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Civil Appeal No. 2754 of 1981.
Appeal by special leave from the judgment and order dated the 6th August, 1979 of the Allahabad High Court in Civil Revision No. 1904 of 1978.
M. K Garg for the Appellant.
K K Mahrotra for the Respondent.
The Judgment of the Court was delivered by SEN, J.
The short point involved in this appeal by special leave from a judgment of the Allahabad High Court, is whether the Court of the District Judge, Almora had jurisdiction to entertain the petition for nullity of marriage filed by the respondent under section 12 of the (hereinafter referred to as 'the Act ').
To bring out the point, it is necessary to state a few facts.
It appears that the parties originally belonged to village Bagyan, 1005 District Pithoragarh, in the State of Uttar Pradesh.
The appellant 's A case is that they fell in love and she became enceinte, as the respondent had access to her during the period of courtship.
Her case is that she wanted to marry the respondent, but her father was opposed to the alliance as her elder brother and sister were unmarried.
She was therefore brought in an advanced stage of pregnancy to Delhi and through the intervention of her uncle Basant Kumar, the marriage was solemnised on January 24, 1976 according to Arya Samaj rites at the Arya Samaj Mandir, Hanuman Road, New Delhi.
Three days after the marriage, i.e. On January 27, 1976, the respondent left the residence of Basant Kumar on the pretext that he had to fetch his belongings from the residence of his uncle Dharm Nand Pant who also lives at Delhi, and never returned.
On February 6, 1976, he served a notice on the appellant alleging that the marriage was a nullity as she got pregnant through someone else, that fraud was practised on him by her uncle Basant Kumar and that he had been coerced to marry her against his will.
On February 17, 1976 she sent a reply denying the allegations made therein.
On March 2, 1976 she filed a petition for restitution of conjugal rights under section 9 of the Act in the Court of Subordinate Judge, Class I, Delhi.
It may here be stated that although the appellant is a resident of Delhi as she lives with her uncle Basant Kumar at Lajwanti Garden, and the respondent was also a resident of Delhi being employed, at all material times, as Radio Technician in the Ministry of Home Affairs, Rail Bhavan, New Delhi, he started the present proceedings not at Delhi but at Almora.
On March 18, 1976 the respondent filed a petition for nullity of marriage under section 12 of the Act in the Court of the District Judge, Almora alleging that the parties were residents of village Bagyan, District Pithoragarh, i.e. within the territorial jurisdiction of the Court of District Judge, Almora.
On March 23, 1976 i.e. just after five days of the filing of the petition under section 12 of the Act the appellant delivered a dead child at Delhi.
On February 25, 1977 the Subordinate Judge, Class 1, Delhi decreed the appellant 's suit for restitution of conjugal rights under s 9 of the Act.
In decreeing her claim for restitution of conjugal rights, the learned Subordinate Judge observed: "That to sum up, the evidence adduced by petitioner proves that the petitioner and respondent were known to 1006 each other and had developed sexual intimacy.
It is further proved that the respondent married the petitioner at Delhi on 24.1.1976 of his own sweet free will according to Hindu rites.
The petitioner delivered a dead child on 23.3.1976 would show that on the date of marriage, the petitioner was running in 7th month of pregnancy.
Such advanced stage of pregnancy could not be hidden from the vision of any person.
The plea of respondent that he did not know on 24.1.1976 that the petitioner was pregnant cannot be believed.
The respondent thus knew at the time of marriage that the petitioner was pregnant.
The very fact that he married her of his own free will would justify the conclusion corroborated by other evidence and circumstances discussed above that the petitioner had conceived from the respondent and the respondent thus married her of his own free will.
" The judgment of the learned Subordinate Judge decreeing the appellant 's claim for restitution of conjugal rights under section 9 of the Act was not appealed from and has, therefore, become final.
Upon these facts, it is quite evident that the Court of the District Judge, Almora had no jurisdiction to try the petition for the nullity of marriage filed by the respondent under section 12 of the Act.
The appellant by her written statement filed on August 23, 1976 challenged the jurisdiction of the District Judge, Almora to try the suit.
The learned District Judge, accordingly framed a preliminary issue as to jurisdiction.
By his order dated April 8, 1978 he negatived the objection raised by the appellant holding that since the parties were originally resident of village Bagyan, District Pithoragarh, that is, a place within the territorial jurisdiction of the Court of the District Judge, Almora, he I was competent to entertain and try the suit.
The appellant being aggrieved by the order of the learned District Judge preferred an appeal before the High Court.
The High Court by its judgment dated August 6, 1979 upheld the finding of the learned District Judge observing: "The allegations made in the written statement do unmistakably show that the respondent was ordinarily residing at village Bagyan which was within the limits of the terri 1007 torial jurisdiction of the Court or District Judge, Almora.
A Even if she happened to be in Delhi on the date when the petition was presented, she must have gone to Delhi only on a temporary visit as she had no place of residence at Delhi and the respondent could not be said to have been residing at Delhi when the petition was presented in the District Court.
" In arriving at that conclusion, the High Court was obviously influenced by the fact that the parties never had any permanent residence.
While it is true that mere casual or temporary visits do not constitute 'residence ' within the meaning of cl.
(ii) of section 19 of the Act, it cannot be said that the parties came to Delhi on a temporary sojourn for a day or two.
The appellant 's case is that she had left her parental home at village Bagyan as her father did not consent to the marriage.
If that be so, the irresistible conclusion is that she came to reside with the respondent at Delhi.
It was frankly conceded before us that the finding of the High Court that she should be so regarded as having her residence at village Bagyan in 1) the District of Pithoragarh is based on no evidence.
It is agreed on all hands that ever since the marriage, the appellant has been residing with her uncle Basant Kumar at Lajwanti Garden.
New Delhi.
Section 19 of the Act, insofar as material, reads as follows: "19.
Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction (i) the marriage was solemnised, or (ii) the respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together. " It is common ground that the marriage was solemnised on January 26, 1976 at New Delhi.
The fact that the parties last resided together at the residence of the appellant 's uncle Basant kumar at Lajwanti Garden, New Delhi is not in dispute.
It is, therefore, clear that the conditions laid down in cls.
(i) and (iii) of section 19 of the Act are not present to invest the Court of the District Judge, Almora to entertain the petition for annulment of marriage filed by the respondent under s, 12 of Act, 1008 The question that arises is whether the learned District Judge was invested with jurisdiction by reason of cl.
(ii) of section 19 of the Act, i.e. whether, at the time of presentation of the petition, the appellant was a resident of village Bagyan within the territorial jurisdiction of the Court of District Judge.
In order to give jurisdiction on the ground of 'residence ', something more than a temporary stay is required.
It must be more or less of a permanent character, and of such a nature that the court in which the respondent is sued, is his natural forum.
The word 'reside ' is by no means free from all ambiguity and is capable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found.
It is capable of being understood in its ordinary sense of having one 's own dwelling permanently, as well as in its extended sense.
In its ordinary sense 'residence ' is more or less of a permanent character.
The expression 'resides ' means to make an abode for a considerable time; to dwell permanently or for a length of time; to have a settled abode for a time.
It is the place where a person has a fixed home or abode.
In Webster 's Dictionary, 'to reside ' has been defined as meaning 'to dwell permanently or for any length at time ', and words like 'dwelling place ' or 'abode ' are held to be synonymous.
Where there is such fixed home or such abode at one place the person cannot be said to reside at any other place where he had gone on a casual or temporary visit, e.g. for health or business or for a change.
If a person lives with his life and children, in an established home, his legal and actual place of residence is the same.
If a person has no established home and is compelled to live in hotels, boarding houses or houses or others, his actual and physical habitation is the place where he actually or personally resides.
It is plain in the context of cl.
(ii) of section 19 of the Act, that the word 'resides ' must mean the actual place of residence and not a legal or constructive residence; it certainly does not connote the place of origin.
The word 'resides ' is a flexible one and has many shades of meaning, but it must take its colour and content from the context in which it appears and cannot be read in isolation.
It follows that it was the actual residence of the appellant, at the commencement of the proceedings, that had to be considered for determining whether the District Judge, Almora, had jurisdiction or not.
That being so, the High Court was clearly in error in uphold in the finding of the learned District Judge that he had jurisdiction 1009 to entertain and try the petition for annulment of marriage filed by the respondent under section 12 of the Act.
In the result, the judgment of the High Court is set aside and the District Judge, Almora, is directed to return to the respondent the petition filed by him for nullity of marriage under section 12 of the for presentation to the proper court, i.e. the Court of the District Judge, Delhi.
There shall be Do order as to costs.
S.R. Appeal allowed.
| IN-Abs | The appellant is the wife, and the respondent is the husband.
The parties originally belonged to village Bagyan, District Pithoragrh in the State of Uttar Pradesh.
They fell in love and the appellant became encients, as the respondent had access to her during the period of courtship.
