana Malkapur route.
" On March 30, 1954, another meeting of the Regional Transport Authority took place and the first respondent was granted the permit.
The appellant 's application was rejected on the ground that the police report was against it.
The appellant preferred an appeal to the Appellate Authority (constituted under R. 73 of the Motor Vehicles Act), Madhya Pradesh, Nagpur, which is the second respondent to this appeal.
The appellant challenged the correctness of the police report against it and applied to the District Superintendent of Police personally to verify the facts stated in the first report on the basis of which the appellant 's application for permit had been rejected, as aforesaid.
The police made a further report, which was placed before the second respondent.
That further report by the police was read out to the parties by the Chairman of the Appellate Authority at the time of the hearing of the appeal.
At the hearing no objection appears to have been raised by any of the parties to the course adopted by the second respondent.
By its order dated July 29, 1954, the second respondent set aside the order of the third respondent, allowed the appeal and ordered the permit to be issued to the appellant.
The first respondent moved the High Court at Nagpur for a writ of certiorari under article 226 of the Constitution, substantially on two grounds, namely, (1) that the order passed by the second respondent was vitiated by an error apparent on the face of the record, and (2) that it contravened the ' principles of natural justice.
The first ground was founded on the allegation that the second 101 respondent had misread the police report, and the second on the allegation that the revised report by the police had not been shown to the petitioner who had been afforded no " real and effective opportunity to deal with the report or to meet any relevant allegations made therein, and to study that report and make his submissions in regard thereto before the appeal was decided.
" The appellant and the second respondent showed cause against the rule issued by the court.
The appellant while showing cause, admitted that the third respondent had rejected its application on the basis of the police report dated March 27, 1954, which "was full of mistakes and falsehoods," that it moved the District Superintendent of Police personally to verify the contents of the said report and that the fresh report submitted by the police after due verification had absolved the appellant from the allegations of misconduct contained in the first report.
It also controverted the ground that there was any mistake apparent on the face of the record.
The fresh report submitted by the police after verification at the appellant 's request was received by the second respondent and the Chairman read the same during the hearing of the appeal and that, therefore, it was wrong to suggest that there had been a failure of justice,.
The second respondent also showed cause and corroborated the appellant 's statement that the first police report had been subsequently modified by the District Superintendent of Police by the report dated May 13, 1954, which showed that the previous report was " based on some misunderstanding.
" It was also stated that the report was actually read out to the parties by the Chairman while the appeal was being heard.
The petition under articles 226 and 227 made, as aforesaid, by the first respondent was heard by a single Judge (Mr. Justice V. R. Sen) who by his orders dated December 13, 1954, discharged the rule with costs.
In the course of his judgment the learned Judge after ' referring in detail to the orders of the authorities under the Motor Vehicles Act, that is to say, the second and third respondents, observed that there was no substance in the contention that the procedure 102 adopted by the Appellate Authority was opposed to the principles of natural justice and had operated to the prejudice of the first respondent; and that there was no error apparent on the face of the record.
The learned Judge also pointed out that when the report was brought to the notice of the first respondent, it did not indicate that it wished to controvert the report.
The first respondent preferred an appeal under the Letters Patent and repeated its grounds of attack against the orders of the Appellate Authority.
The appeal was heard by a Division Bench consisting of Chief Justice Hidayatulla and Mr. Justice section P. Kotwal.
The Letters Patent Bench seemed to be inclined to negative the plea that there was a mistake apparent on the face of the record and pointed out that though the language used by the second respondent was ambi guous and not quite accurate, it was possible to take the view that it had in fact considered the subsequent police report when it observed that the police bad practically absolved the appellant from all blame except on a minor question, not necessary to be referred to in detail here.
On the second ground it differed from the learned single Judge and came to the conclusion "that the Appellate Authority erred in rushing through without giving a proper and effective chance to the appellant to state its case.
" In the result it granted a writ quashing the order of the Appellate Authority and directing it to rehear the appeal in the light of the observations made in the course of the judgment.
The appellant made an application to the High Court for a certificate of fitness for appeal to this Court.
Having been unsuccessful there, the appellant came up to this Court and obtained special leave to appeal.
The only question which requires determination by this Court is whether or not there has been a failure of natural justice in this case as a result of the procedure adopted by the Appellate Authority.
On this question there has been a marked difference of opinion in the two stages of the case in the High Court.
It has been 103 argued on behalf of the appellant that the Appeal Bench of the Nagpur High Court has erred in coming to the conclusion that in the circumstances of this case, there has been a failure of justice, in disagreement with the learned single Judge who was clearly of the opposite opinion.
It has also been argued that there are no well defined criteria by which this question falls to be determined.
It depends upon the terms of the legislation creating the statutory body which has to function according to its obligations laid down in the statute.
If it has done all that was required by the law to do, it cannot be said that it has failed in the discharge of its statutory duty.
In this connection reference was made to the provisions of sections 47, 48 and 64 of the Motor Vehicles Act read along with the relevant rules framed under section 68 of the Act.
On behalf of the respondents it was argued that it had no opportunity of studying the subsequent police report and of making submissions thereon with the result that there has been a failure of natural justice in the sense that the respondent had been deprived of a fair and full opportunity of being heard.
Though the High Court on appeal did not base its decision on the other question, namely, whether there was any error apparent on the face of the record, it was sought to be argued that there was an error in the order of the second respondent in so far as it made reference to only the first report and read into it the maatter contained in the subsequent report.
At the outset we may observe that, in our opinion, there is no substance in the second ground sought to be resuscitated in this Court by the learned counsel on behalf of the res .
pondent.
Error apparent on the face of the record in the context of this case must mean an assumption of facts which are not borne out by the record.
We are not concerned with other grounds which may in the context of each particular case support a contention of error apparent on the face of the record.
In this case if there was any such error, it was with reference to the two police reports.
As observed by the Appellate Bench of the High Court, though the language used by the Appellate Authority with regard to strict 104 grammatical construction may refer to the first police report, it was difficult to hold that the matters referred to in the order challenged before the High Court were not contained in the subsequent report submitted by the police at the instance of the appellant.
The judgment under appeal did not take the view that there was any such mistake apparent on the face of the record as was contended for on behalf of the first respondent.
We have been referred to the orders of the Appellate Authority as read by the Appellate Bench of the High Court and, in our opinion, no such mistake has been shown to have vitiated the orders impugned before the High Court.
Coming back to the question whether or not there has been a failure of natural justice, we may shortly review the relevant provisions of the statute in order to find out the obligations imposed upon the Appellate Authority while disposing of an appeal from the orders of the Regional Transport Authority.
The matters to be considered by a Regional Transport Authority at the time of disposing of an application for a stage carriage permit are set out in section 47.
They include the interest of the public generally, the adequacy of existing road transport service and the benefits to any particular locality.
The Authority is also enjoined to take into consideration any representations made by persons already providing road transport facilities along the proposed route or by any local authority or police authority within whose jurisdiction the proposed route lies.
Section 48 empowers a Regional Transport Authority, after taking into consideration matters set forth in section 47, to restrict the number of stage carriages and to impose conditions on stage carriage permits.
Section 64 provides for right of appeal against specified kinds of orders passed by the Provincial or Regional Transport Authority to the "prescribed authority".
It also in terms provides that on an appeal being filed to the prescribed authority, it shall give the appellant and the original authority, that is to say, the authority against whose orders the appeal had been brought., "an opportunity of being heard.
" Section 64 which creates the right of appeal does not in terms speak of a like 105 opportunity being given to the persons against whom the appeal had been filed.
But r. 73 framed by the Government in pursuance of its rule making power conferred by section 68, lays down that the authority to decide ' an appeal against the orders of a Regional Transport Authority under section 64 of the Act shall be the Chairman and two members of the Provincial Transport Authority.
The rule further provides that on receipt of an appeal, the Chairman shall appoint the time and place for hearing the appeal and shall give not less than thirty days notice to the appellant, the original authority, and "any other person interested in the appeal" and on such appointed or adjourned date the Appellate Authority "shall hear such persons as may appear and, after such further enquiry, if any, as it may deem necessary, confirm, vary, or set aside the order against which the appeal is preferred and make any consequential or incidental order that may be just or proper".
It will.
thus be seen that though the substantive section creating the right of appeal does not in terms create any right in a respondent to be heard, the rules framed providing for the procedure before the Appellate Authority contemplate that sufficient notice shall be given to " any other person interested in the appeal" which expression must include persons other than the appellant who may be interested in being heard against the points raised in support of the appeal.
Neither the sections nor the rules framed under the Act contemplate anything like recording oral or documentary evidence in the usual way as in courts of law.
Besides, the parties interested in the grant of stage carriage permits or those interested against it, the police authority of the locality is also entitled to be heard both at the original stage and at the appellate stage.
Thus the Motor Vehicles Act and the rules framed thereunder with particular reference to the Regional Transport Authority and the Appellate Authority do not contemplate anything like a regular hearing in a court of justice.
No elaborate procedure has been prescribed as to how the parties interested have to be 14 106 heard in connection with the question, who is to be granted a stage carriage permit.
The judgment of the High Court under appeal has made copious quotations from the decisions of the House of Lords and the Court of Appeal in support of its conclusion that the principles of natural justice had not been sufficiently complied with in the present case by simply reading out the subsequent police report at the time the Appellate Authority was hearing the appeal.
The learned Judges of the Appeal Court have observed that the contents of a long report such as the second report was, could not be carried in one '. , head.
They also observed that in order to present its case effectively the first respondent was entitled not only to have the report read out but also to study it so that it could understand it and state its case fully and effectively before the Appellate Authority.
We have to examine those several precedents relied upon by the High Court to see how far its conclusions are supported by authority.
But before we do that, it has got to be observed that the question whether the rules of natural justice have been observed in a particular case must itself be judged in the light of the constitution of the statutory body which has to function in accordance with the rules laid down by the legislature and in that sense the rules themselves must vary.
The Regional Transport Authority is charged with the duty of granting or refusing a stage carriage permit, only to mention the matter with which we are immediately concerned.
In that connection the statute requires that authority to have regard to the matters set forth in section 47 of the Act, as already indicated.
The police authority within whose local jurisdiction any part of the proposed route lies, has also been given the right to make representations.
But the police report submitted to the Regional Transport Authority or to the Appellate Authority, if it requires the police authority to do so, is not intended to be anything more than an expression of opinion by an authority interested in the maintenance of law and order, with particular reference to the question as to whether any of the applicants for a permit had anything to its credit or discredit as 107 supplier of transport facilities.
Such a report is meant more for the use of the authority in making or refusing a grant than for the use of the several applicants or any one of them.
In other words, it is in the nature of information supplied by the police in order to assist the authority in making up its mind.
In the present case when the subsequent police report was read out by the Chairman, neither the appellant nor the first respondent, nor for the matter of that any of the other parties, raised any objection to the use of that document or asked for an adjournment on the ground either that it had been taken by surprise or that it had materials to offer in opposition to the report.
The learned Judges of the High Court have observed in the course of their judgment under appeal that though it is the essence of the business of tribunals like the one under the Motor Vehicles Act to transact business expeditiously, the business of the authority would not have suffered much if a copy of the report had been given to the parties concerned and the case adjourned for a short time.
It appears that no such adjournment had been prayed for on behalf of any of the parties who, it appears, had been represented by counsel.
But then the High Court has observed further that "the duty is laid not upon counsel who appears but upon the tribunal which administers justice.
It is incumbent on every tribunal which acts judicially to see that justice is not only done but is seen to be done, arid that the elementary rule of natural justice of giving a fair and proper hearing to every one concerned is followed.
We think that the Appellate Authority erred in rushing through without giving a proper and effective chance to the appellant to state its case.
" In our opinion, the High Court has made a number of assumptions in making those observations which do not appear to be justified by the scheme of the legislation we are dealing with or by any a priori considerations of what has been characterized as "natural justice".
The tribunal in question was not administering justice as a court of law, though while deciding as between the rival claims of the applicants for a permit it had to deal with them in a fair and just manner.
108 But a tribunal even acting " judicially " is not obliged to grant an adjournment suo motu without any application on behalf of any of the parties interested.
We do not find that any of the parties made at that time any grievance about the procedure adopted by the Appellate Authority.
But the question appears to have been raised for the first time before the High Court after the Appellate Tribunal had decided to grant the permit to the appellant.
In this connection it has also to be observed that the subsequent police report had said nothing directly against the first respondent which it would be interested in controverting.
The subsequent police report had only withdrawn some of the adverse comments against the conduct of the appellant which had been found to have been made under a misunderstanding.
But the subsequent report still contains some minor complaints against the appellant.
Those matters were apparently considered by the Appellate Authority not to be so serious as to stand in the way of the appellant getting the permit, especially when that authority had previously decided upon the policy that monopoly of supplying transport facility should not be allowed to continue in favour of the first respondent.
Hence, in our opinion, there was nothing in the rules requiring a copy of the police report to be furnished to any of the parties, nor was there any circumstance necessitating the adjournment of the hearing of the appeal, particularly when no request for such an adjournment had been made either by the first respondent or by any other party.
At that time none of the parties appears to have made any grievance about the police report only being read at by the Chairman or any request for an adjournment in order to adduce evidence pro and con.
The rules framed under Chapter IV for "the conduct and hearing of the appeals that may be preferred under this chapter (section 68 (2) (b)) " do not contemplate any such facilities being granted to the parties, though it is open to the Appellate Authority to make any such " further enquiry, if any, as it may deem necessary.
" But the High Court Bench appears to have, taken the view that, rule or no rule, request or no request for an 109 adjournment,the rules of natural justice made it incumbent upon the Appellate Authority to stay its hands in order that " a proper and effective chance was given to the first respondent to state its case.
" There was not much of a case to state because, each party applying for the permit must be presumed to have pressed its claim upon the Appellate Authority.
We have therefore to examine the precedents discussed in detail in the judgment under appeal to see how far the Appellate Bench was justified in holding that the rules of natural justice had been contravened by the Appel late Authority.
The earliest decision of the House of Lords brought to our notice in this connection is the case of Spackman vs
Plumstead Board of Works (1).
In that case the question arose on a prosecution for infringement of an Act of Parliament making provision for fixing the " general line of buildings " in a road.
The certificate of the superintending architect as to the general line of buildings came in for discussion as to whether the architect, before deciding as to how the general line has to be fixed, had to hear the parties concerned.
In that connection the Earl of Selborne, L.C., made the following observations : " No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated.
He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view.
He must give notice when he will proceed with the matter, and he must act honestly and impartially and not under the dictation of some other person or persons, to whom the authority is not given by law.
There must be no Malversation of any kind.
There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice.
But it appears to me to be perfectly consistent with reason, that the statute may have intentionally (1) , 240.
110 omitted to provide for form, because this is a, matter not of a kind requiring form, not of a kind requiring litigation at all, but requiring only that the parties should have an opportunity of submitting to the person by whose decision they are to be bound such considerations as in their judgment ought to be brought before him.
When that is done, from the nature of the case no further proceeding as to summoning the parties, or as to doing anything of that kind which a judge might have to do, is necessary.
" Another leading case on the subject is the decision of the House of Lords in the well known case of Board of Education vs Rice (1).
Their Lordships in that case had to discuss the duty of the Board of Education under section 7 of the Education Act, 1902.
Lord Loreburn, L.C., in the course of his speech referred to the provisions of the Act and made the following observations as to the duty to decide certain questions relating to nonprovided schools: " Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon department.
,; or officers of State the duty of deciding or determining questions of various kinds.
In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law.
It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone.
In such cases the Board of Education will have to ascertain the law and also to ascertain the facts.
I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything, But I do not think they are bound to treat such a question as though it were a trial.
They have no power to administer an oath, and need not examine witnesses.
They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view." (1) ,182.
How far judicial opinion may vary as to the content of the rule of natural justice is amply illustrated by the case of Rex vs Local Government Board, Ex parte Arlidge (1), at different stages.
The rule nisi for a certiorari was first heard by Ridley, Lord Coleridge and Bankes, JJ.
The case related to the powers of the, Local Government Board under the Housing, Town Planning, etc.
Act, 1909 (9 Edw. 7, c. 44) refusing to terminate its orders closing a dwelling house as unfit for habitation and the procedure for hearing an appeal against such an order.
Section 29 of the Act provided that such an appeal shall be heard and disposed of according to the procedure laid down by the Local Government Board, provided that the rules shall provide that the Board shall not dismiss any, appeal without having first held a public local inquiry. , It was unanimously held by the Court discharging the rule that the Local Government Board was not bound to hear the appellant or any one on his behalf after the report of the inspector on the public local inquiry had been received, before dismissing the appeal.
At the public local inquiry the owner of the house affected by the closing order had been represented.
But at the time the appeal was finally disposed of, there was no hearing of the appellant or his representative as in a court of law.
The Court repelled the argument that the appellant had a right to be heard by the Local Government Board and to know the contents of the report made by the inspector who had held the public local inquiry.
Rely Vingmainly upon the judgment of Lord Loreburn, L.C, in the case of Board of Education vs Rice (supra), the Court decided that the procedure indicated by the rules framed under the statute in question had been followed and that there was no other or further obligation on the Board to hear the appellant either personally or through his representative or counsel, because there was no indication in the statute to that effect.
The matter was taken in appeal in Rex vs Local Government Board, Ex parte A rlidge (2), and the Court of Appeal by a majority (Vaughan Williams and Buckley, L.JJ., Hamilton, L.J. dissenting (1) (2) , 112 allowed the appeal holding that it was contrary to the principles of natural justice that the Board should have dismissed the appeal without disclosing to the appellant the contents of their inspector 's report and without giving the appellant an opportunity of being heard in support of the appeal.
They, therefore, quashed the order dismissing the appeal.
The majority judgment pointed out that the Act and the rules framed thereunder except for certain matters were silent as to the procedure and that in the absence of such specific provisions the non disclosure of the `nspector 's report was contrary to principles of natural justice on which English law is based.
It further held that the appellant before the Board was entitled to a hearing and that as the appellant had not the opportunity of seeing and considering the report and the documents which the deciding authority had before it, the appellant had been denied full opportunity of being heard.
It went to the length of observing that the nondisclosure of the report and the documents which were taken into consideration by the Board when the disclosure had been asked for, was itself inconsistent with natural justice.
Hamilton, L.J., in his dissenting judgment pointed out that the report of the inspector in the case, as in other Government departments, is only a statement of facts made for the information of the officials of the department and that it could not be assumed that the legislature meant all such reports to be communicated to those interested where it does not say the contrary.
He further pointed out that the practice was the other way, namely, to specify how and to whom such reports were to be communicated, (when they are intended to be communicated at all.) Dealing with the question how far the requirements of natural justice had been fulfilled, the Lord Justice observed at p. 199 that "It has often been pointed out that the expression (natural justice) is sadly lacking in precision.
" Then he referred to a number of precedents dealing with the question of natural justice as to how the connotation of the expression differed in different contexts.
He further observed at pp.
201 & 202: 113 " The Local Government Board here is a statutory tribunal, anomalous as compared with common law Courts, created by the Legislature for a special class of appeals and endowed by it with the power of formulating its own procedure.
" He also adopted the dictum of Loreburn, L.C., in Board of Education vs Rice (supra) that the Board must " act in good faith and fairly listen to both sides.
" Against the judgment of the majority of the Court quashing the determination of the appeal by the Board there was an appeal to the House of Lords.
The House of Lords unanimously adopted the opinion of Hamilton, L.J. (later Lord Sumner), allowed the appeal and set aside the majority decision.
[Vide Local Government Board vs Arlidge (1)].
In the course of his speech Viscount Haldane, L.C., made the following observations: " My Lords, when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially.
, They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made.
The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice.
But it does not follow that the procedure of every such tribunal must be the same.
" His Lordship adopted the dictum of Lord Loreburn, L.C., in the leading case of Board of Education vs Rice (supra).
Lord Shaw in his speech made the following observations which are very apposite to the facts and circumstances of this case: " The judgments of the majority of the Court below appear to me, if I may say so with respect, to be dominated by the idea that the analogy of judicial methods or procedure should apply to departmental action.
Judicial methods may, in many points of administration, be entirely unsuitable, and produce delays, expense, and public and private injury.
The department must obey the statute." (1) , 132.
15 114 He further observed at p. 138 as follows " And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded.
This is expressly applicable to steps of procedure or forms of pleading.
In so far as the term 'natural justice ' means that a result or process should be just, it is a harmless though it may be a high sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous." Lord Parmoor in his speech also reiterated the principle governing the procedure of a quasi judicial tribunal in these words: " Where, however, the question of the propriety of procedure is raised in a hearing before some tribunal other than a Court of law there is no obligation to adopt the regular forms of legal procedure.
It is sufficient that the case has been heard in a judicial spirit and in accordance with the principles of substantial justice." Another recent decision of the House of Lords in the case of General Medical Council vs Spackman (1) was relied upon by the High Court in the judgment under appeal.
In that case the General Medical Council, which had been constituted a domestic forum to determine whether a case had been made out for striking off the name of a medical practitioner from the medical register " for infamous conduct in a professional respect," was the appellant before their Lordships, and the respondent had been found guilty by the Divorce Court of having committed adultery.
In the proceedings before the Medical Council the medical practitioner proceeded against desired to call fresh evidence on the issue of adultery and requested the Council to rehear that issue.
The Council declined to reopen the issue and to hear fresh evidence and directed his name to be erased from the register.
The Court of Appeal unanimously affirmed the view of the dissenting Judge in the Court of first instance that there had been no (1) 115 " due inquiry " as required by section 29 of the Medical Act, 1858.
The Appeal Court set aside the majority decision of Viscount Caldecote, C.J., and Humphreys, J., who had held that the requirements of the law had been satisfied by adopting the judgment and decree of the Divorce Court.
On appeal by the Medical Council to the House of Lords, the House unanimously agreed with the unanimous decision of the Appeal Court and held that the requirement of due inquiry enjoined by the Act creating the Tribunal had not been satisfied.
Viscount Simon, L.C., examined the provisions of the Act and the relevant rules and pointed out that they require the practitioner proceeded against " to state his case, and to produce the evidence in support of it." The Lord Chancellor in the course of his speech observed that the General Medical Council was not a judicial body in the ordinary sense, was master of its own procedure and was not bound by strict rules of evidence.
It was bound to satisfy the requirements of the law and the rules made thereunder.
The Council had to decide on sworn testimony after due inquiry.
He also adopted the language of Lord Loreburn, L.C., in the aforesaid case of Board of Educatian vs Rice (supra).
Lord Atkin in the course of his speech pointed out that the rules under the Act provided that the Council was bound, if requested, to hear all the evidence that the practitioner charged wished to bring before them.
He also pointed out the antithesis between convenience and justice by saying " convenience and justice are often not on speakin terms." His Lordship further pointed out the difference between the procedure which may be prescribed in respect of different tribunals which were creations of statutes, in these words: " Some analogy exists, no doubt, between the various procedures of this and other not strictly judicial bodies, but I cannot think that the procedure which may be very just in deciding whether to close a ,school or an insanitary house is necessarily right in deciding a charge of infamous conduct against a professional man.
I would, therefore, demur to any suggestion that the words of Lord Loreburn, L.C., in Board of Education vs Rice (supra) afford a complete guide to 116 the General Medical Council in the exercise of their duties.
As I have said, it is not correct that I they need not examine witnesses. ' They must examine witnesses if tendered, and their own rules rightly provide for this.
Further it appears to me very doubtful whether it is true that 'they have no power to administer an oath '.
" It may be noticed that the Lords who sat on that case particularly emphasized the requirements of the law as laid down in the statute and the rules framed thereunder.
In view of those statutory provisions they found it necessary to uphold the decision of the Court of Appeal which had set aside the judgment and orders of the King 's Bench Division which had taken the con tarry view, to the effect that the decree in the Divorce Court was conclusive evidence on which the Medical Council could act.
The case is therefore authority for the proposition that the rules of natural justice have to be inferred from the nature of the tribunal, the scope of its enquiry and the statutory rules of procedure laid down by the law for carrying out the objectives of the statute.
There is another class of cases which lay down that if a person is to be deprived of his professional status, he must be heard and be given effective opportunity of meeting any allegation made against him on the question of his fitness to pursue his profession.
If the tribunal constituted by the statute in question to decide about the fitness of an individual to pursue that profession, decides against him without giving him an opportunity of meeting any allegations against him bearing on his capacity or qualification for the profefession to which he claims admission, it has been held that it was improper for the tribunal acting in a quasi judicial capacity to act to his prejudice upon evidence or adverse report without his having an opportunity of meeting such relevant allegations made against him.
To that class belongs the case of R. vs Architects Registration Tribunal (1).
In that case the King 's Bench Division issued an order of certiorari to, quash (1) 117 the tribunal 's decision refusing an application for registration as an architect.
The cases of Leeson vs General Council of Medical Education and Registration (1), and Allinson vs General Council of Medical Education and Registration (2) also belong to that category.
They deal with the power of the General Council of Medical Education under the Medical Act (21 & 22 Viet.
c. 90) to strike off a medical practitioner for unprofessional conduct.
Those were cases in which the Medical Council had to function as a quasi judicial body and had to proceed according to the procedure laid down in the rules framed under the Act aforesaid.
They had therefore to function, not exactly as courts of law, but as domestic tribunals created by the statute to function according to the statutory rules in a fair and just manner, that is to say, that they should have no personal interest in the con;, troversy and should have given a full and fair opportunity to the person proceeded against to place his case before the tribunal.
Another class of cases is illustrated by the decision of the Court of Appeal in R. vs Archbishop of Canterbury(3).
In that case the Archbishop of Canterbury reviewing the order of the Bishop refused to approve the clerk presented by the patron to a benefice.
Acting under section 3 of the Benefices (Exercise of the Rights of Presentation) Measure, 1931, the Court repelled the argument on behalf of the disappointed patron that as the decision involved a deprivation of property rights there was an obligation upon the Archbishop to act in a quasijudicial manner.
Lord Greene, M.R., who delivered the judgment of the Court, observed that there was no " justification for regarding the matter when it comes before the Archbishop as in any sense, or by any remote analogy, a his inter parties".
Hence the Court on a true construction of a. 3 of the Measure came to the conclusion that the Archbishop was not required to arrive at his decision by conducting a quasi judicial enquiry.
This case, therefore, is an authority for the (1) (2) (3) 118 proposition that simply because property rights are involved, the authorities charged with the duty of deciding claims to such rights are not necessarily, apart from the provisions of the statute, required to function as quasi judicial tribunals.
As already pointed out, the Appellate Authority had to function in a quasi judicial capacity in accordance with the rules made under the Motor Vehicles Act.
That Act has made ample provisions for safeguarding the interests of rival claimants for permits.
The provisions of the Act were examined in detail by a Bench of five Judges of this Court in the case of Veerappa Pillai vs Raman & Raman Ltd. (1).
This Court examined elaborately the provisions of the Act vis a vis the authorities created by the Act to administer its provisions relating to the grant of stage carriage permits.
It also examined how far the High Court exercising its special powers to issue writs under article 226 of the Constitution could interfere with the orders made by those authorities.
In the course of its judgment this Court made the following observations at page 596, which are very relevant to the present purpose : " Thus we have before us a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant, and prescribing appeals and revisions from subordinate bodies to higher authorities.
The remedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must Generally be bad.
" Keeping in view the observations of this Court quoted above and the principles of natural justice discussed in the several authorities of the highest Courts in England, we have to see how far the provisions of the Motor Vehicles Act and the rules framed thereunder justify the criticism of the High Court that the Appellate Authority did not give full and effective opportunity to the first respondent to present his point of view before it.
As already indicated, the statutory (1) ; 119 provisions do not contemplate that either the Regional Transport Authority or the Appellate Authority had to record evidence or to proceed as if they were functioning as a court of law.
They had to decide between a number of applicants as to which of them was suitable for the grant of the fresh permit applied for.
They took into consideration all the relevant matters and came to their decision which has not been attacked as partial or perverse.
The only ground which survived before the Appellate Bench of the High Court was that the requirements of natural justice had not been satisfied.
The only question that we have to determine is whether the Appellate Authority was justified in using the second report made by the police, though it had not been placed into the hands of the parties.
That report did not directly contain any allegations against the first respondent.
Hence there was nothing in that report which it could be called upon to meet.
The only effect of the report was that many of the objections raised against the suitability of the appellant had been withdrawn by the police on further consideration of their records.
The police report is more for the information of the authorities concerned with the granting of permits than for the use of the several applicants for such permits.
In our opinion, therefore, the fact that the Appellate Authority had read out the contents of the police report was enough compliance with the rules of natural justice.
We have also pointed out that no grievance was made at the time the Appellate Authority was hearing the appeal by any of the parties, particularly by the first respondent, that the second report should not have been considered or that they wished to have a further opportunity of looking into that report and to controvert any matter contained therein.
They did not move the Appellate Authority for an adjournment of the hearing in order to enable it to meet any of the statements made in that report.
But the learned counsel for the respondent suggested that the requirements of natural justice could not be waived by any of the parties and that it was incumbent upon the Appellate Authority to observe the so called rules of natural justice.
In our 120 opinion, there is no warrant for such a proposition.
Even in a court of law a party is not entitled to raise the question at the appellate stage that he should have been granted an adjournment which he did not pray for in the court of first instance.
Far less, such a claim can be entertained in an appeal from a tribunal which is not a court of justice, but a statutory body functioning in a quasi judicial way.
For the reasons aforesaid, in our opinion, the judgment under appeal is erroneous and must be set aside and we are further of the opinion that the judgment of the learned single Judge of that Court had taken the more correct view of the legal position.
The appeal is accordingly allowed with costs throughout.
Appeal allowed.
| IN-Abs | Rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the legislature under which they have to act, and the question whether in a particular case they have been contravened must be judged not by any preconceived notion of what they may be but in the light of the provisions of the relevant Act.
Case law discussed.
The provisions of sections 47, 48, 64 and the rules framed under section 68 of the Motor Vehicles Act make it abundantly clear that a Regional Transport Authority and an Appellate Authority in hearing an appeal, function in a quasi judicial capacity and not as courts of law and are not required to record oral or documentary evidence and, in deciding as between the rival claims of applicants for stage carriage permits, what they are required to do is to deal with such claims in a fair and just manner.
The Act, however, amply provides for the safeguarding of their interests.
Veerappa Pillai vs Raman & Raman Ltd, ; , referred to, 99 Consequently, in a case where the Regional Transport Autho rity refused to grant a permit to an applicant on account of an adverse police report and the Appellate Authority granted the same on the basis of a further report by the police, whereby all material allegations against him were withdrawn and nothing was said against his rival which would require to be controverted by him, and the Chairman read out such report at the hearing of the appeal without any objection by any of the interested parties or any request for adjournment and a Division Bench of the High Court in appeal, reversing the decision of a single judge made under articles 226 and 227 Of the Constitution, held that the rules of natural justice had been contravened by reason of the failure on the part of the Appellate Authority to adjourn the proceeding suo motu in order to afford the rival claimant an opportunity to meet the revised police report, its decision was erroneous and must be set aside.
Held, further, that the reading out of the contents of the poiice report by the Chairman at the hearing of the appeal was enough compliance with the rules of natural justice as there was nothing in the rules requiring a copy of it to be furnished to any of the parties.
|
N: Criminal Appeal No. 320/75.
Appeal by special leave from the Judgment and Order dated 2.4.1975 of the Punjab and Haryana High Court in Criminal Appeal No. 1044/74 and Murder Reference No. 50/74.
3 K.G. Bhagat and R.N. Poddar for the Appellant.
Mrs. Urmila Sirur for the Respondents.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
This appeal by special leave by the State of Haryana is directed against the judgment and order of the Punjab and Haryana High Court setting aside the conviction and and sentence passed by the Session Judge, Karnal.
Respondents Balkar Singh and Dalel Singh are the sons of respondent Sher Singh.
The Session Judge convicted all the three under Section 302/34 of the Penal Code, and sentenced Sher Singh to death and the other two to imprisonment for life.
On a reference by the Sessions Judge for the confirmation of the sentence of death inflicted on Sher Singh and appeal filed by the respondents the High Court set aside the order of conviction and sentence and acquitted the respondents.
The material facts may be stated thus: On 17th of October, 1973 at about 12 A.M. Mst.
Narman, widow of Danna (deceased) submitted the first information report to A.S.I. Ram Sarup (P.W. 12) at village Pai.
Her material allegations in the first information report were that the previous day, respondent Sher Singh and his two younger half brothers, namely, Danna, her husband, and Hukmi, had effected a family partition amongst themselves and they started living separately.
That day, namely 17th of October, at about 6.00 A.M. her husband, Danna, along with his brothers Hukmi and respondents Sher Singh came to their bagichi nearby from the house in order to milk cattle.
She followed them in order to fetch milk.
Respondent Sher Singh, then along with his sons Dalel, Balkar, Keni, Prem and Parwana surrounded her husband and her husband 's younger brother, Hukmi, in the courtyard.
Sher Singh had a Gandasi in his hand, Dalel a lathi shoded with iron blade, the other three had lathis in their hands.
Sher Singh dealt a Gandasa blow on the head of her husband Danna, who immediately fell down on the ground.
Dalel then dealt a blow with iron shoded lathi on the head of Hukmi who also fell down on the ground.
The other accused then inflicted blows with lathis on the persons after they had already fallen down.
Respondent Sher Singh dealt another Gandasi blow on her husband.
She has further stated in the first information report that Mst.
Danni, sister of respondent Sher Singh, was also with her and witnessed the occurrence.
They screamed seeing the assaults, whereupon they were directed on pain of death to sit in the corner of the court yard.
4 Out of fear they obliged.
Thereafter, it has further been alleged, the accused persons dragged the dead bodies to their nearby heap of cow dung cakes.
Sher Singh spread kerosene on the heap of the cakes and Dalel set fire to it lighting a match stick.
As a result, the two bodies were charred.
P.W. 12 sent the F.I.R. to the police station where the case was registered.
Police, after investigation, submitted charge sheet and arrested the accused persons.
Eventually, the accused persons were charged under Section 302/34 of the Penal Code, and tried in the court of Sessions.
The accused persons pleaded not guilty to the charges.
According to them the three brothers were joint in residence, mess and cultivation till the date of the occurrence.
The defence of respondent, Sher Singh, was that his two sons, Dalel and Balkar, and the deceased brothers Danna and Hukmi, used to sleep in the Bagichi during the night to keep watch over their cattle tethered there.
On October 16, 1973 he and his two deceased brothers were in their fields during the day and in the evening he went to their field where cotton was ripe and he remained there to keep watch over the cotton till next morning.
That field was at a distance of about 1 1/2 miles from their Bagichi.
About 1 1/2 hours after sun rise on October 17, 1973, he returned to the Bagichi where he found the heap of cow dung cakes in the enclosure of Bagichi burning.
Police then arrested him.
The defence of respondent Dalel was that two days before the date of occurrence he went to his maternal uncle, Lalji, at Narwara to borrow a tractor.
He returned home on the 17th of October, 1973 at about sun set.
He found the heap of cow dung burning and police inside the Bagichi where he was arrested by the police.
The defence of respondent Balkar was that he was a student of 9th class and on 16th of October, 1973 he had been to school to witness some sports.
He passed the following night in village, Diwali, where his sister was married.
He returned home on October 17, 1973 and when he reached the Bagichi he found the heap of cow dung burning and, he was arrested by the police there.
Thus the defence of all the respondents was alibi.
When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides: "103.
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
5 Illustrations: (a) A prosecutes B for theft, and wishes the court to believe that B admitted the theft to C. A must prove the admission.
B wishes the court to believe that, at the time in question, he was elsewhere.
He must prove it.
" In this case defence did not adduce any evidence to prove the alibi.
On the contrary the evidence of P.W. 11, Lila, is that on 21st October, 1973, all the accused were produced by Lalji, the brother of the wife of respondent, Sher Singh in village Nand Karan Majra around 8 a.m., when they were arrested.
This was in presence of P.W. 11 and several others.
Police had been there the witness says, from October 17 to 20, 1973.
This evidence of P.W. 11 remains unrebutted.
The plea of the respondents that they had been elsewhere at the time of the occurrence and returned to the place of occurrence by themselves on October 17, when they were arrested by police, is untrue.
Let us now turn to and examine the prosecution case and see whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
The death of Danna and Hukmi is not in dispute.
That the dead bodies were burnt on the cow dung heap by the side of the Bagichi is also not in dispute.
The only question for decision is whether Danna and Hukmi were murdered and their dead bodies were burnt by the respondents as alleged by the prosecution.
The prosecution relies on the following piece of evidence: (i) Motive of the murder; (ii) Direct evidence of the alleged eye witnesses, P.W. 3 and 4; (iii) Extra Judicial Confession alleged to have been made by respondent Sher Singh before P.W. 10; and (iv) Recoveries of incriminating articles on disclosure statements alleged to have been made by the respondents.
(i) Motive: P.W. 3 Mst.
Narman has deposed that two days before the day of occurrence, deceased Danna, Hukmi and respondent Sher Singh made an amicable partition of their property.
They divided their land (except Shamlat land), house, cattle, utensils and grains.
Respondent Sher Singh, however, refused to part with joint 6 cash and jewellery.
Danna refused to part with any share of the Shamlat land unless the cash and jewellery were divided.
P.W. 4 Mst.
Danni and Jhanda (P.W. 10) support, P.W. 3, It therefore, appears, that there was some sort of hitch between respondent Sher Singh on the one hand and his half brothers Danna, and Hukmi on the other.
The High Court declined to accept the evidence of P.W. 10 in as much as he had not mentioned the fact of partition in his statement before the police.
The prosecution is not bound to prove motive of any offence in a criminal case, in as much as motive is known only to the perpetrator of the crime and may not be known to others.
If the motive is proved by prosecution, the Court has to consider it and see whether it is adequate.
In the instant case the motive proved was apparently inadequate, although it might be possible.
(ii) Direct Evidence: P.W. 3 Mst.
Narman has deposed that 15 days before the date of occurrence, P.W. 4 Danni who was at her husband 's house to help her as she was expecting a child one of these days.
In fact she delivered a child 12 days after the occurrence.
She has supported the prosecution case in its entirety.
She says that in the morning about the time of sun rise on the date of occurrence, deceased Danna and Hukmi went to the Panchayat land where their cattle had been tethered in order to milk them.
She followed them to bring milk home.
Danna also accompanied her to make cow dung cakes.
At that time she found that the respondents had been standing in the Panchayat land armed with dangerous weapons.
Respondent Sher Singh gave Gandasi blow on the head of Danna who immediately fell down on the ground.
Dalel also gave a blow on the head Hukmi who also fell down.
All of them thereafter indiscriminately assaulted the two injured persons.
Both of them died as a result.
She and Danna began to scream whereupon the culprits asked her and Danna to keep quiet on pain of death and they asked them to sit on one side of the place.
Both of them out of fear did as directed.
She has further deposed that the respondents including the other miscreants dragged the two dead bodies to the nearby heap of cow dung cakes and placed the dead bodies on it.
Respondent Sher Singh then brought a tin of kerosene oil and sprinkled it on the heap of the cow dung cakes.
Respondent Dalel put fire to the cow dung cakes.
When the heap of the cow dung cakes was burning they set weeping there while the respondents were scrapping the blood stains on the earth and throwing them to the burning cow dung cakes.
After some time P.W. 10 Jhanda and 7 one Bhagtu came to the place of occurrence after the dead bodies were put to fire.
They inquired of Sher Singh as to why they were burning the cow dung cakes.
Sher Singh replied that he had murdered his two brothers and was burning their dead bodies.
He, however threatened them to mind their own business and said that if they raised any alarm, they would be similarly murdered and put to fire.
P.W. 10 Jhandu and Bhagtu then left the place.
The process of burning took about three hours.
All this time the culprits were at the place of occurrence scraping the blood stained spots.
They then changed their blood stained clothes, threw them to the fire and put on new clothes and left the place with weapons in hands towards village Bhana.
After the departure of the culprits the witness along with P.W. 4 left for the nearby village.
They narrated the occurrence to the villagers and told them as to how her husband and brother in law had been murdered and their dead bodies burnt.
But they remarked that that was a dispute between brothers and they could not do anything.
The witness then left the village for police station at Pundri to lodge an offence report.
On the way falls village Pai, at the distance of about 4 5 miles from the place of occurrence, she met at village Pai a police officer and two constables to whom she narrated the occurrence.
Her statement was recorded by P.W. 12, Ram Sarup, an Assistant Sub inspector of Pundri Police Station, who was at Pai.
She was then accompanied home by two constables.
While P.W. 12 sent the F.I.R. to the police station for registering a case.
They reached the place of occurrence, after some time.
A short while after the arrival of the witness and the two constables at the place of occurrence, a senior police officer arrived at the place of occurrence.
They with the help of some other persons who had gathered there in the mean time started to extinguish the fire by putting buckets of water on it.
P.W. 4 Danni corroborates P.W. 3 on the commission of murder of the two deceased by the respondents and a few others.
P.W.10 who came to the place of occurrence on seeing smoke from the heap of cow dung cakes, inquired of Sher Singh as to what was happening.
He has deposed that he was told by Sher Singh that he had killed his two brothers and was burning their dead bodies and that he was asked on pain of murder to mind his own business, and not to raise alarm.
He and Bhagtu then left the place.
P.Ws. 3 and 4 were cross examined at great length by the defence counsel but nothing significant could be brought out in order to demolish their basic and substantial evidence given in examination 8 in chief.
Only some minor discrepancies with regard to omissions of details in their statements to the police were brought out.
These omissions in our opinion were not contradictions and insignificant.
The High Court has rejected the evidence of P.Ws. 3 and 4 on the ground (a) that they were close relations of the two deceased; (b) that P.W. 3 had omitted to mention in the F.I.R. that she had informed any person of the village before leaving for the police station; (c) that it was 'highly improbable and unnatural ' that P.W. 3 would go to the place of occurrence from her home when she was in advance pregnancy; (d) that she was not accompanied to the police station by anybody; (e) that none of the villagers came to the place of occurrence; and (f) that she and P.W. 4 did not physically attempt to save the two deceased who were respectively their husband and brother.
Ultimately the High Court found that "most probably both Smt.
Nariman and Danni were not present on the spot and had not witnessed the occurrence.
" In our opinion the conclusion arrived at by the learned High Court is untenable.
The learned High Court has taken a very unrealistic view of the situation and of the facts and circumstances of the case.
There is no evidence that P.Ws 3 and 4 could or did raise any alarm.
When they were about to scream they were threatened on pain of murder, to keep quiet and sit.
There is evidence that both the deceased as well as P.Ws 3 and 4 were unarmed, whereas the respondents were armed with dangerous weapons.
In such a situation it will be too much to expect of P.Ws 3 and 4 to try to physically intervene and save the two deceased.
Although it is true that P.Ws 3 and 4 were close relations of the two deceased, their evidence could not be rejected on that ground.
They were also related to the respondents and there is nothing on record to show that they were inimically disposed to the respondents to falsely implicate the respondent in a murder case like this.
They were the most natural witnesses.
Although it was not the case of defence that some of the people of the Panchayat conspired with P.Ws 3 and 4 to implicate the respondents in this murder case the High Court made out its own theory to that effect.
There is no evidence or circumstances from which that inference could be drawn.
It was a pure conjecture that "it was best opportunity for the Panchas and Sarpanch and other respectables of the village to take special interest in bringing the culprits to book by contacting the police at the earliest if the culprits were not other persons than the appellants.
" The High Court has also based its finding on conjecture that the two deceased were murdered by unknown culprits and they were falsely implicated by the village 9 respectables" on suspicion.
This hypothesis does not stand any scrutiny.
Respondent Sher Singh in his statement says "It was routine for me and my two elder sons and two step brothers to sleep in the Bagichi during night where we used to tie our cattle." Even the High Court has found ". . that they (deceased) like Sher Singh or Sher Singh 's sons used to sleep in the Bagichi in the night to keep watch over them (cattle).
" If that be so, had the murder been perpetrated by unknown culprits, there was no reason as to why the the respondents did not intervene and inform any of the neighbours.
The learned High Court, as stated above, has rejected the evidence of P.W. 3 on the ground that she did not mention in the F.I.R. that she had informed any person of the village before she lodged the F.I.R. The F.I.R. need not contain the details of the occurrence.
The omission referred to by the High Court is an omission of details and not really a contradiction.
The High Court also was not right in observing that it was surprising 'that as stated by Mst.
Narman nobody in the village listened to her story nor did anybody go to her help when she went to Abadi land of the village after the departure of the appellants from the place of occurrence." In fact P.W. 10 had come to the place of occurrence before P.Ws 3 and 4 left the place of occurrence for the village.
The way P.W. 10 was treated by respondent, Sher Singh, was sufficient to deter any other villager to come to the place of occurrence.
The High Court has also found it a 'mystery ' that none of the villagers came to the place of occurrence and intervened in the matter.
There is no evidence on record to show that when the assaults on the deceased were in progress or the dead bodies were being burnt, any of the villagers in fact knew about the occurrence.
In fact P.W. 10 and Bhagtu had seen the smokes from the cow dung cakes, and came to the place of occurrence.
The High Court has also observed that it was unlikely that P.W. 3 would go to the Bagichi in such an advance stage of pregnancy in order to bring milk from there at sun rise in as much as P.W. 4 had already come there to help her in domestic work.
It is common experience that in villages women who regularly attend to their domestic chore and work in the field, work some time till the very moment of actual child birth.
P.W. 4 was brought to help her as in her advance stage of pregnancy she could not work as briskly as before.
The learned High Court has also observed that presence of P.W. 4 Danni at the place of occurrence was "not natural because had she been present there she would have out of love for her real brothers physically intervened and tried to save them from the clutches of assaults.
" It has been observed before that they were asked to keep 10 quiet and sit on pain of murder.
It cannot be forgotten that Danni was also an unarmed village women and the first instinct of a being is the instinct of self preservation.
In our opinion, therefore, it was not, "unnatural" that she would not, as she could not, attempt to save the two deceased from murder.
The High Court has also observed that in any case P.W. 4 would have raised hue and cry.
She could not raise an outcry as she was told by Sher Singh that she would be murdered and burnt, if she did so.
It was therefore but natural that she did not raise any hue and cry.
(iii) Extra Judicial Confession: The evidence of P.W. 10 has also been referred to above.
He has deposed that when seeing the smoke he went to the place of occurrence and inquired of Sher Singh as to why they were burning the heap of cow dung cakes, he replied that he had murdered his two brothers and was burning their dead bodies.
This is an extrajudicial confession so far as Sher Singh is concerned.
The High Court has not accepted the evidence of P.W. 10 on the ground that this was not mentioned by P.W. 3 in the first information report.
This was an omission.
That apart, it must be remembered that P.W. 4 who saw with her own eyes such a brutal murder of her husband and brother in law must have been dazed and at her wits end.
In such a situation, it could not be expected of her to give all the details in the first information report.
And on account of the omission, P.W. 10 could not be disbelieved.
(iv) Recoveries of incriminating articles : The last piece of evidence on which reliance has been taken by the prosecution is the recoveries of incriminating weapons.
The evidence of P.W. 13, the Investigating Officer, is that respondent Sher Singh on 23rd of October, 1973 made a disclosure statement which is Exhibit PL.
The disclosure was that Sher Singh had kept concealed a Gandasi in the bundle of sugar cane in his field and he could get the same recovered.
In pursuance of his disclosure the Gandasi exhibit P. 26 was recovered from that place.
The Gandasi was stained with blood and was seized under seizure memo exhibit PL/1.
On the same day respondent Dalel Singh made a disclosure statement exhibit PM and disclosed that he had kept concealed a lathi to which an iron piece was attached in his Gowar field and he could get the same recovered.
In pursuance of his disclosure, lathi exhibit P. 27 which was stained with blood was recovered.
It was seized under seizure memo exhibit PM/1.
On the same day respondent, Balkar Singh made a disclosure statement, exhibit PN that he had kept concealed a lathi in his kikar branches fence and he could get the same recovered.
In pursuance of his disclosure 11 statement, lathi exhibit P. 28 which was stained with blood was recovered.
It was seized under seizure memo exhibit PN/1.
These discoveries were made in presence of P.W. 11 Lila, who was Sarpanch of the local panchayat.
The High Court declined to put any importance to the recoveries as the respondents were not interrogated by Police from October 20 to 24.
In our opinion that cannot be a sufficient justification to hold that the recoveries were 'fake '.
The weapons were recovered at the pointing of the respondents.
In addition the Investigating Officer seized an empty kerosenetin lying at the place of occurrence, The tin was emitting smell of kerosene oil and it was seized under seizure memo exhibit PJ which was attested by P.W. 11.
In addition another circumstance tends to support the complicity of the respondents in the offence.
It is the conduct of the respondents.
The two deceased who had been murdered, by whomsoever it might be, were near blood relations of the respondents.
If the murder had been committed by some others, as supposed by the High Court, they would not have kept quiet.
Of course, they have stated in their defence that they were away from home in some other places and returned to the place of occurrence on 17th October, 1973 which has been found by us to be untrue.
This conduct of the respondents is incriminating.
As a result of the above discussions we, hold agreeing with the learned Sessions Judge, that the guilt of the respondents has been established by the prosecution beyond all reasonable doubt.
In the result we allow, the appeal, set aside the judgment and order of acquittal of the High Court and convict the respondents under Section 302/34 of the Penal Code.
Now comes the question of sentence.
The murder is ghastly and brutal.
Respondent Sher Singh deserved the extreme penalty provided by law, The learned Sessions Judge was right in imposing death sentence on him.
But in view of the fact that the learned Sessions Judge passed the order of conviction and sentence as early as 27th July, 1974 and the High Court passed the order of acquittal as early as 2nd of April, 1975, we refrain from visiting respondent Sher Singh with the extreme penalty provided by law for murder.
We sentence all the respondents to imprisonment for life.
We are told that respondents Balkar Singh and Dalel Singh are on bail.
Their bail bonds are cancelled.
They shall surrender forthwith to serve out their sentences.
N.V.K. Appeal allowed.
| IN-Abs | The two deceased were the two younger half brothers of the first respondent.
A day before the day of the murder of the two deceased, the brothers had divided the family properties and started living separately.
P.W. 3, the wife of one of the deceased, in the F.I.R. given to the police, stated that on the day of the occurrence when the two deceased and she went to the bagichi for milking the cattle, the first respondent and his sons surrounded the two deceased in the court yard, the first respondent dealt a blow on the head of her husband with a gandasi while the others gave lathi blow on the second deceased.
Both of them succumbed to the injuries.