As her father was opposed to her marriage, the appellant was brought in a advance stage of pregnancy to Delhi and through the intervention of her uncle Basant Kumar their marriage was solemnised according to Arya Samaj rites at New Delhi.
A few days after the marriage, the respondent left the residence of Basant Kumar on the pretext of fetching his belongings from the residence of his uncle who also lives at Delhi and never returned.
He served a notice on the appellant alleging that the marriage was a nullity as she got pregnant through someone else and that fraud was practised on him by her uncle and that he had coerced to marry against his will.
The appellant after denying the allegations filed a petition for restitution of conjugal rights under section 9 of the Act in the Court of Subordinate Judge, Class l, Delhi which was decreed in her favour and the said decree had become final.
Later on, the respondent filed a petition under section 12 of the Act in the Court of the District Judge, Almora, alleging that the parties were residents of village Bagyan while in fact at all material times both resided at Delhi.
A few days after, the appellant delivered a dead child at Delhi.
Later on, by her written statement she challenged the jurisdiction of the District Judge, Almora to try the suit.
The district Judge answered the preliminary issue as to the jurisdiction against the appellant.
The High Court, in appeal, by its judgment affirmed the order.
Hence this appeal by special leave.
Allowing the appeal, the Court ^ HELD; 1:1.
In the context of clause (ii) of the section 19 of the , the word "resides" must mean actual residence and not a legal or constructive residence; it certainly does not connote the place of origin.
In order to give jurisdiction on the ground of "residence ', something more than a mere temporary stay is required.
It must be more or less of a permanent 1004 character, and of such a nature that the court in which the respondent is sued, is his natural forum.
In the instant case, at the commencement of the proceedings both the parties admittedly resided at Delhi and, therefore, the District Judge, Almora did not have jurisdiction to entertain the suit.
[1008 F H, 1009A] 1:2 The word "residence" is a flexible one and has many shades of meaning but it must take its colour and content from the context in which it appears and cannot be read in isolation.
It is capable of being understood in its ordinary sense of having one 's own dwelling permanently, as well as in its extended sense.
In its ordinary sense "residence" is more or less of ca permanent character.
The expression "resides" means to make an abode for a considerable time; to dwell permanently or for a length of time; to have a settled abode for a time.
It is the place where a person has a fixed home or abode.
Where there is such fixed home or such abode at one place the person cannot be said to reside at any other place where he had gone on a casual or temporary visit, for example, for health or business or for a change.
If a person lives with his wife and children in an established home, his legal and actual place of residence is the same.
If a person has no established home and is compelled ta live in hotels, boarding houses or houses of others, his actual and physical habitation is the place where he actually or personally resides.
[1008 B C, E F] [The Court allowed the appeal and directed that the petition for nullity of marriage filed by the respondent under section 12 of the , be returned for presentation to the proper court, i.e., the court of the District Judge, Delhi.]
|
Appeal No. 32 of 1955.
Appeal from the judgment and decree dated May 5, 1954, of the High Court of Punjab at Chandigarh in Regular First Appeal No. 115 of 1953 arising out of the decree dated June 6, 1953, of the Court of the Subordinate Judge, 1st Class, Delhi, in suit No. 26 of 1953.
Dewan Chaman Lal and Ratan Lal Chawla, for the appellant.
M. C. Setalvad Attorney General for India, Porus A. Mehta and R. H. Dhebar, for the respondent.
November 6.
The Judgment of the Court was delivered by SINHA J.
The main question for determination in this appeal from the concurrent decisions of the courts below is whether the Delhi and Ajmer Rent Control Act, XXXVIII of 1952 (which hereinafter will be referred to as the Control Act) is applicable to the premises in question.
The courts below have come to the conclusion that in view of the provisions section 3(a) of the Control Act the market called the New Fruit and Vegetable Market, Subzimandi, under the adminis tration the respondent, the Delhi Improvement Trust, (which hereinafter will be referred to as the Trust) is Government property to which the provisions of the Act are not attracted.
This appeal has been brought to this Court on a certificate granted by the High Court of Judicature of the State of Punjab that the case involved a substantial question of law as to the legal status of the respondent vis a vis the Government.
The sequence of events leading up to the institution of the suit by the appellant " The Fruit and Vegetable Merchants Union, Su bzimandi " a registered body under the Indian Trade Unions Act, giving rise to this appeal may shortly be stated as follows: By an agreement dated, March 31, 1937, (Exhibit D 5) between the Secretary of State for India in Council and the Delhi Improvement Trust, which will have to be set out in detail hereinafter and the construction of 3 which is the main point in controversy between the parties, a certain area of the land admittedly belonging to Government was placed at the disposal of the Trust for the " orderly expansion of Delhi under the supervision of a single authority.
" The said property was compendiously called " the Nazul Estate.
" By a letter dated May 1/2, 1939 (not exhibited but filed in the High Court at the appellate stage) the Chairman of the Trust forwarded a copy of the resolution No. 551 dated April 24,1939, (Exhibit D 15) to the Chief Commissioner of Delhi.
The resolution sets out the scheme for the construction of the new Subzimandi Fruit Market on a gross area of 10.87 acres including certain lands which till then did not vest in the Trust.
The Chairman asked for administrative sanction of the Government of India to place the additional area at the disposal of the Trust on the same terms as those applicable to the Nazul Estate aforesaid held under the agreement, exhibit D 5.
The resolution aforesaid sets out the object and history of the scheme.
It contains the categorical statement that " Government is the owner of all the land included in the scheme.
The position according to the revenue records is given in the statement on the next page.
" The scheme then sets out in great detail the several structures to be constructed and the, profit and loss figures.
Under the heading " Computation of revenue surplus " occur the following significant statements very much relied upon by the appellant: "The revenue surplus of Rs. 4,530/ is made up as follows; and is based on the recommendation that the Trust shall own and maintain the market.
Under the heading " Future Jurisdiction " the following significant passage occurs: At this stage, if the suggestion is accepted that the, Trust should own and run the market at least until it is firmly established, and in view of the fact that Government are the sole owners of the land, no difficulty is anticipated due to divided territorial jurisdiction of the two local authorities and no change is proposed.
4 The letter enclosing the resolution of the Trust as aforesaid contains a summary of the scheme, a portion of which is as follows: " An estimated capital expenditure of Rs. 4.73 lakhs is involved.
On this capital expenditure there will be a capital deficit of Rs. 4.20 lakhs and a recurring revenue surplus of Rs. 4,530.
This financial result assumes ownership and management of the market by the Trust, and takes into account all charges on maintenance and day to day management which would otherwise fall to a local body.
The scheme involves no acquisition of land, but assumes transfer free of charge of an area of 10.87 acres of Government land, all of which except for 1,510 square yards, falls within the limits of the Civil Lines Notified Area Committee." (Underlined by us).
In answer to this communication from the Trust, the Chief Commissioner sent the letter (exhibit D 8) dated May 13, 1939, sanctioning under section 22 A of the Trust Law the scheme of the " New Fruit and Vegetable Market " as proposed in the resolution aforesaid at a cost not exceeding Rs. 4,73,186.
The sanction is in terms made subject to the remarks (1) that "the whole of the land required for the construction of the new market is the property of the Government ", and (2) that "the trust will administer the new market on its completion.
" It will thus appear that it was clearly understood that the land on which the market was to be constructed would continue to be the property of the Government in modification of the proposal made by the Trust as aforesaid, the Trust only being vested with the power to administer the new market.
On receipt of the letter aforesaid of the Chief Com missioner, the Chairman of the Trust requested the former to obtain the orders of the Government of India to place the additional land required for the market at the disposal of the Trust under section 54 A of the United Provinces Town Improvement Act, VIII of 1919, (which will hereinafter be referred to as the Improvement Act) as extended to the Province of Delhi, "on the same terms applicable to other Nazul Estate held under the agreement between the Trust and the Government of India" (exhibit D 7).
By his letter dated 5 August 10, 1939, (exhibit D 6) the Chief Commissioner forwarded the orders dated June 21, 1939, of the Government of India agreeing to the proposal aforesaid of the, Trust placing the additional area at the disposal of the Trust on the original terms aforesaid.
This is the genesis of the New Fruit and Vegetable Market, Subzimandi, which hereinafter will be referred to as the Market, for a period of six years with effect from May 25, 1942, at an annual rent of Rs. 35,000 rising every year by Rs. 2,000 to Rs. 45,000 in respect of the sixth year of the lease.
In anticipation of the termi nation of the lease period aforesaid the Trust advertised the auction of the market for a fresh settlement.
That occasioned the suit for an injunction by the plaintiff against the Trust in the Court of the Senior Subordinate Judge of Delhi, instituted on March 18, 1948.
The Court granted the plaintiff an interim injunction restraining the defendant from putting the market to auction.
The said ex parte order of injunction was contested by the Trust with the result that the trial Court dissolved that injunction.
The plaintiff carried an appeal to the High Court of Punjab at Simla.