It was also stated in the F.I.R. that P.W. 4, the sister of the deceased, was with her at the time of the occurrence and that when they screamed, the assailants asked them to keep quiet on pain of death to them.
The assailants, it was alleged, thereafter dragged the two dead bodies and burnt them in the nearby heap of cow dung cakes after pouring kerosene on the heap.
The defence of the two accused was alibi.
All the accused, who were charged of offences under section 302 read with section 34 of the Penal Code were sentenced; the first respondent to death and the others to imprisonment for life.
On appeal, the High Court set aside the conviction and sentences and acquitted all of them.
Allowing the State 's appeal, ^ HELD : 1.
When an accused pleads alibi, the burden of proof under section 103 of the Evidence Act is on the accused.
The plea of all the accused that they were elsewhere at the time of the offence is not true.
[4 G, 5 C] 2.
The guilt of the two respondents had been established beyond all reasonable doubt.
The High Court rejected the evidence of P.W. 10 on the ground that he had not stated in the statement before the police that in the partition of the family properties among the brothers, there was a hitch.
The prosecution is not bound to prove motive of any offence in a criminal case, for motive is known only to the perpetrators of the crime and may not be known to others.
If the motive is proved by the prosecution, the Court has to consider it and see whether it is adequate.
[11E, 6 B C] 2 In the instant case the motive proved is apparently inadequate, although it might be possible.
[6 C] 3.
The High Court had taken a wrong view in rejecting the evidence of P.Ws. 3 and 4 on the ground that they were close relations of the deceased; that it was highly improbable that P.W. 3 who was in advance stage of pregnancy would go to the place of occurrence.
[8F; 9F G] 4.
Although both the witnesses P.Ws. 3 and 4 were close relations of the deceased, their evidence could not be rejected solely on that ground.
They were also related to the respondents and there is nothing on record to show that they were inimically disposed towards the respondents to falsely implicate them in the murder.
Secondly, it was a pure conjecture of the High Court when it said that panchas and sarpanchas and other respectables of the village took an opportunity to implicate the respondents.
It was also a conjecture on the part of the High Court to say that the deceased were murdered by unknown culprits and that the respondents were falsely implicated by the village respectables.
The High Court found as a fact that the respondents and the deceased slept in the bagichi during nights to keep watch over the cattle.
Had the murder been perpetrated by unknown persons, the respondents would have intervened and informed the neighbours.
[8F 9B] 5.
The fact that P.W. 3 did not mention in the F.I.R. that she had informed some persons of the village before the lodging of the F.I.R. and that for this reason her statement could not be relied on is not correct.
The F.I.R. need not contain all details of the occurrence nor does the omission to mention the name of persons whom she informed in the village detract from the credibility of the report.
The omission is a mere omission of details and not a contradiction.
[9 C] 6.
The High Court was not right in disbelieving the evidence of P.W. 4 on the ground that had she been present at the scene of occurrence, she would have out of love for her real brothers, intervened and tried to save them.
There is nothing unnatural if she had out of a sense of self preservation at the threat of the assailant refrained from attempting to save the two deceased from the murder.
P.W. 3 must have been dazed at the brutal murder of her husband and brother in law.
In such a situation she could not be expected to mention all the details, in the F.I.R. and therefore, the High Court was not right in rejecting the evidence of P.W. 10 solely on the ground that no mention of the extra judicial confession of Respondent No. 1 had been made in the F.I.R. [9H 10B; 10D E] 7.
In view of the fact that the conviction and sentence were passed by the Session Judge in July, 1974 and the High Court passed the order of acquittal in 1975, the extreme penalty of death given to the first respondent is not called for now; ends of justice will be met if all the respondents are sentenced to imprisonment for life.
[11 G]
|
Civil Appeal No. 396 of 1980.
Appeal by Special Leave from the Judgment and Order dated 3.10.
1979 of the Bombay High Court (Nagpur Bench) in Special Civil Application No. 1501 of 1977.
G.S. Sanghi, Mrs. Jayashri Wad and Mrs. Urmila Sirur for the Appellants.
P.V. Holay, T.G. Narayana Nair, M.S. Gupta and G.S. Sathe for Respondent No. 1 & 2.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against an order of the High Court of Bombay of 2/3rd October, 1979 by which an order passed suspending the two respondents was quashed on the ground that the order of suspension pending a departmental inquiry was passed by the Municipal Commissioner who was not competent to suspend the respondents pending a departmental inquiry.
The High Court was of the view that under the Rules and Bye laws of the City of Nagpur Corporation Act, 1948(hereinafter referred to as the 'Act ') as amended uptodate, the competent authority to pass orders of suspension against the respondents was the Corporation itself and not the Chief Executive Officer.
It appears that originally the order of suspension was passed by the Municipal Com 24 missioner on the 23rd September, 1974 which was confirmed by the Corporation by its order dated 23rd September, 1974.
It is alleged by the respondents that latter order was not communicated to them.
The suspension was ordered in connection with a departmental inquiry relating to two accidents which occurred during the construction of a stadium called the Yeshwant Stadium, which was being looked after by the respondents and which resulted in the death of seven persons and injuries to eight others.
A complaint was also filed before the police as a result of which a charge sheet under section 304 A I.P.C. was filed against the respondents, on the 25th September, 1976.
In view of the charge sheet submitted by the police another order of suspension was passed by the Municipal Commissioner on 13.1.77 with effect from 8.10.76.
The respondents filed an appeal to departmental appellate authority which was dismissed on the 20th July, 1977.
Thereafter, the respondents filed a writ petition in the High Court which allowed the petition and quashed the order of suspension and directed the respondent to be paid their full salary and further directed the reinstatement of the respondents.
Hence this appeal.
The short point taken by Mr. Sanghi was that under section 59 (3) of the Act, the Municipal Commissioner is the competent authority to suspend the respondents pending a departmental inquiry.
On a perusal of section 59 (3) we are of the opinion that the contention is well founded and must prevail.
Section 59 (3) may be extracted thus: "Section 59 (3) : Subject, whenever it is in this Act expressly so directed to the approval or sanction of the Corporation or of the Standing Committee, and subject also to all other restrictions, limitations and conditions imposed by this Act, the entire executive power for the purpose of carrying out the provisions of this Act vests in the Commissioner who shall also (a). . (b) exercise supervision and control over the acts and proceedings of all municipal officers and servants and subject to the rules or bye laws for the time being in force, dispose of all questions relating to the services of the said officers and servants and their pay, privileges and allowances. "(Emphasis ours)" Thus clause (b) of section 59(3) in express terms authorises and clothes the Municipal Commissioner with the power to exercise supervision 25 and control over the acts of Municipal officers and servants.
It may be noticed that the said clause (b) is preceded by the words 'vest in the Commissioner '.
When the words 'control ' and 'vests ' are read together they are strong terms which convey an absolute control in the authority in order to effectuate the policy underlying the rules and makes the authority concerned the sole custodian of the control of the servants and officers of the Municipal Corporation.
In the case of State of West Bengal vs Nripendra Nath Bagchi(1) while interpreting a similar language employed in article 235 of the Constitution of India which confers control by the High Court over District courts, this Court held that the word 'control ' would include the power to take disciplinary action and all other incidental or consequential steps to effectuate this end and made the following observations: "The word "control", as we have seen, was used for the first time in the Constitution and it is accompanied by the word "vest" which is a strong word.
It shows that the High Court is made the sole custodian of the control over the judiciary.
Control, therefore, is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge," . . "In our Judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges.
Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal.
" This view was reiterated in High Court of Andhra Pradesh & Ors.
vs V.V.S. Krishnamurhty & Ors.(2) where this Court clearly held that 'control ' included the passing of an order of suspension and that the power of control was comprehensive and effective in operation.
In this connection, Sarkaria, J. speaking for the Court, observed as follows: "The interpretation and scope of Article 235 has been the subject of several decisions of this Court.
The position 26 crystalized by these decisions is that the control over the subordinate judiciary vested in the High Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation.
It comprehends a wide variety of matters.
Among others, it includes: (a) (i) Disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal, reduction in rank of District Judges, and initial posting and promotion to the cadre of District Judges.
In the exercise of this control, the High Court can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismissal or removal. . (ii) In Article 235, the word 'control ' is accompanied by the word "vest" which shows that the High Court alone is made the sole custodian of the control over the judiciary.
The control vested in the High Court, being exclusive, and not dual, an inquiry into the conduct of a member of judiciary can be held by the High Court alone and no other authority. . (iii) Suspension from service of a member of the judiciary, with a view to hold a disciplinary inquiry.
" It is thus now settled by this Court that the term 'control ' is of a very wide connotation and amplitude and includes a large variety of powers which are incidental or consequential to achieve the powers vested in the authority concerned.
In the aforesaid case, suspension from service pending a disciplinary inquiry has clearly been held to fall within the ambit of the word 'control '.
On a parity of reasoning, therefore, the plain language of clause (b) of section 59 (3), as extracted above, irresistibly leads to the conclusion that the Municipal Commissioner was fully competent to suspend the respondents pending a departmental inquiry and hence the order of suspension passed against the respondents by the Municipal Commissioner did not suffer from any legal infirmity.
The High Court was, therefore, in error in holding that the order of suspension passed by the Municipal Commissioner was without jurisdiction.
In this view of the matter the order of the High Court cannot be maintained and has to be quashed.
We might, however, mention that although in the criminal case charge sheet was submitted as far back as September, 1976 we 27 understand that no charges have been framed so far.
Criminal cases should be disposed of as quickly as possible so as to protect the accused from unnecessary harassment.
We therefore direct the Judicial Magistrate First Class of Nagpur to dispose of the Criminal Case No. 1902 of 1976 pending in his file with the utmost expedition and if possible within six months from today.
Mr. Sanghi on behalf of the Municipality, states that he will fully cooperate with the prosecution in producing all the available evidence before the court and bringing the case to a final conclusion within the period mentioned above.
The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue.
This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court.
Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction in any way fettered.
However, as quite some time has elapsed since the departmental inquiry had started the authority concerned will taken into consideration this factor in coming to the conclusion if it is really worth while to continue the departmental inquiry in the event of the acquittal of the respondents.
If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the inquiry, it can certainly do so.
In case the respondents are acquitted we direct that the order of suspension shall be revoked and the respondents will be reinstated and allowed full salary thereafter even though the authority chooses to proceed with the inquiry.
Mr. Sanghi states that if it is decided to continue the inquiry, as only arguments have to be heard and orders to be passed, he will see that the inquiry is concluded within two months from the date of the decision of the criminal court.
If the respondents are convicted, then the legal consequenses under the rules will automatically follow.
We might mention that at the time when special leave was granted by this Court, it was ordered that the respondents should be paid a lump sum of Rs. 10,000/ each apart from the 75% allowance.
We think that in the interest of justice the department may not insist on the refund of the amount of Rs. 10,000/ until the 28 result of the departmental inquiry and if the departmental inquiry concludes in their favour, the amount will be either refunded or adjusted against their dues.
With these observations, the appeal is accepted and the judgment of the High Court is quashed.
Parties will bear their own costs throughout.
S.R. Appeal allowed.
| IN-Abs | During the construction of a stadium called the Yeshwant Stadium, which was being looked after by the respondents, two accidents occurred resulting in the death of seven persons and injuries to eight persons.
Pending a departmental inquiry in the said connection, an order of suspension was passed by the Municipal Commissioner on the 23rd of September, 1974 which was confirmed by the Corporation by its order of the same date.
According to the respondents the later order was not communicated to them.
Pursuant to a criminal complaint filed before it, the police filed a charge sheet under section 304 A Penal Code against the respondents on the 25th of September, 1976.
In view of the charge sheet submitted by the police another order of suspension was passed by the Municipal Commissioner on 13 1 1977 with effect from 8 10 76.
The respondents filed an appeal to departmental appellate authority which was dismissed on the 20th of July, 1977.
Thereafter the respondents filed a writ petition in the High Court which allowed the petition taking the view that under the rules and byelaws of the City of Nagpur Corporation Act, 1948, as amended upto date, the competent authority to pass orders of suspension against the respondents was the Corporation itself and not the Chief Executive Officer.
The High Court quashed the orders of suspension and directed the reinstatement of the respondents and payment of their full salary to them.
Hence the appeal by special leave.
Allowing the appeal, the Court ^ HELD: 1:1.
Clause (b) of Section 59(3) of the City of Nagpur Corporation Act, 1948 in express terms authorises and clothes the Municipal Commissioner with the power to exercise supervision and control over the acts of Municipal Officers and servants and hence he is fully competent to suspend the Municipal Officers and servants, pending a departmental inquiry.
[24 H 25A: 2.
The term "control" is of a very wide connotation and amplitude and includes a large variety of powers which are incidental or consequential to achieve the powers vested in the authority concerned.
Clause (b) of the City of Nagpur Corporation Act is preceded by the Words "vests in the commissioner".
When the words "control" and "vests" are read together they are strong terms 23 which convey an absolute control in the authority in order to effectuate the policy underlying the rules and makes the authority concerned the sole custodian of the servants and officers of the Municipal Corporation.
[28 E, 25 A B] State of West Bengal vs Nripendra Nath Bagchi, ; ; High Court of Andhra Pradesh and Ors.
vs V.V.S. Krishnamurthy and Ors., , followed.
Whether or not the departmental inquiry pending against its servants, if he is acquitted in the criminal case, would have to continue is a matter to be decided by the department after considering the nature of the findings given by the criminal court.
Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction in any way fettered.
However, whether it is really worthwhile to continue the departmental inquiry in the event of the acquittal after the lapse of number of years since the departmental inquiry has started is a relevant factor to be considered.
[27 C E] Observation: Criminal cases should be disposed off as quickly as possible so as to protect the accused from unnecessary harassment.
[27 A]
|
tition Nos.
896/81, 865 890, 577 591, 592 606, 607 621, 622 628, 629 633, 634 37, 964 88, 544, 545 575, 766 774, 775 776, 902 63, 897 901, 535 37, 532 34, 529 531, 639 and 540 43/81.
(Under Article 32 of the Constitution) H.K. Puri for the Petitioners in WP 896/81.
Vimal Dave for the Petitioners in WP 865 890/81.
A.K. Sen, R.M. Dube and Sarva Mitter for the Petitioners in WPs 540 43/81.
30 Soli J. Sorabjee, S.S. Ray, A.K. Sen and R.K. Jain for the Petitioners in WPs 529 37, 544 575, 577 538, 766 776 and 897 988/81.
S.S. Ray, Soli J. Sorabjeee and R.K. Jain for the Petitioners in WPs 634 37/81.
Lal Narain Sinha, Attorney General, O.P. Rana, and Mrs. section Dikshit for the Respondent (State of U.P.) in WPs 540 43, 529 37, 540 43, 544 77 and 577 638/81.
M K. Banerjee Addl.
and S.K. Gambhir for the State of Madhya Pradesh.
Miss A. Subhashini for Union of India.
The Order of the Court was delivered by FAZAL ALI, J. Having heard counsel for the parties at great length we are satisfied that there is no violation of the fundamental right of the petitioners enshrined in article 19(1)(g) of the Constitution of India nor is article 14 attracted to the facts of the present case.
There is, therefore, no good ground to entertain the petitions.
We would, however, like to add that on the materials placed before us the Government may consider the desirability of adopting such measures as may soften the rigours of the impugned orders which, though not arbitrary or excessive so as to violate article 14 or 19, do merit some consideration by the Government in order to effectuate the policy under which the impugned notification was made.
There are, however, two arguments urged before us which need special mention.
In the first place it was submitted that in the U.P. cases the order impugned imposing a levy on the khandsari produced by the petitioners cannot have any retrospective operation so as to apply to the stock of sugar manufactured prior to the date of the order and would apply only to the sugar produced after the coming into force of the impugned notification.
So far as this argument is concerned we find no substance in the same because it is not a question of retrospectivity of the statute but its actual working.
Once the notification imposing the levy was made it will obviously apply to stock of khandsari produced by the petitioners either before or after the order.
This principle has been clearly laid down by the Constitution Bench of this Court in the case of Trimbak Damodar Raipurkar vs Assaram Hiraman Patil and Ors.(1) where Gajendragadkar, J. speaking for the Court regarding the 31 scope of a Rent Act and Amendment in Rent Act observed as follows: "In this connection it is relevant to distinguish between an existing right and a vested right.
Where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are included.
This Court followed the dictum of Buckley, L.J. in the case of West vs Gwynne.(1) In the aforesaid case Buckley, L.J. while construing an amendment in the Act by which the contract was governed observed as follows: "The Act of 1881 thus expressed that in the case of leases made either before or after the commencement of the Act a covenant not to assign without licence should be enforceable just as before. .This section is to be read as if it were contained in the Act of 1881, and is dealing with a subject matter mentioned in the Act of 1881, and as to which there is in that Act a provision that the enactment shall apply to leases made either before or after commencement of the Act." Hardy, M.R. in a concurring judgment while construing second amendment in section 14 of the Conveyancing Act pointed out thus: "In the First place, the language of the section is perfectly general, "in all leases," and there is nothing in the section itself to confine it to leases subsequent to the Act.
Almost every statute affects rights which would have been in existence but for the statute.
" In these circumstances, therefore, once the notification for imposing the levy was made it will naturally apply to the stock of sugar which was with the petitioners irrespective of the fact that it was manufactured before or after the Order.
It was next strongly contended that in fixation of the price of levy sugar the Government has not taken into consideration the fact that the petitioners would undergo a serious loss because the price would not be sufficient even to cover their manufacturing cost.
We 32 are, however, unable to agree with this argument.
The policy of price control has for its dominant object equitable distribution and availability of the commodity at fair price so as to benefit the consumers.
It is manifest that individual interests, however, precious they may be must yield to the larger interest of the community namely, in the instant case, the large body of the consumers of sugar.
In fact, even if the petitioners have to bear some loss there can be no question of the restrictions imposed on the petitioners being unreasonable.
In Shree Meenakshi Mills Ltd. vs U.O.I.(1) this Court observed as follows: "If fair price is to be fixed leaving a reasonable margin of profit, there is never any question of infringement of fundamental right to carry on business by imposing reasonable restrictions.
In determining the reasonableness of a restriction imposed by law in the field of industry, trade or commerce, it has to be remembered that the mere fact that some of those who are engaged in these are alleging loss after the imposition of law will not render the law unreasonable." (Emphasis Supplied) Similar view was taken by this Court in the case of Prag Ice and Oil Mills and Anr.
vs Union of India(2) where the Court speaking through Beg, C.J., observed as follows: "It has also to be remembered that the object is to secure equitable distribution and availability at fair prices so that it is the interest of the consumer and not of the producer which is the determining factor in applying any objective tests at any particular time.
" In this view of the matter the primary consideration in the fixation of price would be the interest of the consumers rather than that of the producers.
Moreover, we think that since the petitioners are allowed to sell freely at any rate they like the remaining fifty per cent of sugar (after excluding the fifty per cent which they have to give for levy) as also the produce by the second and third processes, the loss if any caused to the petitioners would be minimal.
Lastly, it was urged that Sub Clause (5) which is Sub Clause (3) in the notification issued by the Madhya Pradesh Government 33 in the impugned notification issued by the U.P. Government is extremely arbitrary inasmuch as by insisting on certificates it deprived the petitioners of the free sale of sugar of the remaining amount of fifty per cent as also the Khandsari produced by second and third processes.
We see some force in this argument but the Attorney General frankly conceded that he will see that no inconvenience on this score is caused to the petitioners.
He gave an undertaking to the Court that he will get the respective Sub Clauses 5 and 3 of the impugned orders of the U.P. and Madhya Pradesh Governments deleted or withdrawn so as to allow the petitioners to sell the remaining amount of sugar as also the stock produced by the second and third processes without any hitch or hindrance.
This will, however, be subject to routine and quick inspection.
In view of this undertaking, therefore we feel that a substantial part of the grievances of the petitioners would be removed.
To be on the safe side, however we allow the stay granted in all the petitions to continue until the provisions of respective Sub Clauses 3 and 5 passed by the State Governments concerned are withdrawn.
We may also emphasise the fact that the amount of sugar taken by the Government through levy should be properly stored and duly protected from rain and rot and be despatched to the various control depots expeditiously in order to ensure a quick and equitable distribution of the commodity amongst the people at moderate rates.
The Government may also consider the desirability of giving a bare minimum hearing to the representative of the owners of the cane crushers in future before fixing the rate at which the levy is taken from the owners so as to see that the owners of the crushers are not put to such great loss that they are completely wiped out from business.
With these observations the petitions are dismissed.
N.K.A. Petitions dismissed.
| IN-Abs | On the questions (1) whether an order imposing a levy on Khandsari could have retrospective operation so as to apply to sugar manufactured prior to the date of the order and (2) whether in fixing the price of levy sugar the Government should consider that the price fixed should be sufficient to cover the manufacturing cost.
^ HELD: 1.
It is not the question of retrospectivity of a statute but its actual working that is relevant.
It is settled law that where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are included.
Once the notification for imposing the levy was made it will naturally apply to the existing stocks of khandsari with the petitioners irrespective of whether it was manufactured before or after the order.
[31B; 30G] 2.
The policy of price control has for its dominant object equitable distribution and availability of the commodity at fair price to benefit the consumers.
Individual interest, however precious, must yield to the larger interest of the community namely the consumers.
Even if the petitioners have to bear some loss there could be no question of the restrictions imposed on them being unreasonable.
[32 B] The fixation of price would be in the interest of consumers rather than that of the producers.
Moreover since the petitioners were allowed to sell freely at any rate they liked, the remaining 50% of sugar after excluding the 50% which they had to give to levey as also the produce by the second and third processes, the loss, if any, caused to the petitioners, would be minimal.
[32 G]
|
Petition Nos.
1345, 1635/79, 458, 935.
1418 and 1692/80.
Under Article 32 of the Constitution.
Sukumar Ghosh for the Petitioners in WP No. 1345/79.
S.N. Kacker, Govinda Mukhoty and Rathin Das for the Respondent in WP No. 1345/79.
P. Keshva Pillai for the Petitioner in WP No. 1635/79.
Rathin Das for Respondent No. 2 and Ors.
In WP No. 1635/79.
Bimal Kumar Datta, Mrs. L. Arvind and A.K. Sen Gupta for the Petitioner in WP No. 458/80.
S.N. Kacker and Rathin Das for Respondent No. 2 and Ors.
in WP No. 458/80.
S.C. Majumdar, Bimal Kumar Datta, Mrs. L. Arvind and A.K. Sen for the Petitioner in WP No. 935/80.
953 Sripal Singh for the Petitioners in WP No. 1418 of 1980 and 1692/80.
Rathin Das for Respondent Nos. 2 and Ors.
in WP Nos. 935 1418 & 1692/80.
The first plank of argument related to the constitutional validity of the 1955 Act.
The second plank of argument was confined to the validity of the West Bengal Land Reforms (Amendment) Act, 1972 (hereinafter referred to as the 'Amendment Act of 1972 ') which was in the nature of a ceiling Act prescribing a particular ceiling of the area of land which could be retained by the tenant.
So far as the Ceiling Act, viz., the Amendment Act of 1972 is concerned, it is conceded by the counsel for the petitioners that the constitutional validity of the aforesaid Act is clearly concluded by a recent decision of this Court in Waman Rao & Ors.
vs Union of India & Ors.
where a Constitution Bench of this Court rejected the various grounds of challenge in respect of the constitutionality of various ceiling Acts passed by the States concerned.
In view of this decision the learned counsel for the petitioners was fair enough to state that he does not want to press his contention regarding the constitutional validity of the Ceiling Act.
Similarly, the learned counsel for the petitioners fairly conceded that as the 1955 Act, alongwith its amendments upto 1972, has been placed in the Ninth Schedule of the Constitution, it was immune from challenge and was saved by the protective umbrella contained in article 31B of the Constitution.
In this connection, this position was made absolutely clear in Waman Rao 's case (supra) where this Court observed as follows : "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.
" 954 In the instant case, it is clear that the 1955 Act as also the Amendment Act of 1972 were added to the Ninth Schedule, being entry Nos. 60 and 81, prior to April 24, 1973.
In these circumstances, it is manifest that the aforesaid Acts ale completely immune from challenge on the ground that they are violative of any of the rights enshrined in Part III of the Constitution.
The learned counsel for the petitioners, therefore, was fully justified in making the concession before us.
The argument of the learned counsel for the petitioners in W.P. No. 1345 of 1979, which has been adopted by the counsel for the petitioners appearing in other petitions, centres round the validity of (1) The West Bengal Land Reforms (Amendment) Act, 1977 (published in the Gazette Extraordinary on 3 2 1978), and (2) Section 20B, sub sections (3), (4) and (5), of the 1955 Act.
So far as the challenge to the constitutional validity of this section was concerned, it was confined only on the ground that the said sub sections were violative of article 14 of the Constitution of India as being discriminatory and arbitrary.
It was contended that once the land holder, viz., the tenant was given the right of personal cultivation and was permitted to get the land cultivated by a Bargadar on the basis that the bargadar would share half the produce, there was no warrant for not allowing the tenant to resume the land where the bargadar had voluntarily surrendered or abandoned the land.
In order to consider this argument, it may be necessary to examine the status of the bargadar under the 1955 Act.
Section 2(2) defines bargadar thus " 'Bargadar ' means a person who under the system generally known as adhi, barga or bhag cultivates the land of another person on condition of delivering a share of the produce of such land to that person and includes person who under the system generally known as kisani cultivates the land of another person on condition of receiving a share of the produce of such land from that person.
" Section 16 of the 1955 Act provides that where the tenant brings in a bargadar on the land, the produce of the land may be shared in the proportion of 50: 50 or 75; 25.
There are also provisions in the 1955 Act for enforcement of the right of the tenant to get his share of the produce from the bargadar which have not been challenged before us.
It would be seen that section 17 permits the cultivator to terminate the cultivation of the land by a bargadar and resume possession under his own cultivation if the conditions mentioned in clauses 955 (a), (b) and (d) of sub section (1) of section 17 are satisfied.
Clause (d) may be extracted thus: "That the person owning the land requires it bona fide for bringing it under personal cultivation.
" Thus, the cultivator has a right to get back the land for personal cultivation if he requires it for his bona fide use and proves the same to the satisfaction of the authority appointed under section 17(1).
It was argued by the counsel for the petitioners that on a parity of reasoning contained in section 17, there was no reason why where the bargadar had voluntarily surrendered or abandoned the land the facility of cultivating the land personally by the tenant should be denied to him.
Sub sections (3), (4) and (5) of s 20B of the 1955 Act run thus: "(3) If such officer or authority determines that the bargadar had not voluntarily surrendered or abandoned the cultivation of the land which was being cultivated by him as such and what he had been compelled by force or otherwise to surrender or abandon the cultivation of such land, such officer or authority shall restore the bargadar to the cultivation of the land, or where the bargadar is not available or is not willing to be restored to the cultivation of such land, the person whose land was so cultivated shall not resume personal cultivation of the land but he may, with the permission of such officer or authority, get the land cultivated by any person, referred to in section 49, who is willing to cultivate the land as a bargadar.
(4) If such officer or authority determines that the bargadar had voluntarily surrendered or abandoned the cultivation of the land which was cultivated by him as such, the person whose land was being so cultivated shall not resume personal cultivation of such land but he may, with the permission of such officer or authority, have the land cultivated by any person, referred to in section 49, who is willing to cultivate the land as a bargadar.
(5) Any contravention of the provisions of sub section (3) or sub section (4) shall be an offence punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
" Sub sections (3) and (4) prescribe the procedure which is to be adopted where a bargadar voluntarily surrenders or abandons the 956 cultivation of the land.
Under these provisions, the tenant is not allowed to resume personal cultivation but has to get the land cultivated by some other person with the permission of the officer or authority concerned.
Realising the force of the argument, Mr. section N. Kacker, appearing for the State of West Bengal, with his usual persuasiveness submitted that sub sections (3) and (4) are extremely harsh but the rigours of these sub sections can be softened if we read down section 17(d) and interpret it in such a way as to permit a tenant to resume the land under clause (d) of section 17 if the Bargadar voluntarily surrenders or abandons the land.
We are, however, unable to agree with this argument because it will amount not only to distorting and misinterpreting clause (d) but also to causing serious violence to its plain language, which cannot be done It would appear that clauses (a), (b) and (c) of sub section (1) of section 17 of the 1955 Act are the only grounds given on which a tenant can get the land back for his personal cultivation.
The contingency where the bargadar voluntarily surrenders or abandons the land is neither mentioned in clauses (a), (b) and (c) nor is directly or indirectly contemplated by them.
In these circumstances.
if we accept the contention of Mr. Kacker it would amount to introducing something into section 17 which is not there and this is diametrically opposed to the well known canons of interpretation We are, however, constrained to observe that there does not appear to be any logical justification for the provisions of sub sections (3) and (4) of section 20B.
It is understandable that when once the cultivator chooses to bring a bargadar on the land, the interest of the bargadar should be duly protected and has been made heritable.
So far, there can be no objection and such a course is in consonance with the object of the statute.
But when the Bargadar on his own volition surrenders or abandons the land, there is no reason why the tenant should not be allowed to resume cultivation and instead be compelled to get the land cultivated by some other person nominated by the authority concerned under section 49 of the 1955 Act.
This provision therefore appears to us to be extremely harsh and works serious injustice to the rights of the tenants particularly after the ceiling area of the tenant has been considerably reduced by the Amendment Act of 1972.
Thus, the tenant having a small area guaranteed to him for his unit, he should have at least fuller and 957 more effective rights to get that area cultivated by him or even by a bargadar of his choice subject to resuming the same, if the bargadar surrenders or abandons the land.
The amendment doubtless recognises the right of the ownership of the tenant within the ceiling area and yet to deny him the right of resuming cultivation of the land from the bargadar inducted by him after the bargadar voluntarily surrenders or abandons the same and forcing or imposing someone else to cultivate the land on behalf of the tenant appears to be contrary to the very tenor and spirit which sections 17 and 20B of the 1955 Act seem to subserve Unfortunately, however, though the provisions of sub sections (3), (4) [and (5) of section 20B, which is only a penal section] perilously border on arbitrariness and amounts to serious curbs on the fundamental right of the cultivator to pursue his occupation, we cannot however strike down these provisions because they are contained in the Amendment Act of 1972 which has been placed in the Ninth Schedule prior to April 24, 1973, and therefore fall within the protective umbrella and are immune from challenge.
It will, however, be for the legislature which is the best judge of the needs of its people to give a suitable relief to the tenant and soften the rigours of the harsh provisions of sub sections (3), (4) and (5) of section 20B on the lines indicated by us.
With these observations, the arguments of the learned counsel for the petitioners on this ground are overruled.
We now come to the second plank of the argument which comprises the challenge to the proviso and the Explanation to section 2 of the 1955 Act.
This provision having been brought into force after the 24th of April, 1973, falls beyond the ambit of article 31B and is not covered by the protective umbrella of that Article.
In these circumstances, the challenge to the constitutionality of this provision could be entertained by us.
Mr. Kacker did not controvert this position.
The impugned proviso and the Explanation which were added to clause (8) of section 2 by the West Bengal Land Reforms (Amendment Act, 1977, may be extracted thus: "Provided that such person or member of his family resides for the greater part of the year in the locality where the land is situated and the principal source of his income is produced from such land.
Explanation The term "family" shall have the same meaning as in clause (c) of section 14K" It was submitted that the proviso insists that the cultivator or member of his family must reside in the locality where the land is 958 situate for the greater part of the year and thus deprives the petitioners of their right guaranteed to them under Art 19(1) (e) and (g) of the Constitution inasmuch as it compels the petitioner to reside in the village and prevents them from either going to or residing in any other place in India.
The second ground of challenge to the constitutionality of the proviso was that it places a serious curb on the right of the petitioners to carry on their occupation other than agriculture.
As regards the first argument, we are unable to agree with the learned counsel because the object of the proviso is to safeguard the interest of the tenant himself so that he may give whole hearted attention to the personal cultivation of the land which has been secured for him by virtue of a valuable piece of agrarian reform.
If the tenant is allowed to go out of the village and reside at other places then the benefit conferred by the 1955 Act cannot be fully utilised by the tenant and would frustrate the very purpose for which agrarian reforms are meant.
Moreover, the land is given to the tenant as the tiller of the soil fundamentally for the reason that cultivation is his main source of sustenance as is mentioned in the proviso itself.
If, therefore, the principal source of sustenance of the tenant is agriculture it would be futile for the tenant to say that he should be permitted to follow other avocations or occupations in the main which will defeat the very purpose for which the proviso has been enacted.
The proviso does not debar him from following any other occupation but once a tenant wants to have the land to himself for personal cultivation he must elect whether to pursue the profession of cultivation or some other occupation.
Thus, even though there is some amount of restriction both on the right of the petitioners to reside or follow any other occupation, such a restriction cannot be said to be arbitrary or unreasonable.
It is well settled that where a restriction is imposed by the legislature in public interest in order to advance a particular purpose or carry out the dominant object.
such a restriction is undoubtedly a reasonable one within the meaning of clauses (4) and (5) of article 19 of the Constitution.
Moreover, in the instant cast, the restriction does not amount to complete deprivation of the right of the tenant to reside elsewhere because the words 'for the greater part of the year ' leave sufficient scope to the tenant to reside elsewhere for a part of the year if he so desires.
Furthermore, the Explanation adopts the definition of "family" which is the same as defined in section 14K of the 1955 Act which runs thus: "(i) himself and his wife, minor sons, unmarried daughters, if any, 959 (ii) his unmarried adult son, if any, who does not hold any land as a raiyat, (iii) his married adult son, if any, where neither such adult son nor the wife nor any minor son or unmarried daughter of such adult son holds any land as a raiyat, (iv) widow of his predeceased son, if any, where neither such widow, nor any minor son or unmarried daughter of such widow holds any land as a raiyat, (v) minor son or unmarried daughter, if any of his pre deceased son, where the widow of such predeceased son is dead any minor son or unmarried daughter of such predeceased son does not hold any land as a raiyat, but shall not include any other person.
" Thus, it is not necessary that the tenant should himself reside in the village for the greater part of the year and it is sufficient if any member of the family which includes his wife, unmarried adult, married adult, minor son and so on, remains in the village and this would amount to substantial compliance of the conditions of the proviso.
The restriction, therefore, is partial and in public interest and bears a close nexus with the object of the 1955 Act, viz, to achieve agrarian reforms.
The fundamental rights enshrined in article 19 of the Constitution are not absolute and unqualified but are subject to reasonable restrictions which may be imposed under sub clauses (4) and (5) of article 19.
Whenever a complaint of violation of fundamental rights is made the Court has to determine whether or not the restrictions imposed contain the quality of reasonableness.
In assessing these factors a doctrinaire approach should not be made but the essential facts and realities of life have to be duly considered.
Our Constitution aims at building up a socialist state and the establishment of an egalitarian society and if reasonable restrictions are placed on the fundamental rights in public interest, they can be fully justified in law.
The principles laying down the various tests of reasonableness have been very aptly enunciated in the case of State of Madras vs V.G. Row which is almost the locus classicus on the subject in question.
In that case Shastri, C.J, speaking for the Court observed as follows : "It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be 960 applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases.
The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.
" The case has been consistently followed by later decisions of this Court right uptodate Another important factor to consider the reasonableness of restrictions is if the restrictions imposed are excessive or dispreportionate to the needs of a particular situation.
Further, if the restrictions are in implementation of the directive principles of the Constitution the same would be upheld as being in public interest because the individual interest must yield to the interest of the community at large for only then a welfare state can flourish.
Applying these tests to the facts of the present case we are satisfied that the restrictions contained in the impugned proviso cannot be said to be unreasonable for the following reasons: The dominant object of the proviso is to abolish the age old institutions of absentee land holders by insisting that the cultivator to whom land is allotted must give full and complete attention to the soil and as a result of which there will be a maximum utilisation of the agricultural resources which would increase production.
Under the Amendment Act of 1972 an adult unmarried person is entitled to hold an area up to 2.50 hectares which is equal to 6.72 acres, a tenant with a family of two or more is entitled to hold 12.36 hectares and a tenant having a family of five or more is entitled to hold 7 hectares which is equal to 12.23 acres being the maximum area permissible.
Thus, the area left to the tenant is quite vast and appreciable and if the tenant wants to bring this area under cultivation in right earnest it would hardly leave him time to quit the village and pursue other avocations of life.
It is obvious that the tenant has to remain in the village for the purpose of cultivating the lands, sowing the seeds, growing it and harvesting it.
These processes would doubt less require the presence of the tenant for a greater part of the year which is what the proviso predicates.
If the 961 tenant is permitted to leave the village for more than half the year then the very purpose of giving such a vast area for cultivation to a tenant will be foiled.
Moreover, the proviso merely insists that the tenant should remain in the village or its periphery for "greater part of the year" which appears to be not only reasonable but absolutely essential if the land has to be cultivated in a scientific manner in order to yield the maximum possible production, which would result in better and equitable distribution of agricultural products for the use of the people of the country.
Another aspect of the proviso is that the land is given to the tenant only if his main source of sustenance is from agriculture so that the land may be reserved only for the tiller of the soil and none else.
Hence, the restrictions imposed, therefore, by the proviso are undoubtedly in public interest and in consonance with the concept of promoting and accelerating agrarian reforms which is the prime need of the hour.
For these reasons, therefore, the challenge that the proviso violates article 19 (1) (e) and (g) must fail.
The last contention put forward by the petitioners was that the proviso is also violative of article 14 inasmuch as it is extremely arbitrary and discriminatory.
We are unable to uphold the challenge on the ground that the proviso violates article 14 because we do not find any element of arbitrariness in the proviso.
If the statute insists that the tiller of the soil must remain in the village for a greater part of the year in order to cultivate the land which has been given to him and thereby increase the produce.
Of the land, no serious prejudice is caused to the tenant because that is the purpose for which he has himself secured the land.
Secondly, as the proviso operates equally to all the tenants governed by it no question of discrimination at all arises.
Thus, this argument also is wholly untenable and must fail.
For the reasons given above, we hold that both the Act of 1955, including the Amendment Act of 1972, and the proviso introduced a by the Amendment Act of 1977 are constitutionally valid.
As we have made certain observations regarding the harshness of the provisions of sub sections (3), (4) and (5) of section 20B of the 1955 Act, let a copy of this judgment be sent to the Hon 'ble Chief Minister of West Bengal.
The petitions are dismissed without any order as to costs.
| IN-Abs | The West Bengal Land Reforms Act, 1955 permitted a tenant (land holder) to get the land cultivated by a bargadar, on the basis that the bargadar would share tho produce, and the Act contained provisions for enforcement of the right of the tenant to get such share.
Section 17 permitted the tenant to terminate the cultivation of the land by a bargadar and resume possession for his own cultivation on certain contingencies, one of them being that he requires it bona fide for personal cultivation.
The West Bengal Land Reforms (Amendment) Act, 1972 provided for the reduction in the ceiling area of the tenant, and incorporated sub sections (3), (4) and (5) of section 20B of the 1955 Act, which provided that where the bargadar had voluntarily surrendered or abandoned the cultivation of the land, the facility of cultivating the land personally by the tenant should be denied to him.
The West Bengal Land Reforms (Amendment) Act 1977 inserted a Proviso and an Explanation to clause (8) of section 2 of the 1955 Act, which provided that a person or member of his family should reside in the greater part of the year in the locality where the land is situated and the principal source of his in come is derived from the land and that 'family ' shall have the same meaning as in clause (c) of section 14.
The petitioners in their writ petitions to this Court assailed: (1) The West Bengal Land Reforms Act, 1955 as also amendments made to the said Act upto 1977, contending that the 1955 Act was constitutionally invalid and that the Amendment Act of 1972 was in the nature of a Ceiling Act prescribing a particular ceiling for the area of the land which should be retained by the tenant and that sub sections (3), (4) and (5) of section 20B of the 1955 Act were violative of Article 14 of the Constitution, as being discriminatory and arbitrary Once the tenant was given the right of personal cultivation and was permitted to get the land cultivated by a bargadar on the basis that the bargadar would share the produce, there was no warrant for not allowing the tenant to resume the land where a bargadar had voluntarily surrendered or abandoned the land and to deny the right of cultivating the land personally by the tenant, and (2) the Proviso 951 and the Explanation to section 2 of the 1955 Act deprive the petitioners of their rights guaranteed under Article 19(1)(e) and (g) of the constitution in as much as it prevents them from either going to or residing in any other place in India and places a serious curb on their right to carry on an occupation other than agriculture.
On behalf of the respondents it was submitted that the rigour of sub sections (3) and (4) can be softened if clause (d) of section 17 is read down and interpreted in a way as to permit a tenant to resume the land under clause (d) of section 17 if the bargadar voluntarily surrenders or abandons the land.
Dismissing the writ petitions: ^ HELD: 1 (i).
The West Bengal Land Reforms Act, 1955 including the Amendment Act of 1972 and the proviso introduced by the Amendment Act of 1977 are constitutionally valid.
[961 G] In the instant case the 1955 Act and the Amendment Act of 1972 having been added to the Ninth Schedule as Entry Nos. 60 and 81 prior to April 24, 1973, are immune from challenge as being violative of Part III of the Constitution.
[954 A] Waman Rao & Ors.
vs Union of India & Ors., AIR 1981 SC 271, referred to.
(ii) Clauses (a), (b) and (c) of sub section (1) of section 17 of the 1955 Act are the only grounds on which a tenant can get the land back for his personal cultivation.
The contingency where the bargadar voluntarily surrenders or abandons the land is neither mentioned, nor directly or indirectly contemplated by them.
The contention of the respondent cannot be accepted for it would introduce something into section 17 which is not there and this is diametrically opposed to the well known canons of interpretation.
[956 D E] (iii) There is no logical justification for the provisions of sub sections (3) and (4) of section 20B. When once the cultivator chooses to bring a bargadar on the land the interest of the bargadar is protected and has been made heritable.
But when the bargadar on his own volition surrenders or abandons the land, there is no reason why the tenant should not be allowed to resume cultivation and instead be compelled to get the land cultivated by some other person nominated by the authority concerned under section 49 of the 1955 Act.
This provision, therefore, appears to be extremely harsh and works serious injustice to the rights of the tenants particularly after the ceiling area of the tenant has been considerably reduced by the Amendment Act of 1972.
[956 E G] (iv) Though the provisions of sub sections (3), (4) and (5) of section 20B a perilously border on arbitrariness and amount to serious curbs on the fundamental right of the cultivator to pursue his occupation, they cannot be struck down because they are contained in the Amendment Act of 1972 which has been placed in the Ninth Schedule prior to April 24, 1973.
It will, however, be for the legislature which is the best judge of the needs of its people to give, a suitable relief to the tenant and soften the rigours of these harsh provisions.
[957 C D] (2) The object of the proviso is to safeguard the interest of the tenant himself so that he may give wholehearted attention to the personal cultivation of 952 the land.
The proviso does not debar him from following any other occupation but once a tenant wants to have the land to himself for personal cultivation he must elect whether to pursue the profession of cultivation or some other occupation.
Thus, even though there is some amount of restriction both on the right of the petitioners to reside or follow any other occupation, such a restriction cannot be said to be arbitrary or unreasonable.
[958 C, E F] In the instant case the restriction does not amount to complete deprivation of the right of the tenant to reside elsewhere because the words for the greater part of the year ' leave sufficient scope to the tenant to reside elsewhere for a part of the year if he so desires.
It is not necessary that the tenant should himself reside in the village for the greater part of the year.
It is sufficient if any member of the family which includes his wife, unmarried adult, married adult, minor son and so on remains in the village.
This would amount to substantial compliance of the conditions of the proviso.
The restriction, therefore, is partial and in public interest.
[958 G, 959 D] (3) Whenever a complaint of violation of fundamental rights is made the court has to determine whether or not the restrictions imposed contain the quality of reasonableness.
In assessing these factors a doctrinaire approach should not be made but the essential facts and realities of life have to be duly considered.
Our Constitution aims at building up a socialist state and the establishment of an egalitarian society and if reasonable restrictions are placed on the fundamental rights in public interest, they can be fully justified in law.
[959 F G] State of Madras vs V.G. Row, ; , referred to.
(4) As the proviso operates equally to all the tenants governed by it no question of discrimination arises.
[961 F]
|
Civil Appeal No. 3563 of 1979.
Appeal by special leave from the Award dated 9 7 1978 of the Presiding Officer Central Government.
Industrial Tribunal Cum 886 Labour Court, New Delhi in I.D. No. 90 of 1977 published in Gazette of India on 11 8 1979.
M.K. Ramamurthi, and Romesh C. Pathak for the Appellant.
Dr. Anand Parkash, Adarsh Kumar, Mrs. Laxmi Anand Parkash, and Jagat Arora for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Santosh Gupta, the appellant Workman (a woman), was employed in the State Bank of Patiala, the Mall, Patiala, from July 13, 1973, till August 21, 1974, when her services were terminated.
Though there were some breaks in service for a few days, those breaks are not relevant for the purpose of deciding this case though we may have to advert to them in another connection.
Despite the breaks, the workman had admittedly worked for 240 days in the year preceding August 21, 1974.
According to the workman the termination of her services was 'retrenchment ' within the meaning of that expression in section 2(OO) of the , since it did not fall within any of the 3 excepted cases mentioned in section 2(OO).
Since there was 'retrenchment ', it was bad for non compliance with the provisions of section 25 F of the .
On the other hand the contention of the management was that the termination of services was not due to discharge of surplus labour.
It was due to the failure of the workman to pass the test which would have enabled her to be confirmed in the service.
Therefore, it was not retrenchment within the meaning of section 2(OO) of the . section 25 F prescribes that no workman employed in any industry who has been in continuous service for not less than one year shall be retrenched by the employer until (a) the workman has been given one month 's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman has been paid at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in a excess of six months; and(c) notice in the prescribed manner is served on the appropriate Government or any such authority as may be specified by the appropriate Government by notification in the official Gazette.
There is a proviso to clause (a) which dispenses with the necessity for the notice contemplated by the clause if the retrenchment is under an agreement which specifies the date for the termination of service.
887 The expression retrenchment is specially defined by section 2(OO) of the Act and is as follows: "2(OO) 'retrenchment ' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (c) termination of the service of a workman on the ground of continued ill health;" In Hariprasad Shivshankar Shukla vs A. D. Divikar, the Supreme Court took the view that the word 'retrenchment ' as defined in section 2(OO) did not include termination of services of all workmen on a bonafide closure of an industry or on change of ownership or management of the industry.
In order to provide for the situations which the Supreme Court held were not covered by the definition of the expression 'retrenchment ', the Parliament added section 25 FF and section 25 FFF providing for the payment of compensation to the workmen in case of transfer of undertakings and in case of closure of undertakings respectively.
If the definition of 'retrenchment ' is looked at unaided and unhampered by precedent, one is at once struck by the remarkably wide language employed and particularly by the use of the words "termination. for any reason whatsoever".
The definition expressly excludes termination of service as a 'punishment inflicted by way of disciplinary action '.
The definition does not include, so it expressly says, voluntary retrenchment of the workman or retrenchment of the workman on reaching the age of superannuation or termination of the service of the workman on the ground of continuous ill health.
Voluntary retrenchment of a workman or retrenchment of the workman on reaching the age of superannuation can hardly be described as termination, by the employer, of the service of a workman.
Yet, the Legislature took special care to mention that they were not included within the meaning of "termination by the employer of the service of a workman for any reason whatsoever:.
This, in our opinion, emphasizes the broad interpretation to 888 be given to the expression 'retrenchment '.
In our view if due weight is given to the words "the termination by the employer of the service of a workman for any reason whatsoever" and if the words 'for any reason whatsoever ' are understood to mean what they plainly say, it is difficult to escape the conclusion that the expression 'retrenchment ' must include every termination of the service of a workman by an act of the employer.
The underlying assumption, of course, is that the undertaking is running as an undertaking and the employer continues as an employer but.
where either on account of transfer of the undertaking or on account of the closure of the undertaking the basic assumption disappears, there can be no question of 'retrenchment ' within the meaning of the definition contained in, section 2(OO).
This came to be realised as a result of the decision of this Court in Hariprasad Shivshanker Shukla vs A.D. Divikar (Supra).
The Parliament then stepped in and introduced 25 FF and 25FFF by providing that compensation shall be payable to workmen in case of transfer or undertaking or closure of undertaking as if the workmen had been retrenched.
We may rightly say that the termination of the service of a workman on the transfer or closure of an undertaking was treated by Parliament as 'deemed retrenchment '.
The effect was that every case of termination of service by act cf employer even if such termination involved was a consequence of transfer or closure of the undertaking was to be treated as 'retrenchment ' for the purposes of notice, compensation etc.
Whatever doubts might have existed before Parliament enacted 25FF and 25FFF about the width of 25F there cannot now be any doubt that the expression 'termination ' of service for any reason whatsoever now covers every kind of termination of service except those not expressly included in section 25F or not expressly provided for by other provisions of the Act such as Ss. 25FF and 25FFF.
In interpreting these provisions i.e. 25F, 25FF and 25FFF one must not ignore their object.
The manifest object of these provisions is to so compensate the workman for loss of employment as to provide him the wherewithal to subsist until he finds fresh employment.
The non inclusion of 'voluntary retrenchment of the workmen, retirement of workmen on reaching the age of superannuation, termination or the service of a workman on the ground of continued ill health ' in the definition of 'retrenchment clearly indicate and emphasise what we have said about the true object of 25F, 25FF and 25FFF and the nature of the compensation provided by those provisions.
The nature of retrenchment compensation has been explained in Indian Hume Pipe Co. Ltd. vs the Workmen as follows : 889 "As the expression 'retrenchment compensation indicates it is compensation paid to a workman on his retrenchment and it is intended to give him some relief and to soften the rigour of hardship which retrenchment inevitably causes.
The retrenched workmens, suddenly and without his fault, thrown on the street and has to face the grim problem of unemployment.
At the commencement of his employment a workmen naturally expects and looks forward to security of service spread over a long period but retrenchment destroys his hopes and expectations.
The object of retrenchment compensation is to give partial protection to the retrenched employee and his family to enable them to tide over the hard period of unemployment".
Once the object of 25F, 25FF and 25FFF is understood and the true nature of the compensation which those provisions provide is realised, it is difficult to make any distinction between termination of service for one reason and termination of service for another.
Dr. Anand Prakash wants us to hold that notwithstanding the comprehensive language of the definition of "retrenchment" in section 2 (OO) the expression continues to retain its original meaning which was, according to the counsel, discharged from service on account of 'surplusage '.
It is impossible to accept his submission.
If the submission is right, there was no need to define the expression 'retrenchment ', and in such wide terms.
We cannot assume that the Parliament was undertaking an exercise in futility to give a long winded definition merely to say that the expression means what it always meant.
Let us now examine the precedents of this Court to discover whether the true position in law is what has been stated by us in the previous paragraphs.
The earliest of the cases of this Court to which our attention was invited was Harprasad Shivashankar Shukla vs A. D. Divikar (supra).
That was a case which was decided before Ss. 25FF and 25FFF were brought on the statute book.
In fact it was as a consequence of that decision that the had to be amended and these two provisions came to be introduced into the Act.
The question which arose for decision in that case was stated by the learned judges themselves as follows: "The question, however, before us is does this definition merely give effect to the ordinary, accepted notion of retrenchment in an existing or running industry by 890 embodying the notion in apt and readily intelligible words or does it go so far beyond the accepted notion of retrenchment as to include the termination of services of all workmen in an industry when the industry itself ceases to exist on a bonafide closure or discontinuance of his business by the employer" The question so stated was answered by the learned judges in the following way : "In the absence of any compelling words to indicate that the intention was even to include a bonafide closure of the whole business, it would, we think, be divorcing the expression altogether from the context to give it such a wide meaning as is contended for by learned counsel for the respondents. it would be against the entire scheme of the Act to give the definition clause relating to retrenchment such a meaning as would include within the definition termination of service of all workmen by the employer when the business itself ceases to exist".
It is true that there are some observations which, if not properly understood with reference to the question at issued seemingly support the submission of Dr. Anand Prakash that 'termination of service for any reason whatsoever ' means no more and no less than discharge of a labour force which is a surplus age.
The misunderstanding of the observations and the resulting confusion stem from not appreciating (1) the lead question which was posed and answered by the learned judges and (2) that the reference to 'discharge on account of surplus age ' was illustrative and not exhaustive and by way of contrast with discharge on account of transfer or closure of business.
Management of M/s Willcox Buckwell India Ltd. vs Jagannath and Ors.
and Employers in Relation to Digwadih Colliery vs Their Workmen were both cases where the termination of the Workman from service was on account of "surplusage" and, therefore, the cases were clear cases of retrenchment.
They do not throw any light on the question now at issue.
In State Bank of India vs Shri N. Sundaramoney a Bench of three judges of this Court consisting of Chandrachud J. (as be then was), Krishna Iyer, J., and Gupta, J., considered the question whether section 25F of the was attracted to a case where the order of appointment carried an automatic cessation of service, 891 the period of employment working itself out by efflux of time and not by an act of employer, Krishna Iyer, J. who spoke for the Court observed.
'Termination . for any reason whatsoever ' are the key words.
Whatever the reasons every termination spells retrenchment.
So the sole question is has the employee 's service been terminated ? Verbal apparel apart, the substance is decisive: A termination takes place where a term expires either by the active step of the master of the running out of the stipulated term.
To protect the weak against the strong this policy of comprehensive definition has been effectuated.
Termination embraces not merely the act of termination by the employer but the fact of termination howsoever produced.
True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract section 25F and automatic extinguishment of service be effluxion of time cannot be sufficient.
Words of multiple import have to be winnowed judicially to suit the social philosophy of the statute.
So screened we hold that the transitive and intransitive senses are covered in the current context.
Moreover, an employer terminates employment not merely by passing an order as the service runs.
He can do so by writing a composite orders one giving employment and the other ending or limiting it.
A separate, subsequent determination is not the sole magnetic pull of the provision.
A preemptive provision to terminate is struck by the same vice as the post appointment termination.
Dexterity of diction cannot defeat the articulated conscience of the provision".
In Hindustan Steel Ltd. vs the Presiding Officer, Labour Court, Orissa and Ors.
the question again arose whether termination of service by efflux of time was termination of service within the definition of retrenchment in section 2 (OO) of the .
Both the earlier decisions of the Court in Hariprasad Shivshankar Shukla vs A.D. Divikar and State Bank of India vs section Sundaramoney (supra) were considered.
There was also a request that N. Sundaramoney 's case conflicted with the decision in Hariprasad Shivshankar Shukla vs A. D. Divikar and therefore required reconsideration.
A Bench of three judges of this Court consisting of Chandrachud J (as he then was), Goswami J and Gupta J held that there was nothing in Huriparsad Shivshankar Shukla vs A.D. Divikar which was inconsistent with the decision in N. Sundaramoney 's case.
They held that the decision in 892 Hariparsad Shivshankar 's case that the words "for any reason whatsoever" used in the definition of retrenchment would not include a bonafide closure of the whole business because it would be against the entire scheme of the Act.
The learned judges then observed that, on the facts before them to give full effect to the words "for any reason whatsoever" would be consistent with the scope and purpose of section 25 of the and not contrary to the scheme of the Act.
In Delhi Cloth and General Mills Ltd. vs Shambhunath Mukharjee and Ors.
Goswami, Shinghal and Jaswant Singh JJ, held that striking off the name of a workman from the rolls by the management was termination of the service which was retrenchment within the meaning of section 2(OO) of the .
Dr. Anand Prakash, cited before us the decision of a Full Bench of the Kerala High Court in L. Rober D 'Souza vs Executive Engineer, Southern Railway and Anr.
and some other cases decided by other High Courts purporting to follow the decision of this Court in Hariparsad Shivshankar Shukla vs A.D. Divikar 's case, Shukla 's case, we have explained.
The ratio of Shukla 's case in fact, has already been explained in Hindustan Steel Ltd., vs the Presiding Officer, Labour Court Orissa and Ors.
The decisions in Hindustan Steel Ltd. vs the Presiding Officer, Labour Court Orissa and Ors., and State Bank of India vs N. Sundaramoney have, in our view, properly explained Shukla 's case and have laid down the correct law.
The decision of the Kerala High Court in L. Robert D 'Souza vs Executive Engineer Southern Railway & Anr.
and the other decisions of the other High Courts to similar effect viz.
The 'Managing Director, National Garages vs J. Gonsalve, Goodlas Nerolac Paints vs Chief Commissioner, Delhi and Rajasthan State Electricity Board.
vs Labour Court, are, therefore, over ruled.
We hold, as a result of our discussion, that the discharge of the workman on the ground she did not pass the test which would have enabled her to be confirmed was 'retrenchment ' within the meaning of section 2(OO) and, therefore, the requirements of section 25F had to be complied with.
The order of the Presiding Officer, Central Govt.
Industrial Tribunal cum Labour Court, new Delhi, is set aside and the appellant is directed to be reinstated with full back wages.
The appellant is entitled to her cost.
S.R. Appeal allowed.
| IN-Abs | The appellant was employed in the State Bank of Patiala, The Mall, Patiala from July 13, 1973 till August 21, 1974, when her services were terminated.
Despite some breaks in service for a few days, the appellant had admittedly worked for 240 days in the year preceding August 21, 1974.
According to the workman, the termination of her service was "retrenchment" within the meaning of that expression in Section 2(OO) of the , since it did not fall within any of the excepted cases mentioned in Section 2(OO).
Since there was "retrenchment", it was bad for non compliance with the provisions of section 25 F of the .
On the other hand, the contention of the management was that the termination of services was not due to discharge of surplus labour.
It was due to the failure of the workman to pass the test which would have enabled him to be confirmed in the service.
Therefore, it was not retrenchment within the meaning of section 2(OO) of the .
The Presiding Officer, Central Government, Industrial Tribunal cum Labour Court, accepted the management 's contention and decided against the workman appellant.
Hence the appeal by special leave.
Allowing the appeal, the Court ^ HELD: (i) The discharge of the workman on the ground that she did not pass the test which would have enabled him to be confirmed was "retrenchment" within the meaning of section 2(OO) and, therefore, the requirements of section 25F had to be complied with.
[892 F G] (ii) Section 2(OO) of the uses a wide language particularly the words "termination. for any reason whatsoever".
The definition "retrenchment" expressly excludes termination of service as a "punishment inflicted by way of disciplinary action".
It does not include, voluntary retrenchment of the workman or retrenchment of the workman on reaching the age of superannuation or termination of the service of the workman on the ground of continuous ill health.
The Legislature took special care to mention that these were not included within the meaning of "termination by the employer of the service of a workman for any reason whatsoever".
This emphasises the broad interpretation to be given to the expression "retrenchment".
[887 E H, 888 A] 2.
If due weight is given to the words "the termination by the employer of the service of a workman for any reason whatsoever" and if the words 'for any reason whatsoever" are understood to mean what they plainly say, it is difficult to escape the conclusion that the expression 'retrenchment ' must include every termination of the service of a workman by an act of the employer.
The underlying assumption, of course, is that the undertaking is running as an under 885 taking and the employer continues as an employer but where either on account of transfer of the undertaking or on account of the closure of the undertaking the basic assumption disappears, there can be no question of 'retrenchment ' within the meaning of the definition contained in section 2(OO) of the Act.
[888 A C] Hariprasad Shivshankar Shukla vs A.D. Divakar [1957] SCR 121: applied.
By introducing section 25 FF and Section 25 FFF, Parliament treated the termination of the service of a workman on the transfer or closure of an undertaking as "deemed retrenchment".
The effect was that every case of termination of service by act or employer even if such termination was a consequence of transfer or closure of the undertaking was to be treated as 'retrenchment ' for the purposes of notice, compensation etc.
" The expression "termination of service for any reason whatsoever" now covers every kind of termination of service except those not expressly included in section 25F or not expressly provided or by other provisions of the Act as 25 FF And 25 FFF.
[888 C F] 4.
The manifest object of Section 25 FF and section 25 FFF is to so compensate the workman for loss of employment as to provide him the wherewithal to subsist until he finds fresh employment.
The non inclusion of 'voluntary retirement of the workmen, retirement of workmen, on reaching the age of superannuation, termination of the service of a workman, on the ground af continued ill health ' in the definition of 'retrenchment ' clearly indicate and emphasise the true object of 25F, 25 FF and 25 FFF and the nature of the compensation provided by those provisions." [888 F H] Indian Hume Pipe Co. Ltd. vs The Workman ; followed.
The submission that notwithstanding the comprehensive language of the definition of retrenchment ' in section 2(OO) the expression continues to retain its original meaning, namely, discharge from service on account of surplus age is not correct.
It cannot be assumed that Parliament was undertaking an exercise in futility to give a long winded definition merely to say that the expression means what it always meant.
[889 D E] Hariprasad Shivshankar Shukla vs A.D. Divakar [1957] SCR 121, Hindustan Steel Ltd. vs The Presiding Officer, Labour Court Orissa & Ors. ; State Bank of India vs Shri N. Sundaramoney ; Delhi Cloth and General Mills Ltd. vs Shambunath Mukherjee & Ors.
; ; explained and followed.
Management of M/s Willcose Buckwell India Ltd. vs Jagannath & Ors.
AIR 1974 S.C. 1164; Employees in Relation vs Digmoden Colliery vs Their Workmen ; ; distinguished.
L. Robert D 'Souza vs Executive Engineer, Southern Railway and Anr.
(1979) KLJ Kerala 211; The Managing Director, National Garage vs J. Gonsalves (1962) KLJ 56.
Goodlas Nerolac Paints vs Chief Commissioner, Delhi ; Rajasthan State Electricity Board vs Labour Court ; over ruled.
|
tition Nos.
5600, 5601, 5615, 5689 5697 and 6283 6307/1980.
(Under Article 32 of the Constitution) Soli J. Sorabjee, O.N. Tikku, E.C. Aggarwala, M.L. Bhatt, R. Satish, and V.K. Pandita for the Petitioners in W.Ps.
5600 01,5615 & 5689 97/80.
M. K. Ramamurthy, Miss R. Vaigai, Joginder Singh and J. Ramamurty for the Petitioners in WPs.
6283 6307/80.
S.N. Kacker and Altaf Ahmed for the Respondents in all the Writ Petitions.
The Judgment of the Court was delivered by PATHAK J.
The petitioner challenges the admission of a number of candidates to the M.B.B.S. course in the Government Medical College Srinagar for the session 1980 81.
The petitioner, who had also applied for admission, was denied it.
She contends that the criteria adopted in granting admission, is discriminatory, unreasonable and void.
The Principal, Government Medical College, Srinagar invited applications by 3rd April, 1980 for admission to the M.B.B.S. course for the session 1980 81, and the notice specified the qualifying examinations of the Board of Secondary Education, Kashmir, or any other equivalent Board or University which constituted the basis of eligibility.
The manner and procedure governing the eligibility for admission had been set forth in a Government order 37 of 3rd April, 1978, which laid down that a Selection Committee constituted by the Government would determine the inter se merit of eligible candidates on the basis of an interview for judging their (a) physical fitness, (b) personality, (c) aptitude, (d) general knowledge and (e) general intelligence.
This Government order was modified by a subsequent Government order dated 23rd June, 1980 and in the result eligible candidates were now required to appear not only in the viva voce examination but also in an objective test.
These two tests along with merit in the qualifying examination of the Board or University constituted the three elements which together combined to form a basis for Selection.
The qualifying examination carried 35 marks, the objective test was allotted 35 marks and the viva voce examination was assigned 30 marks.
Besides the examination base constituted by the aforesaid three criteria, the selection was also determined by a distribution of the seats into three distinct divisions.
Of the total number of seats 50% were earmarked for being filled on the basis of open merit, 25% were reserved for candidates from Scheduled Castes and other reserved categories, one of which was broadly described as "socially and educationally backward classes" and included candidates from (a) areas adjoining actual line of control, and (b) area known as bad pockets including Ladhak.
After selection had been made as above the remaining 25% of the seats were to be filled "on the basis of inter se merit to ensure rectification of imbalance in the admission for the State, if any, so as to give equitable and uniform treatment to those parts".
It was also recited that in case there was no "visible imbalance", the seats earmarked under that head were to be distributed among further "open merit" candidates.
On 27th June, 1974, the percentage of seats reserved for the different categories was refixed, so that 60% of the seats were now earmarked for admission on the basis of "open merit", 20% for distribution among candidates from the Scheduled Castes and other reserved categories including socially and educationally backward classes, and the remaining 20% of the seats were earmarked for "ensuring rectification of imbalances".
Still another order dated 21st April, 1976 reduced the reservation for removing regional imbalances from 20% to 18%.
The selection of candidates for admission to the Government Medical College, Jammu for the academic year 1979 80 was challenged in this Court in Nishi Maghu vs State of Jammu and Kashmir(1) 38 and the Court held that "the classification made for rectification of regional imbalance without identifying the areas suffering from imbalance was vague and the selections made under that head were accordingly invalid".
The Court directed that the seats reserved under that head should be added to the quota of seats earmarked for selection on the basis of merit and filled accordingly.
Thereafter, in an attempt to remove the deficiency pointed out by this Court in Nishi Maghu (supra), the State Government published Notification No. 41 GR of 1980 dated 24th September, 1980 purporting to identify certain villages as socially and educationally backward for applying the principle of "rectification of imbalance in different parts of the State".
A long schedule (covering over 60 pages of the record before us) was annexed and listed some hundreds of villages.
About the same time, a Government order was issued fixing 17% of the seats in the M.B.B.S course of the medical colleges of the State as the admission quota for the purpose of "rectification of imbalances.
" From 14th to 17th July, 1980, as many as 660 candidates were interviewed by a Committee at Srinagar by way of viva voce examination.
On 21st July, 1980 the State Government issued a directive that a total list of 125 candidates be prepared against all the seats of the two Government Medical Colleges, at Srinagar and at Jammu.
A Selection List was finalised taking into account the reservations made for various categories and classes by the different Government orders, and was published on 29th September, 1980, and the names of 75 candidates were announced for admission to the M.B.B.S. course to the Government Medical College, Srinagar.
The principal contention of Mr. Soli Sorabjee appearing for the petitioner in Writ Petition No. 5600 of 1980, is that notwith standing this brave attempt to meet the constitutional requirement indicated in Nishi Maghu (supra) the State Government has failed in its purpose.
It is urged that there was no material before the State Government affording a pertinent basis for classifying these villages.
It is pointed out that almost whole tehsils of different districts have been identified as socially and educationally backward, `bad pockets ' and areas belonging to the line of actual control have been included and in the result with more than 95 per cent of the villages classified as socially and educationally backward, the inference must be that almost all 39 of Kashmir Division calls for a reservation quota.
It is asserted that a portion of Srinagar city, which includes Sangin Darwaza and Bhagwanpure, has also been identified as socially and educationally backward.
To that class have also been added towns where Notified Area Committees exist.
The submission is that the classification is wholly arbitrary and without any foundation to sustain it.
The mere circumstance, it is urged, that the classification is defined on the basis of villages without anything more demonstrates its unconstitutional character.
The case of the State Government is that the classification fully satisfies the criterion "social and educational backwardness".
In proof of the assertion it is pointed out that the present selection shows that candidates from areas not included in this classified category have taken 66 seats out of 75 on the basis of open merit.
It is conceded that a large number of villages have been included in the classification, but it is pointed out that the greater bulk of the population resides in the two cities of Srinagar and Jammu alone and would be equivalent to the population of hundreds of villages taken together.
The classification is supported by the consideration that in the nature of things the inhabitants of the rural areas are socially and educationally backward.
It is urged that merely because some of the villages are administered by Notified Area Committees does not remove the stigma of backwardness.
It is admitted that two reports, popularly described as the Anand Committee report and the Sikri Commission report, are under consideration by the Government but, it is said, as a comprehensive appreciation of the situation disclosed by the two reports of all the aspects of social and educational backwardness in the State has not been made yet, the Government has proceeded "in its own wisdom" to identify the areas suffering from regional imbalance.
We are of opinion that the classification attempted by the State Government by its order dated 24th September, 1980 suffers from the vice of arbitrariness and must be declared invalid.
There is no intelligible data before us for sustaining the classification.
No doubt the State Government has acted in its own wisdom, but the material to which that wisdom was applied has not been disclosed at all.
The fact by itself that some hundreds of villages have been brought within the classification is of no assistance whatever.
Over six years ago, this Court in State of U.P. vs Pradip Tandon(1) ruled that in the matter of admission of students to medical colleges 40 a reservation in favour of candidates on the ground that they hailed from rural areas was unconstitutional.
The Court repelled the argument that it was necessary to reserve seats for candidates from rural areas because they were handicapped in the matter of education.
It also rejected the plea that as the number of marks obtained by candidates from rural areas in the qualifying test were much lower than the marks obtained by the general candidates that was an indication of the former 's educational backwardness.
Ray, C.J., speaking for the Court, observed: "The reservation for rural areas cannot be sustained on the ground that the rural areas represent socially and educationally backward classes of citizens.
This reservation appears to be made for the majority population of the State 80 per cent of the population of the State cannot be a homogeneous class.
Poverty in rural areas cannot be the basis of classification to support reservation for rural areas.
" The criterion adopted by the State Government cannot be accepted unless supported by other relevant considerations.
That a comprehensive understanding of regional imbalances from the Anand Committee report and the Sikri Commission report has not been possible yet affords no justification for an arbitrary classification.
We are not satisfied that the State Government has succeeded in bringing the case within Article 15 (4) of the Constitution.
The material before us is woefully inadequate and fails to sufficiently support the validity of the classification.
We are of opinion that the order of the State Government dated 24th September, 1980 must be declared invalid.
The next contention on behalf of the petitioner is that the allocation to the viva voce test of 30 per cent of the total marks is patently unreasonable and arbitrary.
Our attention has been drawn to the observations of this Court in Ajay Hasia vs Khalid Mujib(1) where an allocation of more than 15 per cent of the total marks for the oral interview was regarded as arbitrary and unreasonable and liable to be struck down as constitutionally invalid.
It seems to us that the State Government would have done well to apply its mind seriously to the evaluation ratio between the three criteria adopted for admission.
When the Government order of 23rd June, 1980 dividing the total marks between the three criteria was issued, there 41 was ample evidence of the principle and practice adopted by examining bodies of high repute and status in the country.
The marks ratio adopted by the Union Public Service Commission provided wise example.
Besides, almost 10 years before this Court in A. Peeriakaruppan, etc.
vs State of Tamil Nadu & Ors. had expressed its disapproval of the ear marking of 75 marks for the interview test out of 275 marks.
And before the selection process was taken in the present case this Court had already observed in Nishi Maghu (supra) that reserving 50 marks for the interview out of a total of 150 marks appeared excessive, especially when the time spent was not more than 4 minutes on each candidate.
This precisely is what happened here, because on the case of the State Government itself the average time devoted to the oral interview of each candidate was 4 minutes.
However, we are reluctant to interfere on this ground because a clear pronouncement that an allocation of more than 15% of the total marks to the viva voce examination would result in constitutional invalidity has been made only recently, in Ajay Hasia (supra), by this Court and that was after the selection process in the present case had already been taken.
We would prefer to impress on the State Government that there is need to revise the marks ratio because of the very real risk future selections will face on this score.
The next contention for the petitioner is that having regard to the number of candidates interviewed and the time applied to conducting the interview no more than two minutes or so could have been given on the average to the oral interview of each candidate, a period demonstrating, in the submission of learned counsel, that the selection process was conducted in a perfunctory manner and there was no real application of the mind to the selection of candidates.
The State Government maintains that the time spent was four minutes per candidate.
We have given the matter our anxious consideration, and we are unable to hold that there is adequate material for striking down the selection on this ground.
But here again the State Government would do well to note the observations made by this Court in Ajay Hasia (supra) in this matter, and to ensure that Selection Committees take care to devote sufficient time to the oral interview of individual candidates having regard to the several relevant considerations which must enter into their judgment respecting each candidate.
42 We are also told by the petitioner that the composition of the Interview Committee varied from time to time during the interviews.
Therefore, it is said, the selection stands vitiated.
It is alleged that while one member, Shri N.S. Pathania, Principal, Medical College, Jammu joined the Committee some time after the interviews had begun, another member, Shri B.R. Kundal, Deputy Commissioner, Udhampur was present during a part of the proceedings only and left thereafter.
In regard to Shri N.S. Pathania, it is not possible to say that his joining with a slight delay has materially affected the validity of the proceedings.
And as regards Shri Kundal, it appears that he was present on the 14th July, 1980 and according to the petitioner, left on the morning of the next day.
It will be noticed that all the members of the Committee except Shri Kundal were persons closely associated with medical education.
Shri B.R. Kundal was Deputy Commissioner of Udhampur.
We also do not know what was the mode of functioning employed by the Committee, whether it was such as to invalidate the proceedings if one of the members ex necessitas, was unable to participate throughout in them.
The respondents maintain that at least three out of four members remained present throughout the proceedings.
And according to the petitioner, a proportionately small number only of the candidates was interviewed when Shri Kundal was present.
In all the circumstances, we find it difficult to say that Shri Kundal 's absence from the Committee vitiated its proceedings.
Shri Soli Sorabjee then contends that a number of candidates were selected for admission because of favouritism on account of relationship or friendship with members of the Selection Committee or because they were related to important and influential persons in the State.
The allegations have for the most part been made for the first time in the rejoinder affidavit and there has been no reasonable opportunity to the respondents to reply to them.
Such allegations on this point as are contained in the writ petition are extremely vague and sketchy, and can form no basis for a finding in favour of the petitioner.
There is one more contention, and that is that the respondents Nos. 7 to 12 did not apply for admission to the Principal, Government Medical College, Srinagar, and even if they are found to have done so their applications must have been submitted beyond the time prescribed as the qualifying examination in which they appeared was held late and the results were announced after the date prescribed for submitting the applications at Srinagar had expired.
It 43 appears from the record before us that inasmuch as the relevant examination was held late and the announcement of the results was delayed the State Government permitted the candidature of these applicants to be considered for inclusion in a common list drawn up to cover candidates for admission to either of the Government Medical Colleges, at Srinagar and at Jammu.
Besides, it is conceded by the petitioner that those respondents have an excellent record and if they had applied in time for admission to the Government Medical College, Srinagar, they would certainly have been admitted on the basis of their merit.
In the circumstances, we do not propose to interfere with the grant of admission to those respondents.
Accordingly, the only relief which, in our judgment, should be awarded to the petitioner is the quashing of admissions granted in the quota reserved for rectifying regional imbalances.
In consequence, those seats must be filled up on the basis of open merit.
Writ Petitions Nos.
5601 of 1980, 5615 and 5689 to 5697 of 1980, which proceed on the same lines as Writ Petition No. 5600 of 1980, must be disposed of in like manner.
The remaining cases, Writ Petitions Nos. 6283 to 6307 of 1980, fall in a separate category.
The petitioners here challenge the selection of candidates for admission to the M.B.B.S. course in the Government Medical College, Jammu for the year 1980 81; and complain of the denial of admission to them.
The facts on which these writ petitions have been brought and the grounds on which they claim relief are substantially the same as in Writ Petition No. 5600 of 1980.
Indeed, Shri M.K. Ramamurthi, learned counsel for the petitioners, states at the outset that he adopts the submissions urged in that case against the validity of the admissions granted for the purpose of rectification of regional imbalances, in regard to the invalidity alleged by the assigning of 30% marks to the viva voce examination and also in regard to the legal effect on the interview proceedings of the absence of some members of the Selection Committee during part of the proceedings.
These points have been considered and disposed of by us in that writ petition, and those findings are of equal validity in these writ petitions also.
Besides this, learned counsel for the petitioners raises other contentions.
He urges that the selections made are not in accordance with the Regulations framed by the Indian Medical Council under section 33 read with section 19A, and therefore violate the fundamental right of the petitioner guaranteed 44 under Article 15 of the Constitution.
It is contended that the Regulations are law and are enforceable in a court, and that if they are to prevail the only reservation permissible is that in favour of Scheduled Castes and Scheduled Tribes.
According to the Regulations, it is asserted, a Selection Committee can either take into consideration the marks obtained in a qualifying examination or in the competitive test.
Nor, it is said, can a viva voce examination be permitted as a vehicle for selection.
The validity of holding a separate objective test is also assailed as also of assigning 35% of the total marks to it.
The merit test is challenged on the ground that no curricula have been prescribed in relation thereto Objection to the objective test and the viva voce examination is based on the ground that they fall outside the scheme envisaged by the Regulations made by the Indian Medical Council for admission to the M.B.B.S. course.
The respondents, however, question the validity of the Regulations.
We are then referred by the petitioners to clauses (j) and (I) of section 33, in support of the contention that the power of the Council to make regulations extends to making regulations prescribing the examinations and tests for admission.
It seems to us prima facie that those provisions do not authorise the Council to do so.
But we refrain from expressing any final opinion in the matter as the Council is not a party before us.
We are also not satisfied that the reservations permissible must be confined to Scheduled Castes and Scheduled Tribes.
Nor do we find sufficient basis in the submission that there is arbitrariness in providing for 35 marks to a separate objective test in addition to the 35 marks earmarked for the qualifying examination.
The grounds taken before us do not justify the conclusion that a competitive entrance examination is not permissible in law in addition to the qualifying examination.
In regard to the sufficiency of the objective test, we are not satisfied that the absence of a prescribed formal curriculum vitiates the objective test.
The next contention on behalf of the petitioners is that the presence of a Government official on the Selection Committee vitiates its constitution.
It is stressed that the viva voce test to be acceptable should be conducted by persons who are men of high integrity, calibre and qualifications.
There is no principle of law, so far as we know, disqualifying a Government official from participating on the Interview Committee merely because he is a Government official.
Nor do we believe that a Government official cannot be a person of high integrity, calibre and qualifications.
The constitution of a 45 Committee lies in the wisdom of the State Government and it is expected that men suitably qualified in every respect will be appointed to discharge the functions of the Committee.
So long as the State Government acts bona fide and on the basis of relevant considerations it is not possible to say that the appointment of a Government official is obnoxious to the law.
In the result, the writ petitions are allowed insofar that the selection of candidates for admission to the M.B.B.S. course of the Government Medical Colleges at Srinagar and at Jammu for the year 1980 81 made on the basis of rectifying regional imbalances is quashed and the respondents are directed to fill up those seats on the basis of open merit.
The candidates who will be displaced in consequence have already completed a few months of study and in order to avoid serious prejudice and detriment to their careers it is hoped that the State Government will deal sympathetically with their cases so that while effect is given to the judgment of this Court the rules may be suitably relaxed, if possible by a temporary increase in the number of seats, in order to accommodate the displaced candidates.
In the circumstances, there is no order as to costs.
S.R. Petitions allowed.
| IN-Abs | Selection of candidates to be admitted to M.B.B.S. course in the Medical College of the State of Jammu & Kashmir was made by a Selection Committee on the basis of (a) merit in qualifying examination (35 marks) (b) an objective test (35 marks) and (c) a viva voce test (30 marks).
The seats were distributed besides the examination base was determined by a distribution of the seats into three distinct divisions namely, (i) 60% on the basis of open merit; (ii) 20% on the basis of reservation for scheduled castes and other reserved categories, one of which was broadly described as "socially and educationally backward classes" which included candidates from (a) areas adjoining actual line of control and (b) areas known as "bad pockets", including Ladhak and (iii) 20% were reserved as seats to be filled "on the basis of inter se merit to ensure rectification of imbalance in the admission for various parts of the State, if any, so as to give equitable and uniform treatment to those parts".
In Nishi Maghu vs State of Jammu and Kashmir, ; , the Supreme Court held that the selections made under the third category were invalid, inasmuch as the classification made for rectification of regional imbalance without identifying the areas suffering from imbalance was vague.
The State Government, therefore, published Notification No. 41 G.R. of 1980 dated 24th September, 1980 purporting to identify certain villages as socially and educationally backward for applying the principle of "rectification of imbalance in different parts of the States".
and reduced the distribution of seats in the Medical Colleges of the State under this category from 18 to 17% under this category.
This order is challenged by the petitioner, an unsuccessful candidate in the selection made for admission to M.B.B.S. course for the year 1980 81.
35 Allowing the petitions, the Court ^ HELD: 1.
The classification attempted by the State Government by its order dated 24th September, 1980 suffers from the vice of arbitrariness and is, therefore, invalid.
There was no intelligible data before the Court for sustaining the classification.
No doubt the State Government had acted in its own wisdom, but the material to which that wisdom was applied was not disclosed at all.
The fact by itself that some hundreds of villages had been brought within the classification is of no assistance whatever.
That a comprehensive understanding of regional imbalances from the Anand Committee report and the Sikri Commission report had not been possible yet affords no justification for an arbitrary classification.
The State failed to bring the case within Article 15(4) of the Constitution.
[39 G; 40 D] State of U.P. vs Pradip Tandon, ; applied.
There is need to revise the marks ratio for the viva voce test because of the very real risk future selections would face on this score.
The Government would also do well to ensure that Selection Committees take care to devote sufficient time to the oral interview of individual candidates having regard to the several relevant considerations which must enter into their judgment respecting each candidate.[41 D & G] A. Peeriakaruppan, etc.
vs State of Tamil Nadu and Ors., [1971] 2 S.C.R. 430; Nishi Maghu vs State of Jammu and Kashmir, ; ; Ajay Hasia vs Khalid Mujib, ; , referred to.
The selection cannot be said to be vitiated on the ground that one of the members, Shri Kundal, left after some time and therefore the composition of the Interview Committee varied from time to time, since three out of four members remained present throughout the proceedings and a proportionately small number only of the candidates was interviewed when Shri Kundal was present.
[42 D E] 2: 3.
The appointment of a Government official as a member of the Selection Committee is not obnoxious to the law.
There is no principle of law disqualifying a Government official from participating on the Interview Committee merely because he is a Government official.
It cannot be said that a Government official cannot be a person of high integrity, calibre and qualifications.
The constitution of a Committee lies in the wisdom of the State Government and it is expected men suitably qualified in every respect will be appointed to discharge the functions of the Committee.
So long as the State Government acts bona fide it cannot be said that the presence of a Government official on the Selection Committee vitiates its constitution.
[44H, 45 A B] 2: 4.
Selection of a number of candidates, in the present case, cannot be said to have been made because of favouritism on account of relationship or friendship with members of the Selection Committee or because they were related to important and influential persons in the State.
Besides being sketchy and extremely vague, such allegations have been made for the first time in the rejoinder affidavit and there has been no reasonable opportunity to the respondents to reply to them.[42 F] 36 3.
The grant of admission to respondents Nos. 7 to 12, in the instant case, is in order, inasmuch as the relevant qualifying examination was held late and the announcement of the results was delayed.
The State Government correctly permitted the candidature of these applicants to be considered for inclusion in a common list drawn up to cover candidates for admission to either of the Government Medical Colleges, at Srinagar and at Jammu.
Even according to petitioner those respondents have an excellent record and if they had applied in time for admission in the Government College at Srinagar they would certainly have been admitted on the basis of their merit.
[42G H] 4.
A competitive entrance examination is permissible in law in addition to the qualifying examination.
In regard to the sufficiency of the objective test, the absence of a prescribed formal curriculum does not vitiate the objective test.
[44 E] 5.
A reading of the regulations framed by the Indian Medical Council under section 33 read with section 19 A of the makes it clear that the reservation permissible need not necessarily be confined to Scheduled castes and scheduled tribes.
[44 E]
|
N: Criminal Appeal Nos.
150/76 and 285 of 1976.
Appeals by special leave from the Judgment and Order dated 29.1.1976 of the Bombay High Court in Cr. A. 526/73.
section B. Bhasme, V. N. Ganpule and Mrs. V. D. Khanna for the Appellant in Cr. A. 150/76.
U. R. Lalit and K. R. Chowdhary for the Appellant in Cr.
A. 285/76 70 R. N. Sachthey and M. N. Shroff for the Respondents in both the Appeals.
The Judgment of the Court was delivered by BAHARUL ISLAM J.
These two appeals arise out of a common judgment and order passed by the High Court of Bombay, Criminal Appeal No. 150 of 1976 has been preferred by two appellants, Mohammad Usman Mohammad Hussain Maniyar (hereinafter "Usman") and Mohammad Taufik Mohammad Hussain Maniyar (hereinafter 'Taufik ') and Criminal Appeal No. 285 of 1976 has been preferred by Mohammad Hussain Fakhruddin Maniyar (hereinafter 'Fakhruddin) and Mohammad Rizwan Mohammad Hussain Maniyar (hereinafter 'Rizwan ').
All of them were convicted and sentenced by the Sessions Judge as follows: (i) Under Section 120B of the Penal Code and sentenced to suffer rigorous imprisonment for three years, each; (ii) Under Section 5 of the Explosive Substances Act and sentenced to rigorous imprisonment for three years each, and to pay a fine of Rs. 1000 each, in default, to suffer rigorous imprisonment for two months, each; (iii) Under Section 5 (3) (b) of the Explosives Act and sentenced to suffer rigorous imprisonment for six months, each, and to pay a fine of Rs. 500/ in default, to suffer rigorous imprisonment for one month, each; (iv) Under Section 3 read with Section 25(1) (a) of the Arms Act and sentenced to suffer rigorous imprisonment for two months each; (v) Under Section 30 of the Arms Act and sentenced to pay a fine of Rs. 100/ each, in default, to suffer rigorous imprisonment for two weeks, each; (vi) Under Section 6 (1) (a) of the Poisons Act read with Rule 2 of the Rules framed under the said Act and sentenced to suffer rigorous imprisonment for one month, each, and to pay a fine of Rs. 50/ each, in default, to suffer rigorous imprisonment for 15 days, each.
The substantive sentences were directed to run concurrently.
The first two preferred one appeal and the second two a separate appeal before the High Court.
The High Court by a common judgment dismissed both the appeals.
Hence this appeal before us 71 by special leave.
This common judgment of ours will dispose of both the appeals.
During the pendency of the appeal before this Court, appellant, Fakhruddin, died on 10.10.1978.
His legal representatives have been brought on record as there are sentences of fine against the deceased appellant.
The facts necessary for the purpose of disposal of these appeals may be stated thus: In the year 1967 a number of murders were perpetrated by a gang of murderers.
During the course of investigation into these offences, potassium cyanide was found to have been used for poisoning the victims.
On 11.9.1964, P.W.17, Bendre, P.S.I, who was attached to the local crime branch at Sholapur received an information that the firm known as M.F. Maniyar & Sons was selling potassium chlorate which is a highly explosive substance.
He then initiated the work of finding out the persons responsible for the supply of the explosive to the miscreants.
He received information that appellant, Fakhruddin, was the owner of the shop known as M.F. Maniyar & Sons, situated at house No. 383, East Mangalwar Peth, Sholapur, and possessed licence for sale and storage of potassium chlorate in House No. 615 in East Mangalwar Peth; Fakhruddin with the assistance of his three sons (appellants 2 to 4) and his servants stored at the place mentioned in their shop situated at house No. 383, East Mangalwar Peth, to persons who did not possess licence to purchase potassium chlorate.
P.W. 17 and Sub inspector Tasgaokar of the local Intelligence Branch proceeded to Mangalwar Peth Police Chowky and called a bogus customer 'Basanna Pujari ' by name.
He also called the local panchas.
He, then, gave a ten rupee currency note to P.W.4.
He initialled the currency note.
He also gave a bag to P.W.4. and told him to buy half kg.
of potassium chlorate from M/s. M.F. Maniyar & Sons.
P.W.4 went to the shop.
He found in the shop accused Chandra Kant (since acquitted), who was a servant of Fakhruddin.
P.W.5 gave him the ten rupee currency note and asked for half kg.
of potassium chlorate.
which he said he needed for blasting purpose.
Chandra Kant gave him half k.g of potassium chlorate and returned an amount of Rs. 2.50p.
P.W.4 took the powder in the bag and was returning.
Police challenged him and seized the bag.
Police interrogated him.
He told police in presence of the Panchas that he had purchased the powder which was inside of the bag from M.F. Maniyar and got back Rs. 2.50P. P.W.17 searched the cash box in the firm of Fakhruddin and found 72 the ten rupee currency note initialled by him.
The shop was searched and 220 grams of Black gun powder was found in the show case.
He then alongwith the panchas went up to the first floor.
They found black gun powder there also.
They found it to be a mixture of potassium chlorate and sulphate used for fire arms.
Samples were sealed and one of them was given to appellant, Fakhruddin.
A panchnama, Ex.20, was prepared.
P.W.17, thought it necessary to send for an expert to identify the powder.
He, therefore, posted some constables at the shop, sealed appellants ' godowns in Mangalwar Peth and Shukrawar Peth and made panchnamas, Exhibits 22 and 23.
Next morning, he sealed both the shops and prepared panchnamas Exhibits 24 and 25.
On 13th September, he sent the samples to the Explosives Inspector.
On the 14th he lodged a complaint at the Jail Road Police Station at Sholapur.
Police registered a case and the P.S.I started investigation.
The P.S.I sent for the Drugs Inspector and the Central Excise Inspector.
All of them, then visited the appellants ' godowns at Shukarwar Peth at Sholapur.
They found the shops in the sealed condition.
A search was conducted in the presence of the appellants.
The Police officer and others, having observed due formalities, searched the premises.
In course of the search they found and seized some powder as per Panchnama, exhibit 27.
Samples of the powder seized were also given to the appellants.
After that they went and searched the appellants ' premises in Mangalwar Peth.
Nothing incriminating was found there.
They, then, returned to the firm M/s. M.F. Maniyar and searched it.
They found and seized some powders as per Panchnama, exhibit 28.
Samples of these powders also were given to the appellants.
On the same night they found 49 percussion caps on the roof of the adjacent shop and seized them as per Ext.
On the same night P.S. I., Patil, received a panchnama made by P.S.I., Joshi, (P.W.18) under which detonators had been seized.
Acting on an information from P.W. 17.
P.W. 18 arrested appellant, Taufik on September 15, 1967.
Appellant, Taufik told the police that he had buried some detonators in the compound of his bungalow and he would produce them.
Accordingly, he led P.W. 18 to his bungalow which was admittedly in occupation of all the appellants, removed some earth under a mango tree in the premises and took out three tins containing 20 packets of detonators.
It was seized under panchnama, exhibit 33.
As the detonators were explosive they were not opened.
Taufik was arrested and produced before P.W.17.
The Explosives Inspector was of the opinion that some of the explosives seized were highly explosive.
P.W.17, then, with the 73 permission of the District Superintendent of Police destroyed the explosives as instructed by the Explosives Inspector.
During the course of investigation from 11.9.1967 to 15.9.1967 the following arms and explosives were seized: (1) 200 grams of highly explosive gun powder.
(2) 40 kg.
and 150 grams of blasting powder.
(3) 3 kg.
and 350 g. of mixture of potassium chlorate and sulphur.
(4) 54 detonators.
(5) 251 caps like contrivances containing prohibited mixture of red arsenic sulphide and chlorate used to act as improvised percussions caps.
(6) 104 kg.
and 500 g. of potassium chlorate.
(7) 37.5 kg.
of special gelatines.
(8) 300 kg. of sulphur.
(9) 2496c campion crackers of prohibited size and containing prohibited mixtures.
(10) 510 grams of potassium cyanide.
(11) About 450 kg. of sulphur.
(12) 217 caps like contrivances of the same description as is the case with item No. 5 above.
(13) 2500 detonaters.
(14) 27 live cartridges, 12 bores, and (15) Mixture of sulphur and potassium chlorate 1/2 kg.
Out of these articles, the articles at serial Nos.
1 to 5 were found in the shop of M/s. M.F. Maniyar & Sons.
Articles at serial numbers 6 to 11 were found in the clandestine godown situated at 986, Shukarwar Peth at Sholapur on 15.9.1967.
Article at serial No. 12 was found on the roof at East Mangalwar Peth, Shukarwar which is adjacent to the shop of M/s.
M.F. Maniyar & Sons.
Article at serial number 13 were produced by appellant, Taufik, as stated earlier from the compound of their bungalow at 156A, Railway Lines, 74 Sholapur.
Articles at serial number 14 consist of 12 bore cartridges found in the house of accused Abdulla Mandolkar (since acquitted).
They were alleged to have been delivered by appellant, Fakhruddin, to accused, Fateh Ahmed Phuleri (since acquitted).
The article at serial number 15 was the one sold to P.W. 4, Basanna by accused, Chandrakant (since acquitted).
Appellant number 1 is the father of appellants 2 to 4.
Accused Chandrakant and Fateh Ahmed (both since acquitted) were the servants of Fakhruddin working in the shop.
Accused Abdula Mandolkar (since acquitted) was a relation of Fateh Ahmed.
Police after investigation submitted charge sheet.
Eventually the appellants and the three other above named co accused were committed to the court of Sessions for trial.
The allegations against the appellants in substance were that they agreed to do the following illegal acts; (i) to acquire and prepare explosives unauthorisedly and to possess and supply explosives for illegal purposes; (ii) to acquire and possess sulphur unauthorisedly and to sell the same; (iii) to acquire and possess and sell gun powder and cartridges in breach of the conditions of the licence granted under the Arms Act and Explosives Act; (iv) to acquire and stock in clandestine godown and illegally sell potassium chlorate in breach of the conditions of the licence granted under the provisions of the Arms Act; (v) to acquire without licence percussion caps and to sell them illegally; and (vi) to acquire and posssess without licence poison and to sell the same illegally.
The changes were also to the above effect.
The appellants pleaded not guilty.
In his statement under Section 342 of the Code of Criminal Procedure, appellant, Fakhruddin, additionally stated that he alone managed the shop M/s. M.F. Maniyar & Sons from which the incriminating substances were found.
He admitted his presence at the place and at the time of the first raid on the 11th September He has also admitted the search and seizure of articles as per Exhibit 28.
He has also admitted that potassium cyanide was purchased and possessed by him but he has pleaded that he was told that no licence was necessary for possessing potassium cyanide.
Mr. Lalit learned Advocate, appeared for appellants No. 1 & 2 and Mr. Bhasme, learned Advocate, appeared for appellants 3 & 4.
Learned counsel have not challenged the convictions and sentences of the appellants under Section 5(3)(b), Section 3 read 75 with Section 25(1)(a), and Section 30 of the Arms Act, and under Section 6(1)(a) of the Poison Act read with rule 2 of the rules framed under that Act.
They have only challenged the conviction and sentences under Section 5 of the Explosive Substances Act, and Section 120B of the Penal Code.
We are, therefore, called upon to examine the correctness or otherwise of the convictions under Section 5 of the Explosive Substances Act and Section 120B of the Penal Code.
Let us first consider the conviction under Section 5 of the Explosives Substances Act.
The Section reads as follows: 5. "Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punishable with transportation for a term which may extend to fourteen years, to which fine may be added, or with imprisonment for a terms which may extend to five years, to which fine may be added" 10.
In order to bring home the offence under Section 5 of the Explosive Substances Act, the prosecution has to prove; (i) that the substance in question is explosive substance; (ii) that the accused makes or knowingly has in his possession or under his control any explosive substance; and (iii) that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object.
The burden of proof of these ingredients is on the prosecution.
The moment the prosecution has discharged that burden, it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object, if he takes that plea.
Explosive substance has been defined in section 2 of the Explosive Substances Act.
The definition is as follows: "2.
In this Act the expression "explosive substance" shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive 76 substance; also any part of any such apparatus, machine or implement." "Explosive substance" has a broader and more comprehensive meaning than the term 'Explosive ', 'Explosive substance ' includes 'Explosive '.
The term 'Explosive ' has not been defined in the Act.
The dictionary meaning of the word 'Explosive ' is 'tending to expand suddenly with loud noise; 'tending to cause explosion ' (The Concise Oxford Dictionary).
In the Explosives Act, the terms 'explosive ' has been defined as follows: "4.
In this Act, unless there is something repugnant in the Definitions, subject or context, (1) "explosive" (a) means gunpowder, nitro glycerine, dynamite, guncotton, blasting powders, fulminate of mercury or of other metals, coloured fires and every other substance, whether similar to those above mentioned or not, used or manufactured with a view to produce a practical effect by explosion, or a pyrotechnic effect; and (b) includes fog signals, fireworks, fuses, rockets, percussion caps, detonators, cartridges, ammunition of all descriptions, and every adaptation or preparation of an explosive as above defined;" It may be mentioned that the definition of 'explosive ' under Section 4 was amended later, but we are not concerned with the amendment as the occurrence in the instant case took place before the amendment.
On a consideration of the evidence of the Explosives Inspector, and other evidence.
the Sessions Judge and the High Court have found, in our opinion correctly, that the substances in question were explosive substances within the definition of the expression.
In the instant case, appellant I has admitted, as stated earlier, that these articles were seized from his possession.
The evidence also shows that his three sons, appellants 2 to 4, used to manage and run the shop M. F. Maniyar & Sons from which the incriminating substance were seized.
It was argued by learned counsel that possession within the meaning of Section 5 of the Explosive Substances Act means 77 'conscious possession '.
There can be no doubt about it.
The substances seized were not minute or small in quantity.
They were in large quantities.
In fact half k.g. of the incriminating substance was sold to P. W. 4 by an employee of the firm.
The detonators were produced by appellant No. 3 from the premises of the Bungalow occupied by all the occupants.
It cannot but, therefore, be held that the appellants were in 'conscious possession ' of the substance seized.
The notification dated 1st of April, 1966 published by the Government of India, Ministry of Works and Housing and Urban Development (exhibit 65) reads as follows: "NOTIFICATION" No. 3/12/65 PII (IX) In exercise of the powers conferred by Section 6 of the Indian (4 of 1884), and in supersession of the notification of the Government of India in the later Department of Labour No. M 1217, dated the 9th February 1939, the Central Government is pleased to prohibit the manufacture, possession and importation of any explosive consisting of or containing sulphur or sulphurate in admixture with chlorate or potassium or any other chlorate; Provided that this prohibition shall not extend to the manufacture or possession of such explosive: (a) in small quantities for scientific purpose; (b) for the purpose of manufacturing heads of matches; or (c) for use in toy amorces (paper caps for toy pistols).
Sd/ P. Rajaratnam Under Secretary to the Government of India" The appellants had no licence or authority to make or possess the explosive substances as required by the above Government notification.
The licence possessed by them is dated 31.3.1956 (Exhibit 90) which was not in pursuance and in conformity of the aforesaid Government Notification.
The possession of the 'explosive substances ' by the appellants, therefore, were without any authority.
78 15.
Learned counsel for the appellants cited before us 1939 (2) All E. R. 641 in support of his contention.
The head note of the report reads: "Upon an indictment against an accused for knowingly having in his possession explosive substances, the prosecution has to prove that the accused was in possession of an explosive substance within the Explosive Substances Act, 1883, section 9, in circumstances giving rise to a reasonable presumption that possession was not for a lawful object.
Proof of knowledge by the accused of the explosive nature of the substance is not essential, nor need any chemical knowledge on the part of the accused be proved.
" The appellants have also cited another English decision reported in in which it has been observed: "We think that the clear meaning of the section is that the person must not only knowingly have in his possession the substance but must know that it is an explosive substance.
The section says he must knowingly have in his possession an explosive substance; therefore it does seem that it is an ingredient in the offence that he knew it was an explosive substance.
" With respect, the above decisions lay the correct legal proposition.
But the question is whether in his case appellants knew that the substances in question were explosive substances.
The knowledge whether a particular substance is an explosive substance depends on different circumstances and varies from person to person.
An ignorant man or a child coming across an explosive substance may pick it up out of curiosity and not knowing that it is an explosive substance.
A person of experience may immediately know that it is an explosive substance.
In the instant case, the appellants had been dealing with the substances in question for a long time.
They certainly knew or atleast they shall be presumed to have known what these substances they were and for what purpose they were used.
In fact, when P. W. 4 Basanna asked for half k. g. of blasting powder, appellants ' servant, accused Chandrakant, immediately supplied the requisite powder to P. W. 4 from the shop.
This evidence clearly establishes that the appellants did know the nature and character of the substance.
In other words, they knew that the substances in question were explosive substances.
The courts below therefore, were right in holding that an offence under Section 5 of the Explosive Substances Act was committed.
79 16.
Learned Counsel submitted that the evidence on record shows that appellant, Fakhruddin, alone acquired and possessed the substance in question.
That was the plea of Fakhruddin.
It also might be true that Fakhruddin also had acquired the substances but the evidence on record clearly shows that all the appellants were in possession and control of the substances in question.
The submission of the appellants has no substance and all the four persons are liable for the offence.
Now to turn to the conviction under Section 120B of the Penal Code.
Section 120B provides: "120B. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable. . . " `Criminal conspiracy ' has been defined under Section 120A of the Penal Code as follows: "120 A.
When two or more persons agree to do, or cause to be done. (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some tact besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.