During the pendency of the appeal a settlement was arrived at between the parties and the plaintiff 's offer of Rs. 1,50,000 as annual rent of the market on the expiry of the lease was accepted by the Trust.
This settlement is evidenced by the resolution of the Trust dated February 24, 1949 (exhibit D 13).
In pursuance of that settlement a fresh lease was executed.
By the indenture(Ex.
D 4)dated April 22, 1949, the plaintiff was granted a fresh lease for the period May 25, 1948, to March 31, 1950, at an annual rent of Rs. 1,50,000.
One of the terms of the ' lease, which is a registered document, was " That the lessee shall on expiry of the lease or on its determination by the lessor, vacate the premises and deliver its peaceful possession to the lessor.
If the lessee fails to do so, he shall be liable to pay double the rent as liquidated damages for the unauthorised period of occupation till such time as he vacates it or he is ejected by process of law.
" Paragraph 22 of the indenture aforesaid contains the following important aidmission: 6 that both the lessor and lessee agree that the premises in dispute are owned by the Government and the provisions of the Delhi Ajmer Merwara Rent.
Control Act (1947) do not apply to the same.
" The effect of this admission is also one of the controversies between the parties and shall have to be adverted to later.
It appears that during the pendency of the second lease aforesaid, negotiations had started between the parties for extension of the period of the lease.
The plaintiff made an offer of a fresh lease for a further period of five years at an annual rent of rupees two lakhs.
But the Trust by its resolution dated May 25, 1950, (exhibit D 12) aoreed only to extend the period by two years " on the existing conditions, subject to enhancement of rent to Rs. 2 lakhs per year.
" The plaintiff 's case in the plaint is that these onerous terms successively enhancing the rent to Rs. 2 lakhs per year were agreed to by it as it had no other alternative in view of the plaintiff 's need.
The plaintiff has been paying the enhanced rent of Rs. 2 lakhs per year in view of the resolution aforesaid of the Trust but has all the same started proceedings under section 8.
of the Control Act, for fixation of standard rent in respect of the market.
The Trust got an advertisement inserted in the Hindustan Times, New Delhi, dated March 5, 1953, inviting tenders for the lease of the market for a period of three years from April 1, 1953.
The plaintiff 's case in the plaint is that the tenancy in favour of the plaintiff still subsisted and had not been terminated in accordance with law.
That was the cause of action for the plaintiff to institute the present suit on March 9, 1953.
The plaintiff 's prayer in the plaint is that a decree for a permanent injunction may be passed in favour of the plaintiff restraining the defendant from evicting the plaintiff from the market.
The suit was contested by the Trust on the allegations that the market had been constructed on Nazul land under the authority of the Delhi State Government with Government funds, that the market was Government property and was only being managed by the defendant on behalf of the Government, that the 7 Control Act by virtue of section 3 (a) thereof was not applicable to the premises in question and that therefore the plaintiff was liable to be ejected as the term of its lease had expired.
Reliance was also placed on behalf of the defendant on the provisions of the Government Premises (Eviction) Act, XXVII of 1950, read with the Requisitioning and Acquisition of Immovable Property Act, XXX of 1952.
On those pleadings a number of issues were joined between the parties of which the most important is issue No. 1 " Whether the property in dispute belongs to the Government within the meaning of section 3 (a) of the Rent Control Act, 1952 ?" Both the courts below have answered that issue in the affirmative, that is to say, in favour of the defendant.
The plaintiff prayed for and obtained the necessary certificate from the High Court that the case involved substantial questions of law as to the interpretation of the relevant statute and the agreement (exhibit D 5) between the Government of India and the Delhi Improvement Trust.
Hence this appeal.
It has been contended on behalf of the appellant that on a true construction of the provisions, particularly section 54A of the Improvement Act as applied to the Province of Delhi and the agreement (exhibit D 5) between the Government of India and the Trust, as also of the correspondence that passed between the Chief Commissioner of Delhi and the Trust, the land on which the market was constructed and the structure itself belonged to the Trust and that therefore the provisions of the Control Act were applicable to the tenancy created by the Trust in favour of the plaintiff; and that being so, the plaintiff could not be ejected by the defendant on the expiry of the term or the extended term of the lease.
On the other hand, it has been argued on behalf of the defendant respondent that the Trust is the statutory agent of the Government and has to function in accordance with the provisions of the statute aforesaid, namely, the Improvement Act.
The agency was created under the provisions of section 54A (1) 8 of the Improvement Act, the terms of the agreement being incorporated in the indenture, exhibit D 5, dated ;March 31 1937.
The argument further is that in accordance with the scheme as embodied in the agreement the Government was to hand over to its agent, the Trust, Government property which vests in possession of the agent who has to manage and develop the property with funds made available to it by Government.
Proper accounts have to be kept by the Trust of the monies thus advanced by Government in a separate account.
The Trust has also to pay a certain fixed sum by way of revenue on the property placed at its disposal.
The income from the property in the hands of the Trust has to be applied to payment of interest on money advanced by Government at a specified rate, as also to expenses for the management and improvement of the property and any surplus left over out of the income of the property in the hands of the Trust after meeting all the outgoing has to be placed at the disposal of Government to be spent according to its directions.
Thus the case of the respondent is that no legal title was created in favour of the Trust and the land, as also the structures constructed by the Trust with the monies thus advanced by Government are the property of the Government.
The Trust as the statutory agent has only to manage and develop the property in accordance with schemes sanctioned by Government.
Consequently, it was argued that the market in question belongs to Government and is not governed by the Control Act.
The question as to in whom the title to the market in question vests may be discussed in two parts, (1) title to the land on which the market is situate, and (2) title to the buildings admittedly constructed by the Trust.
Adverting first to the question of title in respect of the land, it is common ground that before it was placed at the disposal of the Trust it was Government property.
The question, therefore, naturally arises whether either by the provisions of section 54A relied upon by both the parties in this connection, or by virtue of the terms of the indenture aforesaid or by the combined operation of the two, title to the land has become vested in 9 the Trust.
The appellant contends it is so vested.
The respondent contests this proposition and contends that there are no words in the statute or in the agreement which either separately or together can be said to have transferred the pre existing title of the Government to the Trust.
It is pointed out on behalf of the respondent that section 54A only authorises Government to place the land in question " at the disposal of the Trust" which has to hold it in accordance with the terms agreed upon between them, as evidenced by the indenture exhibit D 5.
Let us examine those terms.
The agreement provides, inter alia, that with a view to the orderly expansion of Delhi under the supervision of a single authority the Government agreed to place at its disposal " the Nazul Estate " (described in Schedule 1), with effect from April 1, 1937.
One of the conditions stipulated was that the "Trust shall hold and manage the said Nazul Estate on behalf of the Government.
" These words cannot be construed as transferring title to the Nazul Estate from Government to the Trust.
They amount to constituting the Trust as an agent of the Government to hold possession of the property and to manage the same for the purpose for which the Trust had been created.
The Trust is enjoined to use its best endeavours for the improvement and development of the said Nazul Estate in accordance with the provisions of the Improvement Act, " provided that no expenditure shall be incurred upon the purchase of land to be added to the said Nazul Estate unless the proposal to make the purchase has been specifically included in an Improvement Scheme sanctioned under section 42 of the said Act.
" Particular reliance was placed on behalf of the appel lant on the following terms in the indenture to show that the title to the Nazul Estate vested in the Trust: " The Trust may sell or lease any land included in the said Nazul Estate in pursuance of the provisions of an Improvement Scheme sanctioned under section 42 of the said Act.
2 10 The Trust may, otherwise than in pursuance of an Improvement Scheme sanctioned under section 42 of the said Act, sell any land included in the said Nazul Estate." In order to appreciate the true legal position it is necessary here to examine some of the provisions of the Improvement Act bearing on this aspect of the case.
Section 22 A occurring in Chap 111 A vests the Trust with the power to undertake any works and incur any expenditure for the improvement or development of the area to which the Act may have been extended.
Section 23 in Chap.
IV sets out in detail what is meant by "An improvement Scheme.
" It lays down that the acquisition by purchase, exchange or otherwise of any property necessary for or affected by the execution of the scheme, the construction or reconstruction of buildings.
the sale, letting or exchange of any property comprised in the scheme and doing of all incidental acts necessary for the execution of the scheme may be undertaken by the Trust.
Section 24 sets out the different types of improvement schemes including a general improvement scheme, a re building scheme, a re housing scheme, a development scheme etc., and the sections following section 24 lay down in detail the scope of the different types of improvement schemes enumerated in section 24.
Section 42 requires the Chief Commissioner to announce an improvement scheme sanctioned by him by notification and thereupon the Trust embarks upon the execution of the scheme.
Then comes Chap.
V dealing with the powers and duties of the Trust when a scheme has been sanctioned.
In this chapter occur sections 45 to 48 which provide for the vesting of certain properties in the Trust.
Section 45 lays down the conditions and the procedure according to which any building, street, square or other land vested in the Municipality or Notified Area Committee may become vested in a Trust.