It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object," The contention of learned counsel is that there is no evidence of agreement of the appellants to do an illegal act.
It is true that there is no evidence of any express agreement between the appellants to do or cause to be done the illegal act.
For an offence under section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication.
In this case, the fact that the appellants were possessing and selling explosive substances without a valid licence for a pretty 80 long time leads to the inference that they agreed to do and/or cause to be done the said illegal act, for, without such an agreement the act could not have been done for such a long time.
Mr. Lalit additionally submitted that appellant No. 2 Rizwan did not do any overt act.
He was a mere partner of M/s. M.F. Maniyar & Sons and as such his conviction has been bad in law.
The submission is not correct.
For, appellant Rizwan himself in his statement under Section 342, Cr. P. C., has stated "Myself (and) accused Nos. 1 and 4 looked after the business of the Firm.
M.F. Maniyar & Sons".
The learned courts below on a consideration of the evidence on record have come to the conclusion that he also occasionally used to work in the firm.
We do not have valid reason to differ from them.
Now comes the question of sentence.
The real man in the entire clandestine trade was appellant No. 1, who is now dead.
The three other appellants being his sons were merely assisting him.
We are told that appellant No. 2, Rizwan, has already served 81/2 months of imprisonment and appellants 3 and 4, Usman and Taufik, six months of imprisonment each.
In our view ends of justice will be met if the sentences of imprisonment are reduced to the periods already undergone by the three living appellants.
In addition to the sentence of imprisonment there was a fine of Rs. 1000/ each for the offence under Section 5 of the Explosive Substances Act and also sentence of fine against the appellants under Section 5(3) (b) of the and under Section 30 of the Arms Act.
In our opinion, ends of justice will be met if the fine under Section 5 of the Explosives Substances Act is remitted in case of all the appellants, including appellant No. 1, Fakhruddin.
With the above modification in the sentence the appeals are dismissed.
section R. Appeals dismissed.
| IN-Abs | Government of India, Ministry of Works & Housing and Urban Development Notification No. 3/12/65 PII(IX) dated 1st April, 1966, requiring a licence to make or possess the explosive substances Possession without such a licence, of the explosive substances is unauthorised.
Penal Code, section 120B Criminal conspiracy Nature of proof.
Fakhruddin, the owner of the shop, known as M. F. Maniyar & Sons, Sholapur, along with his three sons, was tried for offences under section 120B of the Penal Code, section 5 of the Explosive Substances Act, section 3 read with section 25 of the Arms Act and section 6(1)(a) of the Poisons Act.
All the four were convicted and sentenced by the Sessions Judge, Sholapur, to sentences of different durations under these Acts and also to fine.
The substantive sentences were directed to run concurrently.
The appeals before the High Court having failed the appellants have come in appeal by special leave to this Court.
Dismissing the appeals, the Court while remitting the sentences of fine and reducing the sentences of imprisonment to the periods already undergone by the three living appellants. ^ HELD:1 :1.
In order to bring home the offence under section 5 of the Explosive Substances Act, the prosecution has to prove: (i) that the substance in question is explosive substance; (ii) that the accused makes or knowingly has in his possession or under his control any explosive substance; and (iii) that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object.
[75D G] 1: 2.
The burden of proof of the ingredients of section 5 of the Explosive Substances Act, is on the prosecution.
The moment prosecution has discharged that burden, it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object, if he takes that plea.
[75F G] 2.
On a consideration of the evidence of the Explosive Inspector, and other evidence, the substances in question which were recovered from the appe 69 llants were "explosive substances" within the definition of that expression in section 2 of the Explosive Substances Act.
[76F G] 3: 1.
The factum of the recovery of the said articles from the possession of appellant No. 1 and also the evidence that his three sons, appellants 2 to 4, who were managing and running the shop of M. F. Maniyar and Sons from which the incriminating substances were seized clearly show that all of them were guilty.
[76 G H, 77A] 3: 2.
The several substances seized, not being minute or small in quantity, make it clear that the appellants were in "conscious possession" of the substances seized within the meaning of section 5 of the Explosive Substances Act.
[77A B] 3: 3.
The possession of the explosive substances by the appellants were without any authority since the appellants had no licence or authority to make or possess the explosive substances as required by the Government of India.
Ministry of Works & Housing and Urban, notification dated 1st April, 1966.
The licence possessed by them is dated 31 3 1956 which was not in pursuance and in conformity of the said Government notification.
[77G H] 3: 4.
The knowledge that the particular substance is an explosive substance depends on different circumstances and varies from person to person.
Unlike an ignorant man or a child coming across an explosive substance who picks it up out of curiosity not knowing that it is an explosive substance, a person of experience may immediately know that it is an explosive substance.
In the instant case, as the appellant had been dealing with the substance in question for long time, they certainly knew or at least they shall be presumed to have known what those substances were and for what purpose they were used.
The said presumption is further fortified from the fact that a half K.G. of blasting powder/ potassium cyanide was sold to the decoy witness by the appellants.
[78E F, G] 4.
For an offence under section 120B of the Penal Code the prosecution need not necessarily prove that the perpetraters expressly agreed to do or cause to be done the illegal act: the agreement may be proved by necessary implication.
In this case, the fact that the appellants were possessing and selling explosive substances without a valid licence for a pretty long time leads to the inference that they agreed to do and/or cause to be done the said illegal act, for, without such an agreement the act could not have been done for such a long time.[79G H, 80A]
|
ition No. 397 of 1981.
(Under Article 32 of the Constitution) Mrs. Shyamala Pappu, M. section Mann, S Shukhar, Miss Raj Shree and Mrs. Indra Sawhney for the Petitioner.
section K. Gambhir and Vijay Hansaria for the Respondent.
82 The Judgment of the Court was delivered by CHINNAPPA REDDY J.
Shiv Prasad Bhatnagar is under preventive detention pursuant to an order made by the District Magistrate, Vidisha, Madhya Pradesh.
The order and the grounds of detention were served on him on November 28, 1980.
The District Magistrate made a report of the order to the State Government and the latter approved the detention order on December 2, 1980.
The approval was communicated to the detenu on December 5, 1980.
A representation was submitted by the detenu on December 13, 1980.
The Advisory Board constituted by the State Government met on January 3, 1981, considered the material placed before it by the detaining authority as well as the representation and the written arguments submitted by the detenu.
The detenu was also given a personal hearing.
The Advisory Board submitted its report to the State Government on January 4, 1981.
Thereafter the State Government confirmed the order of detention on February 3, 1981 under Sec.
12 (1) of the National Security Act.
The period of detention was stipulated as one year from the date of the order of detention.
The order confirming the detention was communicated to the detenu on February 12, 1981 and he was also informed that the Advisory Board had opined that there was sufficient cause for his detention.
Shyamla Pappu, learned counsel for the detenu made a number of submissions.
In the view that we are taking of one of the primary submissions, we do not think it necessary to consider the rest of the submissions.
The primary submission that we have in mind is that the grounds of detention suffer from the vice of either vagueness or staleness.
The first ground mentions that the detenu alongwith his friends, in the second week of November, 1980, indulged in filthy abuse of Muslims, threatened their lives and performed "mar pit ' '.
Details of incidents were given to substantiate the ground.
As many as six incidents were mentioned and in everyone of them it was said that the detenu alongwith his associates had indulged in this or that violent action.
No mention was made of the name of even a single associate.
The argument was that the reference to 'associates ' without naming even one rendered the ground vague and, therefore, vitiated it.
Similarly, it was said the second ground also referred to the detenu and his accociates without naming even a single associate and for that reason the second ground also was vague.
The further submission was that the incidents enumerated in second ground were of the years 1974, 1975, 1977 and 1978 and could by no means be said to be proximate 83 enough to sustain an order of preventive detention.
The second ground was to the effect that the detenu and his associates had terrorized the common man in the Vidisha area by their various criminal acts which caused disturbance to public peace and public safety.
Several incidents were narrated to substantiate this ground.
The first incident was of the year 1974, the second incident was of the year 1975, the next three incidents were of the year 1977 and the rest of the incidents barring the last one were of the year 1978.
A perusal of the incidents enumerated to substantiate the second ground show that apart from the vice of staleness from which they appear to suffer, the incidents are related to "law and order" and not to the maintenance of public order.
The incidents appear to bear a striking resemblance to the grounds of detention which were considered In Re: Sushanta Goswami & Ors., (1) particularly in the cases of Debendra Nath Das, Abdul Wahab, Anil Das, Dilip Kumar Chakraborty and Ashoka Kumar Mukherjee.
It is now well settled that grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague.
Irrelevance, staleness and vagueness are vices any single one of which is sufficient to vitiate a ground of detention.
And, a single vicious ground is sufficient to vitiate an order of detention.
In the present case we are satisfied that the second ground of detention suffers both from the vice of staleness, because of the passage of time since the happening of some of the incidents and the vice of irrelevance because they relate to 'law and order ' and not to 'the maintenance of public order '.
The detenu is entitled to be released.
He is directed to be released forthwith.
The petition is allowed.
| IN-Abs | The petitioner was detained under section 12 (1) of the National Security Act on the grounds that he, alongwith his friends, in the second week of November, 1980 indulged in filthy abuse of Muslims, threatened their lives and performed "marpeet" and that he and his associates terrorised the common man in the area by their various criminal acts which caused disturbance to the public peace and public safety.
In support of the petition it was contended on behalf of the petitioner that the reference to associates without naming even one rendered the ground vague and, therefore, vitiated the order of detention and (2) that the incidents enumerated in the second ground related to the years 1974, 1975, 1977 and 1978 which could not be said to be proximate enough to sustain the order of detention.
Allowing the petition, ^ HELD: The detenu is entitled to be released.
It is now well settled that grounds of detention must be pertinent and not irrelevant, proximate and not state, precise and not vague.
Irrelevance, staleness and vagueness are vices any single one of which is sufficient to vitiate the order of detention.
[83 D] In the instant case the incidents enumerated to substantiate the second ground show that apart from the vice of staleness from which they suffer, they were related to "law and order" and not to the maintenance of public order.
They are stale because of the passage of time since the happening of some of the incidents; they are irrelevant because they related to law and order and not to maintenance of public order.
[83 E] In Re: Sushanta Goswami and Ors., ; followed.
|
tition Nos. 293,391 and 392 of 1981.
(Under Article 32 of the Constitution) 138 M.M. Abdul Khader and Shakeel Ahmed for the Petitioners.
R.K. Bhatt, D. Goburdhan and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
These three Writ Petitions may be disposed of by a single judgment since the principal question argued in all the three cases is one.
The question is whether delay in considering the representation made by a detenu under article 22(5) of the Constitution vitiates a detention under the National Security Act and entitles the detenu to be released on that ground alone.
As a result of a series of decisions of this Court,( ') it is now well settled that the representation made by a detenu under article 22(5) of the Constitution against his detention under the , must be considered by the detaining authority with the ut most expedition and that any unexplained delay in considering the representation will be fatal to the detention.
The learned counsel for the State of Uttar Pradesh urged that the rule requiring expeditious consideration of a detenu 's representation is a judge made rule based on provisions of the Conservation of Foreign Exchange and Prevention of the Smuggling Activities Act, 1974, and that the extension of the application of the rule to cases of detention under the National security Act was unwarranted.
The learned counsel contrasted the provisions of the National Security Act and the provisions of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974, and urged that in the case of detention under the National Security Act, a certain amount of delay was inevitable having due regard to the procedure prescribed by the Act and, 139 therefore, delay in consideration of the representation should not be allowed to prejudice the detention.
We are unable to agree with the submission of the learned counsel.
We will presently give our reasons for our inability to accept the learned counsel 's submissions but we will first like to refer to a few facts.
In Writ Petition (Criminal) No. 293 of 1981 the order and the grounds of detention were served on the detenu on October 30, 1980 and November 12, 1980 respectively.
The detenu made a representation on November 12, 1980.
Though according to the detenu he has received no communication from the Government about his representation, the Additional District Magistrate has stated in his counter affidavit that the representation was rejected on December 9, 1980 and that it was communicated to the detenu through the Superintendent of the Central Jail.
The counter affidavit mentions not a word to explain the delay in considering the representation.
The only reference to the representation in the counter affidavit is in these two sentences: "It is admitted that the detenu made a representation to the Home Secretary on November 12, 1980, and the same was rejected on December 9, 1980.
The rejection of the representation was communicated to the detenu through Superintendent, Central Jail by the Government".
Similarly in Writ Petition (Criminal No. 391 of 1981, the order and the grounds of detention were served on the detenu on November 12, 1980.
The representation was rejected on December 10, 1980.
In the counter affidavit filed by the Section Officer, Confidential Department, of the Government of Uttar Pradesh, it is stated that on receipt of the representation, the Secretary ' Home Department, forwarded it to the District Magistrate for his comments.
In order to meet the allegations in the representation, the District Magistrate had to gather information from many sources and the representation alongwith his comments was returned to the Home Secretary by the District Magistrate on November 25, 1980.
Thereafter Law Department was consulted and the file could reach the Home Minister on December 5, 1980 only.
The representation was rejected by the Home Minister on December 8, 1980 and then communicated to the detenu through the Superintendent, Central Jail.
In Writ Petition (Criminal) No. 392 of 1981 the order and the grounds of detention were served on the detenu on October 16, 1980.
The detenu made a representation on October 24, 1980.
It was rejected on November 25, 1980.
The counter 140 affidavit filed by the Additional District Magistrate does not offer any explanation for the delay in the consideration of the representation.
He has satisfied himself with the statement "as regards the representation of the detenu to the Home Secretary this fact is admitted.
" The question for consideration is whether a person preventively detained under the provisions of the National Security Act is entitled to be released if there is delay in the consideration of the representation made by him to the detaining authority.
It is true that the series of cases where delay in the consideration of the representation made by a detenu was held to be fatal to detention were cases which arose under the .
We are however, unable to see how that would make any difference.
The right of detenu to have his representation considered "at the earlier opportunity" and the obligation of the detaining authority to consider the representation "at the earliest opportunity" are not a right and an obligation flowing from either the , or the National Security Act or, for that matter any other Parliamentary of State law providing for preventive detention.
They are a right and an obligation created by the very Constitution which breathes life into the Parliamentary or State law.
article 22(5) enjoins a duty on the authority making the order of detention to afford the detenu "the earliest opportunity of making a representation against the order".
The right and obligation to make and to consider the representation at the earliest opportunity is a Constitutional imperative which cannot be curtailed or abridged.
If the Parliament or the State legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the inter departmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate.
It is essential that any law providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus.
It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable.
The learned counsel for the State of Uttar Pradesh pointed out certain differences between the and the National Security Act which according to him make delay inevitable in 141 the consideration of representations in cases of detention under the National Security Act.
We think that the differences pointed out are irrelevant.
The constitutional mandate brooks no unreasonable delay in the consideration of a representation.
In the cases before us, in Criminal Writ Petition Nos. 293 of 1981 and 392 of 1981 no explanation was offered by the detaining authority for the delay in the consideration of representations and in Criminal Writ Petition No. 391 of 1981, administrative red tape was the only explanation offered.
We are satisfied that in all the three cases there was unreasonable delay in the consideration of the representations and the detenus are, therefore, entitled to be released.
They will be released forthwith.
The Writ Petitions are allowed.
| IN-Abs | Allowing the appeals, the Court ^ HELD: 1: 1.
Article 22 (5) of the Constitution enjoins a duty on the authority making the order of detention to afford the detenu the earliest opportunity of making a representation against the order.
The right and obligation to make and to consider the representation at the earliest opportunity is a constitutional imperative which cannot be curtailed or abridged.
[140 E] 1: 2.
If the Parliament or the State Legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the inter departmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate.
It is essential that any law providing for preventive detention and any authority obliged to make order for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus.
It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable.
The constitutional mandate brooks no unreasonable delay in the consideration of a representation.
[140 G, 141A] 1: 4.
The right of detenu to have his representation considered "at the earliest opportunity" and the obligation of the detaining authority to consider the representation "at the earliest opportunity" are not a right and an obligation flowing from either the Conservation of Foreign Exchange and Prevention of Smuggling Activities, 1974 or the National Security Act or, for that matter any other Parliamentary or State law providing for preventive detention.
They are a right and an obligation created by the very Constitution which breathes life into the Parliamentary or State law.
[140 D] Jayanarayan Sukul vs State of West Bengal, ; ; Narendra Purshotam Umrao etc.
vs B.B. Gujral and Ors.,[1979] 2 SCR 315; V.J. Jain vs Pradhan, ; ; Smt.
Ichhu Devi Choraria vs Union of India and Ors.; ; ; Ramachandra A. Kamat vs Union of India and Ors. ; ; Frances Coralie Mullin vs W. C. Khambra and Ors. ; , referred to.
|
ION: Criminal Appeal No.390/75.
Appeal by special leave from the Judgment and Order dated 2.7.1975 of Punjab & Haryana High Court in Cr. A. No. 1554/74.
Kapil Sibal, Subhash Sharma and Ravindra Bana for the Appellant.
K.G. Bhagat and R. N. Poddar for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
What is the true role of a judge trying a criminal case ? Is he to assume the true role of a referee in a football match or an umpire in a cricket match, occasionally answering, as Pollock and Maitland(1) point out, the question 'How is that ', or, is he to, in the words of Lord Kenning 'drop the mantle of a judge and assume the role of an advocate ?(2) Is he to be a spectator or a participant at the trial ? Is passivity or activity to mark his attitude ? If he desires to question any of the witnesses, how far can he go ? Can he put on the gloves and 'have a go ' at the witness who he suspects is lying or is he to be soft and suave ? These are some of the questions which we are compelled to ask ourselves in this appeal on account of the manner in which the judge who tried the case put questions to some of the witnesses.
14 The adversary system of trial being what it is, there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive element entering the trial procedure.
If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine.
He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.
As one of us had occasion to say in the past. "Every criminal trial is a voyage of discovery in which truth is the quest.
It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice.
For that purpose he is expressly invested by section 165 of the Evidence Act with the right to put questions to witnesses.
Indeed the right given to a Judge is so wide that he may 'ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant.
Section 172 (2) of the Code of Criminal Procedure enables the Court to send for the police diaries in a case and use them to aid it in the trial.
The record of the proceedings of the committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial." (1) With such wide powers, the Court must actively participate in the trial to elicit the truth and to protect the weak and the innocent.
It must, of course, not assume the role of a prosecutor in putting questions.
The functions of the counsel, particularly those of the Public Prosecutor, are not to be usurped by the judge, by descending into the arena, as it were.
Any questions put by the judge must be so as not to frighten, coerce, confuse or intimidate the witnesses.
The danger inherent in a judge adopting a much too stern an attitude towards witnesses has been explained by Lord Justice Birkett: "People accustomed to the procedure of the Court are likely to be over awed or frightened, or confused, or distressed when under the ordeal of prolonged questioning from the presiding Judge.
Moreover, when the questioning takes on a sarcastic or ironic tone as it is apt to do, or when it takes on a hostile note as is sometimes almost inevitable, the danger is 15 not only that witnesses will be unable to present the evidence they may wish, but the parties may begin to think, quite wrongly it may be, that the judge is not holding the scales of justice quite eventually"(1) In Jones vs National Coal Board Lord Justice Denning observed: "The Judge 's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been over looked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies.
If he goes beyond this, he drops the mantle of the judge and assumes the role of an advocate; and the change does not become him well.
" We may go further than Lord Denning and say that it is the duty of a judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant" (Sec.
165 Evidence Act).
But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten or bully witnesses.
He must take the prosecution and the defence with him.
The Court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge.
The judge, 'like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and old '.
Let us now take a look at the facts of the case before us.
Ram Chander and Mange were tried by the learned Additional Sessions Judge, Jind, for the murder of Dunni.
Both were convicted under Sec.
302 read with Sec.
34 Indian Penal Code and sentenced to imprisonment for life.
On appeal the High Court acquitted Mange but confirmed the conviction of Ram Chander.
The prosecution case was that on February 14, 1974, at about 11 a.m. Dunni was proceeding from his field towards the village, Sucha Khera and was 16 passing near the field of Ram Chander and Mange when he was attacked by them with Jatus (wooden pegs fixed to a cart).
They inflicted several injuries on Dunni.
Mewa (P.W.9) who was working in his field tried to rescue Ram Chander.
He was given a lathi blow on his head.
On hearing the alarm raised by Dunni, Hari Chand (P.W.8) and Jiwana (P.W.2) and others came there and witnessed the occurrence.
The assailants ran away.
Jiwana the Lambardar proceeded to the village to inform the relatives of Dunni.
On the way he met Dhan Singh (P.W. 10), and told him about the occurrence.
Jiwana thereafter went to the Police Station at Narwana and lodged the First Information Report at about 5.15 p.m.
The Sub Inspector of Police went to the village.
He held the inquest and sent the dead body for post mortem examination.
He looked for Mewa and Hari Chand.
Both of them were not available in the village.
A constable was sent to fetch them from Sucha Khera.
Neither of them was brought that night.
Next morning he was able to examine Mewa but Hari Chand was not to be found.
Hari Chand was finally examined on 16th.
The Doctor who conducted the autopsy found thirteen injuries on the body of Dunni.
There were fractures of the left partial, frontal and occipital bones.
According to the Doctor that was due to "compression of brain with multiple fractures of skull".
On February 15, 1974, at about 4 P.M. the Doctor also examined Mewa and found on the right side of his head an abrasion 1" x 1/4".
In support of its case the prosecution examined P.Ws. 2, 8 and 9 as eye witnesses to the occurrence.
P.W. 10 was examined to speak to the information alleged to have been given to him by P.Ws. 2 and 8 that the deceased had been beaten by the two accused persons.
P.W. 2 did not support the prosecution case and was declared hostile.
P.Ws. 8 and 9, the remaining eyewitnesses seemingly supported the prosecution case in varying degrees in the examination in chief, but they made some damaging admissions in cross examination.
P.W. 9 even in examination in chief stated that Mange was not armed with any weapon though he was present alongwith Ram Chander.
The learned Sessions Judge convicted both Ram Chander and Mange but having regard to the evidence of P.W. 9 the High Court acquitted Mange and confirmed the conviction of Ram Chander.
It was argued by Shri Kapil Sibal, learned Counsel for the appellant that in view of the several statements made by P.Ws. 8 and 9 in their cross examination, their evidence should not have been 17 accepted by the Courts below.
Shri Sibal also submitted that the accused did not have a fair trial as the learned Sessions Judge particularly assumed the role of a Prosecutor.
Hari Chand, P.W. 8 said in his examination in chief that when he was working in his field he heard a noise from the side of the field of Mange.
He and Jiwana (P.W. 2) went in that direction.
From a distance they saw Mange and Ram Chander giving blows to Dunni with dandas.
By the time they went near, Ram Chander and Mange ran away.
They saw Mange tying a piece of cloth round the head of Dunni.
Dunni was bleeding and was hardly able to breathe.
They went to the village to inform the people about the occurrence.
On the way they met P.W. 10 and told him about Dunni.
having been beaten by the two accused.
Later that day he went to Sucha Khera for official work.
The police examined him on 16.2.74.
We have already referred to the circumstance that he was not available for examination by the Police on 14th and 15th.
He sought to explain his absence from the village by stating that he went to Sucha Khera in connection with his official work.
In cross examination he admitted that he did not mention this fact in the Roznamcha (daily diary).
He also admitted that the village Sucha Khera was not within his jurisdiction.
He further admitted that the notice for serving which he went to Sucha Khera was with regard to water shoot No. 14750 at Sucha Khera.
In answer to a question whether he only saw the accused running away or doing something else, he categorically stated that he did not see those persons causing injuries but only saw them running away.
Thereupon the Sessions Judge told him that in his examination in chief he had said that he had seen Mange and Ram Chander causing injuries and that if he made inconsistent statements on material points he could be prosecuted for perjury.
The Sessions Judge has made a note to this effect in the deposition itself.
In answer to a further question P.W. 8 stated that when they were running away their backs were towards him.
The Sessions Judge once again repeated the warning which he had given earlier.
The Sessions note with regard to the first warning is in the following words: "The witness has been explained right here his statement which has gone on record and he has been told that in examination in chief he has said that he had seen Mange and Ram Chander causing injuries.
He had also been informed that 18 a person can be prosecuted for perjury if on material points in consistent statements are made.
" The second warning which was given by the learned Sessions Judge has been recorded by the learned Sessions Judge in the following words: "As was pointed out to you yesterday also, it is once more pointed out to you that in examination in chief yesterday, you clearly stated before the Court that you saw Ram Chander and Mange causing injuries to Dunni.
Later on in cross examination by Shri Shamsher Singh you said that you saw the accused persons running away.
You have already been warned about the consequences of inconsistent replies.
Without fear or favour tell the Court, which of the two statements is correct and whether you saw Mange and Ram Chander causing injuries to Dunni or not.
" To this question the answer of the witness was that when he was at some distance he saw them causing injuries but by the time he went near they had run away.
P. W. 9 stated even in his chief examination that when he saw Mange and Ram Chander, they were running in the direction of Denuda.
Ram Chander had a danda.
Mange was empty handed.
They started beating a person who was coming from Denuda side.
He tried to rescue, the person.
He was given a blow on his head with a stick.
He felt giddy and sat down.
He did not know what happened afterwards because he was feeling faint.
He came to his senses when Lambardar and Patwari came there.
Then he went to his village.
He stated in cross examination that on 15th he was called by the Police and taken to the field and from the field he was taken to Narwana where he was kept in the Police Station upto 16th.
He was allowed to go away after his statement was recorded by the Magistrate under section 164 Cr.
Procedure Code.
Jiwana was also there at that time.
When he was asked whether the statement which he made to the Magistrate was tutored his reply was "Yes, the statement was told".
Later again he said "I gave the statement as told by the police." He stated that he was not beaten but only threatened.
He further stated that the day before he gave evidence in Court he was threatened by the Police that if he did not give the statement he would himself be involved in a case.
He also said that he wanted to say whatever he actually saw but the police did not agree and said that he must give the entire statement as mentioned by them.
During the course of the cross examination of 19 the witness the learned Sessions Judge made two notes which may be extracted here.
The first note runs: "This time the witness says that the police said that the police will make a case against him.
Previously the witness was not prepared to go to that extent.
I wonder whether the witness understands the difference between two things namely that the Police will make a case against him and between this that if he changed his statement he will involve himself in a case.
The matter to be appreciated at appropriate stage.
The second note is as follows: "I will examine the witness through Court questions as to which part of the statement he admits to be correct without fear of the police.
The learned defence counsel may proceed further to build up his defence.
" Thereafter the learned Sessions Judge himself put some questions to the witness.
The witness said that he did not tell the Magistrate that he was making the statement under the pressure of the Police.
The learned Sessions Judge then put him the following question: "You have said that even before me you are making a statement under the pressure of the police.
Please state whether you mean it.
and you were giving the statement under pressure of the police.
" The answer was that "I am giving the statement freely.
" The learned Sessions Judge put him a few more questions one of which was whether he was honestly stating that Mange was bare headed and Ram Chander had a dunda.
The witness answered that he said so honestly.
The questions put by the learned Sessions Judge, particularly the threats held out to the witnesses that if they changed their statements they would involve themselves in prosecutions for perjury were certainly intimidating, coming as they did from the presiding judge.
The learned Sessions Judge appeared to have become irate that the witnesses were not sticking to the statements made by them under sections 161 and 164 and were probably giving false evidence before him.
In an effort to compel them to speak what he thought must be the truth, the learned Sessions Judge, very wrongly, in our opinion, firmly rebuked them and virtually threatened them with prosecutions for perjury.
He left his seat and entered the ring, we may say.
The principle of 'fair trial ' was abandoned.
We find it impossible to justify the attitude adopted by the Sessions Judge and we also find it 20 impossible to accept any portion of the evidence of P.Ws 8 and 9, the two alleged eye witnesses.
Shri Bhagat very ingeniously argued that the evidence of P.Ws 8 and 9 could yet be acted upon to the extent their evidence was substantiated by the first information report given by P.W.2.
When we pointed out that neither PW 8 nor PW9 was the author of the first information report and, therefore, the report could not be used to corroborate their evidence, Shri Bhagat suggested that we could do so by invoking the provisions of Section 11 of the Evidence Act.
He relied upon the following observations of Beg J. in Ram Kumar Pande vs The State of Madhya Pradesh: (1) "No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it.
But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23 3 1970, were bound to have been communicated.
If his daughters had seen the appellant inflicting a blow of Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilities, of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case".
Beg, J, apparently had the first part of Section 11 in mind and thought that the presence of the daughters at the scene was inconsistent with the failure of the father to refer to their presence in the first information report having regard to the circumstances under which the report must have been made.
Even assuming that under certain circumstances it is permissible to use the first information report under the first part of Section 11 (we say nothing about the correctness of the view), there is in the present case no question of invoking the first part of Section 11, which is inapplicable since the first information report is now not sought to be used as being inconsistent with the prosecution case.
Nor do we think that the first information report can be used by resort to the second part of section 11, The Evidence Act contains detailed provisions dealing with statements of persons who cannot be called as witnesses and former statements of persons who are called as witnesses.
These 21 provisions would appear to become redundant if the evidence of a witness is to be tested and accepted or rejected with reference to the former statement of another witness, on the ground that such former statement renders the evidence highly probable or improbable.
We can do no better than to refer to Stephen, the framer of the Section who said: "It may possibly be argued that the effect of the second paragraph of Section 11 would be to admit proof of such facts as these (viz. statements as to facts by persons not called as witness; transactions similar to but unconnected with the facts in issue; opinions formed by persons as to facts in issue or relevant facts).
It may, for instance, be said: A (not called as a witness) was heard to declare that he had seen B commit a crime.
This makes highly probable that B did commit that crime.
Therefore A 's declaration is a relevant fact under Section 11 this was not the intention of the section as is shown by the elaborate provision contained in the following part of Chapter 11 (Sections 31 to 39) as the particular classes of statements, which are regarded as relevant facts either because the circumstances under which they are made invest them with importance, or because no better evidence can be got.
The sort of facts which the section was intended to include are facts which either exclude or imply more or less distinctly the existence of the facts sought to be proved".
We, therefore, do not think that section 11 may be invoked in the present case, in the manner suggested by the learned counsel.
In the result we accept the appeal, set aside the conviction and sentence and direct the appellant to be set at liberty forthwith.
V.D.K. Appeal allowed.
| IN-Abs | The appellant Ram Chander and Mange were tried by the learned Additional Sessions Judge, Jind, for the murder of Dunni.
Both were convicted under section 302 read with section 34 Indian Penal Code and sentenced to imprisonment for life.
On appeal the High Court acquitted Mange but confirmed the conviction and sentence of Ram Chander.
In appeal by special leave it was contended that the conviction and sentence were vitiated as the principle of fair trial was abandoned by the Sessions Judge who rebuked the witnesses and threatened them with prosecution for perjury and based his conviction on such extorted evidence.
Allowing the appeal, the Court ^ HELD: 1: 1.
If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine.
He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.
The Court has wide powers and must actively participate in the trial to elicit the truth and to protect the weak and the innocent.
It is the duty of a judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant".
But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten, coerce, confuse, intimidate or bully witnesses.
He must take the prosecution and the defence with him.
The Court.
the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge.
The judge, "like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and old.
" F] Sessions Judge, Nellore vs Intna Ramana Reddy and Anr.
, I.L.R. , approved.
Jones vs National Coal Board, ; , quoted with approval.
In the instant case, the questions put by the learned Sessions Judge, particularly the threats held out to the witnesses that if they changed their statements they would involve themselves in prosecution for perjury were certainly intimidating, coming as they did from the presiding judge.
In an effort to compel 13 the witnesses to speak what he thought must be truth, the learned Sessions Judge, very wrongly, firmly rebuked them and virtually threatened them with prosecutions for perjury.
He left his seat and entered the ring.
The principle of "fair trial" was abandoned.
[19 F H] 2.
The Evidence Act contains detailed provisions dealing with statements of persons who cannot be called as witnesses and former statements of persons who are called as witnesses.
These provisions would appear to become redundant if the evidence of a witness is to be tested and accepted or rejected with reference to the former statement of another witness on the ground that such former statement renders the evidence highly probable or improbable.
Even assuming that under certain circumstances it is permissible to use the first information report under the first part of section 11 there is in the present case no question of invoking the first part of section 11, which is inapplicable since the first information report is now not sought to be used as being inconsistent with the prosecution case.
Nor can first information report be used by resort to the second part of section 11.
[20 H 21 A; 20 F G] Ram Kumar Pande vs The State of Madhya Pradesh, ; @ 522, discussed.
|
Appeal No. 162 of 1954.
Appeal by special leave from the judgment and order dated the 21st day of July 1953 of the Labour Appellate Tribunal of India, Lucknow in Miscellane ous Case No. C III 33 of 1952.
H.J. Umrigar and R. A. Govind for the appellant B.P. Maheshwari for the respondent.
October 4.
The Judgment of the Court was delivered by BHAGWATI J.
The Labour Appellate Tribunal of India at Lucknow dismissed the application of the appellant made under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, for permission to dismiss the respondent, its workman, and the appellant obtained from this Court Special Leave to Appeal against that order.
The respondent has been working as a Steno typist with the appellant since 3rd December, 1946, and is also the Vice President of the Union of workers which is affiliated to the Indian National Trade Union Congress and is known as Chini Mills Mazdoor Sangh One M. P. Singh has at all relevant times been and is still the General Manager of the appellant.
The relations between the appellant and its work men are governed by the Standing Orders framed by mutual agreement between the Labour and the Sugar Mills in Uttar Pradesh which have been approved by 97 748 the Government of Uttar Pradesh.
ClauseL(1)(j)of the said Standing Orders runs as under: "Drunkenness or gambling or riotous or disorderly behaviour while on duty in factory premises, or in quarters provided by the mills or elsewhere or any act subversive of discipline".
These are among the items of misconduct which would entitle the appellant, after due enquiry, to dismiss a workman from its employ.
There were longstanding disputes between the appellant and its workmen since October, 1946, and on the 23rd February, 1949, Kedar Nath Khetan, one of the partners of the appellant, wrote to Shri Kashi Nath Pandey, General Secretary, Indian National Sugar Workers Federation, promising to remove the General Manager as soon as the season of the Chhitauni factory was over.
There was, however, an agreement arrived at between the partners of the factory and the Chini Mills Mazdoor Sangh on the 13th September, 1949, under which the demand for the removal of the General Manager was withdrawn by the workers.
The disputes, however, continued and matters came to a head in 1952.
In May, 1952, the management charged 76 members of the Union for participation in a 'Tools down 'strike.
The matter went up to the Labour Appellate Tribunal which, by its award, reinstated all the 76 workmen.
The management preferred writ petitions Nos. 402 and 409 in the Allahabad High Court but the same also were dismissed.
Special Leave was obtained from this Court against those decisions of the Allahabad High Court and the same are pending.
During the pendency of the application of the management for the discharge of the said 76 workmen before the Labour Appellate Tribunal., the workers held a meeting on the 10th June, 1952, near an old mosque outside the factory area to consider the situation arising out of the suspension of the 76 workmen and the ways and means of meeting the same.
The respondent participated in the said meeting as the Vice President of the Union and made a speech criticising the attitude of the General Manager in terms 749 which were set out in the report dated the 10th June, 1952 submitted by two workers by name Ganga Dhar Tewari and Jamuna Prasad to the General Manager.
The speech of the respondent as reported there was to the following effect: "The General Manager of this factory wants to crush the Labour movement from the very beginning.
He allowed some of his intermediaries to join strike when Shri Shibban.
Lal Saxena had served a strike notice.
His men had also persuaded some of our members to join the strike.
As a result of this we had decided to launch a strike.
On the other hand, the Manager Sahib was sitting on the phone for the permission of the Collector to dismiss all our fellow workers.
Shri Moti Lal Singh was able to discover this conspiracy and he at once prevented us from going on strike.
Then Manager Sahib could not succeed in his plan.
This time he has falsely accused 76 of our workers of resorting to Tools down strike.
These workers will surely be reinstated.
But our efforts are rendered useless due to the acts of the Government Officers; the Collector of this District is getting some thing secretly from the Manager Sahib.
We have only one alternative open to us, let us again agitate for his dismissal.
Many of the proprietors have written to me against him".
A resolution was moved at that meeting for the reinstatement of the 76 workers and dismissal of Shri Madan Pal Singh, the General Manager and the same was passed.
As stated above, the two workers Ganga Dhar Tewari and Jamuna Prasad reported the proceedings of the said meeting to the General Manager on the very same day.
The General Manager thereafter addressed a letter to the respondent on the 16th July, 1952 stating that he, the respondent, was present in and addressed a meeting held on the 10th June, 1952, wherein, among other matters, a resolution for the reinstatement of the 76 suspended workers and the removal of the General Manager was passed.
He asked the respondent to give him information regard 750 ing the above mentiond facts within 24 hours of the receipt of the letter.
The respondent replied on the 17th July, 1952, stating that he never attended any meeting whatever in his capacity as the Steno typist of the factory and expressed his inability, therefore, to say anything in the capacity in which the letter dated the 16th July, 1952, had been addressed by the General Manager to him.
Not being content with bypassing the whole issue in this manner, he proceeded to observe that it was none of the factory 's business to seek information from him for his personal, social or political activities outside the factory area.
He stated that as a matter of courtesy any information asked for would have been supplied by him, but, as the things stood, he very much regretted his inability to comply with the wishes of the General Manager.
The General Manager again addressed a letter to the respondent on the 17th July, 1952, stating that he was entitled to seek the information from him even in his personal capacity and asked him to let him have the reply to the queries contained in the letter dated the 16th July, 1952.
The respondent, in his letter dated the 17th July, 1952 in reply, observed that some of the conclusions drawn by the General Manager were "simply out of self complacency" and he respectfully begged to differ from the General Manager.
He stated that he had nothing further to add to his earlier reply dated the 17th July, 1952.
The General Manager waited for a while and on the 1st August, 1952, served upon the respondent a chargesheet calling upon the respondent to show cause why action should not be taken against him under clause L(1)(j) of the Standing Orders for making a speech in a meeting held near the local mosque on the 10th June, 1952, 'wherein, among other defamatory remarks he, the respondent, instigated the workers to take steps for the removal of the General Manager.
The respondent was asked to submit his explanation latest by 10 a.m. on the 2nd August, 1952.
The respondent submitted his written statement accordingly wherein he stated that there was absolutely no justification whatsoever for charging him with broach of 751 the Standing Orders under clause L(1)(j).
He denied the allegations contained in the charge sheet and wound up by asking the General Manager to enlighten him as to under what rules of the Factories Act, Commercial Establishments Act or the Standing Orders, written replies in the matters other than one 's daily routine work of the factory were demanded at such short notice.
The General Manager fixed 10 a.m. on Monday the 4th August, 1952, for the holding of the enquiry and the respondent was called upon to present himself in time and he was also intimated that he would be at liberty to produce oral or documentary evidence in defence against the charges framed against him.
An enquiry was accordingly (held by the General Manager on the 4th August, 1952.
The proceedings thereat were recorded in the form of questions and answers.
The respondent adopted an attitude which was consistent with the one which he had adopted in the course of the correspondence above referred to.
He refused to answer the questions which were categorically put by the General Manager to him and stated that he had nothing to add to his written statement.
He also took up the attitude that if he had taken part in any meeting held under the auspices of the Chini Mills Mazdoor Sangh outside the factory, the General Manager should write to the officials of the Sangh for necessary information.
When it was specifically put to him that no confidential work was taken from him as he had been taking active interest in the anti management activities maliciously and had been exploiting the poor labour to force himself being confirmed by the management, he said that he did not agree with it and it was not a question which needed any reply.
As a result of the enquiry, the General Manager made his report on the 24th October, 1952, wherein he found that the respondent had made a speech exhorting the workmen of the factory to pass a resotion for the removal of the General Manager, that the management was bound to lose confidence if a worker who had excited other workers against the General 752 Manager of the concern refused to give a direct reply to direct questions, that, in the absence of a Stenotypist who could enjoy the confidence of the management, it was impossible to run the factory without the risk of any trouble and that the respondent was thus guilty of misconduct and acts subversive of discipline.
As, however, there was a pendency of a proceeding before the Labour Appellate Tribunal, an application should be made to that authority for permitting his dismissal.
This report was accepted by the management and the appellant made the application under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, for permission to dismiss the respondent from its employ.
The Labour Appellate Tribunal embarked on the freedom of speech vouchsafed to the citizens of India under article 19(1)(a) of the Constitution, observed that the making of the speech in question at the meeting held by the respondent as the Vice President of the Union was within the scope of the legitimate activities of the Union and held that the speech said to have been made by the respondent at the meeting could not be said to be an act subversive of discipline.
The application of the appellant was accordingly dismissed.
Hence this appeal before us.
The only question for determination before us is whether the speech made by the respondent at the meeting held on the 10th June, 1952, was an act subversive of discipline.
The respondent was the Vice President of the Union and, prima facie, any resolution passed by the Union asking for the removal of the General Manager would be perfectly legitimate if the members of the Union thought that there were circum stances warranting the same.
The correctness or otherwise of the reasons given for such removal would not be liable to scrutiny by the Court, the only thing requisite being that the Union was not acting mala fide or was not actuated by any malice or illwill against the General Manager in passing such resolution.
The resolution by itself would not have the effect of harming the General Manager at all, 753 It would have to be forwarded to the management and the management would take such steps as it may be advised on receipt of the resolution.
It would then be for the management to find for itself whether the reasons given for the removal of the General Manager were such as to warrant his removal.
The management would then, if it thought necessary, institute proper enquiries and come to his own conclusion as to the desirability or otherwise of the re moval of the General Manager.
So far as the Union is concerned, apart from mala fides or malice or illwill, the act of its passing the resolution would be innocuous and would not be liable to be visited with any punishment and the members of the Union would no be committing any breach of the Standing Orders nor would they be guilty of any act subversive of discipline.
The gravamen of the charge made by the management against the respondent, however, was that the latter was not merely responsible for the passing of such resolution, but, in the speech which he made in support, he gave vent to such expressions as were quite false and defamatory and was actuated by malice against the General Manager.
He Edited the members of the Union who were there assembled against the General Manager with the result that his act was thus subversive of discipline.
The speech had the effect of lowering the General Manager in the esteem of the workmen and subjecting him to hatred or ridicule and the necessary effect of making such speech before the workmen would be that they would look down upon the General Manager and would not be amenable to discipline and it would be impossible to conduct the management with efficiency with such disgruntled workmen in the factory.
The words used by the respondent were, therefore, it was urged, calculated to undermine the discipline in the factory and his act was, therefore, subversive of discipline bring ing him well within the mischief of clause L(1) (j).
of the Standing Orders.
It was further urged that the conduct of the respondent in the course of the correspondence which took place between the General Manager and himself 754 was, to say the least, impudent.
He relied upon his dual personality distinguishing between his capacity as the Steno typist and his capacity as the Vice President of the Union.
The act complained of was attributed to his capacity as the Vice President of the Union and he refused to give any reply to the queries addressed to him because in the letter; addressed by the General Manager to him he was described as the Steno typist.
He refused to give any information to the General Manager and asked him to communicate with the Sangh or the Union if any information was required by the General Manager in the matter of what took place at the meeting of the Union on the 10th June, 1952.
In the enquiry also, he adopted a similar attitude and refused to answer the direct questions addressed to him by the General Manager in regard to the proceedings of that meeting.
It was strenuously urged before us by the learned counsel for the appellant that this conductor the respondent was subversive of discipline and amounted to such misconduct as would entitle the appellant to dismiss him from its employ.
There is considerable force in this argument and we are of the opinion that the respondent adopted an attitude unbecoming an employee of the appellant.
He adopted a truculent attitude in the course of the correspondence and resorted to the theory of his dual personality refusing to answer the queries addressed to him by the General Manager.
This attitude was, to say the least, reprehensible.
Even though he happened to occupy what he considered to be the august position of the Vice President of the Union he did not cease to be an emPloyee of the appellant and the attempt to distinguish between his capacity as the Steno typist and his capacity as the Vice President of the Union was absolutely puerile.
He ought to have realised that he was first and foremost an employee of the appellant and owed a duty to the appellant to answer all the queries which had been addressed to him by the General Manager.
His evasion to give such replies on the pretext of shielding himself under his capacity as the Vice President of the Union was absolutely 755 unjustifiable and if such insubordination and breach of discipline had been the subject 'Matter of the charges made against him, we do not see how the respondent could have escaped the punishment of dismissal.
Similar is the position in regard to the attitude which the respondent adopted at the enquiry.
He refused to answer the direct questions which were addressed to him and had the temerity to ask the General Manager to see his written statement and find out for himself the answers to the same.
To say the least, the respondent was guilty of insubordina tion and if his attitude was such as would not conduce to the maintenance of discipline in the factory, here also we would have found it difficult to resist the appellant 's claim for his dismissal if he had been charged with having been guilty of such misconduct.
The charge sheet, however, only complained about the speech which he had made on the 10th June, 1952, wherein, among other defamatory remarks, he, the respondent, had instigated the workers to take steps for the removal of the General Manager.
The enquiry which was held on the 4th August, 1952, also concentrated on this particular charge and the report which was made by the General Manager on the 24th October, 1952, also found that the respondent had made a speech exhorting the workers to pass the resolution for the removal of the General Manager.
The acts of insubordination calculated to undermine the discipline in the factory which we have adverted to above were neither the subject matters of the charge nor were they relied upon by the General Manager in his report as the grounds of misconduct entitling the management to dismiss the respondent ' from its employ.
The passing of the resolution for the removal of the General Manager by itself was not, as already stated, an act subversive of discipline and would not entitle the management to dismiss him and we are of the opinion that, on the record as it stood, the Labour Appellate Tribunal was justified in refusing to the appellant the permission to dismiss the respondent from its employ.
The charge sheet which was furnished by the appel 98 756 lant to the respondent formed the basis of the enquiry which was held by the General Manager and the appellant could not be allowed to justify its action on any other grounds than those contained in the chargesheet.
The respondent not having been charged with the acts of insubordination which would have really justified the appellant in dismissing him from its employ, the appellant could not take advantage of the same even though these acts could be brought home to him.
We have, therefore, come to the conclusion 'that the order made by the ' Labour Appellate Tribunal was correct even though we have done so on grounds other than those which commended themselves to it.
We accordingly dismiss this appeal but having regard to the conduct of the respondent which We have characterised above as reprehensible we feel that the ends of justice will be met if we ordered that each party do bear and pay its own costs of this appeal.
Appeal dismissed.
| IN-Abs | The respondent, a stenotypist and the Vice President of the Labour Union, was charged by the appellant with misconduct and indiscipline under clause L(1)(j) of the Standing Orders of the Government of Uttar Pradesh for instigating the workmen to pass a resolution for the removal of the General Manager by a defamatory speech delivered at a meeting of the Union.
The question in issue was whether the respondent by doing so had committed "any act subversive of discipline" within the meaning of that clause.
In course of the correspondence with the General Manager over the matter, as also during the enquiry made by him, the respondent took up the attitude that he, as a stenotypist, was not answerable to his employers for his activities as Vice President of the Union outside the factory area and persistently refused to answer questions categorically put to him by the General Manager.
The appellant applied to the Labour Appellate Tribunal under section 22 of the Industrial Disputes (Appellate Tribunal) Act of 1960 for permission to dismiss the respondent.
That application having been refused the appellant obtained Special Leave to appeal to the Supreme Court and it was contended that the passing of the resolution and the refusal to answer questions in course of the correspondence,and the enquiry amounted to acts subversive of discipline and the respondent was liable to be dismissed.
Hold, that it was perfectly legitimate for the Union to pass the, resolution they did and no guilt either of a breach of the Standing Orders or of committing an act subversive of discipline could attach to the respondent for what part he took in the meeting as Vice President of the Union and the order of dismissal passed by the Labour Appellate Tribunal must be affirmed.
That where, as in the present case, the members of the Union were of opinion that the circumstances warranted the resolution, it 747 was not for the court to scrutinies the correctness or otherwise the reasons for it.
Held further, that the respondent was primarily an employ of the appellant before he could be anything else and was in dut bound to answer such queries as were put to him by the Gener Manager and his persistent refusal to do so, on the pretext of a dual capacity, amounted to insubordination which would have justifie his dismissal but the appellant having omitted to include this as ground in the charge sheet, which was served on the responds and formed the basis of the enquiry, could not be allowed to rel on it.
|
Civil Appeal No. 1402 of 1979.
Appeal by Special Leave from the Judgment and Order dated 16 2 1979 of the Allahabad High Court in Second Appeal No. 430/70.
P. C. Bhartari for the Appellant.
L. M. Singhvi and Pramod Swarup for the Respondent.
The Judgment of V. D. Tulzapurkar, J. and A. P. Sen, J. was delivered by Tulzapurkar, J. D. A. Desai, J. gave a dissenting Opinion.
TULZAPURKAR, J. This is a tenant 's appeal by special leave directed against the judgment and decree passed by the Allahabad High Court on February 16, 1979 in Second Appeal No. 430 of 1970 whereby the High Court decreed the respondents ' (landlords) suit for ejectment against the appellant (tenant) and the only question of substance raised in the appeal is whether when the landlords ' notice demanding arrears and seeking eviction is sent by registered post and is refused by the tenant the latter could be imputed the knowledge of the contents thereof 60 that upon his failure to comply with the notice the tenant could be said to have committed willful default in payment of rent ? The question arises in these circumstances: The appellant occupied shop No. 5 in Ivanhoe Estate, situated at Landure Cantonment, Mussorie, originally owned by one Parvij Waris Rasool, on an yearly rental of Rs. 250 payable by December 31, every year.
The property at all material times was admittedly governed by the U.P. Cantonment, (Control of Rent & Eviction) Act, X of 1952 a Central Act and, in my view, all the Courts below rightly dealt with the matter as being governed by that Act and not by U.P. (Temporary) Control of Rent and Eviction Act, 1947, much less by the later U.P. (Rent and Eviction) Act, 1972.
The respondents purchased the aforesaid Estate form its previous owner on November 27, 1964 and the previous owner attorned the tenancy of the appellant to the respondents along with the rental due from him for the year 1964.
The appellant continued to be the tenant of the shop during the years 1965 and 1966 as well but since he did not pay the rent the respondents on November 9, 1966 gave a combined notice demanding payment of arrears and seeking ejectment on termination of tenancy which was refused by him on November, 10, 1966.
On his failure to comply with the requisitions contained in the notice the respondents filed a suit against the appellant seeking eviction as well as recovery of rents and mesne profits.
967 The suit was resisted by the appellant, inter alia, on the ground that the rent of the accommodation payable to the previous owner was Rs. 250 per annum less 10% rebate on account of repairs; that in 1964 at the intervention of some common friends he agreed to vacate and did surrender the residential portion of the shop comprising two rooms, one kitchen, one bath room and one varandah at the back of the shop in consideration of respondents relinquishing the rental of Rs. 250 due from him for the year 1964; that for the years 1965 and 1966 the rental for the remaining shop was reduced by agreement to Rs. 50 per annum less rebate for repairs and that he had sent a cheque for the amount due to the respondents.
He denied that he has committed default in payment of rents and averred that no notice of demand and ejectment was served on him and consequently prayed for dismissal of the suit.
On an appreciation of the evidence led by the parties before it the Trial Court came to the conclusion that initially the rent fixed was Rs. 250 per year but after the respondents ' purchase of the property the appellant vacated the residential portion of the shop under an agreement arrived at between the parties where under there was relinquishment of rent due for 1964 and that the rent for the main shop was fixed at Rs. 100 per annum and that no rebate of any kind had been agreed to at any time on account of repairs.
Regarding the arrears of rent outstanding against the appellant the Trial Court held that rent for the years 1965 and 1966 had not been paid and was due from him but it held that the notice dated November 9, 1966 was not served on the appellant and hence he could not be held to have committed willful default in payment of arrears of rent.
In this view of the matter the Trial Court dismissed the suit insofar as the relief of eviction was concerned but decreed it for arrears of rent at the rate of Rs. 100 per annum.
Aggrieved by that judgment and decree the respondents filed an appeal to the District Court, Dehradun.
The learned District Judge concurred with the findings of the Trial Court that the rental for the year 1964 had been relinquished and that the rental of the front portion of the shop had been fixed at Rs. 100 per annum.
He further held that the notice was tendered to the appellant on November 10, 1966 but he declined to accept it and hence there was service by refusal, but in his opinion despite such service it could not be presumed that the appellant had knowledge about the contents of that notice and consequently he could not be said to have committed any willful default in the payment of rent.
In the result the appeal was dismissed.
The respondents preferred Second Appeal No. 430 of 1970 to the High Court.
In that appeal the tenant sought to reagitate the question 968 whether or not the notice was tendered to him and was refused by him on the ground that the finding had been recorded by the District Court without application of mind to the statement on oath made by him to the effect that no postman had ever gone to him with a registered letter either on 9th or 10th November, 1966 and he had not declined to receive any registered letter but the High Court refused to entertain the contention inasmuch as it found that the learned District Judge had referred to this part of the appellant 's evidence as also the postman 's evidence on the point and that on an appreciation of such rival evidence on record he had recorded a finding that the notice was tendered to the appellant but it was refused by him; in other words in the absence of animus being attributed to the postman the District Judge had preferred the postman 's evidence to that of the appellant 'section The High Court, therefore, accepted the finding of fact recorded by the District Court that there was service of the notice on the appellant by refusal.
On the further question as to whether when such refusal had been established, the appellant could be imputed with the knowledge of the contents of the notice, the High Court, following its two previous decisions in Shri Nath and another vs Smt.
Saraswati Devi Jaswal and Fanni Lal vs Smt.
Chironja, held that when notice was tendered to the tenant and when the latter refused to accept the same, knowledge of the contents of the notice must be imputed to him.
The District Judge 's view in this behalf was thus reversed and since there was failure on the part of the appellant to pay the rent within one month of the service of notice upon him, the High Court held that he had committed willful default within the meaning of section 14(a) of the Act.
Accordingly the High Court allowed the appeal and the respondents ' prayer for ejectment was granted but the appellant was given three months" time to vacate the accommodation.
The tenant has come up in appeal to this Court.
Counsel for the appellant vehemently contended before us that the High Court was in error in taking the view that when service by refusal had been effected the tenant must be deemed to have knowledge about the contents of the notice, for, no such presumption could be drawn especially when it was clear on evidence that neither the registered envelope was opened either by the tenant or by the postman nor the contents thereof read before the same was returned to the postman.
He further urged that the envelope bore the seal of Shri section P. Singh, Advocate and the appellant could not, therefore, know that the notice was from his landlords; he also pointed out that the appellant was illiterate and did not know English and since the address on the envelope as 969 well as the seal of the lawyer were in English the appellant could not even know who the sender of the notice was.
Counsel, therefore, urged that in the peculiar circumstances of the case the learned District Judge had rightly recorded a finding that the knowledge of the contents of the notice could not be imputed to the appellant and, therefore, the appellant could not be regarded as a willful defaulter in the matter of payment of rent.
In support of this contention strong reliance was placed by him on the decision of the Bombay High Court in the case of Vaman Vithal Kulkarni and Ors.
vs Khanderao Ram Rao Sholapurkar where the following observations of Beaumont, C. J., appear at page 251: "In case of defendants 4 and 5 a registered letter containing the notice was sent to them duly addressed, and service : is alleged to have been refused.
In fact the refusal was not proved, as the postman who took the letter and brought it back was not called.
But in any case, even if the refusal had been proved, I should not be prepared to hold that a register ed letter tendered to the addressee and refused and brought back unopened, was well served.
There are, I know, some authorities in this Court to the contrary, but it seems to me impossible to say that a letter has been served so as to bring the contents to the notice of the person to whom the letter is addressed, if the agent for service states that in fact the notice was not served, although the reason may have been that the addressee declined to accept it.
One cannot assume that because an addressee declines to accept a particular sealed envelope he has guessed correctly as to its contents " Counsel also referred to some other decisions including that of the Andhra Pradesh High Court in Mahboob Bi vs Alvala Lachmiah but these other decisions do not touch the aforesaid aspect of visiting the addressee with the knowledge of the contents.
Of the refused notice but have expressed the view that refusal of registered notice without more may not amount to proper service and hence it is unnecessary to consider them.
But placing strong reliance upon the observations of Chief Justice Beaumont quoted above counsel for the appellant urged that the High Court ought to have confirmed the finding of the learned District Judge that the appellant could not be presumed to have known the contents of the notice or that the notice was one demanding arrears of rent simply because he refused to accept the same.
On the other hand, counsel for the respondents contended before us that both under section 27 of the General clauses Act, 1897 and section 114 of 970 the Indian Evidence Act presumption of due service could arise if the notice was sent to the tenant by properly addressing the same, prepaying and sending the same by registered post and it was pointed out that in the instant case as against the denial by the appellant there was positive oath of postman (Kund Ram P.W. 2) who was examined by the respondents to prove the fact that the registered letter containing the notice was tendered to the appellant and when he declined to accept it the postman had made endorsement in his hand on the envelope "Refused.
Returned to the sender".
Counsel, therefore, urged that in view of such positive evidence of postman led by the respondents which had been accepted by the learned District Judge, the High Court was justified in holding that the appellant must be imputed with the knowledge of the contents of the notice.
In this behalf counsel for the respondents placed reliance on the Privy Council decision in Harihar Banerji and Ors.
vs Ramshashi Roy and Ors and Madras decision in Kodali Bapayya and Ors.
vs Yadavalli Venkataratnam and Ors and the two decisions of the Allahabad High Court relied upon by the High Court.
Counsel pointed out that the Madras High Court in Kodali Bapayya 's case (supra) and the Allahabad High Court in its Full Bench decision in Ganga Ram vs Smt.
Phulwati have dealt with the Bombay decision and have expressed their disagreement with the view expressed therein.
Section 27 of the deals with the topic 'Meaning of service by post ' and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre paying and posting it by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
The section thus arises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, pre paying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgement due is received from the addressee or not.
It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without any thing more.
Similar presumption is raised under Illustration (f) to section 114 of the Indian Evidence Act whereunder it is stated that the Court 971 may presume that the common course of business has been followed in h a particular case, that is to say, when a letter is sent by post by pre paying and properly addressing it the same has been received by the addressee.
Undoubtedly, the presumptions both under section 27 of the as well as under section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise.
In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to accept.
In other words, there was due service effected upon the appellant by refusal.
In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept.
It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under section 27 of the as well as under section 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice.
It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else.
Such things do not occur when the addressee is determined to decline to accept the sealed envelope.
It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed.
with the knowledge of the contents thereof and in our view, this follows upon the presumptions that are raised under section 27 of the and section 114 of the Indian Evidence Act.
Turning to the Bombay decision in Vaman Vithal 's case (supra), We would like to point out two aspects that emerge clearly from the very observations which have been strongly relied upon by counsel for the appellant.
In the first place, the observations clearly show that the refusal to accept the notice was not satisfactorily proved in the case inasmuch as the postman who took the letter and brought it back had not been examined; consequently the further observations made by the leaned Chief Justice were unnecessary for decision on the point and as such will have to be regarded as obiter.
972 Secondly, while making those observations the learned Chief Justice WAS himself conscious of the fact that there were some authorities of that Court taking the contrary view.
Having regard to these aspects it is difficult to hold that the concerned observations lay down the correct legal position in the matter.
In any event we approve of the view taken by the Allahabad High Court in its three decisions, namely, Sri Nath 's case, Fanni Lal 's case and Ganga Ram 's case (supra) and would confirm the High Court 's finding on the point in favour of the respondents.
Counsel for the appellant then faintly argued that the respondents suit was not maintainable under section 14(1) of the Act inasmuch as no permission of the District Magistrate had been obtained by the respondents before filing the suit as required by section 14 and in this behalf reliance was placed on section 14(a) of the Act which ran thus: "14.
Restrictions on eviction.
No suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds, namely: (a) that the tenant has willfully failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a notice of demand from the landlord.
" According to counsel for the appellant the aforesaid provision clearly shows that under the Act two safeguards were available to a tenant (i) eviction could not be had by any landlord except on one or more of the grounds specified in cls.
(a) to (f) of section 14 and (ii) no suit for eviction even on those grounds specified in cls.
(a) to (f) could be instituted without the permission of the District Magistrate, and admittedly the landlords in the instant case had filed the suit against the appellant without obtaining the permission of the District Magistrate.
He, therefore, urged that the Civil Court had no jurisdiction to entertain the suit and the decree was without jurisdiction.
It must be observed that no such contention was raised by the appellant in any of the Courts below presumably because the appellant as well as this lawyer knew how an identical provision contain ed in section 3(1) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, an allied enactment, had been judicially interpreted by in this Court in Bhagwan Dass vs Paras Nath Section 3 of the U.P. Act 3 of 1947 ran thus: 973 "3.
Restrictions on evictions.
Subject to any order passed under sub section (3), no suit shall without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation, except on one or more of the following grounds: (a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand.
" This Court in Bhagwan Dass case Asupra) has explained at page 305 of the report the legal position arising on a grammatical construction of section 3(1) thus: "Section (3) 1 does not restrict the landlord 's right to evict his tenant on any of the grounds mentioned in cls.
(a) to (g) of that sub section.
But if he wants to sue his tenant for eviction on any ground other than those mentioned in those clauses then he has to obtain the permission of the District Magistrate whose discretion is subject to any order passed under sub section
(3) of section 3 by the Commissioner.
These are the only restrictions placed on the power of a landlord to institute a suit for eviction of his tenant.
" It would be conducive to judicial discipline to interpret an identical provision contained in section 14(1) of the U.P. Cantonment (Control of Rent & Eviction) Act, 1952 in a similar manner.
In other words, under section 14(1) of the concerned Central Act permission of the District Magistrate was required if the landlord sought eviction of his tenant on any ground other than those specified in cls.
(a) to (f) and not when it was sought on any of the grounds specified in cls.
(a) to (f).
(If may be stated that both the enactments have since been repealed).
It is, therefore, not possible to accept the contention of the counsel for the appellant that the instant suit filed by the respondents against the appellant could not be entertained by the Civil Court.
In the result the appeal fails and is dismissed.
However, having regard to all the facts and circumstances of the case there will be no order as to costs and we grant the appellant six months time to vacate.
DESAI, J. I have very carefully gone through the judgment prepared by my learned brother Mr. Justice V. D. Tuzapurkar, but I regret my inability to agree with the same.
974 The relevant facts leading to the appeal by special leave have been succinctly set out in the main judgment and therefore, I would straightway proceed to deal with the three important questions raised in this appeal.
The first and the principal question which goes to the root of the matter is about the construction of section 20(2) (a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 ( 'Rent Act ' for short).
It reads as under: "20.
Bar of suit for eviction of tenant except on specified grounds: (2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds namely: (a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a demand :" There is a proviso to this sub section which is not material for the purpose of this appeal.
A brief resume of concurrently found facts which would high light the question of construction would be advantageous.
Appellant was inducted as a tenant of the premises by its former owner on a rent of Rs. 250/ per annum in the year 1964, on a request by the then landlord, appellant tenant surrendered a portion of the premises, comprising two rooms, a kitchen, a bathroom and a verandah at the back of the shop, retaining only possession of the shop, consequently reducing the rent by agreement between the parties at the rate of Rs. 100/ per annum.
It is thus an agreed and incontrovertible fact that the appellant tenant is a tenant of a shop on an yearly rent of Rs. 100/ , payable at the end of every year.
The focus should immediately be turned to the provision of law under which the landlord seeks to evict this tenant.
According to respondent landlord she served notice dated November 9, 1966, terminating the tenancy of the appellant as the appellant tenant was a defaulter within the meaning of section 20(2) (a) and, therefore, she all was entitled to a decree for eviction as she has satisfactorily proved all the requirements or ingredients of section 20(2) (a).
Accepting the finding of fact that the appellant is a tenant liable to pay rent 975 @ Rs. 100/ per annum, the crux of the matter is whether his case is covered by section 20(2) (a).
What does section 20(2) (a) postulate and what are its components which when satisfied, the landlord would be entitled to evict the tenant ? On analysis following ingredients of section 20(2) (a) would emerge each of which will have to be satisfied before the landlord 1 would be eligible to obtain a decree for eviction, viz: (i) Tenant must be a tenant of premises governed by the Rent Act; (ii) That the tenant is in arrears of rent for not less than four months; (iii) That such a tenant has to pay rent in arrears within a period of one month from the date of service upon him of a notice of demand.
In this case, the tenant is a tenant of premises governed by tho Rent Act.
The crucial question is whether the second ingredient, as extracted above, is satisfied by the landlord.
The attention has to be focused on the expression 'in arrears of rent for not less than four months '.
What does this expression signify ? As contended on behalf of the respondent that whatever be the default in payment of rent, the notice can be served after the default has continued for a period of four months, and failure to comply with the requisition in the notice would disentitle the tenant to the protection of Rent Act.
Alternatively it was contended that the expression in arrears of rent for not less than four months ' on a literal grammatical construction would signify that rent is payable by the month and that the tenant has committed a default in payment of four months ' rent and further failed to comply with the requisition made in the notice within the stipulated period of one month and only then the protective umbrella of the Rent Act would be removed and the tenant would be exposed to a decree for eviction.
The two rival constructions raised a question of construction of a sub section in a statute primarily enacted as can be culled out from the long and short title of the Rent Act, being regulation of letting and rent and arbitrary eviction of tenant from the premises to which the rent Act would apply.
It is a socially beneficent statute and in construing such statute certain well recognised canons of construction have to be borne in mind.
Undoubtedly, the dominant purpose in construing the statute is to ascertain the intention of the legisla 976 ture.
This intention, and, therefore, the meaning of the statute, is primarily to be sought ill the words used in the statute itself, which must, if they are plan and unambiguous, be applied as they stand, however strongly it may be suspected that the result does not re present the real intention of legislature (see Inland Revenue Commissioner vs Hinchy).
In approaching the matter from this angle, it is a duty of the Court to give fair and full effect to statute which is plain and unambiguous without regard to the particular consequence in a special case.
Even while giving liberal construction to socially beneficent legislation, if the language is plain and simple the making of a law being a matter for the legislature and not courts, the Court must adopt the plain grammatical construction (see River Wear Commissioners vs Adamson) The Court must take the law as it is.
And, accordingly, it is not entitled to pass judgment on the propriety or wisdom of making a law in the particular form and further the Court is not entitled to adopt the construction of a statute on its view of what Parliament ought to have done.
However, when two constructions are possible and legitimate ambiguity arises from the language employed, it is a plain duty of the Court to prefer and adopt that which enlarges the protection of a socially beneficent statute rather than one which restricts it.
In Mohd. Shafi vs Additional District & Sessions Judge (VII), Allahabad and Others, this Court while interpreting the explanation (iv) to section 21 of the Rent Act observed that where the language is susceptible of two interpretations, the Court would prefer that which on larges the protection of the tenants rather than one which restricts it.
It was further observed that the construction that the Court adopted would be more consistent with the policy and attainment of the legislation which is to protect the possession of the tenant unless the landlord establishes a ground for eviction.
Similarly in Gurucharan Singh vs Kamla Singh & Ors.
while interpreting the provision of section 6 of the Bihar Land Reforms Act, 1950, this Court observed that the Court was called upon to interpret a land reforms law are not just an ordinary state and, therefore, the socioeconomic thrust of the law in these areas should not be retarded by judicial construction but filliped by the legal process without parting from the object of the Act.
It must also be emphasised that where two constructions are possible, the one that must be preferred is one which would accord with reason and justice (see H. H. Maharaja 977 dhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior & Ors.
vs Union of India & Another.
Bearing in mind this interpretative approach let us hark back to the expression used in s.20(2)(a) and ascertain whether the exception is susceptible of one construction only or more than one construction and whether there is ambiguity and if so, in which direction the interpretative jurisprudence must move.
The expression "the tenant is in arrears of rent for not less than four months" may suggest that the tenant is in arrears of rent for one or any number of months and that the arrears have fallen due four months back meaning thereby that within four months there was no attempt on the part of the tenant to pay up the arrears and cure the default.
This construction would imply that if the tenant is in arrears of rent for one month only, an action under the relevant clause can be commenced against him if this infault has continued for a period of four months even if the tenant has paid rent for subsequent months and on the expiry of the period of four months from the date on which the rent had become due and payable for one month a notice of demand can be served and on the failure of the tenant to comply with the requisition made in the notice he would be liable to be evicted.
In other words, a period of four months must elapse between the date of default and the service of notice irrespective of the fact whether the default is in payment of one month 's rent or more than one month 's rent.
In this constriction it is implicit that failure to pay rent for four different months is not a sine qua non for commencing action under section 20(2) (a).
What is of the essence of matter is that a period of four months must elapse between the date of default complained of and service of notice under section 20(2) (a).
It was said that the legislature has given locus poenitentiae to the tenant to repair the default within the period of four months.
This approach overlooks the obvious that before action can be commenced under section 20(2) (a) a notice has to be served and tenant is given locus poenitentiae to repair the default within one month.
It appears that by section 43 of the Rent Act the United Provinces (Temporary) Control of Rent and Eviction Act, 1947 ( 'Repealed Act ' for short) was repealed.
Section 3 of the Repealed Act enumerated grounds on which a tenant could be evicted.
Sub clause (a) of section 3 provided that the landlord would be entitled to eviction of a tenant if the tenant was 'in arrears of rent for more than three months ' and had failed to pay the same to the landlord within one month of the service upon him of the notice of demand.
The language employed in the repealed provision led 978 the Court to hold that whatever be the default in payment of rent, a period of three months should have expired from the date of default whereafter alone the landlord would be entitled to serve a notice as provided in the relevant sub clause.
It was so held by the Allahabad High Court in Ram Saran Das vs L. Bir Sain, but this decision was overruled in Jitendra Prasad vs Mathur Prasad.
In order to avoid ally such controversy, in the Repealing statute the expression 'arrears of rent for more than three months ' has been substituted by the expression 'arrears of rent for not less than four months '.
This is contemporaneous legislative exposition which clearly brings out the legislative intention that the landlord would be entitled to evict the tenant if the rent is in arrears for not legs than four months.
Therefore, it would clearly imply that before the landlord can commence action under sub clause (a), the tenant must have committed default in payment of rent for a period of four months.
Therefore, the first suggested construction is not borne out by the language employed in the section.
The question still remains: what does the expression 'in arrears of rent for not less than four months ' signify ? It is implicit in the expression that the rent must be payable by month.
Irrespective of the fact whether the tenancy is a yearly tenancy or a monthly tenancy, it is implicit in sub clause (a) that either by the contract of lease or by oral agreement or by long usage the tenant is liable to pay rent at the end of every month.
In other words, the unit for computation of rent is one month, that is, rent becomes due and payable every month.
It is only such a tenant who may fall in arrears for a period of four months.
Every month the tenant would be liable to pay the rent in the absence of a contract to the contrary.
Thus the rent becomes due and payable at the end of every month.
As soon as the month is over the rent becomes due and payable and failure on the part of the tenant to pay the same would dub him as a tenant in arrear of rent for one month.
If this process goes on meaning thereby that a period of four months having expired and for each of the four months the rent when It became due and payable was not paid, then alone the tenant could be said to be a tenant in arrears of rent for not less than four months.
Two definite ingredients emerge from the expression 'the tenant is in arrears of rent for not less than four months ' (i) that the rent is payable by month; and (ii) the tenant has committed default in payment of rent for four different months and that this default subsists and continues on the date when the landlord invokes the 979 provision of clause (a) and proceeds to serve a notice of demand.
Again, if within a period of one month from the date of receipt of the notice the tenant pays up the arrears of rent he does not lose the protection of the Rent Act.
The legislature clearly intended to cover those cases of default in payment of rent under clause (a) where the contract of lease provided for payment of rent every month meaning thereby that the unit for liability to pay rent is one month and secondly the tenant has committed default on four different occasions of four different months or four different units agreed upon for payment of rent and that they differ the facility to pay the same has accrued.
As stated earlier this is implied in the expression 'the tenant is, in arrears of rent for not less than four months.
In this connection one can profitably refer to section 12(3) (a) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947, which reads as under: "Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, it such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the (2) (Court shall pass a decree) for eviction in any such suit for recovery of possession.
" The expression used there is that the rent is payable by month and the tenant is in arrears for a period of six months.
In the Rent Act under discussion, a conjoint expression is used that a tenant is in arrears of rent for a period of not less than four months.
It only means that where the rent is payable by month and the tenant is in arrears of rent for not less than four months, and that is the clearest intention discernible from the language used in the relevant clause.
It was, however, contended that this construction would give an undeserved advantage to the defaulting tenant where the rent is not payable by month.
The contention is that a landlord who had agreed to accept rent on an yearly basis would be at the mercy of the tenant because even if the default is contumacious the landlord would not be entitled to evict the tenant and that such could not be the intention of the legislature.
It was, therefore, said that the expression 'the tenant is in arrears of rent for not less than four 980 months ' is also susceptible of the meaning that where the rent is payable by year and after the year is over and the rent has become due and payable if the tenant has not paid the rent for four months his case would be covered by clause (a).
If a tenant is under a contract with the landlord to pay rent at the end of a specific year agreed to between the parties, could he be said to be a tenant arrears for not less than four months even if he has defaulted in payment of rent at the end of one year l How can a tenant who is to pay rent on the expiry of a specified year be in arrears of rent for not less than four months ? And if that construction is adopted, a tenant who has committed default in payment of rent for one month and the default has continued without repair for a period of Four months even though he has paid rent for subsequent months he would be liable to be evicted, a construction which ought to be rejected on legislative exposition by change in expression adopted in the repealed Act and substituted in the present Act discussed herein above.
If that construction is rejected it would be difficult to accept the construction that even of the rent is payable by year once the year is over and a period of four months has elapsed he could be said to be a tenant in arrears of rent for not less than four months.
The language does not admit of this construction.
Therefore, where the rent is payable by the year clause (a) is not attracted.
Now the wild apprehension expressed on behalf of the landlord that such a construction would give an unfair advantage to a tenant who is liable to pay yearly rent need not detain us because the wisdom of enacting a law in a certain manner is for the legislature to decide and not for the court to impose.
It may be that the legislature would have intended that such landlords who relied on the income from rent month after month must have a sanction which can be applied if the tenant commits default in payment of rent of four different months but a landlord who apparently does not depend upon the rental income by agreeing to accept yearly rent need not have that sanction and it would be still open to such a landlord to file a suit merely for recovery of rent and not for eviction.
Such a thing is not unknown to law because in permanent tenancy and in tenancies of long duration the landlords can only sue for rent and not for eviction on the tenant committing default in payment of rent.
Therefore, on examining both the rival constructions one which extends the protection deserves to be accepted in view of the fact that the legislature never intended to provide a ground for eviction for failure to pay rent in case of leases where yearly rent was reserved.
Rent Act was enacted to fetter the right of re entry of landlord and this construction accords with the avowed object of the Rent Act.
981 In the instant case the parties are ad idem that the rent is payable by year at the rate of Rs. 100/ per annum.
In such a case it could not be said that this tenant was in arrears of rent for not less than four months.
His case would not be covered by section 20(2) (a) of the Rent Act and, therefore, the landlord would not be entitled to a decree for eviction on this ground and that was the sole ground on which eviction has been ordered.
The second contention is that the High Court was in error in interfering with the concurrent finding of facts while hearing second appeal in February, 1979 and that too without framing the point of law which arose in the appeal.
The disputed finding of fact is about the service of notice.
If a landlord seeks eviction on the ground of tenant 's default in payment of rent under section 20(2) (a) it is obligatory upon him to serve a notice of demand of the rent in arrears On the tenant and can only seek eviction if the tenant fails to comply with the requisition made in the notice.
The appellant tenant in terms contended that no notice was served upon him.
On the assertion of the respondent landlord that notice dated November 9, 1966, was served upon the appellant tenant on November 10, 1966, but he refused to accept the same and the refutation thereof by the tenant that no notice was offered to him by the postman nor was any notice refused by him, a triable issue arose between the parties.
The learned trial judge framed Issue No. 7 on the question of service of notice.
He recorded a finding that the appellant tenant was not served a notice of demand and of ejectment and answered the issue in favour of the appellant tenant.
On appeal by the respondent landlord the appellate court framed point No. 2 on the question of service of notice and answered it by observing that the defendant tenant refused to accept the registered notice but no knowledge can be attributed to him of the contents of the registered envelope and, therefore, the tenant could not be said to be guilty of wilful default on the expiry of one month after the service of notice.
He accordingly confirmed the finding of the trial court that the plaintiff landlord is not liable to a decree of eviction on the ground mentioned in section 20(2)(a).
The landlord approached the High Court in second appeal.
When this appeal was heard, section 100 of the Civil Procedure Code after its amendment of 1976 was in force.
It restricted the jurisdiction of the High Court to entertain a second appeal only if the High Court was satisfied that the case involved a substantial question of law.
Sub section 4 cast a duty on the court to formulate such a substantial question of law and the appeal has to be heard on the question so formulated.
It would also be open to the respondent 982 at the hearing of the appeal to contend that the case does not involve such a question.
Even prior to the amendment of Section 100, the High Court ordinarily did not interfere with the concurrent findings of fact.
This position has been repeatedly asserted and one need not go in search of precedent to support the proposition.
However one can profitably refer to R. Ramachandran Ayyar vs Ramalingam Chettiar.
After examining the earlier decisions and the decision of the Privy Council in Mst.
Durga Chaudhrain vs Jawahar Choudhary Gajendragadkar J. speaking for this Court in terms spelt out the jurisdiction of the High Court in second appeal as under: "But the High Court cannot interfere with the conclusions of fact recorded by lower appellate Court however erroneous the same conclusions may appear to be to the High Court, because, as the Privy Council observed, how ever gross or in excusable the error may seem to be, there is no jurisdiction under section 100 to correct that error".
This view was re affirmed in Goppulal vs Dwarkadhishji wherein after reproducing the concurrent finding of fact this Court observed that this concurrent finding of fact was binding on the High Court in second appeal and the High Court was in error in holding that there was one integrated tenancy of six shops.
In the facts of this case, there was a concurrent finding that the statutory notice as required by section 20(2) (a) was not served upon the tenant and, therefore, the High Court was in error in interfering with this finding of fact.
However, it is not necessary to base the judgment on this conclusion because it was rightly said on behalf of the respondent that whether the notice was offered to the petitioner tenant and he refused to accept the same the finding is not concurrent because the appellate court has held that the notice was offered but the tenant refused to accept the same and, therefore, on the refusal to accept the notice there was no concurrent finding.
This contention is legitimate because the appellate court held that notice as required by law was not served because even if the tenant refused to accept the notice the knowledge of the contents of the registered envelope not opened by him cannot be imputed to him, and, therefore, there was no service of notice as required by section 20(2) (a).
The first appellate court was of the view that in the absence of knowledge of the demand of rent in arrears as alleged in the notice the tenant cannot be said 983 to be guilty of wilful default so as to be denied the protection of the Rent Act.
This accordingly takes me to the third contention in this appeal.
The third contention is that even if this Court agrees with the High Court in holding that the notice in question was tendered by the postman to the appellant tenant and he refused to accept the same n: and, therefore, this refusal amounts to service within the meaning of section 20(2)(a), yet as the knowledge of the contents of the notice would reflect on subsequent conduct as wilful or contumacious, it is not sufficient that a notice is served or tendered and refused but it must further be shown that in the event of refusal the tenant did it with the knowledge of the contents of the registered envelope and his subsequent conduct is motivated.
The question then is; What would be the effect of a notice sent by registered post and refused by a tenant on the question of his knowledge about the contents of the notice and his failure to act? Would it tantamount to an intentional conduct evidencing wilful default on his part? This aspect cannot be merely examined in the background of some precedents or general observations.
One has to examine this aspect in the background of Indian conditions or in the words of Krishna Iyer, J., 'the legal literacy in rural areas and the third world jurisprudence. ' Before we blindly adhere to law bodily imported from western countries we must not be oblivious to the fact that the statutes operating in the western countries are meant for a society if not 100 per cent.
, 99 per cent.
literate.
We must consciously bear in mind that our society especially in the semi urban and rural areas is entirely different and wholly uncomparable to the western society.
A literate mind will react to a problem presented to him in a manner other than an illiterate mind because illiteracy breeds fear and fear oriented action cannot be rationally examined on the touchstone of legal presumptions.
To articulate the point as it arises in this case, let one put his feet in the shoes of a rural illiterate person to whom a registered envelope by a postman is presented.
Does it require too much of imagination to conclude that he will be gripped with fear and he may react in a manner which will be his undoing? He would believe that by refusing to accept the registered envelope he would put off the evil rather than accept the same and approach a person who can advise him and meet the situation.
Can this action of fear gripped mind inflict upon the person an injury flowing from the assumption that he not only refused the registered envelope with the conscious knowledge of the fact that it contained a notice by a lawyer on behalf of his landlord and that it accused him of wilful 984 default in payment of rent and that if he would act rationally he would repair the default by tendering the rent within the period of one month granted by the statute? If he is deemed to have acted consciously is it conceivable that he would invite injury by sheer refusal to accept the registered envelope rather than know the con tents or make them knowable to him and meet the charge of wilful default.
As was said, again by Krishna Iyer, J., which bears quotation: "The Indian Courts interpret laws the Anglo Indian way, the rules of the game having been so inherited.
The basic principles of jurisprudence are borrowed from the sophisticated British system, with the result that there is an exotic touch about the adjectival law, the argumentative method and the adversary system, not to speak of the Evidence Act with all its technicalities".
Lord Devlin recently said: "If our business methods were as antiquated as our legal methods, we would be a bankrupt country.
There is need for a comprehensive enquiry into the rules of our procedure backed by a determination to adopt it to fit the functions of the welfare State".
This is much more apposite in the conditions of our society and this was noticed by Beaumost, C. J. way back in fourth decade of this century in Waman Vithal Kulkarni & Others.
vs Khanderao Ram Rao Sholapurkar.
An exactly identical question arose before the Division Bench of the Bombay High Court.
The facts found were that the registered letter containing the notice was sent to defendants 4 & 5 duly addressed and service was alleged to have been refused.
The contention was two fold that the refusal was not proved but alternatively it was contended that even if it was proved, the addressee could not be imputed with the knowledge of the contents of the registered envelope.
The pertinent observation is as under: "In the case of defendants 4 and 5 a registered letter containing the notice was sent to them duly addressed, and service is alleged to have been refused.
In fact the refusal was not proved, as the postman who took the letter and brought it back was not called.
But in any case, even if the refusal had been proved, I should not be prepared to hold 985 that a registered letter tendered to the addressee and refused and brought back unopened, was well served.
There are, I know, some authorities in this Court to the contrary, but it seems to me impossible to say that a letter has been served so as to bring the contents to the notice of the person to whom the letter is addressed, it the agent for service states that in fact the notice was not served, although the reason may have been that the addressee declined to accept it.
One cannot assume that because an addressee declines to accept a particular sealed envelope he has guessed correctly as to its contents.
Many people in this country make a practice of always refusing to accept registered letters, a practice based, I presume, on their experience that such documents usually contain something unpleasant.
To that, it is clear that this notice was not served on three of the defendants".
Learned counsel for the respondent tried to distinguish this decision by observing that the court did hold that the refusal was not proved, therefore, the rest of the observation was obiter.
It is not far a moment suggested that the decision of the Division Bench of the Bombay High Court is binding on this Court but the reasoning which appealed to the Division Bench in 1935 is all the more apposite at present.
The Division Bench noticed that in the society from which the defendants came, there was a feeling that such registered letters usually contained something unpleasant.
Is there anything to suggest that this feeling is today displaced or destroyed? The Division Bench further noticed that many people in India make a practice of always refusing to accept registered letters and the practice according to the Division Bench was based on their experience that such documents usually contained something unpleasant.
The reaction is to put off the evil by not accepting the envelope.
Could such ignorant illiterate persons be subjected to a legal inference that the refusal was conscious knowing the contents of the document contained in the registered envelope? To answer it in the affirmative is to wholly ignore the Indian society.
And this concept that the registered envelope properly addressed and returned with an endorsement of refusal must permit a rebuttable presumption that the addressee refused it with the knowledge of the contents is wholly borrowed from the western jurisprudence.
I believe it is time that we ignore the illusion and return to reality.
Reference was also made to Appabhai Motibhai vs Laxmichand Zaverchand & Co., but that case does not touch the point.
In Mahboob Bi vs Alvala 986 Lachmiah, an almost identical question figured before the Andhra Pradesh High Court.
In that case the Rent Controller issued a notice in respect of the proceedings initiated before him by the landlord for the eviction of the tenant, to the tenant by registered post and the envelope was returned with the endorsement of refusal and the Rent Controller set down the proceedings for ex parte hearing and passed a decree for eviction.
The tenant under the decree of eviction preferred an appeal in the City Small Causes Court.
A preliminary objection was raised by the respondent landlord that the appeal was barred by limitation as it was filed six days after the time allowed for filing the appeal.
The appellant tenant countered this by saying that he had no knowledge of the proceedings before the Rent Controller and that he was never served with the notice of proceedings before the Rent Controller.
The relevant rule permitted service of notice by registered post.
After examining the relevant rule the Court accepted the contention of the tenant observing as under: "Moreover nothing has been placed before me to show that there is any duty cast upon any person to receive every letter or notice sent by registered post, nor does the refusal to receive has been made the subject matter of any presumption which may arise under sec.
114 of the Evidence Act.
Then again, there is the practical difficulty of having to import the knowledge of the date of hearing or the precise proceedings with which the registered notice is concerned in the case of a mere refusal to receive a registered notice".
The Court thus was of the view that even if refusal amounted to service, yet it is not service as required by law to fasten a liability on the tenant because no presumption can be raised that the refusal war, with the conscious knowledge of the contents of the registered envelope.
Undoubtedly, our attention was also drawn to a contrary view taken by a Division Bench of the Allahabad High Court in Fannilal vs Smt.
Chironja.
It was contended that even if the registered letter was refused no presumption of knowledge of the contents of the letter could in law the raised against the tenant.
In support of the submission reliance was placed on Amarjit Singh Bedi vs Lachchman Das, an unreported decision of a single judge of the Allahabad High Court and the decision of Beaumont, C.J. in Waman Vithal Kulkarni 's case.
The Division Bench of the Allahabad High Court did not accept the view of Beaumont, C.J. The Court was of the opinion that a presumption of fact would arise under 987 section 114 of the Evidence Act that the refusal was with the knowledge of the contents of the registered envelope.
The Court has not considered the specific Indian conditions, the approach of rural Indians to registered letters and has merely gone by the technical rules of Evidence Act, which, as experience would show, could sometimes cause more harm and lead to injustice through law.
The contrary Allahabad decision does not commend to me.
On the contrary, the Bombay view is in accord with the conditions of society in rural India and I do not propose to make any distinction even with regard to urban areas where also there are a large number of illiterates Even in the case of a semi literate person who is in a position to read and write he could not be accused of legal literacy.
Therefore, it is not possible to accept the submission that mere refusal would permit a presumption to be raised that not only the service was legal but the refusal was the conscious act flowing from the knowledge of the contents of the letter.
How dangerous this presumption is can be easily demonstrated, and how it would lead to miscarriage of justice can be manifestly established.
Once knowledge of the contents of the registered envelope is attributed to a person to whom a registered envelope is sent and who has refused to accept the same, that this was an act accompanied by the conscious knowledge of the contents of the letter he who may be an innocent defaulter or presumably no defaulter at all, would be charged with a contumacious conduct of being a wilful defaulter.
The Rent Act does not seek to evict a mere defaulter That is why a provision for notice has been made.
If even after notice the default continues, the tenant can be condemned as wilful defaulter.
Could he be dubbed guilty of conscious, wilful, contumacious, intentional conduct even when he did not know what was in the registered envelope? In my opinion, it would be atrocious to impute any such knowledge to a person who has merely been guilty of refusing to accept the registered notice.
Where service of notice is a condition precedent, a dubious service held established by examining the postman who must be delivering hundreds of postal envelopes and who is ready to go to the witness box after a long interval to say that the offered the envelope to the addressee and he refused to accept the same, would be travesty of justice.
And if this condition precedent is not fully satisfied, the consequent conduct cannot be said to be wilful.
In a slightly different context in Commissioner of Income tax, Kerala vs Thayaballi Mulla Jeevaji Rapasi (decd.), this Court held that service of the notice under 988 section 34(1)(a) of the Income tax Act, 1922, within the period of limitation being a condition precedent, to the exercise of jurisdiction, if no notice is issued or if the notice issued is shown to be invalid, then the proceedings taken by the Income tax Officer without a notice or in pursuance of an invalid notice would be illegal and void.
It was, however, contended that if the Court accepts the legal contention as canvassed on behalf of the appellant it would be impossible tc serve the notice as statutorily prescribed.
This wild apprehension is wholly unfounded.
The notice is required to be served in the manner prescribed by section 106 of Transfer of Property Act which, inter alia, provides for affixing a copy of the notice on the premises in possession of tenant.
Therefore, it cannot be said that the approach of the Court would render it impossible for the landlord to meet with the statutory requirement of service of notice before Commencing the action for eviction.
Having, therefore, examined the three vital contentions, in my opinion the suit of the landlord must fail on the ground that the rent was not payable by month and, therefore, section 20(2) (a) is not attracted.
And further, even if it is attracted, as the statutory notice as required by section 20(2) (a) was not served, a decree for eviction cannot be passed on the only ground of default in payment of rent.
I would accordingly allow this appeal and dismiss the suit of the respondent for eviction but with no order as to costs in the circumstances of the case.
S.R. Appeal dismissed.
| IN-Abs | The appellant was inducted in the year 1964 as a tenant of the suit premises on an yearly rental payable by December 31, every year.
Since the appellant did not pay the rent for the years 1965, 1966 a combined notice dated November 9, 1966 demanding payment of arrears and seeking ejectment on termination of tenancy, was sent by registered post by the respondents.
The appellant refused to receive the notice on November 10, 1966.
On his failure to comply with the requisitions contained in the notice, the respondents filed a suit against the appellant seeking eviction as well as recovery of rents and mensne profits.
Having lost before the trial court and the first appellate court, the respondents came up before the High Court in second appeal.
The High Court accepted the finding of fact recorded by the first appellate court that there was service of the notice on the appellant by refusal and held that when notice was tendered to the tenant and when the latter refused to accept the same know ledge of the contents of the notice must be imputed to him.
The High Court allowed the landlords ' appeal and granted three months time to the appellant to vacate the shop.
Hence, the tenant 's appeal after obtaining special leave from this Court.
Dismissing the appeal, the Court ^ HELD: (By majority) Per Tulzapurkar, J. (On behalf of A. P. Sen, J. and himself).
The presumptions that are raised under section 27 of the and section 114 of the Indian Evidence Act, make it clear that, when service is effected by refusal of a postal communication, the addressee must be imputed with the knowledge of the contents thereof.
[971 E F] 1:2.
Before the knowledge of the contents of the notice could be imputed, it is not necessary that the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contend should be read over to him by the post man or someone else.
Such things do not occur when the addressee is determined to decline to accept the sealed envelope.
[971 D E] 963 Vaman Vithal Kulkarni and Ors.
vs Khanderao Ram Rao Sholapurkar, , explained and dissented from.
Mahboob Bi vs Alvala Lachmiah, A.I.R. 1964 A.P. 324, held inapplicable.
Shri Nath and another vs Smt.
Saraswati Devi Jaiswal, A.I.R. 1964 All. 52; Fanni Lal vs Smt.
Chironja, ; Ganga Ram vs Smt.
Phulwati, ; Kodali Bapayya and Ors.
vs Yadavalli Venkataratnam and Ors., A.I.R. 1953 Mad. 884, approved.
Harihar Banerji and Ors.
vs Ramshashi Roy and Ors., A.I.R. 1918 P.C. 102, referred to.
The suit under section 14(1) of the U.P. Cantonment (Control of Rent & Eviction) Act (Central Act X of 1952), in the instant case was maintainable.
Under section 14(1) of the Central Act, which in pari materia with section 3(1) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, permission of the District Magistrate was required if the landlord sought eviction of the tenant on any ground other than those specified in clauses (a) to (f) and not when it was sought on any of the grounds specified in clauses (a) to (f).
[973 E P] Bhagwan Dass vs Paras Nath, ; , followed.
All the courts rightly dealt with the matter as being governed by the U.P. Cantonments (Control of Rent & Eviction) Act, X of 1952 a Central Act and not by U.P. (Temporary) Control of Rent and Eviction Act, 1947 much less by the later U.P. (Rent & Eviction) Act, 1972.
[966 E F] Per Desai.
J. Contra.
Uttar Pradesh Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 is a socially beneficient statute and should be construed according to well recognised canons of construction.
The words used in the statute, if they are plain and unambiguous must be applied as they stand, however, strongly it may be suspected that the result does not represent the real intention of the legislature.
However, if two constructions are possible and legitimate ambiguity arises from the language employed that which enlarges the protection of a socially beneficient statute rather than one which restricts it should be preferred and adopted.
In other words the construction which would be more consistent with the policy and attainment of the legislation which is to protect the possession of the tenant unless the landlord establishes a ground for eviction should be preferred.
Further where two constructions are possible the one which would accord with reason and justice must be preferred.
[975 G H, 976 A, D, G] Inland Revenue Commissioners vs Hinchy, , H. L. at 767= (1960) 1 All India Reports 505 at 512; River Wear Commissioners vs Adamson, & 765, quoted with approval.
Mohd. Shafi vs Additional District & Sessions Judge (VII), Allahabad and Others, ; Gurucharan Singh vs Kamla Singh & Ors.
; ; H. H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior & Ors.
vs Union of India & Another, [1971] 1 S.C.C. 85, reiterated.
964 2:1.
The substitution of the expression, "arrears of rent for not less than four months" in sub clause (a) of sub section (2) of section 20 of the Uttar Pradesh Urban Buildings (Regulation of Letting Rent & Eviction) Act, 1972 is a contemporaneous legislative exposition bringing out clearly the legislative intention that the landlord would be entitled to evict the tenant if the rent is in arrears for not less than four months.
Before the landlord can commence action under sub clause (a): (i) the tenant must have committed default in Payment of rent for a period of four months, and (ii) a notice has to be served, giving the tenant locus poeniteniae to repair the default within month.
[978 B C] 2:2.
Two ingredients emerge from the expression "the tenant is in arrears of rent for not less than four months": (i) that the rent is payable by month and (ii) the tenant has committed default in payment of rent for four different months and that this default subsists and continues on the date when the land lord invokes the provision of clause (a) and proceeds to serve a notice of demand.
Again, if within a period of one month from the date of receipt of notice, the tenant pays up the arrears of rent he does not lose the protection of the Rent Act.
[978 G H 979] 2:3.
It is implicit in the expression "the tenant is in arrears of rent for not less than four months" that the legislature clearly intended to cover those cases Of default in payment of rent under clause (a) where the contract of lease provided for payment of rent every month meaning thereby that the unit for liability to pay rent is one month and secondly the tenant has committed default on four different occasions of four different months or four different units agreed upon for payment of rent and that too after the liability to pay the same has accepted.
[979 A C] 2:4.
Section 20(2)(a) of the Rent Act, 1972 does not attract cases where the landlords accept rent on an yearly basis.
The language of the section does not admit of a construction, namely, that even if the rent is payable by year, once the year is over and a period of four months has elapsed he could be said to be "a tenant in arrears, of rent for not less than four months".
In the instant case, the parties are ad idem that the rent is payable by year at the rate of Rs. 100/ per annum.
In such a case it could not be said that this tenant was in arrears of rent for not less than four months.
His case would not be covered by section 20(2) of the Rent Act and, therefore, the landlord would not be entitled to a decree for eviction on this ground and that was the sole ground on which eviction has been ordered.
[980 C D, 981 A B] 3.
The amended section 100 of the Civil Procedure Code restricted the jurisdiction of the High Court to entertain a second appeal only if the High Court was satisfied that the case involved a substantial question of law.
Sub section G(4) cast a duty on the court to formulate such substantial question of law and the appeal has to be heard on the question so formulated.
It would also be open to the respondent at the hearing of he appeal to contend that the case does not involve such a question.
Thus, the High Court ordinarily cannot and did not interfere with the concurrent findings of fact arrived at by the courts below.
[981 G H, 982 A] In the facts of this case, there was a concurrent finding that the statutory notice as required by section 20(2)(a) was not served upon the tenant and, therefore, the High Court was in error in interfering with this finding of fact.
[982 B C] 965 R. Ramachandran Ayyar vs Ramalingam Chettiar, ; Mst.
Durga Chaudhrain vs Jawahar Choudhary, 1890 LR 17 IA, 122; Goppulal vs Dwarkadhishji, [1969] 3 S.C.R. 989, reiterated.
Mere refusal of a registered letter would not permit a presumption to be raised that not only the service was legal, but the refusal was the conscious act flowing from the knowledge of the contents of the letter.
[987 C] 4:2.
This concept that the registered envelope properly addressed and returned with an endorsement of refusal must permit a rebuttable presumption that the addressee refused it with the knowledge of the contents is wholly borrowed from the western jurisprudence.
Not considering the specific Indian conditions and the approach of rural Indian to registered letters, but merely going in with the technical rules of Evidence Act would cause more harm and lead to injustice through law.
[985 G H, 986 A] 4:3.
The Rent Act does not seek to evict a mere defaulter.
That is why a provision for notice has been made.
If even after notice the default continues, the tenant can be condemned as willful defaulter.
He could not be dubbed guilty of conscious, willful, contumacious, intentional conduct even when he did not know what was in the registered env`elope.
It would be atrocious to impute any such knowledge to a person who has merely been guilty of refusing to accept the registered notice.
Where service of notice is a condition precedent, a dubious service held established by examining the postman who must be delivering hundreds of postal envelopes and who is ready to go to the witness box after a long interval to say that he offered the envelope to the addressee and he refused to accept the same, would be travesty of justice.
And if this condition precedent is not fully satisfied, the subsequent conduct cannot be said to be willful.
[987 E G] Fannilal vs Smt.
Chironja, (1972) All.
Law J. 499 (D.B.) dissented to.
Appabhai Motibhai vs Laxmichand Zaverchand & Co., A.I.R. 1954 Bom.
159, held inapplicable.
Mahboob Bi vs Alvala Lachmiah, A.I.R. 1964 A.P. 314; Amarjit Singh Bedi vs Lachman Das; Waman Vithal Kulkarni & Others vs Khandera Ram Rao Sholapurkar, A.I.R. 1935 Bom.
247, quoted with approval.
The argument that it would be impossible to serve the notice as statutorily prescribed, once it is held that no knowledge of the contents of the refused letter could be imputed to the tenant, is incorrect.
The notice is required to be served in the manner prescribed by section 106 of Transfer of Property Act which, inter alia, provides for affixing a copy of the notice on the premises in possession of the tenant.
Therefore, it cannot be said that the approach of the Court would render it impossible for the landlord to meet with the statutory requirement of service of notice before commencing the action for eviction [1988 C] 966
|
Civil Appeal No. 931 of 1980.
From the Judgment and order dated 25.3.1980 of the Madhya Pradesh High Court in Election Petition No. 3/80.
Aeltemesh Rein Appellant in person.
143 G.N. Rao and C.L. Sahu for the Respondents.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
The appellant, Aeltemesh Rein, was a candidate for election to the Lok Sabha from the Durg Parliamentary Constituency in the General Elections held in January 1980.
Respondent I having been declared as a successful candidate in the aforesaid election, the petitioner filed an election petition in the High Court of Madhya Pradesh under section 81 of the Representation of the People Act, 1951 ( 'The Act ').
The appellant stated expressly in his election petition that the security amount of Rs. 2,000/ was being deposited along with the petition as required by section 117 of the Act but, in fact, no such deposit was made.
The High Court dismissed the petition for non compliance with the provisions of section 117 and hence this appeal.
It is urged by the appellant who appeared in person before us that sections 86 and 117 of the Representation of the People Act, 1951 are ultra vires Article 329(b) of the Constitution and, therefore, the High Court was in error in dismissing the election petition for the reason that the provisions of s.117 were not complied with.
We see no substance in this contention.
Article 329(b) of the Constitution provides, in so far as material, that no election to either House of Parliament shall be called in question except by an election petition "presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature".
It is in pursuance of this provision that the Parliament provided by section 117 of the Act that at the time of presenting an election petition, the petitioner shall deposit in the High Court, in accordance with the rules of the High Court, a sum of Rs. 2,000/ as security for the costs of the respondent.
We are unable to accept the petitioner 's argument that the words "in such manner" which occur in Article 329(b) are limited in their operation to procedural and not substantive requirements.
The Constitution, by the aforesaid clause, has conferred authority on the appropriate legislature to pass a law providing for the authority to which the election petition may be presented and the manner of providing it.