Similarly, section 46 deals with the vesting in the Trust of properties like a street or a square as are not vested in a Municipality or Notified Area Committee.
These sections, as also sections 47 and 48 make provision for compensation and for empowering the Trust to deal with such property 11 vested in it.
The vesting of such property is only for the purpose of executing any improvement scheme which it has undertaken and riot with a view to clothing it with complete title.
As will presently appear, the term "vesting" has a variety of meaning which has to be gathered from the context in which it has been used.
It may mean full ownership, or only possession for a particular purpose, or clothing the authority with power to deal with the property as the agent of another person or authority.
Coming back to the terms of the indenture with reference to the power of the Trust to sell or lease any land included in the Nazul Estate, certain conditions are laid down for the exercise of the aforesaid power to transfer.
The Trust is empowered to sell any land included in the Nazul Estate on its own authority only in cases where the sale is for full market value and which does not exceed Rs. 25,000/ .
In other cases the transaction has to be sanctioned either by the Chief Commissioner or by Government and in every case the forms of conveyances and leases by the Trust have to be approved by Government.
It would thus appear that the power to transfer by way of sale, lease or otherwise, vested in the Trust is not an unlimited or an unqualified power but a power circumscribed by such conditions as the Government or the Chief Commissioner, as the case may be, thought fit to impose.
The imposition of those conditions is not consistent with the title to the property vesting absolutely in the Trust.
On the other hand, the imposition of those conditions is more consistent with the proposition contended for by the learned Attorney General on behalf of the res pondent that the Trust was only constituted a statutory agent on behalf of the Government in accordance with the provisions of the Improvement Act and the terms of the indenture, exhibit D 5.
It is noteworthy that there are no provisions either in the Improvement Act or in the indenture, exhibit D 5, to the effect that the title to the Nazul Estate vested in the Trust.
It must, therefore, be held that no grounds have been made out for holding that title to the land on which the market stands was conveyed by Government to the Trust.
12 We turn now to the question whether apart from title to the land, title to the building standing upon the land is vested in the Trust.
In order to examine the contentions raised on behalf of the appellant it is necessary to set out the remaining portion of the terms of the indenture aforesaid.
The Trust was to assume full liability for all expenditure to be incurred upon works of improvement and to arrange for the completion of those works to the satisfaction of Government.
The Trust is also enjoined to maintain in accordance with the statutory rules separate accounts of all revenue realised from, and all expenditure incurred upon, the said Nazul Estate and to pay to Government the sum of Rs. 2 lakhs being the equivalent of the net annual revenue in respect thereof subject to certain conditions, not material to this case.
Then follows the.
most important clause in these terms: Any surplus funds in the Nazul Development Account remaining at the end of each financial year when the said sum has been paid shall be put at the disposal of Government and shall be applied until further orders of Government to the further improvement and development of the said Nazul Estate and/or to the repayment of loans made to the Trust as Government may direct.
" Government on its part undertook to finance either in part or in whole such schemes as may be agreed between the parties and also to advance loans at interest equal to Government rates for the time being for loans to Local Authorities.
It was in pursuance of the terms aforesaid that the scheme of the building of the market in question was put through at an estimate.
cost of a little less than five lakhs of rupees.
It is clear upon the terms of the agreement shortly set out above that the market was constructed by the Trust on Government land with Government funds advanced by way of loan at interest.
On those facts what is the legal position of the Trust vis a vis the Government in respect of the ownership of the property ? It is important, therefore, to determine the true nature of the initial relationship between the Government and the Trust.
The learned counsel for 13 the appellant conceded that relationship could not be described in terms of ordinary legal import, that is to say, in, terms of mortgagor and mortgagee, or lessor and lessee, or licensor and licensee.
He contended that it was a peculiar relationship which could not be defined in exact legal phraseology, but all the same, that the Trust was the owner of the market, especially in view of the fact that, as admitted by the defendants counsel at the trial, the Trust had repaid the entire amount of five lakhs odd advanced by Government for the construction of the market.
This result, it was further contended, follows from the terms of section 54A of the Improvement Act.
The Attorney General appearing on behalf of the respondent also strongly relied upon the terms of that section for his contention that the relationship between the Trust and the Government was that of agent and principal.
It is therefore necessary to examine closely the provisions of that section which is in these terms: " (1) The Government may, upon such terms as may be agreed upon between the Government and the Trust, place at the disposal of the Trust any properties, or any funds or dues, of the Government and thereupon the Trust shall hold or realise such properties, funds and dues in accordance with such terms.
(2) If any immovable property, held by the Trust under sub section (1) is required by the Government for administrative purposes, the Trust shall transfer the same to the Chief Commissioner upon payment of all costs incurred by the Trust in acquiring, reclaiming or developing the same, together with interest thereon at such rate as may be fixed by the Chief Commissioner calculated from the day on which this Act comes into force or from the date on which such costs were incurred, whichever is the later.
The transfer of any such immovable property shall be notified in the gazette and such property shall thereupon vest in the Chief Commissioner from the date of the notification.
" The section quoted above finds place in Chap.
VA, headed " Government Property Held by Trust.
" It is 14 manifest upon a reading of the entire section that there are no express words of conveyance whereby title is transferred by Government to the Trust either absolutely or upon certain conditions.
As applied to the present case, sub section
(1) only provides that the Government would place the property in question at the disposal of the Trust which shall hold the same in accordance with the terms as may be agreed between them, that is to say, in accordance with the terms of the agreement aforesaid, (exhibit D 5).
Placing the property " at the disposal of the Trust " does not signify that Government had divested itself of its title to the property and transferred the same to the Trust.
Clause 12 of the agreement (exhibit D 5) to the effect that "Government may at any time on giving six months ' notice terminate this agreement " clearly indicates that the Government had created this agency not on a permanent basis.
but as a convenient mode of having its schemes of improvement implemented by a single agency with wide powers of management and expenditure of funds placed at its disposal, either by way of income from the property or by way of advance from Government funds.
Sub section
therefore, does not in express terms or by necessary implication confer any title on the Trust in respect of the market.
The Trust only holds the market and realizes the income therefrom which is disbursed in accordance with the terms of the agreement and the rules framed by the Chief Commissioner in exercise of the powers conferred on him by cl.
(e) of sub section
(1) of section 72.
Our attention was called to some of those statutory rules, particularly rules, 21, 36, 38 and 156 read along with the forms and the Appendix.
It is not necessary to discuss those rules in detail because on a consideration of those rules we are satisfied that they are more consistent with the Trust being a statutory agent of the Government, which has to maintain separate accounts in.
respect of nazul property.
Any reappropriation from nazul to non nazul or vice versa could not be made by the Trust without the prior sanction of the Chief Commissioner.
The method of keeping accounts in respect of the nazul estate would show that the Trust had to function as 15 the statutory agent of the Government in the matter of the administration of the Trust funds with particular reference to the nazul estate with which we are immediately concerned.
But it has been argued on behalf of the appellant that sub section (2) of section 54A quoted above postulates that the Trust is the owner of the property ' otherwise the sub section would not speak of the Trust having to transfer immovable property held by it to the Chief Commissioner in certain contingen cies, upon payment of all costs incurred by the ' Trust in acquiring, reclaiming or developing that property together with interest calculated in the way set out in that sub section.
It should be noted in this connection that what the Government was required to pay was not the market value of the property but only the cost incurred by the Trust.
That provision apparently was made for the purpose of accounting between the different branches of the Trust activities.
If title really vested in the Trust, it would be entitled to receive from Government the price of the property and not merely required to be reimbursed in respect of the actual expenditure on the scheme.
Particular reliance was placed upon the words " and such property shall thereupon vest in the Chief Commissioner.
" It was argued that unless the property previously vested in the Trust it could not upon the transfer contemplated by sub section
(2) vest in the Chief Commissioner.
This argument assumes that the word " vest " necessarily signifies that title to the property resides in the Trust.
But the word "vest" has several meanings with reference to the context in which it is used.
In this connection reference may be made to the following observations of Lord Cranworth in Richardson vs Robertson (1) : " .
The word 'vest ' is a word, at least of ambiguous import.
Prima facie 'vesting ' in possession is the more natural meaning.
The, expressions 'investiture ' 'clothing ' and whatever else be the explanation as to the origin of the word, point prima facie rather to the enjoyment than to the obtaining of a right.
But (1) , at P. 78.
16 I am willing to accede to the argument that was pressed at the bar, that by long usage ' vesting ' ordinarily means the having obtained an absolute and indefeasible right, as contra distinguished from the not having so obtained it.
But it cannot be disputed that the word ' vesting ' may mean, and often does mean, that which is its primary etymological signification, namely, vesting in possession.
" Similarly with reference to the provisions of a local Act (5 Geo. 4, c. Ixiv), it was held that the word "vest" did not convey a freehold title but only a right in the nature of an easement.
The following words of Willes, J. in Hinde vs Charlton(1) are relevant: words, which in terms vested the freehold in persons appointed to perform some public duties, such as canal companies and boards of health, have been held satisfied by giving to such persons the control over the soil which was necessary to the carrying out the objects of the Act without giving them the freehold ' " In the case of Coverdale vs Charlton (2), the Court of Appeal on a consideration of the provisions of the Public Health Act, 1875 (38 and 39 Vict. c. 55) with particular reference to section 149, has made the following observations at p. 116: What then is the meaning of the word 'vest ' in this section ? The legislature might have used the expression transferred ' or 'conveyed ', but they have used the word 'vest '.
The meaning I should like to put upon it is, that the street vests in the local board qua street; not that any soil or any right to the soil or surface vests, but that it vests qua street." Referring to the provisions of section 134 of the Lunacy Act, 1890 (53 & 54 Vict. c. 5) in the case of In re Brown (a lunatic)(3) it has been laid down by Lindley, L. J., that the word "vested" in that section included the right to obtain and deal with; without being actual owner of the lunatic 's personal estate.
(1) (1866 67) C.P. Cases 104 at 116.
(2) (3) 17 In the case of Finchley Electric Light Company vs Finchley Urban District Council(1), adverting to the provisions of section 149 of the Public Health Act, 1875, (supra) Romer, L.J., has made the following observations at pp.
443 and 444: "Now, that section has received by this time an authoritative interpretation by a long series of cases.
It was not by that section intended to vest in the urban authority what I may call the full rights in fee over the street, as if that street was owned by an ordinary owner in fee having the fullest rights both as to the soil below and as to the air above.
It is settled that the section in question was only intended to vest in the urban authority so much of the actual soil of the street as might be necessary for the control, protection, and maintenance of the street as a highway for public use.
For that proposition it is sufficient to refer to what was said by Lord Halsbury, L. C., and by Lord Herschell in Tunbridge Wells Corporation vs Baird(2) I. .
That section has nothing 'to do with title; it is not considering a question of title.
No matter what the title is of the person who owns the street, the section is only considering how much of the street shall vest in the urban authority. .
That the word "vest" is a word of variable import is shown by provisions of Indian statutes also.
For example, section 56 of the Provincial Insolvency Act (V of 1920) empowers the court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that " such property shall thereupon vest in the receiver.
" The property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realising his assets.
The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property.
On the other hand, sections 16 and 17 of the Land Acquisition Act.
(Act I of 1894), provide that the property so acquired, upon the happening of (1)[1903] 1 Ch.
437. 3 (2) 18 certain events, shall " vest absolutely in the Government free from all encumbrances '.
In the cases contemplated by sections 16 and 17 the property acquired becomes.
the property of Government without any conditions or limitations either as to title or possession.
The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration.
It would thus appear that the word "vest" has not got a fixed connotation, meaning in all cases that the property is owned by the person or the autho rity in whom it vests.
It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation.
The provisions of the Improvement Act, particularly sections 45 to 49 and 54 and 54A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them.
The question of the ownership of the structure built upon Government land by the Trust may be looked at from another point of view.
We have already held that the Trust was in the position of a statutory agent of Government and had erected the structure with money belonging to Government but advanced at interest to the Trust.
In such a situation the structure also would be the property of Government, though for the time being it may be at the disposal of the Trust for the purpose of managing it efficiently as a statutory body.
Simply because the Trust erected the structure in question and later on paid up the amount advanced by Government for the purpose would not necessarily lead to the,legal inference that the structure was the property of the Trust.
In this connection reference may be made to the decision of this Court in Bhatia Co operative Housing Society Ltd. vs D. C. Patel(1).
The case is not on all fours with the facts of the present case.
But the following observations of Das J. (as he then was) at p. 195 of the report are pertinent: " It is true that the lessee erected the building at his own cost but he did so for the lessor and on the (1) ; 19 lessor 's land on agreed terms.
The fact that the lessee incurred expenses in putting up the building is precisely the consideration for the lessor granting him a lease, for 999 years not only of the building but of the land as well at what may, for all we know, be a cheap rent which the lessor may not have otherwise agreed to do.
By the agreement the building became the property of the lessor and the lessor demised the land and the building which, in the circumstances, in law and in fact belonged to the lessor.
The law.
of fixtures under section 108 of the Transfer of Property Act may be different from the English law, but section 108 is subject to any agreement that the parties may choose to make.
Here, by the agreement the building became part of the land and the property of the lessor and the lessee took a lease on that footing.
" In our opinion, therefore, it cannot be said that either under the provisions of the Improvement Act or in accordance with the terms of the agreement (exhibit D 5) or the two taken together, the market became the property of the Trust.
We have already noticed the relevant portions of the correspondence that passed between Government and the Trust to show that though at the initial stages the Trust proposed that the ownership of the market should vest in the Trust, the final terms agreed between the parties in accordance with the provisions of section 54A left the ownership with Government.
We have come to this conclusion without reference to the admission of the plaintiff contained in para.
22 of the indenture (exhibit D 4) quoted above.
It is therefore not necessary for us to consider the question raised by the learned Attorney General that the plaintiff was bound by that admission or whether that admission is vitiated by any pressure of circumstances or duress as pleaded by the plaintiff.
Certainly that admission is a piece of evidence which could be considered on its merits even apart from the question of estopped which had not been specifically pleaded or formed the subject matter of a separate issue.
In view of our finding that the market, as also the land on which it stands, is the property of Government, the conclusion follows that the operative provisions of 20 the Control Act do not apply to the premises in question.
That being so, it must be held that there is no merit in this appeal.
It is accordingly dismissed with costs.
Appeal dismissed.
| IN-Abs | Under an agreement the Government placed certain lands belonging to it at the disposal of the Improvement Trust for the construction of a market.
The Trust constructed the market with funds advanced by the Government by way of loan at interest.
Under the agreement the Trust had to pay a certain fixed sum by way of revenue on the property; the income from the market had to be applied to the payment of interest on the money advanced by Government, and to the payment of expenses for the management of the market and the surplus had to be placed at the disposal of, Government to be spent according to its directions.
The lessee of the market from the Trust filed a suit for a declaration that it was protected from ejectment by the provisions of the Delhi and Ajmer Rent Control Act.
It was contended by the lessee that the market was the property of the Trust to which the Act applied.
It was further contended by the lessee relying upon the language of section 54A(2) of the U. P. Town Improvement Act, that the market vested in the Trust for otherwise it could not upon transfer by the Trust vest in the Chief Commissioner as provided by this section.
Held, that upon a proper construction of the terms of the agreement between the Trust and the Government, the Trust was in the position of a statutory agent of the Government and that the market was Government premises to which the provisions of the Delhi and Ajmer Rent Control Act were not applicable by virtue Of section 3(a).thereof, and consequently the lessee was liable to ejectment upon termination.
of the period of the lease.
The word 'vest ' has not got a fixed connotation, meaning in all cases that the property is owned by the person or authority in whom it vests.
It may vest in title, or it may vest in possession or it may vest in a limited sense.
|
: Criminal Appeal No. 93 of 1981.
Appeal by special leave from the judgment and order dated the 16th January, 1980 of the Gujarat High Court in Special Criminal Application No. 185 of 1979.
J. L. Nain and R. N. Poddar for the Appellant.
O. P. Rana, A. C. for the Respondents.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
This appeal by special leave is by the State of Gujarat and is directed against the judgment and order of the Gujarat High Court quashing the order of detention passed by the H appellant against respondent, Ismail Juma.
The respondent was detained by the appellant in exercise of powers conferred on it by 1016 Sub section (I) of Section 3 of the (hereinafter called 'the Act ').
The grounds of detention inter alia were that the respondent, Hasan Malabari and Abdul Latif Fakirmohmed were the members of the crew of a vessel that was engaged in smuggling of wrist watches and some other contraband articles worth Rs. 33,70,819,00.
The respondent moved the High Court of Gujarat.
A Division Bench ofthe High Court by its impugned order dated January 16, 1980 quashed the order of detention.
The High Court found: ". the order of detention made against him (detenu) clearly shows that the detaining authority had not applied his mind to the facts of the case .
The impugned order nowhere states that the detaining authority on having received a proposal from the customs authorities, had applied his mind to all materials on record and had reached satisfaction that the facts of the case warranted the detention of the petitioner.
In absence of anything to show that the detaining authority was satisfied with the material on record so as to enable him to detain the petitioner, the impugned order cannot be sustained.
It suffers from a fatal infirmity.
The impugned order of the High Court is liable to be set aside as factually the above observations are incorrect.
Presumably the attention of the High Court was drawn only to the order of the appellant made under Section S of the Act by which the Government directed the detenu to be detained in Ahmedabad Central Prison.
This order was dated August 1, 1979 (Annexure 'B ').
There was another order of the same date passed under sub section (I) of Section 3 of the Act which in fact was the order of detention which ran as follows: "Whereas the Government of Gujarat is satisfied with respect to the person known as Shri Ismail Juma Tangan alias Bando residing at Balapar, Beyt (Okha), Distt.