The provision of law which prescribes that an election petition shall be accompanied by the payment of security amount pertains to the area covered by the manner of the making of the election petition and is, therefore, within the authority of the Parliament.
144 The only question which survives is as to what is the consequence of non compliance with section 117 of the Act.
That question has been settled by the decision of this court in Charan Lal Sahu vs Nand Kishore Bhatt and Ors.(1) wherein it was held that the High Court has no option but to reject an election petition which is not accompanied by the payment of security amount as provided in section 117 of the Act.
Section 86(1) of the Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81, 82 or 117.
In that view of the matter, the High Court was right in dismissing the election petition summarily.
The appellant contended that he could not pay the deposit because he was bugled on way to the Court.
This plea is as irrelevant as it seems untrue.
Accordingly, we uphold the Judgment of the High Court and dismiss this appeal.
There will be no order as to costs.
N.K.A. Appeal dismissed.
| IN-Abs | The appellant was a candidate for Election to the Lok Sabha in the General Elections.
Respondent 1 was declared the successful candidate.
The appellant filed Election Petition under Section 81 of the Representation of the People Act, 1951.
The appellant expressly stated in his Election Petition that security amount of Rs. 2,000/ was being deposited along with the petition as required by section 117 of the Act but, in fact, no such deposit was made.
The High Court dismissed the petition for non compliance with the provisions of section 117.
On Appeal to this Court, the appellant argued that sections 86 and 117 of the Representation of the People Act, 1951 are ultra vires Article 329(b) of the Constitution and, therefore, the High Court was in error in dismissing the election petition for non compliance of section 117.
Dismissing the appeal, the Court ^ HELD: (1) The Constitution by Article 329(b), has conferred authority on the appropriate legislature to pass a law providing for the authority to which the election petition may be presented and the manner of providing it.
The provision of law which prescribes that an election petition shall be accompanied by the payment of security amount pertains to the area covered by the manner of the making of the election petition and is, therefore, within the authority of the Parliament.
[143 G H] (2) The question as to what is the consequence of non compliance with section 117 of the Act has been settled by the decision of this Court in Charan Lal Sahu vs Nand Kishore Bhatt and Others ; [144 A] (3) The High Court was right in dismissing the election petition summarily in view of section 86(1) of the Act.
[144 C]
|
Civil Appeal No. 1154 of 1970.
Appeal by special leave from the Judgment and Order dated 18.7.1969 of the Kerala High Court in Writ Appeal No. 620/69.
M.M. Abdul Khader, K.S. Gurumurthy and R.N. Podar for the Appellant.
T.C. Raghavan and N. Sudhakaran for the Respondent.
The Judgment of the Court was delivered by VARADARAJAN, J.
This appeal by special leave is directed against the judgment of a Division Bench of the Kerala High Court in Writ Appeal No. 620 of 1969, which had been filed by the appellant against the judgment of the learned Single Judge of that High Court, allowing O. P. No. 672 of 1969.
O.P. No. 672 of 1969 was filed under Article 226 of the Constitution challenging the termination of the service of the respondent by the appellant by the order dated 17 1 67.
That order is to the effect that in accordance with the terms and conditions of his service the respondent stated to be a temporary Ammunition Repair Labourer Grade II, Naval Armaments Depot, Alwaye, is informed that his service is thereby terminated with effect from the date of service of that order on him.
That order further states that respondent will be paid a sum equivalent to the 167 amount of his pay plus allowances for the period of notice, due to him, that is, for one month in accordance with the provisions of the Navy Instruction 22/53, as amended and that the payment of allowances will, however be subject to conditions under which such allowances are admissible.
The respondent having been recommended by the Employment Exchange, was appointed by the appellant by exhibit P 1 as labourer on casual basis in lieu of Sailor in the Installation Team (I.N.S. Venduruthy) on pay of Rs. 70/ p.m. plus allowances as admissible from time to time for the period of one month in the first instance with effect from the forenoon of 18.12.61.
The appellant continued the respondent 's employment as labourer in lieu of Sailor in B.R.O. (Installation) Department, Cochin against some existing vacancy with effect from the forenoon of 18.1.62 by exhibit P 2.
When he was casual labourer in the B.R.O. (Installation) Department he was transferred by the appellant to the Naval Armament Depot, Alwaye and appointed as labourer in the regular cadre in the scale mentioned therein plus allowances as admissible from time to time in an existing vacancy with effect from 15.11.62.
Subsequently, when the respondent was working as a labourer in the Naval Armament Depot at Alwaye the appellant promoted him and appointed him as A.R.L. Grade II in the Naval Armaments Depot, Alwaye in the scale mentioned therein plus allowances as admissible from time to time in an existing vacancy with effect from the forenoon of 2.3.64.
Thereafter, his services were terminated by Order dated 17 1 67 (exhibit P 8) as mentioned above.
In the the Writ Petition the respondent attacked the order exhibit
P 8 on two grounds, namely, (1) that he was appointed permanently to the post of A.R.L. Grade II by the Order (exhibit P 4) and (2) that persons junior to the respondent have been retained in service and, therefore, the termination of the services of the respondent without any reason whatsoever, is discriminatory and contravenes Article 16 of the Constitution.
In the counter affidavit filed in the Writ Petition the appellant contended that the phraseology "regular cadre" does not imply as it may in some other instances in the employment of government, a substantive post, that the post in the "regular cadre" is also a purely temporary one and that the post of Ammunition Repair Labourer Grade II to which the respondent was promoted and appointed, was also on a temporary basis.
The appellant denied that there was any discrimination in the termination of the services of the respondent.
The learned 168 Single Judge repelled the contention that the respondent had been permanently appointed to the post of ARL Grade II by the Order exhibit P 4 on the ground that there is nothing in the order to show that the respondent had been appointed permanently to the post.
Regarding the second ground urged by the respondent the learned Single Judge held, relying upon this Court 's decision in Champaklal Chimanlal Shah vs The Union of India(1) and two other decisions of the Mysore and Andhra Pradesh High Court in Diddaiah vs State(2) and Jankiraman vs State of Andhra Pradesh(3) respectively that Article 16 of the Constitution applies even to temporary government servants.
The learned Judge observed that there is no denial of the fact that persons junior to the respondent have been retained in service and that there is nothing in the order, exhibit P 8 or in the counter affidavit filed by the respondent in the Writ Appeal to show that the respondent was guilty of any misconduct or was otherwise unfit to hold the post.
The learned Judge further observed that in paragraph 8 of the counter affidavit it has only been stated that the fact other persons who are junior to the respondent are retained in service, would not confer any right on the respondent to continue in service.
In this view the learned Judge held that the termination of the respondent 's services under exhibit P 8 without assigning any reason was discriminatory and he accordingly allowed the Writ Petition without costs.
In the Writ Appeal filed under section 5 of the Kerala High Court Act the Division Bench followed the aforesaid decision of this Court in Champaklal Chimanlal Shah vs The Union of India (supra) and agreed with the learned Single Judge that the appellant 's action in terminating respondent 's services under exhibit P 8 is violative of Article 16 of the Constitution.
The learned Judges observed in their judgment that no reason at all was either alleged or proved as to why appellant chose to terminate the respondent 's services under rule 5 of the Central Services (Temporary Services) Rules 1965 such as that it was administratively convenient to do so or that the respondent 's work or conduct was unsatisfactory or that it was a case of retrenchment and the respondent was chosen as the junior most person.
The learned Judges accordingly dismissed the Writ Appeal.
The principle that even temporary government servants are entitled to the protection of Article 311(2) in the same manner as 169 permanent government servants if the government takes action against them by meting out one of the three punishments of dismissal, removal or reduction in rank, is well settled.
This court has held in Champaklal Chimanlal Shah vs The Union of India (1) that temporary servants are also entitled to the protection of Article 311(2) in the same manner as permanent government servants if the government takes action against them by meting out one of the three above punishments following the decision in Purshotam Lal Dhingra vs Union of India(2) and that this protection is only available where the discharge, removal or reduction in rank is sought to be infected by way of punishment and not otherwise.
The same view has been reiterated by this Court in Manager, Govt.
Branch Press and Anr.
vs D.B. Beliappa,(3) where it has been observed thus: "The principle that can be deduced from the above analysis is that if the services of a temporary Government servant are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory, or for a like reason which marks him off in a class apart from other temporary servants who have been retained in service, there is no question of the applicability of Article 16.
Conversely, if the services of a temporary Government servant are terminated, arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment.
Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motives which impelled it to take the impugned action.
Excepting, perhaps, in cases analogous to those covered by Article 311(12), Proviso (c), the authority cannot withhold such information from the Court o the lame excuse, that impugned order is purely administrative and not judicial, having been passed in exercise of its adminis 170 trative discretion under the rules governing the conditions of the service.
" In the latest decision in State of Maharashtra vs Veerappa R. Saboji and Anr. a similar observation has been made by Pathak, J. at page 567: "The law, it seems to me, is that where the services of a temporary Government servant or a probationer Government servant are terminated by an order which does not ex facie disclose any stigma or penal consequences against the Government servant and is merely a termination order simpliciter, there is no case ordinarily for assuming that it is anything but what it purports to be.
Where, however, the order discloses on the face of it that a stigma is cast on the Government servant or that it visits him with penal consequences, then plainly the case is one of punishment.
There may still be another kind of case where although the termination of service is intended by way of punishment, the order is framed as a termination simpliciter.
In such a case, if the Government servant is able to establish by material on the record that the order is in fact passed by way of punishment, the innocence of the language in which the order is framed will not protect it if the procedural safeguards contemplated by Article 311(12) of the Constitution have not been satisfied.
In a given case, the Government servant may succeed in making out prima facie case that the order was by way of punishment but an attempt to rebut the case by the authorities may necessitate sending for the official records for the purpose of determining the truth.
It is in such a case generally that the official records may be called for by the Court.
It is not open to the Court to send for the official records on a mere allegation by the Government servant that the order is by way of punishment.
For unless there is material on the record before the Court in support of that allegation, an attempt by the Court to find out from the record whether the termination of service is based on the unsuitability of the Government servant in relation to the post held by him or is in reality an order by way of punishment will in effect be an unwarranted attempt to delve into the official records for the purpose of determining the nature of the order on the basis of a mere allegation of the Government 171 servant.
On a sufficient case being made out on the merits before the Court by the Government servant it is open to the Court to resort to scrutiny of the official records for the purpose verifying the truth".
This Court has observed in Regional Manager and Anr.
vs Pawan Kumar Dubey thus: "We do not think that Sughar Singh 's case, in any way, conflicts with what has been laid down by this Court previously on Article 311(2) of the Constitution or Article 16 of the Constitution.
We would, however, like to emphasize that, before Article 16 is held to have been violated by some action there must be a clear demonstration of discrimination between one Government servant and another, similarly placed, which cannot be reasonably explained except on an assumption or demonstration of "malice in law" or "malice in fact".
As we have explained, acting on a legally extraneous or obviously misconceived ground of action would be a case of "malice in law".
Orders of reversion passed as a result of administrative exigencies, without any suggestion of malice in law or in fact, are unaffected by Sughar Singh 's case (supra).
They are not vitiated merely because some other Government servants juniors in the substantive rank, have not been reverted." After examining the record in Sughar Singh 's case (supra), the learned Judges have observed: "What weighed with this Court was not only that there was a sufficient "element of punishment" in reverting Sughar Singh for a supposed wrong done, from which the order of reversion could not be divorced, so that Article 311 (2) had to be complied with, but, there was also enough of an impropriety and unreasonableness in the action taken against Sughar Singh, solely for a very stale reason, which had become logically quite disconnected to make out a case of "malice in law" even if it was not a case of "malice in fact" The matter is also covered by a recent decision of this Court in Oil and Natural Gas Commission and Ors.
vs Dr. Mohd. section 172 Iskender Ali where one of us (Fazal Ali, J.) speaking for the Court observed as follows: "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 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 for the limited purpose of determining whether or not his probation should be extended.
These remarks were not intended to cast any stigma." "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 in the case of a probationer or a temporary employee, who has no right to the post, such a termination of his service is valid and does not attract the provisions of Article 311 of the Constitution.
" We agree with the learned Judges who constituted the Division Bench of the Kerala High Court that the respondent was only a temporary government servant and that even as a temporary government servant he is entitled to the protection of article 311 (2) of the Constitution where termination involves a stigma or amounts to punishment.
We looked into the file relating to the respondent ending with order of termination of his service (Ex P 8).
We are satisfied that the decision to terminate the services of the respondent had been taken at the highest level on the ground of unsuitability of the respondent in relation to the post held by him and it is not by way of any punishment and no stigma is attached to the respondent 173 by reason of the termination of his service.
In these circumstances we allow this appeal and set aside the judgment of the High Court and confirm the appellant 's order, exhibit P.B. terminating respondent 's services.
The appellant shall bear his own costs and pay respondent 's costs.
P.B.R. Appeal allowed.
| IN-Abs | The respondent, in the first instance, was appointed as a casual labourer for a month but was continued against an existing vacancy.
He was later appointed as a labourer in a regular cadre in an existing vacancy.
Sometime later he was promoted and appointed as Ammunition Repair Labourer, Grade II.
Three years thereafter his services were terminated.
In a petition under Article 226 of the Constitution the respondent impugned the order of termination of his services on the ground that he was appointed permanently to the post of Ammunition Repair Labourer Grade II and that the termination of his services, when juniors were retained in service, was discriminatory and was in contravention of Article 16 of the Constitution.
The appellant contended before the High Court that the term "regular cadre" did not imply as in other instances in the employment of government a substantive post, but that the post in the regular cadre is a purely temporary one.
A single Judge of the High Court rejected the respondent 's claim that he was appointed permanently to the post but held that since persons junior to him had been retained in service, termination of his services without assigning any reason was discriminatory and, therefore, the order was bad in law.
Agreeing with the view of the single Judge a Division Bench of the High Court dismissed the appellant 's appeal.
Allowing the appeal ^ HELD: A perusal of the file relating to the termination of the services of the respondent shows that the decision to terminate his services had been taken at the highest level on the ground of his unsuitability in relation to the post held by him and that it was not by way of any punishment and no stigma was attached to the respondent by reason of the termination of his services.
[172 G H] The well settled position in law in this regard is that (i) if the services of a temporary government servant are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his un 166 suitability for the job and/or for his work being unsatisfactory or for a like reason which marks him off in a class apart from other temporary servants who have been retained in service, there is no question of the applicability of Article 16; (ii) where the services of a temporary government servant or a probationer government servant are terminated by an order which does not ex facie disclose any stigma or penal consequences against the government servant and is merely a termination order simpliciter there is no case ordinarily for assuming that it is anything but what it purports to be; (iii) before Article 16 is held to have been violated by some action there must be a clear demonstration of discrimination between one government servant and another similarly placed, which cannot be reasonably explained except on an assumption or demonstration of "malice in law" or "malice in fact".
Acting on legally extraneous or obviously misconceived grounds of action would be a case of "malice in law"; (iv) it is open to the employer to terminate the services of a temporary employee on probation at any time before he was confirmed if the employer was satisfied that he was not suitable for being retained in service.
[E 169 D; 170 C; 171 C; 172 B] In the instant case the respondent was a temporary government servant.
No stigma is attached to the termination of his services.
His services had been terminated for unsuitability in relation to the post held by him.
[171 F G]
|
Petitions Nos.
5637 41,5643 45, 5646 47,5649 51, 5597 98,5553 67,5609 11,5516 20,5623 28,5657, 5673 74,5702 23,5668, 5659 67,5733, 5740 42, 5782 84, 5763 64, 5762,5747 52,5779 81,5745, 5785, 5737 39, 5841 43, 5786 5797, 5861 62 and 5863 64 of 1980.
(Under Article 32 of the Constitution.) AND Civil Appeal No. 2734 of 1980.
Appeal by special leave from the Judgment and Order dated 12.11.1980 of the Allahabad High Court in W.P.No. 3115/80.
R.A. Gupta for the Petitioners in WPs.5637 41/80, 5797,5733/80 and CA No.2734/80.
A.P.S. Chauhan, Roopendra Singh Gajraj Singh, and C.K. Ratnaparkhi for the Petitioners in WP 5762/80.
B.S. Chauhan, Birj Bihari Singh Sridhar for the Petitioner in WP 5745/80.
Rameshwar Dial and Sarwa Mitter for the Petitioners in WPs 5782 84/80 R.K. Garg, S.N. Kacker, R.K. Jain and R.P. Singh for the Petitioners in WPs 5553 5567, 5616 5620, 5646, 5647, 5750 52, 5779 81,5623 28,5646 47, 5649 5651,5643 45,5702 to 5723, 5673 5674,5659 to 5667,5740 42, 5737 39 and 5841 43/80.
R.P. Singh for the Petitioners in WPs 5609 11 & 5597 98/80.
Soli J.Sorabjee, Arvind Minocha and Mrs. Veena Minocha for the Petitioners in WP 5661/70.
Mohan Behari Lal for the Petitioners in WPs 5785/80, 5786/80, and 5657/80.
A.K. Gupta for the Petitioners in WPs 5763 64/80.
Lal Narain Sinha Att.
, S.C. Maheshwari Addl.
Advocate General (U.P.), O.P. Rana, Mrs.Shobha Dikshit for the Respondents in all the matters.
The Judgment of the Court was delivered by, FAZAL ALI, J.
Inspired by the objective of removing nation wide shortage of sugar and for the purpose of enhancing sugar production 99 in order to achieve an equitable distribution of the commodity so as to make it available to consumers at reasonable rates and thereby relieving the sugar famine, the Cane Commissioner, Government of Uttar Pradesh by virtue of a Notification dated 9th October, 1980, acting under clause 8 of the Sugarcane (Control) Order, 1966 (hereinafter referred to as the 'Control Order ') directed that no power crusher, with certain exceptions, of a khandsari unit or any agent of such owner in the reserved area of a mill could be worked until December 1, 1980.
The exact contents of the Notification may be extracted thus: "Lucknow, Thursday 9th October 1980 In exercise of the powers under clause 8 of the Sugarcane (Control) Order, 1966 read with the Central Government, Ministry of Food & Agriculture, Community Development and Cooperation (Department of Food), Government of India Order No. GSR 122/Ess.
Comm/Sugarcane dated July 16, 1966, I, Bhola Nath Tiwari, Cane Commissioner, Uttar Pradesh hereby direct that no owner of power Crusher (other than those vertical power crushers which manufacture Gur or Rab from Sugarcane grown on their own fields) or a Khandsari Unit or any agent of such owner shall in any reserved area, of any Sugar Mill work the Power Crusher, or the Khandsari Unit prior to December 1, 1980 during the Year 1980 81.
By Order Bhola Nath Tiwari Cane Commissioner Uttar Pradesh" The Control Order was passed by the Central Government in exercise of the powers conferred on it by s.3 of the (hereinafter referred to as the 'Act of 1955 ').
In order to understand the contentions raised by the parties it may be necessary to analyse the prominent features of the above Notification with reference to the situation it was intended to meet.
It is not disputed that sugar was being produced in the State of U.P. by the sugar mills through hydraulic process and by the power crushers through what is known as the 'open pan process '.
Both the mills as also the crushers drew their raw material, namely, sugarcane, from the sugarcane growers.
In order to facilitate production by the sugar mills, most of whom were controlled by the State, a reserved area of the fields growing sugarcane was fixed throughout the State 100 The Notification applied only to the reserved areas of a mill and not to any other areas.
In other words, any area which fell outside the reserved area was not affected by the Notification and the power crushers situated in that area could still manufacture Khandsari by the open pan process.
Thus, it would be seen that the ban imposed by the notification was confined only to a particular area in the State of U.P.
Secondly, the Notification limited the ban to work power crushers only to a short period of one month and a half i.e., from October 9, 1980 to December 1, 1980.
Thirdly, (and it has also not been disputed) the owners of power crushers of khandsari units, who are the petitioners in these cases, had taken out regular licences under the U.P. Khandsari Sugar Manufacturers Licensing Order of 1967 (hereinafter referred to as the 'Licensing Order ').
It, therefore, logically follows that the power crushers owned or worked by the conditions of the licences under which they were working the crushers.
Fourthly, what was prohibited by the Notification was only the manufacture of khandsari while the production of gur or rab from sugarcane grown in the fields belonging to the owners of the crushers was left out of the ambit of the Notification.
We have mentioned these essential features of the Notification because the most important argument put forward before us by the counsel for the petitioners has been that it imposes unreasonable restrictions on the right of the petitioners under article 19(1)(g) of the Constitution to carry on their trade namely, production of khandsari.
A subsidiary argument buttressing the main contention was that the Notification intends to create a monopoly in favour of the sugar mills at the cost of the crushers owned by the petitioners and is, therefore, clearly violative not only of article 19(1)(g) but also of article 14 of the Constitution.
We would, however, deal with this aspect of the matter when we examine the contentions raised by the counsel for the parties.
The Attorney General, appearing for the Union of India, and Mr. Maheshwari, Additional Advocate General appearing for the State of U.P., contended that, decision to ban the power crushers of the petitioners was taken as a part of a high powered policy to boost the production of sugar which had fallen during the year 1979 80 with the result that in the current year the country faced a great sugar famine.
As the situation called for some positive action to increase the production, the matter having been discussed at the 34th Annual Convention of 101 Sugar Technologists of India, it was decided to ban the production of khandsari by the power crushers for a limited period.
A large number of documents in the nature of affidavits, counter affidavits, reports and books have been filed by the counsel for both the parties in support of their respective contentions.
We might also mention here that the Notification has since spent its force and, in fact, was not carried into effect because immediately after it was issued the present writ petitions were filed in this Court and the petitioners obtained stay of the operation of the Notification from this Court.
The Attorney General, however, insisted that the matter should be finally decided so that if the Central Government wants to take any steps of this kind in future it may be aware of the correct constitutional or legal position.
The petitioners also insisted that the constitutional and legal questions involved in these cases may be decided even though our decision may be more or less of an academic value.
This brings us now to the various contentions raised by counsel for the petitioners and the respondents.
As the Notification has already spent its force, we propose to deal only with the important and relevant contentions that have been advanced before us.
The counsel for the petitioners headed by Mr. Garg, Mr. Mridul and others raised the following constitutional points before us : (1) The Notification, as also the Control Order under which it was passed are clearly violative of of article 19(1)(g) and the restrictions purported to be placed on the right of the petitioners not do contain the quality of reasonableness.
(2) Clause 8 of the Control Order under which the impugned Notification has been issued suffers from the vice of excessive delegation of powers and is, therefore, violative of Article 14 of the Constitution.
By the same token, as the impugned Notification seeks to establish a monopoly in favour of the sugar mills at the cost of the petitioners, invidious discrimination is writ large on the very face of the Notification which must be struck down as being violative of article 14.
(3) There is absolutely no rational nexus between the prohibition contained in the Notification preventing the crushers of the petitioners from working them and the object sought to be achieved by it.
Thus, the State had selected the petitioners for hostile discrimination between one segment 102 and another of persons engaged in the purchase of sugarcane, its sale and production of sugar without striking a just balance between the manufacturers of gur, khandsari and sugar.
India lives in villages and it was not understandable why the Central Government was bent on reducing the support price of sugarcane which was adversely affecting the sugarcane growers because while the mills were not able to pay a reasonable price the crushers were able to pay a handsome price for the sugarcane supplied to them by the growers.
When tested for reasonableness, therefore, the Notification completely fails.
(4) Clause 8 of the Control Order does not contemplate a complete prohibition of the production of an article but envisages only a regulation of the period or hours of working.
(5) The Notification violates the principles of natural justice inasmuch as it was passed without hearing the petitioners whose valuable rights were curtailed as they were put completely out of production even though for a short period.
(6) The impugned Notification violative of clause 11 of the Control Order itself inasmuch as the prohibition against the working of the power crushers amounts to partial revocation of the licences of the petitioners granted to them under clause 3 of the Licensing Order.
Clause 11 of the Control Order clearly provides that no adverse orders could be passed against any manufacturer without hearing him.
(7) Even though the impugned Notification purports to have been passed under the Control Order which itself was passed under section 3 of the Act of 1955 yet if the notification is properly considered and the mischief it causes is borne in mind, it goes against the very spirt and object of the Act of 1955 and, in fact, frustrates the equal distribution and production of sugar which apparently seems to be the objective of the impugned notification.
The Attorney General and the Additional Advocate General appearing for the Union of India and the State of U.P. respectively countered the submissions made by the petitioners on the following grounds: (1) An order passed under clause 8 of the Control Order is of a legislative character and therefore the question of the 103 application of the principles of natural justice to it does not arise.
(2) The Notification does not violate article 14 or 19 because it is in great public interest and is aimed at maintaining and securing proper and equitable distribution of sugar in view of the nation wide shortage of the commodity.
(3) The Notification is justified by the fact that recovery of sugar from sugarcane in case of khandsari units run by power crushers is between 4 to 6 per cent whereas in the case of sugar factories it ranges between 9 1/2 to 11 1/2 per cent, so that utilisation of sugarcane in the case of mills is double that of the power crushers.
In these circumstances, khandsari units and mills belong to two different classes which cannot be said to be similarly situate so as to attract article 14 (vide pp.
69 70 of W.P .5565 5567 of 1980 Bhagwati Sugar Industry 's case).
(4) The khandsari produced by the crushers has got a very narrow sphere of consumption as it is used mostly by halwais or villagers, whereas sugar produced by the sugar mills is consumed in far larger quantities by the public in India generally and in foreign countries after export.
Therefore, the sugar mills fall within a special class and the question of hostile discrimination does not arise.
Similarly, the action taken in order to protect national interests and distribution of sugar to the entire country on a rational basis cannot be said to be an unreasonable restriction.
(5) There is a marked difference between the quality of khandsari and that of sugar produced by the mills in their character, specification, etc., which is evident from the various reports filed by the State.
(6) The question of natural justice does not arise because the crusher owners were fully aware of the situation and had also knowledge of the considerations which prevailed with the Government in stopping crushers for a short period in order to boost production by the sugar mills and fix support price for the sugarcane supplied to the mills.
However, as the Notification has expired, if proper guidelines are laid down by the Court, before passing a fresh order the State will certainly hear the petitioners in order to know their point of view.
104 (7) Clause 8 of the Control Order uses the words `period ' or working hours ' which are wide enough to embrace within their ambit a fixed period of time covering more than a day as also hours of work on any working day.
We might also mention that some of the sugarcane growers have supported the arguments advanced by the petitioners.
We now proceed to scrutinise and examine the contentions of the counsel for the petitioners.
On the contention according to which the impugned notification is violative of article 19(1)(g), it may be necessary to dwell in some detail.
It is no doubt well settled that where a citizen complains of the violation of fundamental rights contained in sub clause (g) of clause (1) of Art 19 or for that matter in any of sub clauses (a) to (g) thereof, the onus is on the State to prove or justify that the restraint or restrictions imposed on the fundamental rights under clauses 2 to 6 of the Article are reasonable.
In the instant case, we are mainly concerned with sub clauses 4, 5 and 6 of Art.19.
As far back as 1955 this Court in Saghir Ahmad vs The State of U.P, and Ors.(1) made this position very clear and observed as follows : "There is undoubtedly a presumption in favour of the constitutionality of a legislation.
But when the enactment on the face of it is found to violate a fundamental right guaranteed under article 19(1) (g) of the Constitution, it must be held to be invalid unless those who support the legislation can bring it within the purview of the exception laid down in clause (5) of the article.
If the respondents do not place any materials before the Court to establish that the legislation comes within the permissible limits of clause (6), it is surely not for the appellants to prove negatively that the legislation was not reasonable and was not conducive to the welfare of the community.
" A similar view was taken in Mohammed Faruk vs State of Madhya Pradesh and Ors.(2) where this Court, speaking through Shah, J. reiterated the position mentioned above in the following words: "When the validity of a law placing restriction upon the exercise of fundamental rights in Article 19(1) is challenged, the onus of proving to the satisfaction of the Court that the restriction is reasonable lies upon the State." 105 We, therefore fully agree with the contention advanced by the petitioners that where there is a clear violation of article 19(1)(g), the State has to justify by acceptable evidence, inevitable consequences or sufficient materials that the restriction, whether partial or complete, is in public interest and contains the quality of reasonableness.
This proposition has not been disputed by the counsel for the respondents, who have, however, submitted that from the circumstances and materials produced by them the onus of proving that the restrictions are in public interest and are reasonable has been amply discharged by them.
This brings us to the main question as to the circumstances under which restriction imposed by the State can be said to contain the quality of reasonableness.
For this purpose, almost all the decisions of this Court on the subject have been placed before us and it may be necessary to notice those of them which have a close bearing on the point at issue.
It is abundantly clear that fundamental rights enshrined in Part III of the Constitution are neither absolute nor unlimited but are subject to reasonable restrictions which may be imposed by the State in public interest under clauses 2 to 6 of Art.19.
As to what are reasonable restrictions would naturally depend on the nature and circumstances of the case, the character of the statute, the object which it seeks to serve, the existing circumstances, the extent of the evil sought to be remedied as also the nature of restraint or restriction placed on the rights of the citizen.
It is difficult to lay down any hard or fast rule of universal application but this Court has consistently held that in imposing such restrictions the State must adopt an objective standard amounting to a social control by restricting the rights of the citizens where the necessities of the situation demand.
It is manifest that in adopting the social control one of the primary considerations which should weigh with the Court is that as the directive principles contained in the Constitution aim at the establishment of an egalitarian society so as to bring about a welfare state within the frame work of the Constitution, these principles also should be kept in mind in judging the question as to whether or not the restrictions are reasonable.
If the restrictions imposed appear to be consistent with the directive principles of State policy they would have to be upheld as the same would be in public interest and manifestly reasonable.
Further, restrictions may by partial, complete, permanent or temporary but they must bear a close nexus with the object in the 106 interest of which they are imposed.
Sometimes even a complete prohibition of the fundamental right to trade may be upheld if the commodity in which the trade is carried on is essential to the life of the community and the said restriction has been imposed for a limited period in order to achieve the desired goal.
Another important consideration is that the restrictions must be in public interest and are imposed by striking a just balance between the deprivation of right and the danger or evil sought to be avoided.
Thus freezing of stocks of food grains in order to secure equitable distribution and availability on fair prices have been held to be a reasonable restriction in the cases of Narendra Kumar and Ors.
vs The Union of India and Ors.(1) M/s. Diwan Sugar and General Mills (P) Ltd. and Ors vs The Union of India and The State of Rajasthan vs Nath Mal and Mitha Mal(3).
These are some of the general principles on the basis of which the quality of reasonableness of a particular restriction can be judged and have been lucidly adumbrated in State of Madras vs V.G. Row 's(4) case.
Another important test that has been laid down by this Court is that restrictions should not be excessive or arbitrary and the Court must examine the direct and immediate impact of the restrictions on the rights of the citizens and determine if the restrictions are in larger public interest while deciding the question that they contain the quality of reasonableness.
In such cases a doctrinaire approach should not be made but care should be taken to see that the real purpose which is sought to be achieved by restricting the rights of the citizens is subserved.
This can be done only by examining the nature of the social control, the interest of the general public which is subserved by the restrictions, the existing circumstances which necessitated the imposition of the restrictions, the degree and urgency of the evil sought to be mitigated by the restrictions and the period during which the restrictions are to remain in force.
At the same time the possibility of an alternative scheme which might have been but has not been enforced would not expose the restrictions to challenge on the ground that they are not reasonable.
107 Finally, in determining the reasonableness of restrictions imposed by law in the field of industry, trade or commerce, the mere fact that some of the persons engaged in a particular trade may incur loss due to the imposition of restrictions will not render them unreasonable because it is manifest that trade and industry pass through periods of prosperity and adversity on account of economic, social or political factors.
In a free economy controls have be introduced to ensure availability of consumer goods like food stuffs, cloth or the like at a fair price and the fixation of such a price cannot be said to be an unreasonable restriction in the circumstances.
Thus, apart from the various other factors which we have referred to above where restrictions are imposed on a citizen carrying on a trade or commerce in an essential commodity, the aspect of controlled economy and fair and equitable distribution to the consumer at a reasonable price leaving an appreciable margin of profit to the producer is undoubtedly a consideration which does not make the restriction unreasonable.
In fact, the leading case decided by this Court which may justly be regarded as the locus classicus on the questions as to what are reasonable restrictions is V.G. Row 's case (supra) where Patanjali Sastri, C.J., speaking for the Court observed as follows: "It is important in this context to bear in mind that the test of reasonableness, where ever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases.
The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby the disproportion of the imposition the prevailing conditions at the time, should all enter into the judicial verdict.
In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in 108 authorising the imposition of the restrictions, considered them to be reasonable." This case was followed in a later decision of this Court in Mineral Development Ltd. vs The State of Bihar and Anr.(1) where after quoting the observations of Patanjali Sastri, C.J., as extracted above, Subba Rao, J., speaking for the Court observed as follows: "These observations, if we may say so with great respect, lay down the correct principle.
It follows that it is the duty of this Court to decide, having regard to the aforesaid considerations and such others whether a particular statute satisfies the objective test of `reasonableness '." In the case of Collector of Customs, Madras vs Nathella Sampathu Chetty and Anr.(2) the observations of Patanjali Sastri, C.J., were endorsed by this Court when Ayyangar, J., speaking for the Court, made the following observations: "There are several decisions of this Court in which the relevant criteria have been laid down but we consider it sufficient to refer to a passage in the judgment of Patanjali Sastri, C.J., in State of Madras vs V.G. Row." In M/s. Diwan Sugar and General Mills (Private) Ltd. and Ors.
vs U.O.I.(3) which was also a case arising out of the Act of 1955 and the Sugar Control Order of 1955 promulgated by the Central Government under section 3 of the said Act, a Constitution Bench of this Court while examining the nature of the restrictions imposed in that case took into account the various circumstances and observed : "Clause 5 of the Order lays down the factors which have to be taken into consideration in fixing prices.
These factors include among other things a reasonable margin of profit for the producer and/or trade and any incidential charges.
This was kept in mind when prices were fixed by the impugned notification.
The prices were prevalent in the free market and must certainly have taken account of a fair margin of profit for the producer, though in the case of an individual factory due to factors for which the producer might 109 himself be responsible, the cost of production might have been a little more.
Therefore, the prices fixed by the Government by the impugned notification can on no circumstances be said to have been proved to be below the cost of production." . . "In these circumstances if price is fixed in this area, price all over India is practically fixed, and it is not necessary to fix prices separately so far as factories in other States which are said to be mainly deficit, are concerned.
There is, therefore, in our opinion, no discrimination in effect by the fixation of prices in these three regions.
" It will be noticed that even though clause 5 had fixed prices, the Court upheld the restrictions because a reasonable margin of profit for the producer was left and did not insist that the producer should be allowed to have full sway in the production of sugar to the maximum capacity possible.
Similarly one of the important tests laid down by this Court was that the price prevailing in the free market must be taken into account in the formula of fixation of price for essential commodities secondly while dealing with the price control imposed on factories in various States, this Court held that the policy of fixation of price could not be challenged because States where they were fixed were deficit areas.
We might mention here that the sheet anchor of the argument of the Attorney General is that the impugned Notification was passed in order to relieve the sugar famine by boosting the production of sugar by mills.
Similarly, in Nath Mal and Mitha Mal 's case (supra), which was also a case dealing with food grains, an order freezing the stocks of the commodity in order to secure its equitable distribution so as to make it available at a fair price to consumers was upheld by the Court with the following observations: "The clause authorises the Commissioner and various others authorities mentioned therein and such other officers as may be authorised by the Commissioner to frreeze any stock of foodgrains held by a person.
Nor do we think that the power to freeze the stocks of foodgrains is arbitrary or based on no reasonable basis. .
We are clear, therefore, that the freezing of stocks of food grains is reasonably related to the object which the Act was in 110 tended to achieve, namely, to secure the equitable distribution and availability at fair prices and to regulate transport, distribution, disposal and acquisition of an essential commodity such as foodgrains.
" The most material ratio of this case is that even the freezing of stocks of foodgrains, with a view to securing their equitable distribution and availability was held to be a reasonable restriction.
Even if by seizing the food stocks the right of a citizen to trade in food grains was seriously impaired and hampered yet such a State action was justified on the ground of public interest.
On a parity of reasoning, therefore, a restriction (on the right of a trader dealing in essential commodities) like the ban in the instant case or fixation of prices aimed at bringing about distribution of essential commodities keeping the consumers interests as the prime consideration, cannot be regarded as unreasonable.
We are fortified in our view by a decision of this Court in Prag Ice and Oil Mills and Anr.
vs Union of India(1) where Beg, C.J. observed as follows : "All the tests of validity of the impugned price control or fixation order are, therefore, to be found in section 3 of the Act.
Section 3 makes necessity or expediency of a control order for the purpose of maintaining or increasing supplies of an Essential Commodity or for securing its equitable distribution at fair prices the criteria of validity.
It is evident that an assessment of either the expediency necessity of a measure, in the light of all the facts and circumstances which have a bearings on the subjects of price fixation, is essentially a subjectives matter.
It is true that objective criteria may enter into determinations of particular selling prices of each kilogram of mustard oil at various time.
But, there is no obligation to have to fix the price in such a way as to ensure reasonable profits to the producer or manufacturer.
It has also to be remembered that the objective is to secure equitable distribution and availability at fair prices so that it is the interest of the consumer and not of the producer which is the determining factor in applying any objective tests at any particular time.
" The observations extracted above, furnish a complete answer to the contentions raised by the petitioners on contention No. 1. 111 Furthermore, we would like to reiterate what Chandrachud, C.J,, observed in that case regarding the history and the manner in which the petitioners rushed to this Court : "Before closing, we would like to mention that the petitioners rushed to this Court too precipitately on the heels of the Price Control Order.
Thereby they deprived themselves of an opportunity to show that in actual fact, the Order causes them irreparable prejudice.
Instead they were driven through their ill thought haste to rely on speculative hypotheses in order to buttress their grievance that their right to property and the right to do trade was gone or was substantially affected.
A little more patience, which could have been utilised to observe how the experiment functioned, might have paid better dividends.
" This is exactly what the petitioners have done in this case by rushing to this Court the moment the notification was issued and thus depriving the State as also themselves of the actual consequences of the issuing of the notification and the prejudice which it really may have caused.
They did not at all show any patience in waiting for a while to find out if the experiment functioned successfully and in the long run paid good dividends.
As the petitioners obtained stay orders from this Court on filing these petitions, the experiment died a natural death and the notification remained ineffective.
It was vehemently contended by Mr. Garg that the Notification or the Control Order is in direct contravention of the Directive Principles of State policy contained in article 39 in part IV of the Constitution inasmuch as instead of developing small scale industries like the crushers the Notification has curbed the rights of their owners in order to benefit the mills.
It is true that one of the important considerations which must weigh with the Court in determining the reasonableness of a restriction is that it should not contravene the Directive Principles contained in Part IV of the Constitution which undoubtedly has a direct bearing on the question as held by this Court in the cases of Saghir Ahmad vs State of U.P. and Ors.(1) and The State of Bombay and Anr.
vs F. N. Balsara(2) where this Court made the following observations : 112 "The new clause in Article 19(6) has no doubt been introduced with a view to provide that a State can create a monopoly in its own favour in respect of any trade or business, but the amendment does not make the establishment of such monopoly a reasonable restriction within the meaning of the first clause of Article 19(6).
The result of the amendment is that the State would not have to justify such action as reasonable at all in a Court of law and no objection could be taken to it on the ground that it is an infringement of the right guaranteed under Article 19(1) (g) of the Constitution" (Saghir Ahmed 's case) "In judging the reasonableness of the restrictions imposed by the Act, one has to bear in mind the directive principles of State policy set forth in Article 47 of the Constitution." (Balsara 's case) In the instant case, however, if the argument of the Attorney General is to be accepted, there is no violation of the Directive Principles because the main object sought to be achieved by a temporary suspension of the business of the petitioners is to ensure large scale production of white sugar and to make it available to the consumers at reasonable rates which is an implementation rather than a contravention of the Directive Principles particularly clauses (b) and (c) of article 39.
Whether the State has been able to prove this fact or not would be considered when we deal with the facts and materials placed before us by the parties.
Another important aspect to which we may advert at this stage is the test which should be laid down to determine the reasonableness of a restriction involving a citizen carrying on trade or business in an essential commodity.
We have already seen that this Court has held that fixation of price of sugar or freezing of stock of foodgrains does not amount to an unreasonable restriction on the fundamental right to trade enshrined under article 19(1)(g).
There are other cases in which this Court has clearly held that in the case of essential commodities like sugar the question of the economic production and distribution thereof must enter the verdict of the Courts in deciding the reasonableness of the restrictions.
In such cases even if the margin of profit left to the producer is slashed that would not make the restriction unreasonable.
The reason for this view is that such a trade or commerce is subject to rise and fall in prices and other diverse factors which may destroy or prohibit one industry or the other so as to affect the general body of the consumers and if any measure is taken to strike a just 113 balance between the danger sought to be averted and the temporary deprivation of the right of a citizen to carry on his trade, it will have to be upheld as a reasonable restriction.
In Shree Meenakshi Mills vs U.O.I. (1) Ray C.J., speaking for the Court observed as follows: "If fair price is to be fixed leaving a reasonable margin of profit, there is never any question of infringement of fundamental right to carry on business by imposing reasonable restrictions.
The question of fair price to the consumer with reference to the dominant object and purpose of the legislation claiming equitable distribution and availability at fair price is completely lost sight of if profit and the producer 's return are kept in the fore front.
In determining the reasonableness of a restriction imposed by law in the field of industry, trade or commerce, it has to be remembered that the mere fact that some of those who are engaged in these are alleging loss after the imposition of law will not render the law unreasonable.
By its very nature, industry or trade or commerce goes through periods of prosperity and adversity on account of economic and sometimes social and political factors.
In a largely free economy when control have to be introduced to ensure availability of consumer goods like foodstuff, cloth and the like at a fair price it is an impracticable proposition to require the Government to go through the exercise like that of a Commission to fix the prices.
" According to the Attorney General by virtue of the impugned Notification this is exactly what the Central Government wants to achieve by banning the working of power crushers for a short period.
This case was followed in another decision of this Court in Saraswati Industrial Syndicate Ltd. vs U.O.I.(2) which was also a case of a notification issued under clause 7 of the Control Order of 1966, where the following observations were made: "It is a well known fact that rationalisation of industry by the use of modern methods, reduces the amount of labour needed in more mechanised modes of manufacture.
Therefore, we do not think that these assertions could prove any inequitable treatment meted out to the Haryana manufacturers of sugar.
In any case no breach of a mandatory duty, which could justify the issue of writ of mandamus, was established. ' 114 In the light of the principles enunciated and the decisions discused above, we now proceed to examine the facts and circumstances placed before us by the Union of India to prove that the restrictions imposed under the impugned Notification contain the quality of reasonableness and are not violative of article 19(1)(g).
The main pleas of the State of U.P. which have been adopted by the Union of India, are to be found in paragraphs 6 to 11 of the counter affidavit filed by the respondents in writ petition Nos.
5565 5567 of 1980.
The respondents have taken the stand that there has been a very steep rise in the prices of sugar which is doubtless an essential commodity.
It has further been alleged that one of the major factors responsible for the present rise in the prices of sugar is that there is a sharp rise in the demand for consumption of sugar whereas its production has slumped to a very low level.
In order to illustrate the point it has been averred that the demand of sugar in the country has increased to over 60 lakh tonnes whereas production of the commodity in the preceding year (1979 80) was only about 39.5 lakh tonnes.
In order to meet the demand the Central Government had to import for the first time after several years 2 lakh tonnes of sugar at a cost of about one hundred crores of rupees.
One reason for the shortfall in production during 1979 80 was the poor availability of cane to the sugar factories.
This in turn resulted from the worst drought conditions faced by our country particularly the State of U.P. which is one of the main suppliers of sugarcane.
Yet another cause of the shortage was that the sugar famine led to the large scale diversion of cane to gur and khandsari manufacturers.
The counter affidavit then proceeds to give a chart of the production of sugar by the crushers and the mills.
It was further averred that unless the position was set right the stocks of 1979 80 would have been exhausted completely by the middle of November 1980.
To meet this national crisis, the Government of India took various steps to increase the production of sugar in the country during the current season (1980 81).
In the first place, the Government of India allowed rebate in the basic excise duty on excess sugar production in order to serve as an incentive to the sugar mills to start early cane crushing operation.
This step however, could not possibly have the desired effect unless the sugar factories got the raw material, viz., constant supply of sugarcane.
Indisputably sugarcane is utilised for manufacture of sugar, gur, rab and khandsari and some of the quantity is also utilised for seed, feed and chewing.
It was further alleged that the crushers particularly those producing gur were in an advantageous position so as to be able to purchase cane at a very high rate and outcompete the sugar 115 factories.
It was possible for the crushers to pay a higher price because no excise duty or compulsory levy was imposed on them, on the other hand, the factories suffered from certain disabilities, namely, sixty five per cent of the sugar production was taken by the Government of India on levy process and excise duty on free sale sugar was very high as compared to khandsari sugar.
Further, the Government required distribution of molasses at a fixed price of Rs.6/ per quintal to the mills whereas there was no such obligation on the power crushers.
Finally, because of the monthly release system the factories could sell only released quantity during a particular month whereas there was no such restriction on khandsari units owned by the petitioners.
These steps taken by the then Government resulted in an unhealthy competition causing diversion of cane from the sugar factories with the result that sugar factories could get only 61.5% of the bonded cane.
It was further pointed out in the counter affidavit that keeping in view the fact that the sugar stocks of 1979 80 were likely to be exhausted by the middle of November 1980, it was considered necessary to maintain an adequate supply of sugarcane to the sugar factories which would have started production earlier because of the incentives given to them by the Government of India.
In an additional affidavit filed by the respondents, sworn by Karan Singh, Joint Cane Commissioner, Government of U.P, it was pointed out that khandsari sugar could never be a substitute for sugar produced by sugar mills because khandsari sugar is not used for domestic purpose in preference to mill sugar as the former has higher molasses content and has unpleasant smell and taste.
Further, there is no gradation of khandsari sugar as its grain is not regular and bold.
It was further alleged that in public distribution it is only the mill sugar which is supplied at fair price to the consumers at large and which also forms the bulk of the export.
The khandsari sugar, according to the respondents, was generally consumed for preparation of sweets, boora and batasha and was consumed mostly by the halwais.
There is no reliable evidence to rebut the aforesaid facts detailed in the counter affidavit of the respondents.
Thus, in view of the factors detailed above, it was contended by the Union of India that it was in public interest that with a view to remove shortage of sugar and achieve equal distribution of sugarcane to the mills the impugned notification was passed which seems to strike a just balance between the requirements of the country and those of the khandsari units.
The Attorney General contended that since the ban was imposed only for a very short period of about 116 one month and a half, there could be no appreciable loss to the khandsari units, and even if there was some loss it could be recouped after the ban was lifted because the working cost of the khandsari units was much less than that of the mills.
In other words, by virtue of the policy adopted by the Government in passing the impugned notification, a fair margin of profit was left to the khandsari units which were not completely closed.
It was further stated that out of 89 sugar mills in the entire State of U.P., 18 sugar mills are owned by the U.P. State Sugar Corporation which is a Government company and controlled by the State.
Sixteen sugar mills are under the cooperative sector in which the Government Investment is considerable and these mill are run by cooperative societies of which cane growers are shareholders.
Thus, the ultimate benefit did undoubtedly go to the sugarcane growers also through the profits made by the cooperative societies.
The learned counsel, Mr. Garg, appearing for the petitioners countered the inferences drawn by the respondents with the submission that although the above facts may not be disputed yet it was not correct to say that the khandsari units had put the mills completely out of competition.
It was suggested that the khandsari units were also, apart from paying a higher price to the sugarcane growers, prepared to be subjected to compulsory levies or excise duty levied on the mills or to such terms as the Government may like to put on the owners of the crushers.
The argument is, no doubt, attractive but we are not sure if and when these harsher terms are imposed on the petitioners, it would be possible for them to run the crushers and make the huge profits which they are making without the aforesaid impositions.
At any rate, since the impugned notification has expired, the Government will certainly consider the desirability of a reappraisal of the situation after taking into account this aspect of the matter.
It was further pointed out by the Union of India that only 39 sugar mills are in the private sector and ensuring actual availability of sugar at reasonable rates to the sugar mills was the prime consideration which formed the basis of impugned notification in conformity with the object of the Act of 1955 and the Control Order so as to maintain a fair price for the general public.
Learning a lesson from the performance of the sugar market in the preceding year, the Government thought it more desirable to channelise the production of sugarcane so that the interests of neither the sugar mill owners nor of the khandsari units nor those of the cane growers suffered.
It was then contended that the impugned notification far from causing any appreciable damage or loss to the petitioners serve a 117 two fold purpose which ensures equitable production and distribution of sugar.
Another important argument advanced by the Attorney General which has impressed us most is one resulting from the use by the mills of the hydraulic process as distinguished from the open pan process employed by khandsari units for the production of sugar.
The consequence is the recovery of sugar from sugarcane in the case of khandsari units run by power crushers is between 4 to 6 per cent whereas in the case of sugar factories it ranges between 9 1/2 to 11 1/2 per cent.
Thus, the overall position is that the utilisation of sugarcane by the mills is double that by the crushers and if the crushers are not able to produce more than the existing 4 to 6 per cent, half of the total quantity of sugarcane supplied to them goes waste which, if utilised by the factories, would have served for production of more sugar.
This solid distinction between the two processes of manufacture followed by the mills and the crushers is, in our opinion, a very rational distinction which puts the mills in a different class and which also provides a reasonable nexus between the restrictions imposed on the crushers and the object sought to be achieved.
The petitioner sought to falsify the figures quoted by the Union of India regarding the percentage of recovery of sugar by reference to a book written by Mr. Bepin Behari, and entitled `Rural Industrialization in India '.
On page 100 of the book, the author has observed as follows : "Originally, the percentage of recovery in traditional khandsari units did not go beyond 6.5 per cent, but recent innovations have raised the recovery ratio to almost 9.5 per cent.
Thereby the two processes have become almost commutative.
In inversion loss, however, there is some difference.
In the large scale sugar mills, only ten per cent of the sugar is lost while in small khandsari plants the loss can be as much as 30 per cent." and great reliance has been placed on these observations of the author.
It may be noted, however, that the author has not cited any expert opinion as the foundation for his conclusion nor has he referred to any experiment carried out by him personally.
In fact he has not even disclosed the source of his information.
Apart from that the book fully supports the averments of the respondents that the percentage of recovery in traditional khandsari units did not go beyond 6.5 per cent.
Besides, there is no evidence or allegation in any of the affidavits filed by the petitioners to the effect that any new methodo 118 logy or innovation was adopted by any of the petitioners.
In these circumstances, the extract from the book does not appear to be of any assistance to the petitioners.
On the other hand, the facts detailed by the respondents in the various counter affidavits filed by them are based on the statistics maintained by the Government from year to year and reports of experts.
One such report entitled `studies on Specific Conductances of Indian Sugar ' has been filed by the State before us and it gives the entire history and economics of sugar production.
After a careful consideration of the arguments and documents produced by both the parties we are satisfied that the restriction imposed by the impugned notification in stopping the crushers for the period 10th October to 1st December 1980 is in public interest and bears a reasonable nexus to the object which is sought to be achieved, namely, to reduce shortage of sugar and ensure a more equitable distribution of this commodity.
One of the tests that has been laid down to determine the reasonableness of a restriction is to find out if the restraint is more excessive than that warranted by the situation.
In the instant case, taken an overall picture of the history of sugar production it cannot be said that the stoppage of sugar crushers for a short period is more excessive than the situation demanded.
In Madhya Bharat Cotton Association Ltd. vs Union of India & Anr.(1) while considering a restriction imposed for a short time, this Court observed as follows : "Further, cotton being a commodity essential to the life of the community, it is reasonable to have restriction which may, in certain circumstances, extend to total prohibition for a time, of all normal trading in the commodity.
Accordingly, we are of opinion that Clause 4 of the Cotton Control Order of 1950 does not offend article 19 (1) (g) of the Constitution because sub clause (5) validates it." (Emphasis supplied) In that case the restriction imposed on cotton was for a short period of one month in February 1954 and for another month in May 1954; and was held to be justified and a reasonable restraint so 119 as not to be violative of Art 19 (1) (g).
The situation here is similar.
Afterall, the petitioners were working their crushers under a licence granted to them under the Licensing Order and the impugned notification merely seeks to regulate the right and not to abolish the same.
For the above reasons the first contention put forward by the petitioners that the restrictions imposed by the impugned notification are unreasonable is hereby overruled and it is held that such restrictions clearly contain the quality of reasonableness and when tested on the touchstone of the principles laid down by the various authorities referred to above, they fully satisfy all the requirements of a reasonable restriction.
This takes us to contention No. 2 raised by the petitioners.
It was submitted before us that clause 8 of the Control Order under which the impugned notification has been issued suffers from the vice of excessive delegation of powers and is, therefore, violative of article 14 of the Constitution.
It was argued that as the notification seeks to establish a monopoly in favour of the sugar mills at the cost of the petitioners it seeks to make per se an invidious discrimination which is writ large on the very face of the notification which is, therefore violative of article 14.
As regards first limb of the argument it may be necessary to state that the Control Order itself has been passed under the authority of s.3 of the Act of 1955 which has been held by this Court to be constitutionally valid and is not in any way discriminatory so as to attract article 14.
The Control Order itself having been passed under s.3 contains sufficient guidelines, checks and balances to prevent any misuse or abuse of the power conferred on the authorities concerned under clause 8.
Clause 8 runs thus: "8.
Power to issue directions to producers of khandsari, sugar, power crushers, khandsari units, crushers and cooperative societies.
The Central Government may, from time to time, by general or special order, issue directions to any producer of khandsari sugar or owner of a power crusher, khandsari unit or crusher or the agent of such producer or owner or a cooperative society regarding the purchase of sugar or sugarcane juice, production, maintenance of stocks, storage, price, packing, payment disposal, delivery and distribution of sugar cane, gur gul, jaggery and rab or khandsari sugar or the period or hours to be worked.
" 120 To begin with it may be noticed that the power to issue orders or directions from time to time is conferred on the Central Government which is undoubtedly a very high authority and must be presumed to act in a just and reasonable manner.
This point is well settled and concluded by several decisions of this Court as detailed below.
In Chinta Lingam & Ors.
vs Government of India Ors.
, (1) this Court made the following observations: "At any rate, it has been pointed out in more than one decision of this Court that when the power has to exercised by one of the 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.
" This case was followed in V. C. Shukla vs State (Delhi Admn.)(2) where one of us (Fazal Ali, J.) speaking for the Court observed as follows : "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." Moreover, the power cannot be said to be arbitrary or unguided because the impugned notification derives its source from section 3 of the Act of 1955 which clearly lays down sufficient guidelines and the existence of certain conditions for proper distribution of an essential commodity.
The said guidelines therefore, govern the authority passing the impugned notification.
Secondly, clause 8 merely seeks to regulate and guide the conditions and the circumstances under which the manufacturers may exercise their rights.
In other words, any order passed under clause 8 is prima facie purely of a regulatory nature.
It was, however, submitted that the Notification has been passed by the Cane Commissioner, Government of U.P. and it does not contain any materials 121 or reasons why the ban was imposed on the crushers owned by the petitioners.
As the Notification itself has been passed under clause 8 of the Control Order read with Government of India G.S.R. No. 1122 dated July 16, 1966 and under the it was not necessary for the Cane Commissioner to have stated or detailed the reasons why the Notification was issued.
In fact, the Notification and the Control Order have to be read in the light of the main Act, viz., the Act of 1955, which itself provides the necessary guide lines, namely, that it is essential in public interest and to secure proper distribution of an essential commodity to pass orders by various authorities from time to time.
This is the scheme of section 3 of the Act of 1955 which has not been challenged before us by the petitioners.
It was further argued in the same token that the impugned notification seeks to establish a monopoly in favour of the sugar mills at the cost of the petitioners who have been selected for hostile discrimination as against the mills.
While detailing and narrating the facts and the history of sugar production we have already shown that the State has placed cogent materials before us to show why the sugar mills had to be given a special treatment by temporarily stopping the production of sugar by the crushers.
We have already dealt with the various factors while examining contention No. 1 of the petitioners and it is not necessary for us to repeat the same here.
There was no question of creating any monopoly to benefit the mills particularly when a very large majority of the mills were controlled by the State or cooperative societies and only a small fraction of them were working in the private sector.
In view of the low working cost of the crushers they sought to outcompete the mills and deprive them of the requisite amount of sugarcane which they should have got.
It was not only just but also essential to boost the production of the factories so that white sugar may be produced on a large scale and sugarcane may not be wasted which would have been the case if most of the sugar cane went to the crushers.
We have pointed out that the recovery of sugarcane juice by the mills is double that by crushers, and if the latter were allowed to operate the wastage of the sugarcane would have been almost 50 per cent which could have been avoided if sugar cane was allowed to be utilised by the mills.
The third limb of the argument on this point was that there was was no rational nexus between the prohibition contained in the Notification preventing the petitioners from working their crushers, even though for a short period, and the object sought to be achieved by it.
This contention also must necessarily fail as we have already shown that such nexus existed.
122 It was argued by Mr. Garg that as India lives in villages it was not understandable why the Central Government was bent on reducing the support price of sugarcane and thus causing loss to the sugarcane growers.
It was true that the mills were not in a position to pay as high a price for sugarcane as the crushers but that was for so many reasons which we have discussed above, namely, the various liabilities which were imposed on the mills, e.g., the excise duties, the levy, etc.
Once a certain amount of stability was achieved in the sugarcane industry, the ultimate benefit would undoubtedly go to the sugarcane grower even though he may have to be paid a lesser support for supply of sugarcane to the mills.
It was, therefore, in public interest that a lesser support price for sugarcane had been fixed.
Moreover, it was for the Central Government who was in the know of the circumstances prevailing in the State or for that matter in the country to determine the support price of sugarcane.
Even though the crushers may have paid a higher price, in the long run, the sufferers would be the sugarcane growers as also the consumers who would be deprived of the sugar produced by the mills which was undoubtedly superior to the khandsari sugar and has a vaster area of consumption in the country and is also meant for purposes of export.
The report entitled 'Studies on Specific Conductances of Indian Sugar ' referred to above, details the distinctive features of the white sugar produced by the mills and the khandsari sugar where the various features of the nature and character of sugar are pointed out thus.
"This plantation sugar is crystalline, white lustrous and has a purity of 99.8 per cent.
The size of the crystal of this sugar varies from 0.3 to 2.5mm.
This sugar is graded according to the Indian sugar standards: Sugar corresponding to 30A is very white sugar with grain size of about 2.5mm.
While 27 E refers to less white sugar with grain size of about 0.4 mm.
The numeral 30, 29 and 27 indicate the decreasing order of the whiteness of the sugars and the letters A E to the grade of the grain size Apart from these sugars produced in well established commercial factories, the similar type of which are known in other countries, another kind of sugar produced perhaps only in India and nowhere else, is the khandsari sugar which is being manufactured in small scale industrial units While, in the sulphitation factories the classified sugar syrups are boiled under vacuum, in Khandsari units the same is carried out in the open pans.
This sugar used to be palish yellow in colour 123 Nagaranjars and his co workers studied the conductivity of plantation white sugars and refined sugars and found distinctive difference in conductivity of plantation white sugar and refined sugar.
" It has been clearly averred in para 15 of the counter affidavit filed by Mr. Bhola Nath Tiwari, Cane Commissioner, Government of U.P. (who issued the impugned notification) that in year 1978 79 the production in the reserved areas was 578.78 lakh tonnes out of which the percentage of cane utilised by the sugar mills was 27.24 whereas it was 9.73% in the case of the khandsari manufactured by power crushers.
It is also stated that out of the total quantity of sugarcane only 45.23 per cent was utilised by gur manufacturers and the remaining 17.5 per cent was used for seed, feed and chewing purposes etc.
Similarly, in the year 1979 80 there was a steep fall in the production of sugarcane from 578.78 lakh tonnes in the previous year to 471.11 lakh tonnes.
Owing to this loss of production, there was keen competition for purchase of sugarcane between the sugar mill owners and the khandsari units.
As a result of this unhealthy competition sugar mills had to close down prematurely resulting in the loss of production of sugar.
A very attractive argument was submitted before us by Mr. Gupta, appearing for some of the owners of power crushers.
It was submitted that so far as the petitioners represented by him were concerned, they were growing sugarcane in their own fields and had installed power crushers in their own land though the said land fell within the reserved area.
It was argued that these petitioners fell in a separate category and the Government could not compel them to supply sugarcane to the mills instead of using the sugarcane grown by them in their own crushers.
An apparent snag in this argument is that if in the larger public interest it becomes necessary to compel the sugarcane growers to supply sugarcane to the mills at a particular rate in order to meet a national crisis, no person can be heard to say that his rights are taken away in an unjust or discriminatory fashion.
Personal or individual interests must yield to the larger interests of the community.
This is exactly the philosophy behind the passing of the Act of 1955.
Merely because the petitioners are growing sugarcane in their own fields and own power crushers, therefore, they cannot be treated as a class separate from the others owners of power crushers situated within the reserved area of the the mills.
124 Secondly, it was argued by Mr. Gupta and, in our opinion, rightly that the impugned notification is ex facie discriminatory inasmuch as it differentiates between vertical and horizontal power crushers without any rhyme or reason.
He submitted that no rational basis has been suggested by the State for making the distinction when both types of crushers produce almost the same quantity of khandsari and apply the same mechanical process (open pan process).
What difference does it make, says Mr. Gupta, if a power crusher is vertical or horizontal ? In the case of a horizontal power crusher rollers are in a horizontal line situated on the surface whereas in the vertical power crusher the rollers instead of being on the surface are in a vertical position without there being any difference in the working of the two crushers.
We are of the opinion that this argument of Mr. Gupta is sound and must prevail.
The Additional Advocate General, U.P. sought to draw several distinctions between a vertical power crusher and a horizontal one, namely, (1) a vertical power crusher can crush 1500 quintals of sugarcane per month whereas a horizontal one crushes 5600 quintals of the commodity in the same period; (2) vertical power crushers are non commercial and fall within the category of cottage industry whereas horizontal power crushers are included in the category of small scale industry; (3) vertical power crushers are run by their owners them selves and draw supplies from sugarcane growers and (4) vertical power crusher do not require any licence.
So far as the last part of the argument of the Additional Advocate General of U.P. that vertical power crushers do not require a licence is concerned, it is factually wrong because all such crushers require a licence by virtue of the Orders passed by the Central Government under s.3 of the Act of 1955.
Regarding the other distinctive features the mere ipse dixit of deponent Gupta who has sworn an affidavit, there is absolutely no documentary evidence to support the features pointed out or relied upon by the Additional Advocate General.
In these circumstances, it has not been proved to our satisfaction that there is any real distinction between a vertical and a horizontal power crusher, and we regard both as falling in the same class.
The notification by exempting vertical power crushers and prohibiting horizontal power crushers is clearly discriminatory and the discrimination is not justified by any rational nexus between the prohibition and the object sought to de achieved.
In these circumstances, therefore, we hold that in so far as the word 'vertical ' used in the impugned Notification is concerned it must be struck down as being violative of article 14.
This, however, 125 does not render the entire notification void because the word 'vertical ' used in the notification is clearly severable from the other portions of the notification.
All that has to be done is to read the notification without the the word 'Vertical ' as a result of which the exemptions from ban will include all owners of power crushers (whether vertical or horizontal) which manufacture gur or rab from sugarcane grown on their fields.
Again, as the notification has al ready spent its force, if any order is passed in future, the Government will see to it that such an invidious discrimination is not repeated.
We now come to contention No.4 by which it was urged that the express language of clause 8 of the Control Order does not contemplate a complete prohibition of the production of an article but envisages mere regulation of the period or hours of working.
It was argued that the words 'period or hours ' used in clause 8 are relatable only to the number of actual hours in a day for which the crushers may be permitted to work from time to time and not a complete stoppage or prohibition of the crushers for a period of a month or two.
Clause 8, as extracted supra, uses the words 'period or hours to be worked. ' A plain reading of this expression clearly reveals that the words 'period ' and 'hours ' have been used to connote two different aspects of the matter.
In other words, clause 8 contemplates regulation of working of the sugar by two separate methods (1) where only hours of work per day are to be regulated or fixed, for instance, where a crusher normally works for 10 hours, a notification under this clause may provide that it should work only for 8 hours or 6 hours or 10 hours a day or for a number of days.
(2) The word 'period ' however, has nothing to do with the hours to be worked but it refers to another category of regulation viz., whether a crusher is to run or not for a particular period of time.
We are unable to agree with the contention of Mr. Garg that the two words must be taken to have been used in clause 8 in the same sense.
In fact, this interpretation of the words will cause violence to the language of the statutory provision and instead of advancing its object it would frustrate the purpose which clause 8 seeks to subserve.
In the instant case, the notification has resorted to the first category, viz., the period of the working of the crushers, that is to say, about one and a half month, and has not at all touched or impinged upon the working hours of the crushers.
If, however, the notification had fixed certain hours of the day during which only the crushers could work, then the notification would have resorted to the alternative mode of regulation, which obviously has not been done in this case We are unable to agree with the contention put forward by Mr. 126 Garg and hold that the impugned notification is wholly consistent with the provisions contained in clause 8 of the Control Order.
Contention Nos. 5, 6 and 7 relate to the objection taken by the petitioners to the validity of the impugned notification on several grounds.
In regard to contention No. 5, the notification has been attacked on the ground that the Central Order violates the principles of natural justice inasmuch as it was passed without hearing the petitioners whose valuable rights were involved and their trade was stopped and they were put completely out of production even though for a short period of about one and a half month.
It was contended that though clause 8 does not expressly provide for a hearing yet even if it be considered to be an administrative order, the rule of audi alteram partem fully applies and the Cane Commissioner should have passed the impugned notification only after hearing the petitioners.
Reliance was placed for this proposition on a large number of authorities.
It is true that with the growth of law in our country, this Court has consistently held for the last few years that the rules of natural justice must apply even to an administrative order unless the same are expressly excluded.
Mr. Garg as also other counsel for the petitioners submitted that the mere fact that there is no express provision in clause 8 for hearing the petitioners before imposing any restrictions on their business provides good reason to hold that the right to be heard was inherent in the very act of prohibition since the stoppage of the business of the petitioners would entail civil consequences.
Thus, they argued, as no hearing was given to the petitioners, the notification was void and inoperative.
Reliance was placed on the observations of Krishna Iyer, J., in Mohinder Singh Gill & Anr.
vs The Chief Election Commissioner, New Delhi & Ors.
( ') which may be extracted thus: "Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation administration and adjudication, to make fairness a creed of life.
It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of Authority.
It is the bone of healthy government, recognised from earliest times and not a mystic testament of judge made law The dichotomy between administrative and quasi judicial functions vis a vis the doctrine of natural justice is presumably 127 Obsolescent after Kraipak in India and Schmidt in England. .
The procedural pre condition of fair hearing, however minimal, even post decisional, has relevance to administrative and judicial gentlemanliness.
The Election Commission is an institution of central importance and enjoys far reaching powers and the greater the power to affect others ' right or liabilities the more necessary the need to hear. .
We consider it a valid point to insist on observance of natural justice in the area of administrative decision making so as to avoid the devaluation of this principle by administrators already alarmingly insensitive to the rationale of audi alteram partem !" Strong reliance was also placed on the observations of this Court in Maneka Gandhi vs U. O. I.( ') where Bhagwati, J., after full discussion of the entire subject, observed thus: "The law must, therefore now be taken to be well settled that even in an administrative proceeding which involves civil consequences, the doctrine of natural justice must be held to be applicable.
" Similarly, in a very recent case section L. Kapoor vs Jagmohan(2) this Court had taken an opportunity to emphasis the importance of rules of natural justice and reiterated as follows: "The old distinction between a judicial act and an administrative act has withered away and we have been liberated from the psittacine incantation of "administrative action".
Now from the time of the decision of this Court in State of Orissa vs Dr. (Miss) Binapani Dei ; , even an administrative order which involves civil consequences. must be made consistently with the rules of natural justice.
" A number of other decisions were also cited on the question of natural justice and we agree with the propositions adumbrated by 128 Mr. Garg that normally where an administrative order adversely affects the valuable rights of the party affected, a reasonable opportunity of hearing must be given to the person affected.
The instant case, however, contains two prominent features which exclude the rules of natural justice.
Section 3 of the Act of 1955 under which the Control Order was passed really covers an emergent situation so as to meet a national crisis involving the availability or distribution of any essential commodity which may make it necessary to restrict or control the business carried on by a citizen.
It has already been pointed out by us while discussing the case of the respondent that there was an acute shortage of sugar which was not made available to consumers at reasonable rates and the situation caused serious dissatisfaction among the people.
Nothing short of immediate and emergent measures taken to solve this crisis would have eased out the situation.
We are fortified in this opinion by a Constitution Bench decision of this Court in Prag Ice and Oil Mills and Anr.
vs U. O. I.( ') where Chandrachud, C. J. observed as follows: "The dominant purpose of these provisions is to ensure the availability of essential commodities to the consumers at a fair price.
And though patent injustice to the producer is not to be encouraged, a reasonable return on investment or a reasonable rate of profit is not the sine qua non of the validity of action taken in furtherance of the powers conferred by section 3 (1) and section 3 (2) (c) of the .
The interest of the consumer has to be kept in the forefront and the prime consideration that an essential commodity ought to be made available to the common man at a fair price must rank in priority over every other consideration.
" If hearing was to be given to so many owners of power crushers, it would have completely defeated and frustrated the very object not only of the Notification but also of the Act of 1955 and created complications which may have resulted in a further deterioration of an already serious situation.
If the rules of natural justice were not applied in such an emergent case, the petitioners cannot be heard to complain.
Afterall the notification directed stoppage of operation of the petitioners ' crushers only for a very short period and they would have had an opportunity of recouping their loss after they were allowed to function because the proportion of consumption of khandsari sugar was limited as indicated 129 above.
The petitioners were, therefore, not seriously prejudiced and have rushed to this Court rather prematurely.
The Attorney General had, however, a much more effective answer to the contention raised by Mr. Garg on this point.
It was submitted by the Attorney General that having regard to the circumstances, the background and the situation in which the impugned notification was issued under clause 8 of the Control Order, it had a statutory complexion and should be regarded as purely legislative in character.
He added that no one had ever argued that before passing a legislation, the persons affected by the legislation should he heard, and that therefore, the question of hearing or complying with the rules of natural justice would not arise.
The Attorney General placed reliance on a decision of this Court in Saraswati Industrial Syndicate Ltd. etc.
(supra) and particularly on the following observations made by Beg, J., "Price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material.
It could not, therefore, give rise to a complaint that a rule of natural justice has not been followed in fixing the price.
Nevertheless, the criterion adopted must be reasonable.
Reasonableness, for purposes of judging whether there was an "excess of power" or an "arbitrary" exercise of it, is really the demonstration of a reasonable nexus between the matters which are taken into account in exercising a power and the purposes of exercise of that power.
(Emphasis ours) Having regard to the facts in the instant case, a temporary ban on power crushers of a particular type was a measure governed by same, if not higher, considerations as an order of fixation of price.
The las tmentioned case is an authority for the proposition that an order like the impugned notification is a legislative measure.
That being the position, the rules of natural justice stand completely excluded and no question of hearing arises.
Mr. Garg, however, submitted that in that case the petitioner did not urge that the price fixation required a quasi judicial procedure.
Even so, the Court clearly decided that a measure like the one we have in the instant case is purely of a legislative character and there is no question of complying with the rules of natural justice in such cases.
130 In Chairman Board of Mining Examination and Anr.
vs Ramjee( ') Krishna Iyer, J. speaking for the Court, pointed out that there may be cases where rules of natural justice can be dispensed with.
In this connection he observed as follows: "Natural justice is no unruly horse, no lurking land mine nor a judicial cure all.
If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice, can be complained of.
Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating." (Emphasis supplied) In Joseph Beauharnais vs People of the State of IIIinois(2) the following observations were made which are apposite to the facts of the present case : "This being so, it would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some explicit limitation on the State 's power.
That the legislative remedy might not in practice mitigate the evil, or might itself raise new problems, would only manifest once more the paradox of reform.
It is the price to be paid for the trial and error inherent in legislative efforts to deal with obstinate social issues.
" The passing of the notification in the instant case was an act of a legislative character and was really a trial and error method adopted to deal with a very serious social problem.
In Bates vs Lord Halsham of St. Marlebone and Ors.(3) under similar circumstances a statutory committee had made an order in relation to powers to licence hackney carriages.
Commenting on this provision Megarry, J. Observed as follows: "In the present case, the committee in question has an entirely different function: it is legislative rather than administrative or executive.
The function of the committee is to make or refuse 131 to make a legislative instrument under delegated powers.
The order, when made, will lay down the remuneration for solicitors generally; and the terms of the order will have to be considered and construed and applied in number less cases in the future.
Many of those affected by delegated legislation, and affected very substantially are never consulted in the process of enacting that legislation, and yet they have no remedy.
" For the reasons aforesaid we find ourselves in complete agreement with the argument of the Attorney General that the impugned notification having been passed to effectuate the object or ideal to be achieved in order to solve a national crisis cannot but be considered a legislative measure so as to exclude rules of natural justice.
The contention raised by the petitioners on this ground is, therefore, overruled.
In contention No. 6 another infirmity pointed out by the learned counsel for the petitioners was that the impugned notification is clearly violative of clause 11 of the Control Order itself because the prohibition against the working of the power crushers even for a short period amounted to a partial revocation of the licences granted to the petitioners under clause 3 of the Licensing Order.
In order to appreciate this contention it is necessary to extract clause 11 (2) of the Control Order which runs: "(2) Where all or any of the powers conferred upon the Central Government by this Order have been delegated in pursuance of sub clause (I) (b) to any officer or any authority of a State Government, every Order or direction issued by such officer or authority in exercise of that power may be amended, varied or rescinded by the State Government to whom the officer or authority is subordinate either suo motu, or on an application made within a period of thirty days from the date of the order or direction.
Provided that no order revoking a licence or permit issued to a person shall be made without giving such person an opportunity to make representation.
" Reliance was particularly placed on the proviso extracted above.
It was contended that even a temporary suspension of the operation of power crushers amounted to a partial revocation of the licence granted to the petitioners and that therefore it was incumbent on the authorities concerned to give the petitioners an opportunity of being 132 heard and making a representation before such revocation took effect.
The Attorney General rightly pointed out that neither subclause (2) nor the proviso thereto is attracted in the instant case.
It is true that the petitioners got licences under the Licensing Order which was also passed under the Act of 1955.
A revocation of a licence means that the licence has not been suspended but cancelled for all times to come entailing civil consequences and complete abolition of the right for the exercise of which the licence was granted.
A temporary suspension of the working of the crushers owned by the petitioners cannot amount to a revocation, either complete or partial.
In fact, in our opinion, the proviso to sub clause (2) of clause 11 of the Control Order does not at all envisage a partial or periodical revocation of a licence.
The proviso would come into play only if a licence is revoked or cancelled once for all.
Since a revocation or cancellation of the licence would operate to the serious prejudice of the licensee and affect him adversely, it was considered necessary and expedient to give him a hearing.
We are fully satisfied that the impugned notification does not attract the conditions laid down in the proviso so as to confer upon the petitioners a right of hearing.
The proviso is, therefore, wholly inapplicable to the facts of the present case.
It was further submitted by the counsel for the petitioners that even if clause 11 did not apply because the notification is of a legislative character a hearing would have removed the apprehensions of the petitioners.
This argument has no substance because once it is held that the notification is impressed with a legislative character, the question of hearing does not arise.
It may be true that despite the fact that there is no necessity of hearing, the Government could have evolved some method of giving a very short notice to the Association and taking its views.
But the omission to do so would not vitiate the notification impugned.
It is well settled that possibility of an alternative scheme which might have been but has not been designed, would not be sufficient to make a restriction unreasonable.
In State of Maharashtra vs Mumbai Upnagar Gramodyog Sangh(1) this Court observed as follows: "The legislature has designed a scheme by which reasonable restrictions are placed upon the right of a citizen to dispose of his property: possibility of an alternative scheme which might have been but has not been designed, will not justifiably expose 133 the first scheme to the attack that it imposes unreasonable restrictions.
" Lastly, on contention No. 7 it was urged that the impugned notification, which purports to have been passed under the Control Order (which itself was a subordinate legislation passed under s.3 of the Act of 1955) if properly considered along with the serious mis chief it causes to the citizens, goes against the very spirit and object of the Act of 1955 and frustrates the equitable distribution and production of sugar which apparently seems to be the main object sought to be achieved.
This argument has already been considered by us when we dealt with the various facts and materials produced before us to justify the impugned notification.
We have already pointed out that in view of an extraordinary situation viz., the sugar famine and the increasing demand of sugar by the consumers, the interests of the consumers had to rank above all considerations.
The notification, as stated by us earlier strikes a just balance between the needs of the consumers and the harm which may be done to the owners of the crushers.
The degree and urgency of the evil sought to be remedied by a social control is the purport and the central theme of the impugned notification.
Having regard to the various aspects which we have indicated above, it cannot be argued with any show of force that the remedy sought by the notification is in any way arbitrary or excessive.
On the other hand, the report of the experts, stoppage of the production of sugar by the factories, the drought conditions and other factors have to enter into the decision of the Government in passing the impugned notification.
The notification ex facie cannot be said to have been passed without due care and deliberation.
Relevant portion of Section 3 of the Act of 1955 runs thus: "3.
(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices.
(or for securing any essential commodity for the defence of India or the efficient conduct of military operations) it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
" The impugned notification having been passed under s.3 of the Act, it fulfils all the conditions contained therein, viz., it is expedient for maintaining or increasing the supply of an essential commodity namely, sugar, which is included in clause (e) of s.2 of the Act of 134 1955 and it regulates the supply and distribution of that essential commodity and the trade and commerce therein.
Having regard, therefore, to the facts and circumstances proved in this case, it cannot be said that either the Control Order or the the impugned notification is against the tenor and spirit of section 3.
On the other hand, it is manifestly clear from the circumstances disclosed above that it is in pursuance of the aim and object for which s.3 was enshrined in the Act of 1955 that the Control Order and the notification were promulgated.
The contention of the learned counsel for the petitioners on this score is accordingly overruled.
Mr. Rameshwar Dayal, appearing for some of the petitioners raised a novel argument which was to the effect that not only the notification impugned but also the Control Order was violative of article 14 of the Constitution.
It was contended that since the State had already fixed reserved areas for the factories, the selection of khandsari units for banning or stopping their production amounted to a mini classification without any rational basis.
We are, however, unable to accept this contention because in view of the various circumstances discussed above, the classification, if at all, was based on a reasonable nexus with the object sought to be achieved by the notification.
Certain other aspects were also raised by Mr. Dayal which amount to almost a repetition of the main arguments placed before us by Mr. Garg and the counsel following him.
Thus, on an overall consideration of the various aspects of the matter we are fully satisfied that applying the well established tests of reasonableness, the impugned notification cannot be said to contain the quality of unreasonableness but is per se fair and reasonable and fully satisfies the conditions laid down by this Court in determining whether or not a restriction is reasonable.
Before closing the judgment we would like to lay down certain guidelines for any future policy that the Government may consider fit to shape in the light of the discussion on the points raised before us in this case.
In fact, both counsel for the petitioners and the Attorney General had requested us to lay down certain guidelines so that the Government may benefit from the same.
Although we have upheld the impugned notification but having regard to the special features of the present case we are not quite satisfied that a better policy to control sugar or increase its production could not be followed which may satisfy the parties concerned, viz., the crushers, the mills, the sugarcane growers and the consumers.
135 In case the Government decides to impose a ban in future on the power crushers or other units, it may consider the desirability of giving a bare minimum hearing not to all the owners of khandsari units but to only one representative of the Association representing them all, and getting their views on the subject.
It is possible that they might give some suggestions which the Government would like to incorporate in formulating its policy.
Even if the Government thinks that an emergent situation has arisen and it may not be possible to give a hearing, atleast a representation against the proposed action may be called for from such Association and considered after giving the shortest possible notice.
Not that such action is a legal requirement but it will generate greater confidence of the persons who may be affected by any order to be passed against them.
In the same token, we may mention that when in passing an order like the impugned one, the Government has adopted the trial and error method, it would be in the fitness of things if the matter is carried to its logical end so that any future order passed contains the colour and quality of objectivity.
Secondly, could it not be possible for the Government to allow the crushers to function by regulating the working hours or to fix a quota of sugarcane to be delivered to the mills and the crushers in the ratio of 60:40 or 70:30, as may be advised by the experts and to insist that both the crushers and the mills should pay a uniform price to the cane growers ? The counsel for the petitioners have brought to our notice a disturbing element in the entire case which is that in the past although the sugarcane growers supplied sugarcane on condition of payment to them of the support price fixed.
by the Government yet the mills did not pay the price to the cane growers for a long time with the result that arrears accumulate running into lakhs of rupees.
It would indeed be extremely desirable for the Government to take steps to see that payment of the price of the quantity of the cane supplied to the mills or the crushers is paid against delivery or, at any rate, within a reasonable time thereafter so as to provide a strong incentive to the farmers to increase their production and earn substantial profits by supplying the sugarcane to mills or crushers during the crushing season (October to May).
Lastly, it was represented to us by the petitioners that the crushers are used for the twin purpose of production of khandsari sugar and gur, rab, etc., but as the crushers are sealed by the officers of the Government, the owners are not in a position to produce 136 even gur or rab on the production of which not only no ban has been imposed by the impugned notification but the same has been completely exempted from the purview of the notification.
Thus it was asserted that the owners of crushers who want to switch over to production of gur or rab, because of the ban imposed by the Government on the production of khandsari may be allowed to do so.
The Attorney General, however, pointed out that if this course is adopted it will be difficult to detect as to how many crushers are producing khandsari sugar in the garb of gur or rab.
Wherever any step for banning production is taken, the Government has to evolve some procedure to detect the defaulters and with the resources at its command, we cannot understand why a special staff cannot be appointed on a temporary basis for looking after the compliance of the order by the "crushers and making surprise checks periodically.
Another method to prevent the abuse of the privilege of production of gur or rab by producing khandsari in a clandestine fashion may be to insert a condition in the licences of the manufacturers of khandsari sugar that if they produce khandsari during the period of the ban their licences would be cancelled.
The result is that all the contentions raised by the petitioners except the one raised by Mr. Gupta that the introduction of the word 'vertical ' was violative of article 14 of the Constitution are rejected.
The word 'vertical ' must be considered to have been deleted from the impugned notification.
Since the impugned notification has already spent its force.
no relief can be given even to the petitioners represented by Mr. Gupta.
But, in future the Government will bear in mind the infirmity pointed out.
The petitions, along with the Civil Appeal, are accordingly dismissed but in the circumstances without any order as to costs.
N.V.K. Petitions and Appeal dismissed.
| IN-Abs | In the State of Uttar Pradesh, sugarcane was produced by the sugar mills through the 'hydraulic process ' and by the power crushers through the 'open pan process '.
Both the mills as also the crushers drew their raw material, namely sugarcane from sugarcane growers.
In order to facilitate production by the sugar mills, most of which were controlled by the State, reserved area of the fields growing sugarcane was fixed through out the State.
With a view to removing nation wide shortage of sugar, enhancing sugar production and achieving an equitable distribution of the commodity so as to make it available to consumers at reasonable rates, the Cane Commissioner in exercise of the powers conferred under clause (8) of the Sugarcane (Control) Order, 1966 issued a notification dated 9th October, 1980 which directed that no power crusher other than vertical power crushers manufacturing gur or rab from sugarcane grown on their own fields or a Khandsari unit or any agent of such owner in the reserved area of a mill could be worked until December 1, 1980.
The petitioners who were owners of power crushers of Khandsari units and had taken out regular licences under the Uttar Pradesh Khandsari Sugar Manufacturers Licensing Order 1967, assailed the notification which limited the ban to work power crushers for a period of one month and a half i.e. from October 9. 1980 to December 1, 1980 in writ petitions to this Court.
They contended: (1) The notification, as also the Control Order under which it was passed are violative of Article 19(1)(g) and the restrictions contained therein do not contain the quality of reasonableness.
(2) Clause 8 of the Control Order under which the notification had been issued suffers from the vice of excessive delegation of powers and is, therefore, violative of Article 14 of the Constitution.
The Notification seeks to establish a monopoly in favour of the sugar mills at the cost of the petitioners, and must be struck down as being violative of Article 14.
(3) There is no rational nexus between the prohibition contained in the Notification preventing the crushers of petitioners from working them and the object sought to be achieved by it.
(4) Clause 8 of the Control Order does not contemplate a complete prohibition of the production of an article but envisages only a regulation of the period of hours of working.
(5) The Notification violates the principles of natural justice inasmuch as it was passed without hearing the petitioners whose rights were curtailed as they were put completely out of production.
(6) The impugned Notification by imposing a prohibition against the working of the power crushers amounts to a partial revocation of the licences granted to the petitioners under clause 3 of the 93 Licensing Order and is, therefore violative of clause 11.
(7) The impugned Notification goes against the very spirit and object of the Act of 1955 and in fact, frustrates the equal distribution and production of sugar which was the objective of the Notification.
On behalf of the respondent State it was submitted that: (1) An order passed under clause 8 of the Control Order is of a legislative character and therefore the question of the application of the principles of natural justice, does not arise.
(2) The notification does not violate Article 14 or Article 19 because it is in public interest and aimed at maintaining and securing proper and equitable distribution of sugar.
(3) The Notification is justified by the fact that the recovery of sugar from sugarcane in case of Khandsari units run by power crushers is between 4 to 6 per cent whereas in the case of sugar factories it ranges between 9 1/2 to 11 1/2 per cent, so that utilisation of sugarcane in the case of mills is double of that of the power crusher.
(4) The Khandsari produced by the crushers has got a very narrow sphere of consumption as it is used mostly by halwais or villagers, whereas sugar produced by the sugar mills is consumed in far larger quantities by the public.
The action taken in order to protect national interest and distribution of sugar to the entire country on rational basis cannot be said to be an unreasonable restriction.
(5) There is a marked difference between the quality of Khandsari and that of sugar produced by the mills in their character, specification, etc.
(6) The question of natural justice does not arise because the crusher owners were fully aware of the situation and had also knowledge of the considerations which prevailed with the Government in stopping crushers for a short period in order to boost production by the sugar mills and fix support price for the sugarcane supplied to the mills.
(7) Clause 8 of the Control Order uses the words period or working hours ' which are wide enough to embrace within their ambit a fixed period of time covering more than a day as also hours of work on any working day.
Dismissing the writ petitions and appeals, ^ HELD: The impugned Notification cannot be said to contain the quality of unreasonableness but is per se fair and reasonable.
In so far as the word 'vertical ' used in the Notification is concerned, it must be struck down as being violative of Article 14.
This, however, does not render the entire Notification void because the word 'vertical ' is clearly severable from the other portions of the Notification.
All that has to be done is to read the Notification void because the word 'vertical ' as a result of which the exemptions from the ban will include all owners of power crushers whether vertical or horizontal which manufacture Gur or rab from sugarcane grown on their fields.
As the Notification has already spent its force, if any order is passed in future, the Government will see that such an invidious discrimination is not repeated.
[134F; 124H 125B] 1(i) Where a citizen complains of the violation of fundamental rights contained in any of sub clauses (a) to (g) of Article 19 the onus is on the State to prove or justify that the restraint or restrictions imposed on the fundamental rights under clauses 2 to 6 of the Article are reasonable.
[104 C] Saghir Ahmed vs The State of U.P. and Ors.
; and Mohammed Faruk vs State of Madhya Pradesh and Ors.
94 (ii) Fundamental rights enshrined in Part III of the Constitution are neither absolute nor unlimited but are subject to reasonable restrictions which may be imposed by the State in public interest under clauses 2 to 6 of Article 19.
What are reasonable restrictions would naturally depend on the nature and circumstances of the case, the character of the statute, the object which it seeks to serve, the existing circumstances, the extent of the evil sought to be remedied as also the nature of restraint or restriction placed on the rights of the citizen.
No hard or fast rule of universal application can be laid down, but if the restriction imposed appear to be consistent with the Directive Principles of State Policy they would have to be upheld as the same would be in public interest and manifestly reasonable.
[105D E, G] (iii) Restrictions may be partial, complete, permanent or temporary but they must bear a close nexus with the object in the interest of which they are imposed.
Sometimes even a complete prohibition of the fundamental right to trade may be upheld if the commodity in which the trade is carried on is essential to the life of the community and the said restriction has been imposed for limited period in order to achieve the goal.
Freezing of stocks of food grains in order to secure equitable distribution and availability on fair prices have been held to be a reasonable restriction.
[105 106A, C] Narendra Kumar and Ors.
vs The Union of India and Ors. ; , M/s. Diwan Sugar and General Mills (P) Ltd. and Ors.
vs The Union of India, [1959] 2 Supp. S.C.R.123 and The State of Rajsthan vs Nath Mal and Mitha Mal, ; referred to.
(iv) In determining the reasonableness of restrictions imposed by law in the field of industry, trade or commerce, the mere fact that some of the persons engaged in a particular trade may incur loss due to the imposition of restrictions will not render them unreasonable because it is manifest that trade and industry pass through periods of prosperity and adversity on account of economic, social or political factors.
In a free economy, controls have to be introduced to ensure availability of consumer goods, like food stuffs, cloth or the like at a fair price and the fixation of such a price cannot be said to be an unreasonable restriction.
[107 A B] (v) Where restrictions are imposed on a citizen carrying on a trade or commerce in an essential commodity, the aspect of controlled economy and fair and equitable distribution to the consumer at a reasonable price leaving an appreciable margin of profit to the producer is undoubtedly a consideration which does not make the restriction unreasonable.
[107 C] State of Madras vs V.G. Row, ; , Mineral Development Ltd. vs The State of Bihar and Anr.
, , Collector of Customs, Madras vs Nathella Sampathu Chetty and Anr.
[1962]3 S.C.R. 786 and M/s. Diwan Sugar and General Mills (P.) Ltd. and Ors.
vs U.O.I. [1959] 2 Supp.
S.C.R. 123 referred to.
(vi) A restriction on the right of a trader dealing in essential commodities, or fixation of prices aimed at bringing about distribution of essential commodities keeping the consumers interests as the prime consideration cannot be regarded as unreasonable.
[110 C] In the instant case, the Petitioners by rushing to Court the moment the Notification was issued, deprived the State as also themselves of the actual con 95 sequences of the notification and the prejudice which it really may have caused.
They did not at all show any patience in waiting for a while to find out if the experiment functioned successfully and in the long run paid good dividends.
As the petitioners obtained stay orders the experiment died a natural death and the Notification remained ineffective.
[111D E] Prag Ice and Oil Mills and Anr.
vs Union of India; , , referred to.
(vii) In the case of essential commodities like sugar the question of the economic production and distribution thereof must enter the verdict of the Court in deciding the reasonableness of the restrictions.
In such cases even if the margin of profit left to the procedure is slashed that would not make the restriction unreasonable.
The reason is that such a trade or commerce is subject to rise and fall in prices and other diverse factors, and if any measure is taken to strike a just balance between the danger sought to be averted and the temporary deprivation of the right of a citizen to carry on his trade, it will have to be upheld as reasonable restriction.
[112 G 113A] Shree Meenakshi Mills Ltd. vs U.O.I. [1974] 2 S.C.R. 398 and Saraswati Industrial Syndicate Ltd. vs U.O.I.[1975] 1 S.C.R. 956 referred to.
(viii) The restriction imposed by the Notification in stopping the crushers for the period 10th October to 1st December, 1980 is in public interest and bears a reasonable nexus to the object which is sought to be achieved, namely, to reduce shortage of sugar and ensure a more equitable distribution of this commodity.
Taking an overall picture of the history of sugar production it cannot be said that the stoppage of sugar crushers for a short period is more excessive than the situation demanded.
Madhya Bharat Cotton Association Ltd. vs Union of India and Anr.
A.I.R. 1954 S.C. 634 referred to.
2(i) The Control Order has been passed under the authority of section 3 of the Act of 1955 which has been held to be constitutionally valid and not in any way discriminatory so as to attract Article 14.
The Control Order itself contains sufficient guidelines, checks and balances to prevent any misuse or abuse of the power.
The Central Government under clause 8 on whom the power is conferred is undoubtedly a very high authority who must be presumed to act in a just and reasonable manner.
[119 E F] Chinta Lingam and Ors.
vs Government of India and Ors.
; and V.C. Shukla vs State (Delhi Admn.), ; (ii) There was no question of creating any monopoly to benefit the mills.
A very large majority of the mills were controlled by the State or co operative societies and only a small fraction of them were working in the private sector.
In view of the low working cost of the crushers they sought to outcompete the mills and deprive them of the requisite amount of sugarcane which they should have got.
It was not only just but also essential to boost the production of the factories so that while sugar may be produced on a large scale and sugarcane may not be wasted which would have been the case if most of the sugarcane went 96 to the crusher.
The recovery of sugarcane juice by the mills is double that by the crushers and if the latter were allowed to operate the wastage would have been almost 50 per cent which could have been avoided if sugarcane was allowed to be utilised by the mills.
[121 E G] (iii) If in the larger public interest it becomes necessary to compel the sugarcane growers to supply sugarcane to the mills at a particular rate in order to meet a national crisis, no person can be heard to say that his rights are taken away in an unjust or discriminatory fashion.
Personal or individual interests must yield to the larger interests of community.
This was the philosophy behind the passing of the Act of 1955.
[123 F G] 3.
It has not been proved that there is any real distinction between a vertical and a horizontal power crusher.
Both are regarded as falling in the same class.
The Notification by exempting vertical power crushers and prohibiting horizontal power crushers is clearly discriminatory and the discrimination is not justified by any rational nexus between the prohibition and the object sought to be achieved.
[124 G] 4.
(i) Clause 8 used the words 'period or hours to be worked '.
A plain reading of this expression reveals that the words 'period ' and 'hours ' have been used to connote to different aspects.
Clause 8 contemplates regulation of working of the sugar by two separate methods (1) Where only hours of work per day are to be regulated or fixed, and (2) the word 'period ' which has nothing to do with the hours to be worked but it refers to another category of regulation, namely, whether a crusher is to run or not for a particular period of time.
[125 D E] In the instant case, the Notification has resorted to the first category, viz. the 'period ' of the working of the crushers, that is about one and a half month, and has not at all touched or impinged upon the working hours of the crushers.
If, however, the notification had fixed certain hours of the day during which only the crushers could work, then the Notification would have resorted to the alternative mode of regulation, which obviously has not been done.
The impugned Notification is, therefore, wholly consistent with the provisions contained in clause 8 of the Control Order.
[125 G 126A] 5.
(i) Two prominent features exclude the rules of natural justice in the instant case.
Section 3 of the Act of 1955 under which the Control Order was passed really covers an emergent situation so as to meet a national crisis, involving the availability or distribution of any essential commodity which may make it necessary to restrict or control the business carried on by a citizen.
There was an acute shortage of sugar which was not made available to consumers at reasonable rates and the situation caused serious dissatisfaction among the people.
Nothing short of immediate and emergent measures taken to solve this crisis would have eased out the situation.
If hearing was to be given to so may owners of power crushers, it would have completely defeated and frustrated the very object not only of the Notification but also of the Act of 1955 and created complications which may have resulted in a further deterioration of an already serious situation.
If the rules of natural justice were not applied in such an emergent case, the petitioners cannot be heard to complain.
Afterall, the Notification directed stoppage of operation only for a very short period and the petitioners would have had an opportunity of recouping their loss after they were allowed to function because the proportion of consumption of Khandsari Sugar was limited.
97 The petitioners were, therefore, not seriously prejudiced but have rushed to this Court rather prematurely.
[128 B C; F 129 A] Mohinder Singh Gill and Anr.
vs The Chief Election Commissioner, New Delhi and Ors. , Maneka Gandhi vs U.O.I. [1978] 2 S.C.R. 621, S.L. Kapoor vs Jagmohan; , and Prag Ice and Oil Mills and Anr.
vs U.O.I. ; , referred to.
(ii) The impugned Notification is a legislative measure.
The rules of natural justice therefore stand completely excluded and no question of hearing arises.
The passing of the notification was a trial and error method adopted to deal with a very serious problem.
[129 G H, 130 F] Chairman, Board of Mining Examination and Anr.
vs Ramjee; , , Joseph Beauhernais vs People of the State of Illinois, ; at 930 and Bates vs Lord Hailsham of St. Marylebone and Ors. ; at 1378 referred to.
A revocation of licence means that the licence has not been suspended but cancelled for all times to come entailing civil consequences and complete abolition of the right for the exercise of which the licence was granted.
A temporary suspension of the working of the crushers owned by the petitioners cannot amount to a revocation, either complete or partial.
The proviso to sub clause (2) of clause 11 of the Control Order does not at all envisage a partial or periodical revocation of a licence.
The proviso comes into play only if a licence is revoked or cancelled once for all.
The proviso is wholly inapplicable to the facts of the instant case.
[132 C D] State of Maharashtra vs Mumbai Upnagar Gramodyog Sangh, ; 7.
The Notification ex facie cannot be said to have been passed without due care and deliberation.
The impugned Notification having been passed under section 3 of the Act it fulfils all the conditions contained therein, viz. it is expedient for maintaining or increasing the supply of an essential commodity, namely sugar which is included in clause (e) of the section 3 of the Act of 1955 and it regulates the supply and distribution of the essential commodities of the trade and commerce.
Neither the Control Order nor the impugned Notification is against the tenor and spirit of section 3.
It is manifestly clear from the circumstances disclosed that it is in pursuance of the aim and object for which section 3 was enshrined in the Act of 1955 that the Control Order and the Notification were promulgated.
[133E; H 134 C] 8.
In case Government decides to impose a ban in future on the power crushers or other units, a bare minimum hearing not to all the owners of Khandsari units but to only one representative of the Association representing them, and getting their views, would help the Government in formulating its policy.
Even if an emergent situation arises, a representation against the proposed action may be called for from such Association and considered after giving the shortest possible notice.
[135A B] 9.
Whenever any steps for banning production is taken, the Government has to evolve some procedure to detect the defaulters and ensure compliance of the baning order.
[136 C] 98
|
Civil Appeal No. 1653 of 1979.
Appeal by special leave from the Judgment and Order dated 23.5.1979 of the Delhi High Court in E.F.A. No. 8/76.
Madan Bhatia and Sushil Kumar for the Appellant.
S N. Kacker, S.K.Mehta, P.N. Puri, E.M.S. Anam and M.K. Dua for the Respondents.
The Judgment of the Court was delivered by A.N. SEN J.
The principal question which falls for determination in this appeal by Special Leave granted by this Court, is whether Gyan Chand Jain, the Respondent No. 1 in this appeal, who purchased a two and half storeyed Bungalow at No. 5 C/96, W.E.A. Karol Bagh, New Delhi, at an auction sale held pursuant to the terms of the compromise decree between the morgagor and the morgagee, is entitled to recover actual physical possession of the portions in the occupation of the appellants as lessees, the leases in respect of which were created after the decree in the mortgage suit by consent between the parties had been passed, in an application made by the auction purchaser Gyan Chand Jain under O.XXI, rules 95 & 96 of the Code of Civil Procedure.
There is no serious dispute with regard to the facts material for the purpose of appeal.
Des Raj Agarwal, the sole proprietor of M/s. 178 Raj Kumar & Co., mortgaged the 2/1/2 storeyed bungalow No.5 C/96, WEA.
Karol Bagh, New Delhi (herein after referred to as the premises) along with various other properties with Oriental Bank of Commerce (hereinafter referred as the Bank) on 28.6.1960 by deposit of title deeds.
The Bank filed a suit to recover its dues on the mortgage on 6.11.1962.
On 3.9.1963, a decree was passed by consent of the parties in favour of the plaintiff mortgagee for the sum of Rs. 479177.49 with costs and future interest at 6% till realisation of the decretal amount.
The other relevant terms of the consent decree which are contained in clauses 8 and 9 of the compromise are to the following effects: "8.
If the judgment debtor pay Rs. 479177.49 less costs and interest as after March, 1961 within two years of the decree, then whole of the decree shall stand satisfied.
If full amount of the decree with costs and interest is not paid as agreed above, within two years of the decree, then the decree holder shall be free to enforce the decree against the property mortgaged which shall be sold in execution of the same and the decree holder shall be entitled to proceed against other property and person of the judgment debtor in the case of the proceeds of the property not being sufficient to satisfy the decree".
After the decree had been passed on 3.9.1963, it appears that the judgement debtor leased out different portions of the premises to Dev Raj Dogra, Ish Kumar Khosla and Balwant Singh, the appellants herein, 1966, 1967 and 1970 respectively.