Jamnagar that, with a view to preventing him from smuggling goods, it is necessary so to do; Now, therefore, in exercise of the powers conferred by sub section (1) of Section 3 of the , 1017 the Government of Gujarat hereby directs that the said A Shri lsmail Jumma Tangan Bando (be detained.
By order and in the name of the Governor of Gujarat, Sd/ P.M. Shah Deputy Secretary to the Government (Annexure 'A ')" 3.
Both these orders were taken in the name of the Governor of Gujarat and were authenticated by Shri P. M. Shah, Deputy Secretary to Government of Gujarat, Home Department (Special).
These two orders were accompanied by the grounds of detention, a which have been filed before us as Annexure 'C '.
Annexure 'C ' is also dated August 1, 1979 and was taken in the name of the Governor of Gujarat, and authenticated by the same Deputy Secretary to the Government of Gujarat, Shri Shah.
A perusal of these three documents do not justify the finding of the High Court that the detaining authority had not applied its mind to the materials before it and that it had not "reached satisfaction that the facts of the case warranted the detention of the petitioner.
" The finding of the High Court has been based on a presumption which is unjustified.
This Court in the case of State of Gujarat vs Adam Kasam Bhaya(1) held:. "The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on the materials before it.
If it is found that the order has been based by the detaining athority on materials on record, then the court cannot go further and examine whether the material was adequate or not which is the function of ail appellate authority or Court.
It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material.
The satisfaction mentioned in Section 3 of the Act is the satisfaction of the detaining authority and not of the Court. ' The reason is that the satisfaction of the detaining authority is subjective.
Additionally it appears from the affidavit filed by the Deputy Secretary (referred to in greater detail herein below) that the entire record was carefully considered by the Home Minister concerned before the order of detention was passed.
1018 5.
Mr. Rana appearing as Amicus Curiae for the respondent raised a preliminary objection before us.
The same preliminary objection was raised in State of Gujarat vs Adam Kasam Bhaya (supra), namely, that in view of the fact that the maximum period of detention mentioned in Section 10 of the Act had expired, the appeal had become infructuous The objection is covered by our aforesaid judgment.
The additional argument advanced by Mr. Rana in this behalf was that once the maximum period prescribed by law was over, the order of detention was non est and there was no order by which the detenu could be put under fresh detention.
The answer is once the order quashing the order of detention of the detenu is set aside by this Court, the order of the High Court rendering the order of detention non est itself becomes non est and the order of detention gets life.
We do not find any valid reason to differ from our earlier judgment (supra) on this point.
The only other submission made by Mr. Rana in this appeal was that the order of detention was not passed by a competent authority mentioned in the Act.
This point is new and does not appear to have been urged before the High Court.
Even so we heard Mr. Rana on the point and proceed to give our decision.
The relevant authorities that can pass order of detention are mentioned in Sub section (I) of Section 3 of the Act.
The authorities are the Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government.
The argument was that the order was signed by the Deputy Secretary (Shri P. M. Shah) and he was not one of the authorities mentioned in Sub section (I) of Section 3 of the Act.
This appeal came up for hearing on an earlier occasion but after being heard in part was adjourned to enable the counsel of the appellant to satisfy the Court as to who actually passed the order of detention.
In pursuance of that order of this Court, an affidavit has been filed by Shri P. M. Shah aforesaid.
It has been stated in the affidavit that the entire record was placed before the Home Minister who "after careful consideration of the entire record has passed the impugned order of detention" and that he (Mr. Shah) "only authenticated the impugned order of detention in accordance with sub clause (2) of 1019 Article 166 of the Constitution of India.
" As the order has been A taken in the name of the Governor of Gujarat and validly authenticated by the Deputy Secretary concerned, the order tentamounts to an order by the State Government of Gujarat.
It therefore cannot be said that the order of detention was not passed by the competent authority.
In the result, this appeal succeeds and is allowed.
The impugned order of the High Court is set aside.
N.V.K. Appeal allowed.
| IN-Abs | The respondent was detained by the appellant under sub section (I) of section 3 of the .
The grounds for detention were that the respondent along with two others were members of the crew of a vessel that was engaged in smuggling of wrist watches and other contraband articles worth about Rs. 33 lakhs.
The respondent moved the High Court which quashed the order of detention, holding that the order of detention clearly showed that the detaining athority had not applied his mind to the facts of the case and that the impugned order nowhere stated that the detaining authority on having received a proposal from the customs authorities, had applied his mind tc all the materials on record and had reached satisfaction that the facts of the case warranted detention.
Allowing the State 's appeal to this Court, ^ HELD: 1, The order dated August 1, 1979 made under section S of the Act by the Government directed the detenu to be detained.
On the same date another order was passed under sub section (1) of section 3 which in fact was the order of detention.
It provided that the Government was satisfied that with a view to preventing the respondent from smuggling goods it was necessary to detain him.
These two orders were accompanied by the grounds of detention which was also dated August 1,1979.
A perusal of these three documents do not justify the finding of the High Court that the detaining authority had not applied its mind to the materials before it and that it had not "reached satisfaction that the facts of the case warranted the detention of the petitioner.
" The finding of the High Court has been based on a presumption which is unjustified.
[1016 F 1017 E] 1015 2.
The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on the materials before it.
If it is found that the order has been based by the detaining authority on materials on record, then the court cannot go further n examine whether the material was adequate or not which is the function of an appellate authority or Court.
It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material.
The satisfaction mentioned in section 3 of the Act is the satisfaction of the detaining authority and not of the Court.
[1017 F] State of Gujarat vs Adam Kasam Bhaya, [1982] 1 S.C.R. 740, referred to.
Once the order quashing the order of detention of the detenu is set aside by this Court rendering the order of detention non est itself becomes non es and the order of detention gets life.
[1018 C] 4.
The relevant authorities that can pass order of detention are mentioned in sub section (1) of section 3 of the Act.
The authorities are the Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government specially empowered for the purposes of this section by that Government.
[1018 E F] In the instant case the order having been taken in the name of the Governor and validly authenticated by the Deputy Secretary concerned, the order tentamounts to an order by the State Government.
It, therefore, cannot be said that the order of detention was not passed by the competent authority.
[1019 A]
|
Civil Appeal No. 2132 of 1977.
Appeal by special leave from the judgment and order dated the 23rd September, 1976 of the Gujarat High Court in First Appeal No. 76 of 1963 D.V. Patel, R. Shroff, Gopal Subramaniam and D.P. Mohanty for the Appellant.
M.N. Phadke, S.C. Patel and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by MISRA J.
The present appeal by special leave is directed against the Full Bench decision of the High Court of Gujarat at Ahmedabad dated 23rd of September, 1976.
The sole question for consideration in this appeal is whether Civil Court has jurisdiction to entertain and decide the suit giving rise to the present appeal.
There is an old institution known as Edroos Dargah of Hazrat Sayedina Mohomed Bin Abdulla El Edroos at Surat.
Village Orma is an inam village held by the said institution.
The dispute in the present case relates to the property of the said village orma comprising its soil, trees, lanes, roads together with cultivated lands of about 1093 acres with land revenue alienated Rs. 2,747.10.5.
Pursuant to the Bombay Personal Inams Abolition Act, 1952 (Act 42 of 1953) hereinafter referred to as 'the 1952 Act ', the State of Bombay and after the reorganization of States, the State of Gujarat, declared that the said Act was applicable to village Orma from I st of August, 1955 and, therefore, the exemption from the payment of land revenue was extinguished from the 1st of August, 1955.
Accordingly the State of Bombay through its Mamlatdar of Olpad sent a notice to the Sajjadanashin of the institution to that effect and also demanded the village records from his possession.
He also proceeded to take further and consequential action and declared that the rights of the institution in public roads, lanes, village site and land etc. are extinguished.
In the circumstances the Sajjadanashin was obliged to file the suit which was later on numbered as suit No. 9 of 1956.
The stand of the plaintiff is that village Orma was an inam village held by the religious institution of Edroos Dargah and the 885 provisions of section 4 of the 1952 Act have no application in view of clause (2) of section 3 of the said Act.
The defendant State contested the suit on grounds inter alia that the village in question was a personal inam within the meaning of section 2 (1) (a) of the 1952 Act and the State Government alone is competent to decide the question whether the grant is a personal inam or not and the Civil Court has no jurisdiction to decide the question.
B The pleadings of the parties gave rise to fourteen Issues and the Trial Court decided all the substantial issues against the plaintiff.
Consequently it dismissed the suit holding that the inam in question was personal inam.
Feeling aggrieved, the plaintiff went up in appeal to the High Court.
The appeal came up for hearing before a learned Single Judge.
He took up the question of jurisdiction first.
The stand of the plaintiff appellant was that the Civil Court had the jurisdiction to entertain the suit and in support of his contention he placed reliance on Sayed Mohmed Baquir El Edroos vs The State of Bombay.(1) The learned Single Judge, however, doubted the correctness of the proposition laid down in that case and referred the case to a larger Bench and it was eventually decided by a Full Bench of that Court.
It appears that during the pendency of the appeal another Act was passed known as the Gujarat Devasthan Inams Abolition Act, 1969 (Act 16 of 1969) hereinafter referred to as 'the 1969 Act '.
It came into force on I 5th of November, 1969.
By this Act devasthan inams or inams held by religious and charitable institutions were also abolished.
The inevitable result of the 1969 Act is that whether the inam in question is a personal inam or a devasthan inam it cannot subsist.
The plea of the plaintiff, on the basis of which he filed the suit, was no more available to him after the passing of the latter Act.
But the question was still to be enquired into because if the plaintiff succeeds in establishing that the inam in question was a religious or charitable inam, it would be abolished only by the 1969 Act and, therefore, the plaintiff will be entitled to all the benefits of devasthan inam open to him till the enforcement of that Act.
The High Court, therefore, proceeded to hear the appeal despite the passing of the 1969 Act and by its judgment dated 2nd of September, 1976 came to the conclusion that the exclusive jurisdiction to decide the question was with the State 886 Government and the Civil Court has no jurisdiction to entertain the suit.
In view of its finding on the question of jurisdiction, the High Court did not think it necessary to enter into other issues involved in the case.
The plaintiff has now come to challenge the judgment of the Full Bench on obtaining special leave of this Court to appeal.
In the present appeal the plaintiff again reiterates that the Civil Court has jurisdiction to entertain the suit.
In order to appreciate the contentions, of the counsel of the parties on the question of jurisdiction, it will be appropriate to refer to the relevant provisions of the 1952 Act Section 2 (1) (e) defines personal inams.
Insofar as it is material, it reads: "2.
(1) In this Act, unless there is anything repugnant in the subject or context, (e) "personal inam" means (i) a grant of a village, portion of a village, land or total partial exemption from the payment of land revenue entered as personal inam in the alienation register kept under section 53 of the Code.
(ii) . .
Explanation 1: If any question arises whether any grant is a personal inam such question shall be referred to the State Government and the decision of the State Government shall be final and the entry, if any, in respect of such grant in the alienation register kept under section 53 of the Code shall be deemed to have been amended accordingly.
Explanation II. . " The expression 'Code ' has been defined in section 2 (1) (b) of the Act as the Bombay Land Revenue Code 1879 (Bombay V of 1879).
Section 3 of the Act insofar as it is material, reads: "3.
Act not to apply to certain inams and grants Nothing in this Act shall apply to (1) . . (2) devasthan inams or inams held by religious or charitable institutions.
887 (3) . (4) . (5) .
Explanation: For the purposes of this section inams held by religious or charitable institutions means Devasthan or Dharmadaya inams granted or recognised by the ruling authority for the time being for a religious or charitable institution and entered as such in the alienation register kept under section 53 of the Code or in the records kept under the rules made under the (XXIII of 1871).
" Section 4 of the Act reads: "4.
Abolition of personal inams and rights in respect of such inams.
Notwithstanding anything contained in any usage, settlement, grant, sanad or order or a decree or order of a Court or any law for the time being in force, with effect from and on the appointed date .
(i) all personal inams shall be deemed to have been extinguished, (ii) save as expressly provided by or under the provisions of this Act, all rights legally subsisting on the said date in respect of such personal inams shall be deemed to have been extinguished: Provided that in the case of a personal inam consisting of exemption from the payment of land revenue only, either wholly or in part, such exemption shall be deemed to have been extinguished: (a) if the amount of such exemption is or exceeds Rs. 5,000 with effect from the 1st day of August, 1953, and (b) in all other cases, with effect from the 1st day of August, 1955." Mr. D.V. Patel, senior counsel for the appellant, assisted by Mr. G. Subramaniam, has contended that the High Court has gravely erred in holding that the Civil Court had no jurisdiction to deal with the suit.
According to the learned counsel unless the 888 jurisdiction of the Civil Court is barred specifically or by necessary implication the Civil Court would have jurisdiction.
Admittedly there is no specific bar under the 1952 Act.
No provision has been brought to our notice specifically excluding the jurisdiction of the Civil Court.
Now the question is whether the jurisdiction of the Civil Court has been excluded by necessary implication.
The only bar is provided by Explanation I to section 2 (1) (e).
Explanation r provides that if any question arises whether any grant is personal inam, such question shall be referred to the State Government and the decision of the State Government shall be final.
Whether Explanation I to section 2 (1) (e) excludes the jurisdiction of the Civil Court by necessary implication is the question for consideration.
The finality of the decision of the State Government contemplated by the explanation, says the learned counsel, is only for the purpose of the Act, namely, the 1952 Act, and this finality cannot stand in the way of the Civil Court to entertain the suit.
In support of his contention the learned counsel has strongly relied upon two decisions: Secretary of State, Represented by the Collector n of South Arcot vs Mask and Company,(1) and Dhulabhai and Ors.
vs The State of Madhya Pradesh and Anr.(2) In the first case the Privy Council dealing with the jurisdiction of the Civil Court observed as follows (at page 236): "It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied.
It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
" In Dulabhai 's case (supra) Hidayatullah C.J., speaking for the Court, on an analysis of the various decisions cited before the Court expressing diverse views, laid down the following propositions: (1) Where the statute gives a finality to the orders of the special tribunals the Civil Court 's jurisdiction must he held to be excluded if there is adequate remedy to 889 do what the Civil Courts would normally do in a suit.
A Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
B (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
C Where there is no express exclusion the examination of the remedies and the scheme or the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive.
In the latter case lt is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra views cannot be brought before Tribunals constituted under that Act.
Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open.
A writ of Certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
G (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the 890 authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act.
In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.
" If we consider the present case, in the light of the principles laid down by the Supreme Court in the above noted case, in our opinion the finality of the decision of the Government as contemplated by Explanation I to section 2 (1) (e) cannot exclude the jurisdiction of the Civil Court.
Except for the Explanation, there is no other provision in the Act touching upon the jurisdiction of the Civil Court and none has been referred to before us by either party.
The Act does not give any details about the reference to and the enquiry by the Government.
No appeal has been provided for and it cannot be said that the case of the plaintiff has been considered by the Government in the same way as it would have been considered if the case had been filed before a Civil Court.
The very first principle laid down in the case of Dhulabhai postulates that where a statute gives a finality to the orders of the special tribunal the Civil Court 's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit.
From a perusal of the provisions of the Act it cannot be said that there is adequate remedy available to the plaintiffs on reference made to the Government.
Even according p to the second principle laid down by the Supreme Court where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find out the adequacy or the sufficiency of the remedies provided may be relevant.
The Act does not give any details about the reference to be made to the Government, the procedure to be followed by the Government, the opportunity to be afforded to the aggrieved party.
In the absence of any such details in the Act it is not possible to hold that the use of the expression 'finality of the decision of the Government ' in Explanation I to section 2 (1) (e) of the 1952 Act was meant to bar the jurisdiction of the Civil Court.
The High Court in our opinion has committed a manifest error in travelling beyond the 1952 Act and referring to the provi 891 sions of the 1969 Act.
The High Court referred to section 4 of the 1969 Act, which exclusively vests the power to decide whether any village, portion of a village, or land is held in devasthan inam, in the authorised officer, and the State Government is empowered to authorise any officer under the proviso to section 4 (l) to decide questions arising under clauses (a) (b) or (c) of section 4.
Subsection (2) of section 4 of the said Act enables the person aggrieved by the decision of the authorised officer to go up in appeal to the State Government within sixty days from the date of the decision.
The High Court also referred to section 20 of the 1969 Act which specifically bars the jurisdiction of the Civil Court.
It reads: "20.
No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with, by the officer authorised under the proviso to sub section (I) of section 4 or section 25 or the Collector, the Gujarat Revenue Tribunal in appeal, or the State Government in appeal or revision or in exercise of their power of control.
" On the basis of the provisions of the 1969 Act the High Court came to the conclusion that Explanation 1 to section 2 (1) (e) of the 1952 Act and section 20 or the 1969 Act put beyond the pale of any doubt that the jurisdiction of the Civil Court had been taken away by the legislature to determine the question whether a particular inam is a personal or a devasthan inam.
We are concerned in the present case with the provisions of the 1952 Act.
There is no corresponding provision like section 20 of the 1969 Act in the 1952 Act nor is there any detailed procedure of appeal and revision in that Act as contemplated by the 1969 Act.
The High Court in our opinion was not justified in invoking the provisions of the 1969 Act while deciding the case under the 1952 Act.
The counsel for the State of Gujarat on the other hand referred to the definition of personal inam as given in section 2 (1) (e) of the 1952 Act and according to the learned counsel the inam in question is a personal inam in view of the definition itself which says: Personal inam means a grant of a village, portion of a village, land or total partial exemption from the payment of land revenue entered as personal inam in the alienation register kept 892 under section 53 of the Code.