The judgment debtor failed to make payment of the decreetal dues in terms of the provisions contained in the consent decree and the premises in question resold by public auction on 28.10.1971.
Gyan Chand Jain whose bid was the highest, was declared to be the purchaser of the premises and the sale in his favour was confirmed on 6.8.1973.
On 25.10.76 an application was made on behalf on Gyan Chand Jain, the auction purchaser, in the Delhi High Court under O. XXI rules 95 and 96 and also S.151 of the Code of Civil Procedure for the following reliefs: (i) Warrants of possession with the direction that vacant physical possession of the entire property be delivered to the applicant, be issued and vacant physical possession of the entire property be got delivered to the applicant; 179 (ii) in case the Hon 'ble Court comes to a conclusion that the applicant is not entitled to vacate physical possession of any part of the property symbolic possession of that part of the property be granted to him; (iii) notices be issued to the persons mentioned in para 9 above to show cause why vacant physical possession of the portion of the property in their occupation be not delivered to the applicant.
The three tenant who were in possession of the respective portions leased out to them and on whom notices had been served, contested the said application.
A learned Single Judge of the Delhi High Court passed an order of physical possession of the said portions in the respective occupation of the tenants, the appellants before us, to be made over to the auction purchaser Gyan Chand Jain.
The Learned Judge held that the tenancies in favour of the tenants had been created after institution of the suit by the Bank and after the passing of the compromise decree in the said suit; and, the said tenancies would have no effect on the rights acquired by the auction purchaser, in view of the provisions contained in section 52 of the Transfer of property Act.
The Learned Judge had relied on the judgment of a Division Bench of the Bombay High Court in the case of Ramdas Popat Patil vs Fakira Pandu Patil and Ors.(1) and also on decision of Division Bench of the Gujarat High Court in case Jagjiwandas a Firm vs Lakhiram Haridasmal and Ors.(2) The tenants preferred an appeal against the said order of the learned Judge.
Before the Division Bench of the Delhi High Court, it was urged on behalf of the tenants that the decision of the Division Bench relied on by the learned Single Judge had been subsequently over ruled by a decision of the Full Bench of the Bombay High Court in case of Anaji Thamaji Patil vs Ragho Bhivraj Patil and Anr.(3) and the correctness of the decision of the Gujarat High Court had also been questioned in this Full Bench judgment.
Various other arguments were also advanced before the Division Bench on behalf of the tenants and the said arguments have been noted in the judgment of the Division Bench.
The Division Bench however, dismissed the appeal, accepting the contention put forward on behalf of the respondent auction purchaser that the decision of this Court in the case of M/s Supreme General Films Exchange Ltd. vs His Highness Maharaja Sir Brijnath Singhji.
180 Deo of Maihar and Ors., concludes the controversy.
The Division Bench also referred to the decision of this Court in case Jayaram Mudaliar vs Avva Swami and Ors.(2) Against the judgment and decision of the Delhi High Court the tenants have preferred this appeal after obtaining special leave from this Court.
Mr. Bhatia, learned counsel appearing on behalf of the tenants the appellants before us, has urged that section 52 of the has no application to the facts and circumstances of this case, as the conditions laid down in the said Section for the applicability of the said section are not satisfied.
It is the argument of Mr. Bhatia that the requirements of the said Section are (1) there must be a suit or proceeding which is not a collusive one and any right to immovable property must be directly and specifically in question in the said suit or proceeding and (2) transfer or otherwise dealing with the property by any party to the suit or proceeding must affect the right of any other party thereto under any decree or order which may be passed therein.
Mr. Bhatia has contended that in the instant case the right that the mortgagee had was only to put the property to sale in the event of the mortgagor failing to pay the decreetal amount in terms of the provisions of the compromise decree.
It is his contention that the right to put the property to sale cannot be said to be a right to immovable property directly and specifically in question in the suit.
He also referred to section 65A of the which empowers the mortgagor while lawfully in possession of the mortgaged property to grant lease in terms of the provisions contained in the said Section.
He has submitted that section 65A should be read along with section 52 and both these sections have been incorporated with the object of preserving the interest of the mortgagee by making suitable provisions so that the security of the mortgagee might not in any way be affected by any act done by the mortgagor after the creation of the mortgage and also after the institution of any suit for enforcement of the mortgage.
It is his submission that in section 65A of the the Legislature has made it manifestly clear that the mortgagor will be entitled to grant a lease of the property in conformity with the provisions of the said Section and he submits that when a mortgagor grants a lease of the mortgaged property in terms of the provisions of Section 65 A of the , it cannot be said that the granting of any such lease affects the right of the mortgagee.
Mr. Bhatia has next contended that in any event S.52 makes provisions for the 181 parties to the suit or proceeding and can have no application to any outside auction purchaser who is not a party to the suit or proceeding and who only acquires his right after the sale in execution of the decree has been confirmed.
Mr. Bhatia argues that the judgment of the learned Single Judge of the Delhi High Court must be held to be wrong, as the learned Single Judge came to his decision relying on the decision of the Division Bench of the Bombay High Court in the case of Ramdas Popat Patil vs Fakira Pandu Patil and Ors.
(supra) and the decision of the Gujarat High Court in the case of Jagjiwandas a Firm vs Lakhiram Haridasmal and Ors.
(supra) and the decision of the Division Bench of the Bombay High Court in Ramdas Popat Patil 's case has been over ruled by the Ful Bench decision of the Bombay High Court in Anaji Thamaji Patil vs Ragho Bhivraj Patil and Anr.
(supra) in which the correctness of the decision of the Gujarat High Court has also been questioned.
Mr. Bhatia has commented that the decisions of this Court in the case of M/s. Supreme General Films Exchange Ltd. vs His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors.
(supra) and in the case of Jayaram Mudaliar vs Ayya Swami and Ors.
(supra) do not conclude the question involved in the instant case.
He has submitted that the rights of a third party auction purchaser to get physical possession of the property purchased at the auction sale was not considered by the Supreme Court in any of these two decisions; and he has further submitted that in these two cases the Supreme Court had indeed proceeded on the assumption that section 52 of the was applicable without considering whether the requirements of the said Section had been complied with or not, as these aspects were not argued before the Supreme Court in these two cases.
Mr. Bhatia has drawn our attention to O.XXI, rule 95 and also to rule 96 of the Code of Civil Procedure and has submitted that the rights of an auction purchaser are governed by the provisions contained therein.
It is the argument of Mr. Bhatia that in view of the provisions contained therein, the auction purchaser cannot claim physical possession of the portions in the occupation of the appellants, even though the appellants might have been inducted as tenants after the compromise decree in the suit had been passed.
Mr. Kakkar, learned counsel appearing on behalf of the auction purchaser, has submitted that as the tenants in the instant case were inducted not only after the institution of the suit for enforcement of the mortgage but also after the compromise decree had been passed, therein section 52 of the must be held to be applicable and it must be held that the tenancies were illegal and were created in breach of the provisions contained in section 52 of the 182 .
Mr. Kakkar has argued that section 65 A of the does not, in any way, control section 52 of the said Act.
It is his argument that section 65 A makes provisions with regard to the powers of the mortgagor to grant leases of the mortgaged property after the creation of the mortgage but before the institution of suit, while, on the other hand section 52 makes provisions for cases of transfer or otherwise dealing with any property after the institution of a suit or proceeding and section 52 imposes a complete ban on the transfer of any kind or dealing with immovable property except with the authority of the Court during the pendency of the suit or proceeding in which any right to immovable property is directly or specifically in question so that the rights of any party may not be affected when any decree or order is passed in the suit or in the proceeding.
Mr. Kakkar has referred to S.58 of the in support of his contention that in case of a mortgage, there is a transfer of an interest in specific immovable property for the purpose of securing of the payment of money advanced or to be advanced by way of loan.
He has argued that in a suit for the enforcement of mortgage it must, therefore, be held that the right to immovable property is directly and specifically in question; and he has further argued that after the decree for sale is passed in a mortgage suit the mortgagor loses even his right to redeem the property.
He has submitted that in the instant case tenancies have been created long after the compromise decree in which provision for sale of the mortgaged property had been made and the right of the mortgagee decree holder to put up the mortgaged property to sale had also arisen for failure on the part of the mortgagor judgment debtor to pay the decretal dues in terms of the compromise decree and the tenancies created by the mortgagor must be held to be illegal and void as they are clearly in contravention of the provisions contained in section 52 of the .
He submits that there cannot be any manner of doubt, that the creation of a tenancy affects the value of the property and to that extent affects the security, even though it may be said that the Legislature in its wisdom has thought it fit to permit the mortgagor to grant leases of the mortgaged property in terms of the provisions contained in section 65 A of the .
It is his argument that the Legislature has thought it fit not to impose any kind of absolute prohibition in respect of the dealing with any property by the mortgagor after the creation of a mortgage and has imposed only such restrictions which the Legislature thought would not prejudicially effect the security of the mortgagee; but the Legislature, however, in section 52 of the Act has thought fit to impose complete ban on the transfer 183 of or otherwise dealing with any property after the institution of a suit or proceeding in which the right to property is directly or specifically in question, so that the rights of any party thereto may not be affected under a decree or order which may be made in the suit or proceeding.
Mr. Kakkar has next submitted that the auction purchaser at the Court sale acquires all the right, title and interest of the mortgagor and also of the mortagee as a result of the purchase and the auction purchaser, therefore, steps into the shoes of the mortgagee and becomes entitled to obtain physical possession of the property purchased in the same manner as the mortgagee himself would have been able to do.
Mr. Kakkar in this connection has referred to the decision of this Court in the case Mangru Mahto and Ors.
vs Shri Thakur Taraknath Tarakeshwar Math and Ors.(1); and also to the decision of the Supreme Court in M/s. Supreme General Films Exchange Ltd. vs His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors.
(supra) It is the submission of Mr. Kakkar that the decisions of this Court in the case of M/s. Supreme General Films Exchange Ltd. (supra) and also in the case of Jayaram Mudaliar (supra) conclude the question involved in the present appeal and the Division Bench rightly dismissed the appeal relying on the said decisions.
Before we proceed to deal with the respective contentions of the parties, it will be convenient to consider the material provisions of the relevant statutes to which we were referred in the course of submissions made from the bar.
Section 52 of the reads as follows: "During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
[Explanation For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institu 184 tion of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained, or has be come unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]" Material provisions of section 58 (a) and (b) of the said Act are in the following terms: "(a) A Mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage money, and the instrument (if any) by which the transfer is effected is called a mortgage deed.
(b) Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied so far as may be necessary, in payment of the mortgage money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee." section 65A which was subsequently introduced into the Act by section 30 of the Transfer of Property (Amendment) Act, 1929 provides: "(1) Subject to the provisions of sub section (2), a mortgagor, while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mortgagee.
(2) (a) Every such lease shall be such as would be made in the ordinary course of management of the property concerned, and in accordance with any local law, custom or usage.
185 (b) Every such lease shall reserve the best rent that can reasonably be obtained, and no premium shall be paid or promised and no rent shall be payable in advance.
(c) No such lease shall contain a covenant for renewal.
(d) Every such lease shall take effect from a date not later than six months from the date on which it is made.
(e) In the case of a lease of buildings, whether leased with or without the land on which they stand, the duration of the lease shall in no case exceed three years.
and the lease shall contain a covenant for payment of the rent and a condition of re entry on the rent not being paid within a time therein specified.
(3) The provisions of sub section (1) apply only if and as far as a contrary intention is not expressed in the mortgagedeed; and the provision of sub section (2) may be varied or extended by the mortgage deed and, as so varied and extended shall, as far as may be, operate in like manner and with all like incidents, effects and consequences, as if such variations or extensions were contained in that sub section.
Rules 95 and 96 of O.XXI of the Code of Civil Procedure under which the auction purchaser in the instant case had made the application for possession are in the following effect: "95.
Where the immovable property sold is in the occupancy of the judgment debtor or of some person on his behalf or of some person claiming under a title created by the judgment debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.
Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in 186 some conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the judgment debtor has been transferred to the purchaser.
An analysis of section 52 of the indicates that for application of the said section the following conditions have be satisfied: 1.
A suit or a proceeding in which any right to immovable property must be directly and specifically in question, must be pending; 2.
The suit or the proceeding shall not be a collusive one; 3.
Such property during the pendency of such a suit or proceeding cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the right of any other party thereto under any decree or order which may be passed therein except under the authority of Court.
In other words, any transfer of such property or any dealing with such property during the pendency of the suit is prohibited except under the authority of Court, if such transfer or otherwise dealing with the property by any party to the suit or proceeding affects the right of any other party to the suit or proceeding under any order or decree which may be passed in the said suit or proceeding.
It has to be noted that this section imposes a prohibition on transfer or otherwise dealing with any property during the pendency of a suit provided the conditions laid down in the section are satisfied.
section 58 makes it clear that in case of a mortgage there is a transfer of an interest in the specific immovable property mortgaged for the purpose of securing the payment of money advanced or to be advanced by way of a loan, an existing or future debt, or the performance of an engagement which may gives rise to pecuniary liability.
It further confers, in case of a simple mortgage where, without delivering the possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage money, a right on the mortgagee to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary in payment of the mortgage debt, 187 section 65A which as we noticed earlier, was introduced by the Amending Act, 1929 in recognition of the mortgagor 's powers exercised bona fide to grant lease of the mortgage property in the usual course of management, makes provision with regard to the exercise of such powers by the mortgagor, while the mortgage subsists and the mortgagor is in lawful possession of the mortgaged property.
This section further makes it clear that any lease granted by the mortgagor in accordance with the provisions of this section would be binding on the mortgagee.
Rules 95 and 96 of O.XXI of the Code of Civil Procedure makes provisions for enabling a purchaser of immovable property in a Court sale after obtaining the necessary certificate from the Court in terms of the provisions contained in rule 94 of the Code to apply for delivery of possession of the immovable property purchased by him at the Court sale.
Rule 95 provides for actual physical possession and rule 96 provides for symbolic possession.
A plain reading of rule 95 which we have earlier set out, clearly establishes, that the purchaser will be entitled to physical possession of property purchased and the Court will direct delivery of actual possession of the property sold to him by removing any person who refuses to vacate the same, if need be, if the following conditions are satisfied: 1.
The property sold must be in the occupation of the judgment debtor; 2.
The property sold must be in the occupancy of some person on behalf of the judgement debtor: 3.
The property sold must be in the occupation of some person claiming under a title created by the judgment debtor subsequently to the attachment of the property.
Rule 96 on the other hand makes it clear that where the property sold is in the occupancy of a tenant or other person entitled to occupy the same, symbolic possession of the property in the manner provided in the said rule is to be made over to the purchaser after the purchaser has obtained the necessary certificate under rule 94 of the Code.
We shall now proceed to consider the decision of this Court in the case of M/s. Supreme General Films Exchange Ltd. vs His Highness Maharaja Sir Brijnath Singh Deo of Maihar and Ors.
(supra) and also the decision of this Court in Jayaram Mudaliar vs Ayya Swami and Ors (supra).
In the case of M/s. Supreme General Films Exchange 188 Ltd., the plaintiff respondent who were the mortgagee of a cinema theatre of which the appellant Supreme General Films Exchange Ltd. claimed to be a lessee in occupation, had filed a suit against the mortgagor and a decree by compromise had been passed in the said suit on 7th May, 1960.
By the said compromise decree it was agreed that the amounts due to the mortgagee decree holder would be realised by the sale of the theatre.
The Central Bank of India, another creditor of the mortgagor, assigned its rights under the decree to the plaintiff decree holder.
The theatre was attached in the course of execution of the decree.
The original lease of 1940 on the basis of which the appellant, the Supreme General Films Exchange Ltd. had entered into possession, expired in 1946 but thereafter the Company had continued in possession as a tenant holding over until the impugned lease deed of 1946 in favour of the company was executed.
The company filed a suit in 1954 for specific performance of the agreement to lease and the lease deed of 1956 was executed in compliance with the terms of the compromise decree passed in the said suit filed by the appellant company.
In the said suit for specific performance by the appellant company, the plaintiff mortgagee was not impleaded as a party.
The plaintiff mortgagee thereafter filed a suit claiming that the lease of 1956 was void as the same came within the mischief of Ss. 52 and 65A of the and also section 64 of the Code of Civil Procedure.
The appellant company contested the said suit contending inter alia that the suit of this nature filed by the plaintiff mortgagee did not lie as it fell outside the purview of section 42 of the Specific Relief Act.
The trial Court decreed the said suit of the plaintiff mortgagee and granted the declaration asked for.
The appellant company preferred an appeal against the decree of the trial Court to the High Court which dismissed the said appeal.
Thereafter the appellant company filed a further appeal to this Court by special leave granted by this Court.
This Court for reasons recorded in the judgment held that the plaintiff was entitled to the declaration asked for on proper construction of section 42 of the Specific Relief Act.
One of the contentions which was raised on behalf of the appellant in this Court was that section 52 of the was not attracted to the lease in question.
Dealing with contention this Court observed at pp.
243 244 as follows: "The contention that the case fell outside the purview of section 52 of the as the lease was executed in purported satisfaction of an antecedent claim rests upon the terms of an agreement of 1948, embodied in a letter, on the strength of which the defendant appellant had 189 filed his suit for specific performance.
We find that the terms of the compromise decree in that suit and lease deed of 1956 purported to confer upon the defendant appellant new rights.
Indeed, there are good grounds for suspecting that the compromise in the suit for specific performance was adopted as a device to get round legal difficulties in the execution of the lease of 1956 in favour of the defendant company.
We are unable to accept the argument, sought to be supported by the citation of Bishan Singh and Ors.
vs Khazan Singh and Anr.
(AIR that the lease was merely an enforcement of an antecedent or pre existing right.
We think that it purported to create entirely new rights pendent lite.
It was, therefore struck by the doctrine of lis pendens, as explained by this Court in Jayaram Mudaliar vs Ayyaswami and ors.
[1973 SCR. 139] embodied in Section 52 of the .
An alternative argument of the appellant was that a case falling within section 65A (2) (a) of the , confining the duration of a lease by a mortgagor to three years, being a special provision, displaces the provisions of section 52 of the .
This argument overlooks the special object of the doctrine of lis pendens which applies to a case in which litigation relating to property in which rights are sought to be created pendente lite by acts of parties, is peening.
Moreover, for the purposes of this argument, the defendant appellant assumes that the provisions of Section 65A(2) (e) are applicable.
If that was so, it would make no substantial difference to the rights of the defendant appellant, which would vanish before the suit was filed if Section 65A applies.
We, however, think that, as the special doctrine of lis pendens, is applicable here, the purported lease of 1956 was invalid from the outset.
In this view of the matter, it is not necessary to consider the applicability of Section 65A (2) (e), which the defendant appellant denies, to the facts of this case." This Court further held agreeing with the concurrent findings of the Trial Court and the High Court that the lease of 1956 was also struck by the provisions of section 64 of the Civil Procedure Code, as the property continued to remain under attachment at the time of the grant of the lease in 1956.
190 It may be noted that in the case the validity of the lease had been questioned by the mortgagee decree holder in a suit for appropriate declaration.
The claim was not for possession by a third party auction purchaser in a proceeding under rr. 95 and 96 of O.XXI of the Code of Civil Procedure and the merits of an application under the said provisions of the Code and the scope and effect thereof did not come up for consideration, In the case of Mangru Mahto and Ors.
vs Shri Thakur Taraknath Tarakeshwar Math and Ors.
(supra), the mortgagor had granted lease of the mortgaged property to certain persons.
In execution of the mortgage decree, the mortgagee himself purchased the property at the auction.
The lessees of the mortgaged property had allowed the property to be sold and had not applied for being added as a party.
The mortgagee had also obtained the money decree against one of the lessees and in execution of the decree had attached the mortgaged land.
The lessees filed claim petitions objecting to the attachment under O.XXI, rule 58 of the Code of Civil Procedure.
The claim petitions filed by the lessees were allowed and the executing court held that the leases were genuine.
The mortgagee auction purchaser did not file any suit under Order XXI, rule 63 but latter filed a suit against the mortgagor and the lessees for recovery of possession of the lands, alleging that the leases were collusive transactions and were otherwise not binding on him.
The Trial Court dismissed the suit holding that the leases were genuine; but the High Court decreed the suit holding that the leases were sham transactions and were made in contravention of section 65A of the .
The lessees thereafter preferred and appeal to this Court under certificate granted by the High Court.
One of the contentions raised before this Court was that as the mortgagee did not file a suit under o. XXI, rule 63 of the Code of Civil Procedure after the claim petitions of the lessees under O.XXI rule 58 of the Code of Civil Procedure had been allowed and the mortgagee was not entitled to maintain the suit for recovery of possession of the mortgaged land and for mense profits on the allegation that the leases were collusive transactions and were otherwise not binding on him.
This contention was negatived by this Court for reasons recorded in the judgment.
This Court further held that the validity of the leases granted by the mortgagor was not affected by section 65A of the as the leases were granted before the enactment of section 65 A.
As these aspects do not have any material bearing on the question involved in the present appeal, it does not become necessary for us to pursue these two aspects any further.
This Court, however, held that the leases in question were not granted by the mortgagor in the ordinary 191 course of management as the agent or bailiff of the mortgagee and were not binding on the mortgagee and in that view of the matter this Court dismissed the appeal.
This Court observed at p. 132 as follows: "A lease granted by the mortgagor, out of the ordinary course of management, though not binding on the mortgagee is binding as between the mortgagor and the lessee.
Such a lessee acquires an interest in the right of redemption and is entitled to redeem.
If such a lease is created before the institution of a suit relating to the mortgage, the lessee must be joined as a party to the suit under O. 34, r. 1, C.P.C.; otherwise he will not be bound by the decree passed in the suit and will continue to retain his right of redemption.
But in view of section 52 of the , if the mortgagor grants such a lease during the pendency of a suit for sale by the mortgagee, the lessee is bound by the result of the litigation.
If the property is sold in execution of the decree passed in the suit, the lessee cannot resist a claim for possession by the auction purchaser.
The lessee could apply for being joined as a party to the suit and ask for an opportunity to redeem the property.
But if he allows the property to be sold in execution of the mortgage decree and they have now lost the present case, the lessees allowed the suit lands to be sold in execution of the mortgage decree and they have now lost the right of redemption.
They cannot resist the claim of the auction purchaser of recovery of possession of the lands.
" It may be noted that the Court immediately after the aforesaid observations has further observed as follows: "If a mortgagor in possession of the mortgaged property executes a lease of the property in the ordinary course of management as the agent or bailiff of the mortgagee during the pendency of a suit by the mortgagee to enforce the mortgage, a question may arise whether such a lease is in the eye of the law a lease granted by the mortgagee through his agent and therefore binding on him.
But in the present case, that question does not arise as the leases were not granted by the mortgagor in the ordinary course of management as the bailiff or agent of the mortgagor.
" It is to be noticed that this decision arose out of the suit instituted by the mortgagee auction purchaser for recovery of possession of 192 mortgaged property sold in execution of the mortgage decree and purchased by the mortgagee himself and the decision in the case rested mainly on the basis that the lease was not granted by the mortgagor in the usual course of business.
This case was also not concerned with an application by an outside auction purchaser for physical possession of the property purchased by him in an application made under O.XXI, rr. 95 and 96 of the Code of Civil Procedure, and the Court did not have to consider this scope and effect of a proceeding under O.XXI, rr. 95 and 96 of the Code of Civil procedure.
In our opinion, it cannot, therefore, be said that these two decisions of this Court conclude the question involved in the present appeal before us.
It may be true that section 52 and section 65 A of the operate in different spheres.
S.65 A, as we have earlier noticed deals with the powers of the mortgagor to grant a lease of the mortgaged property., while the mortgagor remains in lawful possession of the same.
section 52 deals with cases of transfer of or otherwise dealing with any immovable property after any suit or proceeding in which any right to the said immovable property is directly and specifically in question, has been filed.
It is also to be noted that section 65 A which came to be inserted by the Amending Act 1929, is neither made 'subject to ' nor 'not withstanding the provisions ' contained in section 52 of the Act.
section 52 will, however, be only applicable, if the requirements of the said section are satisfied.
We have earlier noticed what the requirements of the said section are.
In the instant case, it does not become necessary for us to consider whether the grant of any lease by a mortgagor in conformity with the provisions of section 65 A of the during the pendency of a suit by the mortgagee to enforce the mortgage will attract the provisions of section 52 of the Act or will be outside the mischief of the provisions of the said section on the ground that the creation of such a lease may not affect the rights of the mortgagee under any decree or order which may be passed in the suit.
We have earlier quoted the observations of this Court in the case of Mangru Mahto (supra) and it will be noticed that the Supreme Court in the said case did not decide this question and left this question open.
In the instant case an outside auction purchaser is seeking recovery of the physical possession of the property purchased by him at the auction from the appellants who are in possession of different portions of the said premises as tenants of the said por 193 tions.
The auction purchaser in the instant case was not the mortgagee and he was no party to the suit in which the compromise decree was passed.
section 52 in clear terms speaks of the rights of the parties to the suit or proceeding.
In this connection it may be noted that this Court in the case of Jayaram Mudaliar (supra) held at p. 153 as follows: "It is evident that the doctrine, as stated in section 52, applies not merely to actual transfers of rights which are subject matter of litigation but to other dealings with it by any party to the suit or proceeding, so as to affect the right of any other party thereto.
Hence it could be urged that where it is not a party to the litigation but an outside agency such as the tax collecting authorities of the Government, which proceeds against the subject matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by section 52.
Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation the Court may bind them to their own acts.
All these are matters which the Court could have properly considered.
The purpose of Section 52 of the is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward.
" The auction purchaser derives his right to obtain possession only after the sale in his favour has become absolute and sale certificate has been obtained by him.
The mode and manner of obtaining such possession are regulated by rr. 95 and 96 of the Code of Civil Procedure.
It is of interest to note that in the instant case, the auction purchaser had applied for obtaining possession under r. 95 which provides for actual possession and also under r. 96 which provides for symbolic possession.
We have earlier set out the provisions of these two rules.
In the facts and circumstances of this case, the auction purchaser, in view of the provisions contained in rule 95 which regulates the rights of the auction purchaser to obtain physical possession of the property purchased, is not entitled to recover the physical possession of the portions in the occupation of the appellants as tenants.
The appellants are not the judgment debtors.
They are not in occupation of the property on behalf of the judgment debtor.
They are also not claiming to be in occupation under 194 a title created by the judgment debtor subsequently to any attachment of the property.
There has been no question of any attachment in the instant case.
The appellants are in the occupation of the respective portions as tenants and they claim to occupy the same as such.
The question of validity or otherwise of the tenancy may have to be considered and determined in an appropriate proceeding.
In the present proceeding, the auction purchaser who is an outsider and was not a party to the suit resulting in the compromise decree in execution of which the property was put up for sale, is not entitled to recover physical possession from the appellants in view of the provisions contained in O. XXI, rule 95, and the auction purchaser must be held to be entitled to symbolic possession in terms of the provisions contained in O.XXI, rule 96 in respect of the portions in occupation of the appellants.
We, accordingly, allow this appeal.
We set aside the judgment and order passed by the High Court directing physical possession of the portions in the occupation of the appellants to be made over to the auction purchaser Gian Chand Jain, We direct that symbolic possession of the portions in occupation of the appellants is to be made over to the auction purchaser Gian Chand Jain.
In the facts and circumstances of this case, we make no order as to costs.
N.V.K. Appeal allowed.
| IN-Abs | Order XXI Rules 95 and 96 of the Code of Civil Procedure enable a purchaser of immovable property in a Court sale, to apply for delivery of possession.
Rule 95 provides for actual physical possession and rule 96 provides for symbolic possession.
A purchaser will be entitled to physical possession of the property purchased if the property sold is in the occupation of the judgment debtor, of some person on behalf of the judgment debtor or some person claiming under a title created by the judgment debtor subsequent to the attachment of the property.
If the property sold is in the possession of a tenant or other person entitled to occupy the same, symbolic possession is to be made over to the purchaser under Rule 96.
The first respondent was an auction purchaser of property, of which the three appellants were tenants occupying different portions.
The property was mortgaged by its owner with a Bank.
As the amount due was not paid, the Bank instituted a suit for its recovery.
A decree was passed by consent of the parties which provided that if the amount was not paid within two years, the Bank could enforce the decree by sale of the property.
After the compromise decree was passed, the owner leased out different portions of the property to the appellants.
As the owner failed to make payment of the decreetal dues, the property was sold by Court auction and the first respondent, whose bid was the highest, was declared to be the purchaser of the premises, and the sale in his favour was confirmed.
The first respondent/auction purchaser filed an application under Order XXI, Rules 95 and 96 read with Section 151 of the Code of Civil Procedure in the High Court, for delivery of vacant physical possession of the entire property and prayed that if it was not possible to grant vacant physical possession of any part of the property, symbolic possession of that part may be granted.
This application was contested by the three appellants/tenants.
A Single Judge of the High Court holding that the tenancies in favour of the appellants having been created after the institution of the suit by the Bank and after the passing of the compromise decree in the said suit, and the said tenancies would have no effect on the rights acquired by the auction purchaser in view of Section 52 of the , and relying on the Division Bench Judgments of the Bombay High Court in Ramdas Popat Patil vs Fakira Patil and Ors.
AIR 1959 Bom 19 and of the Gujarat High Court in Jagjiwandas a Firm vs 175 Lakhiram Haridasmal and Ors.
AIR 1968 Guj 193 passed an order for delivery of physical possession of the portions in the respective occupation of the appellants.
In appeal it was contended that the Full Bench decision of the Bombay High Court in Anaji Thamaji Patil vs Ragho Bhivraj Patil and Anr.
AIR 1973 Bom 75, over ruled the Bombay Division Bench decision and doubted the correctness of the Gujarat decision, but the Division Bench of the High Court dismissed the appeal accepting the contention put forward on behalf of the respondent purchaser that the decision of this Court in M/s Supreme General Films Exchange Ltd. vs His Highness Maharaja Sir Brijnath ; concluded the controversy.
In the appeal to this Court, it was contend on behalf of the appellants that: (1) Section 52 of the has no application to the facts and circumstances of this case as the conditions laid down therein for its applicability are not satisfied.
(ii) The right that the mortgagee had was only to put the property to sale in the event of the mortgagor failing to pay the decreetal amount in terms of the provisions of the compromise decree, and this right cannot be said to be a right to immovable property directly and specifically in question in the suit.
(iii) Section 65A of the should be read alongwith Section 52 and both these sections have been incorporated with the object of preserving the interest of the mortgagee by making suitable provisions so that the security of the mortgagee might not in any way be affected by any act done by the mortgagor after the creation of the mortgage and also after the institution of any suit for enforcement of the mortgage.
(iv) Section 52 makes provisions for the parties to the suit or proceeding and can have no application to any auction purchaser who is not a party to the suit or proceeding and who only acquires his right after the sale in execution of the decree has been confirmed.
(v) The right of the third party auction purchaser to get physical possession of the property purchased at the auction sale was not considered by the Supreme Court in M/s Supreme General Films Exchange Ltd. vs His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors.
and Jayaram Mudaliar vs Ayya Swami and Ors.
AIR (vi) Order XXI, Rule 95 and Rule 96 of the Code of Civil Procedure provides that the rights of an auction purchaser are governed by the provisions contained therein and that the auction purchaser cannot claim physical possession of the portions in the occupation of the appellants even though they might have been inducted as tenants after the compromise decree in the suit had been passed.
On behalf of the first respondent auction purchaser it was submitted that (1) as the tenants were inducted not only after the institution of the suit for enforcement of the mortgage but also after the compromise decree that has been passed therein, Section 52 of the must be held to be applicable 176 and it must be held that the tenancies were illegal and were created in breach of these provisions.
S.(2) 65A the does not in any way control section 52.
S 65A makes provisions with regard to the powers of the mortgagor to grant leases of the mortgaged property after the creation of the mortgage but before the institution of suit, while section 32 makes provisions for cases of transfer or otherwise dealing with any property after the institution of a suit or proceeding and section 52 imposes a complete ban on the transfer of any kind or dealing with immovable property except with the authority of the Court during the pendency of the suit or proceeding so that the rights of any part may not be affected when any decree or order is passed.
Section 58 of the provides that a mortgage is a transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan.
In a suit for the enforcement of a mortgage, the right to immovable property is directly and specifically in question and after the decree for sale is passed, the mortgagor loses even his right to redeem the property.
The tenancies in the instant case having been created long after the compromise decree, are illegal and void and in contravention of section 52 of the Act.
The decisions of this Court in M/s Supreme General Films Exchange Ltd. Manager Mahto and Ors.
and Jayaram Mudaliar conclude the question involved in the appeal.
On the question whether the 1st Respondent as auction purchaser in an application under Or.
XXI, rules 95 and 96, of the Code of Civil Procedure is entitled to recover actual physical possession of the portions in the occupation of the appellants as lessees, the lease in respect of which were created after the decree in the mortgage suit by consent between the parties had been passed.
Allowing the appeal ^ HELD 1.
The Judgment and Order passed by the High Court directing physical possession of the portions in the occupation of the appellants to be made over to the auction purchaser Respondent No. 1 is set aside.
Symbolic possession of the portions in occupation of the appellants to be made over to the auction purchaser respondent.
[194 D] 2.
In the case of M/s Supreme General Films Exchange Ltd., the validity of the lease had been questioned by the mortgagee decree holder in a suit for declaration.
The claim was not for possession by a third party auction purchaser in a proceeding, under rules 95 and 96 of order XXI of the Code of Civil Procedure and the merits of such an application and the scope and effect of the said provisions of the Code did not come up for consideration.
In Mangru Matho and Ors.
vs Shri Thakur Taraknath Tarakeshwar Math and Ors.
a suit was instituted by the mortgagee auction purchaser for recovery of possession of mortgaged property sold in execution of the mortgage decree and purchased by the mortgagee himself and the decision rested mainly on the basis that the lease was not granted by the mortgagor in the usual course of business.
This case was also not concerned with an application by an outsider auction purchaser for physical possession of the property purchased by him in an application made under order XXI Rules 95 and 96 of the Code of Civil Procedure.
These two decisions do not therefore conclude the question involved in the present appeal.[190 A B, 191 H 192 C] 177 3.
The auction purchaser derives his right to obtain possession only after the sale in his favour has become absolute and sale certificate has been obtained by him.
The mode and manner of obtaining such possession are regulated by Rules 95 and 96 of the Code of Civil Procedure.[193 F] In the instant case a third party auction purchaser is seeking recovery of the physical possession of the property purchased by him at the auction from the appellants who are in possession of different portions of the said premises as tenants of the said portions.
The auction purchaser was not the mortgagee and he was no party to the suit in which the compromise decree was passed.
The auction purchaser in view of the provisions contained in Rule 95 which regulate the rights of the auction purchaser to obtain physical possession of the property, is not entitled to the recover the physical possession of the portions in the occupation of the appellants as tenants.
The appellants are not the judgment debtors.
They are not in occupation of the property on behalf of the judgment debt or.
They are also not claiming to be in occupation under a title created by the judgment debtors subsequent to any attachment of the property.
There is no question of any attachment in the case.
The appellants are in the occupation of their respective portions as tenants and they claim to occupy the same as such.
The auction purchaser must therefore be held to be entitled to only symbolic possession in terms of the provisions contained in Or XXI rule 96 in respect of the portions in occupation of the appellants.
[192 H 193 A, 193 H 194 A, C]
|
: Criminal Appeal No. 91 of 1976.
Appeal by Special Leave from the Judgment and Order dated 29.7.1975 of the Karnataka High Court in Criminal Appeal No. 364 of 1975.
N. Nettar for the Appellant.
A.K. Sen, S.K. Bisaria and V.P. Gupta for the Respondents.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
This appeal by special leave has been preferred by the State of Karnataka.
The three respondents being the partners of the firm, M/s. Mafatlal and Co., and the firm itself were charged for offences under Sections 18(c), 18(a) (ii) and 18A of the read with Section 27(a) (ii), 27(a) (i) and Section 28 of the Drugs Control Act, (hereinafter, the Act).
The defence was a plea of "Not Guilty".
The Chief Metropolitan Magistrate found respondents 1 and 3, that is, one of the partners and the firm, guilty under Section 18(a) (ii) and Section 18(c) of the and sentenced respondent No. 1 to suffer rigorous imprisonment for one year under section 18(a) (ii) and to pay a fine of Rs. 500.
in default, to suffer simple imprisonment for one month, and sentenced respondents 1 and 3 to pay a fine of Rs. 1,000 each, under section 18(c), in default, to suffer simple imprisonment for three months.
The respondent No. 2 was acquitted of these two offences as the Magistrate found that it was respondent No. 1 and not respondent No. 2 who was in charge of the business of the firm.
All the respondents were acquitted of the offence under section 18A. 3.
The appellant preferred an appeal before the High Court of Karnataka from the order of acquittal of respondent No. 2 of the 202 offence under Section 18(a) (ii) and 18(c) and of all the respondents under section 18A of the Act.
The High Court summarily dismissed the appeal.
Section 18A of the Act requires that every person who has acquired drug or cosmetic, if required, shall disclose to the inspector the name, address and other particulars of the persons from whom the drug or cosmetic was acquired.
The respondents pleaded that they did disclose to the Drugs Inspector, the name, address and other particulars of the person from whom the drugs were acquired, by section 18A of the Act and in support of their defence they rely on Exhibit P. 20, a letter dated 17.7.1971 addressed to the Drugs Controller.
The learned Chief Metropolitan Magistrate has found that Exhibit P.20 contained the name, address and other particulars of the person from whom the drugs were claimed to have been acquired as M/s. Mangilal Jayantilal & Company, 65 Princess Street, Second Floor, Bombay, which name and address, according to the prosecution, were fictitious.
P.W.3, the Assistant Commissioner, Food and Drug Administration, Bombay North Circle, has deposed that he got it verified by his Inspector who submitted a report that the above name and address were fictitious.
But the Inspector has not been examined, nor his report proved.
Obviously, therefore, the defence version remained unrebutted and violation of section 18A remained unestablished.
Regarding the acquittal of the 2nd respondent of the offence under section 18 (a) (ii) and section 18(c), the learned counsel for the State of Karnataka submitted that under section 34 of the the firm, as well as its partners were liable to be convicted.
Section 34 may be extracted here: "section 34.
(1) Where an offence under this Act has been committed by a company every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in the sub section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without 203 his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.
For the purpose of this section (a) "company" means a body corporate, and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm.
" It is seen that the partner of a firm is also liable to be convicted for an offence committed by the firm if he was in charge of, and was responsible to, the firm for the conduct of the business of the firm or if it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of the partner concerned.
In the present case the second respondent was sought to be made liable on the ground that he alongwith the first respondent was in charge of the conduct of the business of the firm.
Section 23 C of the Foreign Exchange Regulation Act 1947 which was identically the same as section 34 of the came up for interpretation in G. L. Gupta vs D. N. Mehta it was observed as follows: "What then does the expression "a person in charge and responsible for the conduct of the affairs of a company mean"? It will be noticed that the word 'company ' includes a firm or other association and the same test must apply to a director in charge and a partner of a firm incharge of a business.
It seems to us that in the context a person 'in charge ' must mean that the person should be in over all control of the day to day 204 business of the company or firm.
This inference follows from the wording of section 23C(2).
It mentions director, who may be a party to the policy being followed by a company and yet not be in charge of the business of the company.
Further it mentions manager, who usually is in charge of the business but not in over all charge.
Similarly the other officers may be in charge of only some part of business.
" The evidence in the present case shows that it was respondent No. 1 and not respondent No. 2 who was in over all control of the day to day business of the firm.
The second respondent is not liable to be convicted merely because he had the right to participate in the business of the firm under the terms of the Partnership Deed.
This appeal has no merit and is dismissed.
P.B.R. Appeals dismissed.
| IN-Abs | All the three respondents (respondents nos.
1 and 2 partners and respondent No. 3, the firm) were prosecuted for the alleged contravention of section 18A, in that when asked by the Drugs Inspector to disclose the name, address and other particulars of the person from whom a certain drug was acquired by them, they gave a fictitious address and that, therefore, they were liable to be convicted under section 18(a) (ii) read with section 18(c) of the Act.
The Metropolitan Magistrate convicted respondent No. 1 (the partner incharge of the business of the firm) and respondent No. 3 (the firm) but acquitted respondent No. 2 on the ground that it was respondent No. 1 who was incharge of the firm and sentenced them variously.
The High Court summarily dismissed the State 's appeal against the acquittal of respondent No. 2 and of all the respondents under section 18A. Dismissing the appeal, ^ HELD: Violation of the provisions of section 18A remained unestablished and the defence version remained unrebutted.
[202E] The Assistant Commissioner, Food and Drug Administration Bombay, North Circle, deposed that the particulars given by the respondents as to the person from whom the drugs were purported to have been acquired were verified by an Inspector who in his report stated that the name and address given by the respondents were fictitious; but the Inspector has not been examined nor was his report proved.
The defence version, therefore, remained unrebutted.
[202 D E] The second respondent was not liable to be convicted merely because he had the right to participate in the business of the firm under the terms of the partnership deed.
The term "person incharge" referred to in section 34 must mean that the person should be in overall control of the day to day business of the firm.
A person may be a party to the policy being followed by a firm and yet not be incharge of its business or a person may be incharge of a business but not in overall charge or may be incharge or only some part of the business.
In short, a partner of a firm is liable to be convicted for an offence if he was in 201 charge of and was responsible to the firm for the conduct of its business or if it is proved that the offence was committed with the consent or connivance of or was attributable to any neglect on the part of the partner concerned.
[204A B] G.L. Gupta vs D.N. Mehta ; applied.
In the instant case respondent No. 2 was not in overall control of the business.
It was respondent No. 1, who was in that position.
[204 C]
|
ition Nos. 5931 and 5932 of 1980.
(Under Article 32 of the Constitution.) N. M. Ghatate and section V. Deshpande for the Petitioners.
M. K. Banerjee Addl.
Genl., R. N. Poddar and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by KOSHAL, J.
By this order we shall dispose of Criminal Writ Petitions Nos. 5931 and 5932 of 1980 in each of which the contention raised by the learned counsel for the petitioners is the same.
In Criminal Writ Petition No. 5931 of 1980, the petitioner is one Surjeet Singh while the other petition has been filed by a person named Kulwant Singh.
206 3.
Each of the petitioners was detained on the 13th October, 1980 under the provisions of the National Security Ordinance which now stands replaced by the National Security Act.
They were arrested on that date and on each of them a police officer served an order of detention along with the grounds on which it was based, both the documents being in English.
It is the case of the State and the same has not been controverted before us, that the police officer effecting the service of the two documents explained to the concerned detenu in Hindi what their contents were.
Dr. N. M. Ghatate, learned counsel for the petitioners has challenged the detention of the two petitioners with the contention that English was not a language which either of them understood, that this factor rendered it necessary for the grounds of detention to be served on them in Hindi which was their mother tongue and that the same having not been done, there was in law no communication of such grounds to either of them.
After hearing learned counsel for the parties, we have no hesitation in holding that the challenge to the detention is well founded in view of the dicta of this Court in Harikisan vs The State of Madarashtra & Others, Hadibandhu Das vs District Magistrate, Cuttak & Anr., and Nainmal Partap Mal Shah vs Union of India and Others.
In the first of these cases an order under the Preventive Detention Act (Central Act IV of 1950) was under challenge.
The grounds of detention had been provided to the detenu in English and a request by him for a translation of the same was turned down.
The High Court was of the opinion that so long as English continued to be the official language of the State, the communication of the grounds of detention in that language was enough compliance with the requirements of the Constitution.
This opinion did not find favour with Sinha, C.J., who delivered the judgment of this Court and observed: If the detained person is conversant with the English language, he will naturally be in a position to understand the gravamen of the charge against him and the facts and circumstances on which the order of detention is based.
But to a 207 person who is not so conversant with the English language, in order to satisfy the requirements of the Constitution, the detenu must be given the grounds in a language which he can understand, and in a script which he can read, if he is a literate person.
The Constitution has guaranteed freedom of movement throughout the territory of India and has laid down detailed rules as to arrest and detention.
It has also, by way of limitations upon the freedom of personal liberty, recognised the right of the State to legislate for preventive detention, subject to certain safeguards in favour of the detained person, as laid down in clauses (4) and (5) of article 22.
One of those safeguards is that the detained person has the right to be communicated the grounds on which the order of detention has been made against him, in order that he may be able to make the representation against the order of detention.
In our opinion, in the circumstances of this case, it has not been shown that the appellant had the opportunity, which the law contemplates in his favour, of making an effective representation against his detention.
On this ground alone we declare his detention illegal, and set aside the order of the High Court and the Order of Detention passed against him." In Hadibandhu 's case (supra) also an order under the Preventive Detention Act was impugned with the contention that the grounds of detention had not been supplied to the detenu in the language and script which he understood.
The order was struck down by this Court for the reasons appearing in the following passage : "The grounds in support of the order served on the appellant ran into fourteen typed pages and referred to his activities over a period of thirteen years, beside referring to a large number of court proceedings concerning him and other persons who were alleged to be his associates.
Mere oral explanation of a complicated order of the nature made against the appellant without supplying him the translation in script and language which he understood would, in our judgment amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order.
" 208 In Nainmal 's case, Fazal Ali, J., who followed Hadibandhu 's case, held that the communication of the grounds of detention in a language understood by the detenu was an essential requirement for the validity of a detention order which, in the absence of such requirement being fulfilled, would be repugnant to the provisions of article 22(5) of the Constitution and would thus stand vitiated.
And that is a view which has been consistently held by this Court.
The facts with which we are here concerned, in so far as they are relevant to the decision of the point canvassed before us, are on all fours with those of the three cases cited above.
As already pointed out, the grounds of detention were supplied to the two petitioners in the English language a language with which they were not conversant.
The service of the grounds on them in that manner could not be considered under the circumstances to be effective communication to them thereof so as to afford to them a real opportunity of making a representation against the order of detention.
It is true, as pointed out by the learned Additional Solicitor General, that in Hadibandhu 's case (supra) the grounds of detention covered numerous pages and related to a long period of time and, according to this Court, contained "a complicated order".
The complicated nature or the length of the document, however, was only mentioned incidentally by this Court and was not meant to be a sine qua non for the fulfilment of the requirement that the grounds must be supplied to the detenu in a language which he understood before the service on him of such grounds could be considered a communication thereof to him for the purposes of the Preventive Detention Act.
In the result both the petitions succeed and are accepted.
The detention of each of the petitioners is held to be repugnant to the provisions of article 22(5) of the Constitution and is struck down on that account.
Both of them are directed to be set at liberty forthwith, in so far as these petitions are concerned.
V.D.K. Petitions allowed.
| IN-Abs | Allowing the petitions, the Court ^ HELD: The supply to the detenus of the grounds of detention in the English language with which they were not conversant could not be considered to be effective communication to them so as to afford to them a real opportunity of making a representation against the order of detention.
Their detention is repugnant to the provisions of Article 22 (5) of the Constitution.
The complicated nature or the length of the document, is not a sine qua non for the fulfilment of the requirement that the grounds must be supplied to the detenu in a language which he understood before the service on him of such grounds could be considered a communication thereof to him.
[206C D, 208E G] Harikisan vs The State of Maharashtra & Ors.
[1962] Suppl.
2 SCR 918; Habibandhu Das vs District Magistrate, Cuttack and Anr, ; ; Nainmal Pratap Mal Shah vs Union of India and Ors. , followed.
|
N: Criminal Appeal No. 362 of 1979.
Appeal by Special Leave from the Judgment and Order dated 28.2.79 of the Allahabad High Court at Allahabad in Crl.
Appeal No. 3500/78 and murder reference No. 33/78.
section K. Bisaria for the Appellant.
H. R. Bhardwaj and R. K. Bhatt for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
The appellant 's land was auctioned on December 26, 1976 in a revenue sale held to recover arrears of land revenue.
On the same day, the land of one Mool Chand was also sold for a similar reason.
The deceased Bhagwan Singh, who was 269 an Amin, acted as an officer of the Court in effecting the aforesaid sales.
After the sale proceedings were over, Bhagwan Singh was returning home on a bicycle, with his peon Shripat, who is examined in the case as P.W.4 The appellant, Mool Chand and the latter 's son Daya Ram lay in wait for the deceased and while he was passing along on his bicycle, Daya Ram fired three shots at him; two out of these hit Bhagwan Singh, as a result of which he fell down.
A split second thereafter, the appellant emerged with a sword and chopped off the neck of Bhagwan Singh.
Daya Ram is still absconding but the appellant was convicted by the Sessions Court under section 302 read with section 34 of the Penal Code and was sentenced to death.
He was also convicted under section 307 of the Penal Code.
The sentence of death having been confirmed by the High Court, the appellant has filed this appeal by special leave.
The leave is limited to the question of sentence.
We see no reason for commuting the sentence of death imposed upon the appellant to the lesser sentence of imprisonment for life.
The fact that Daya Ram is absconding does not reduce the gravity of the offence committed by the appellant.
Bhagwan Singh had but performed his ministerial duty as an Amin in putting the appellant 's land to sale.
He bore no personal grudge against the appellant nor had he anything to gain for himself by selling the lands of the appellant and of Daya Ram.
Such crimes committed against public servants for reasons arising out of the performance by them of their public duties must be discouraged and put down with a firm hand.
We, therefore, confirm the sentence of death passed on the appellant and dismiss the appeal.
P.B.R. Appeal dismissed.
| IN-Abs | The deceased Bhagwan Singh who was working as an Amin put the appellant 's lands to sale for recovering certain arrears.
The appellant and his two companions Mool Chand and Daya Ram lay in wait for the deceased while he was on his way back home.
Daya Ram first fired three shots at the deceased as a result of which he fell down.
Immediately thereafter the appellant emerged with a sword and chopped off the head of Bhagwan Singh.
The appellant was convicted under section 302 read with section 34, I.P.C. and sentenced to death.
The second accused was still absconding.
On the question of sentence ^ HELD: There is no reason for commuting the sentence of death to the lesser sentence of imprisonment for life.
The deceased had to perform his ministerial duties as an amin in putting the land to sale.
He bore no personal grudge against the appellant nor had he anything to gain for himself by selling the appellant 's lands.
Such crimes against public servants for reasons arising out of the performance by them of their public duties must be put down with a firm hand.
[269E] The fact that the second accused was absconding does not reduce the gravity of the appellant 's offence.
[269D]
|
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