" So, entry of the nature of the inam in the alienation register is a decisive factor.
In the instant case the inam in question has been entered as personal inam in the alienation register.
Therefore, perforce it has to be taken as a personal inam and the plaintiff cannot escape the definition of the expression 'personal inam ' as given in section 2 (1) (e).
Likewise, for a devasthan inam also it is necessary to be so entered in the alienation register kept under section 53 of the Code in view of Explanation to section 3 of the 1952 Act.
The counsel for the appellant on the other hand referred to Explanation I to section 2 (1) (e) of the 1952 Act which indicates that the entry in the register is not an essential part of the definition of the personal inam but it is only descriptive.
If the Government decides the case contrary to t he entry in the alienation register, the alienation register shall be deemed to have been amended accordingly.
This part of the Explanation takes away the rigour of the entry in the alienation register.
If the entry in the alienation register will be deemed to have been automatically amended by the decision of the Government on the question whether it is a personal inam or a devasthan inam there is no sanctity attached to such entry which is mainly intended to serve the purpose of realisation of land revenue.
The entry cannot be said to be so sacrosanct that it cannot be changed.
Indeed the explanation itself contemplates a change in view of the decision of the Government on the question.
It was next contended for the State that the Revenue Court alone has exclusive jurisdiction to correct the entries in the revenue records and the counsel referred to section 53 of the Bombay Land Revenue Code.
It reads: "53.
A Register shall be kept by the Collector in such form as may from time to time be prescribed by the State Government of all lands, the alienation of which has been established or recognized under the provisions of any law for the time being in force; and when it shall be shown to the satisfaction of the Collector that any sanad granted in relation to any such alienated lands has been permanently lost or destroyed, he may, subject to the rules and the payment of the fees prescribed by the State Government under section 213, grant to any person whom he may deem entitled to the same a certified extract from the said Register, which shall be endorsed by the Collector to the effect that it has been issued in lieu of the sanad said to have been lost or destroyed, and shall be deemed to be as valid a proof of title as the said sanad.
" 893 Section 203 of the said Code provides for appeal from any order passed by the Revenue officer to his superior and on the strength of these provisions it is sought to be argued that the plaintiff could have gone up in appeal against the decision of the officer under section 53 of the Code and the jurisdiction of the Civil Court is completely barred.
If we refer to section 212 of the Code, the argument of the counsel for the State cannot be accepted.
Section 212 con templates that whenever in this Code it is declared that a decision or order shall be final such expression shall be deemed to mean that no appeal lies from such decision or order.
If this is what finality means under section 212 it cannot be argued with any force on behalf of the State that the jurisdiction of the Civil Court is barred.
C For the foregoing discussion the decision of the Full Bench of the High Court cannot be sustained.
We accordingly accept the appeal, set aside the judgment of the High Court dated 23rd September, 1976 and remand the case to the High Court for deciding other points involved in the case.
The parties shall, however, bear their own costs.
P.B.R. Appal allowed.
| IN-Abs | A notice was issued to the Sajjadanashin of the appellant institution stating that consequent on the coming into force of the Bombay Personal Inams Abolition Act 1952 exemption from payment of land revenue was extinguished in respect of the inam village and that he should hand over the village records to mamlatdar.
The appellent in a suit filed in the Civil Court claimed that the inam was held by a religious institution and that, therefore, the provisions of the 1952 Act had no application to it.
In replication the State claimed that under the provisions of the 1952 Act the State Government alone was competent to decide the question whether the grant was a personal or a religious inam and that the Civil Court had no jurisdiction to decide it.
Holding that it was a personal inam the Trial Court dismissed the appellant 's suit.
When the appellant 's appeal was pending before the High Court the Gujarat Devasthan Inams Abolition Act, 1969 was passed abolishing the inams held by religious charitable institutions as well.
On the question of jurisdiction to decide whether an inam was personal or religious the High Court held that it was the State Government and not the Civil Court which had exclusive jurisdiction in this respect.
In appeal to this Court it was contended on behalf of the appellant that unless the jurisdiction of the Civil Court is barred specifically or by necessary implication the Civil Court would have jurisdiction and that the finality contemplated by Explanation I to section 2 (1) (e) (which provides that if any question arises whether any grant is a personal inam such question shall be referred to the State Government and that the decision of the State Government shall be final) is only for the purposes of the 1952 Act and could not stand in the way of the Civil Court entertaining the suit.
883 Allowing the appeal, ^ HELD: 1.
The finality of the decision of the Government as contemplated by Explanation I to section 2(1) (e) of the Act cannot exclude the jurisdiction of the Civil Court.
Except for the Explanation, there is no other provision in the Act touching upon the jurisdiction of the Civil Court.
[890 C D] 2.
In Dulabhai vs State of Madhya Pradesh, ; this Court held that where a statute gave finality to the orders of the special tribunal the .
Civil Court 's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit.
Under the provisions of the 1952 Act it cannot be said that an adequate remedy is available to the plaintiffs on reference made to the Government.
[888 G.H] 3.
The second principle laid down in the above case is that where there is an express bar to the jurisdiction of the Court, an examination of the scheme of the Act to find out the adequacy or the sufficiency of the remedies provided there in may be relevant.
In the absence of any details in the enactment about the reference to be made to the Government, the procedure to be followed by the Government, and the opportunity to be afforded to the aggrieved party, it cannot be held that the expression "finality of the decision of the Government" used in the Explanation was meant to bar the jurisdiction of the Civil Court.
[890 F G] 4.
The High Court, however, erred in travelling beyond the provisions of the 1952 Act by referring to the provisions of the 1969 Act and coming to the conclusion that Explanation I to section 2(1) (e) of the 1952 Act and section 20 of the 1969 Act put beyond the pale of any doubt that the jurisdiction of the Civil Court had been taken away by the legislature to determine the question whether a particular Inam was a personal or devasthan inam.
The High Court was not justified in invoking the provisions of the 1969 Act while deciding a case under the 1952 Act.
[891 E G] 5.
An entry in the alienation register as to whether an inam is personal or religious cannot be said to be so sacrosanct that it cannot be changed.
Explanation 1 to section 2 (1) (e) of the 1952 Act indicates that the entry in the register is not an essential part of the definition of personal inam but is only descriptive.
If the Government decides a case contrary to the entry in the register of alienation the register shall be deemed to have been amended.
If an entry in the register would be deemed to have been automatically amended by the decision of the Government, there is no sanctity to such entry.
The explanation itself contemplates a change in view of the decision of the Government on the question.
An entry in the register is mainly intended to serve the purpose of realisation of land revenue.
[892 C D] 6.
Section 203 of the Bombay Land Revenue Code provides for an appeal to a superior officer from an order passed by the revenue officer.
This section cannot be said to completely bar the jurisdiction of the Civil Court because section 212 of the Code contemplates that whenever it is declared that a decision or order shall be final such expression shall be deemed to mean that no appeal lies from such decision or order.
If this is what finality meant under section 212 it cannot be said that the jurisdiction of the Civil Court is barred.
[893 A C] 884
|
tition Nos. 355, 360, 863, 994 & 3624 of 1981.
(Under article 32 of the Constitution of India) Petitioner in person in WP.
No. 350/81 R.K Garg, A.R. Gupta, Brij Bhushan, Miss Renu Gupta and S.K Jain for the Petitioner in W.P. 360/81. 957 Soli J. Sorabjee, Harish Salve, S.K Dholakia & Mrs. Ranjana Anand for the Petitioners in W.P. 863/81.
Soli J. Sorabjee, Harish Salve, P.H. Parekh, R. Karanjawala.
K.K. Lahiri & R. Swamy for the Petitioner in W.P. 994/81.
R.S. Sodhi for the Petitioner in WP 3624/81.
L.N. Sinha, Attorney General in WPs.
355 & 360/81.
K Parasaran, Sol.
General in WPs.
863 & 994/81.
K. section Gurumoorthi & Miss A. Subhashini for the Respondents.
U.N. Banerjee for the intervener Mr. K.B. Kastia V.J. Francis for the intervener All India L.I.C., Employees Federation.
The following Judgments were delivered BHAGWATI, J.
These writ petitions raise a common question of law relating to the constitutional validity of the Special Bearer Bonds (Immunities and Exemptions) ordinance, 1981 (hereinafter referred to as the ordinance) and the (hereinafter referred to as the Act).
The principal ground on which the constitutional validity of the ordinance and the Act is challenged is that they are violative of the equality clause contained in Article 14 of the Constitution.
There is also one other ground on which the ordinance is assailed as constitutionally invalid and it is that the President had no power under Article 123 of the Constitution to issue the ordinance and the ordinance is therefore ultra vires and void.
We shall first deal with the latter ground since it can be disposed of briefly, but before we do so, it would be convenient to refer to the relevant provisions of the Act.
It is not necessary to make any specific reference to the provisions of the ordinance since the provisions of the Act are substantially a reproduction of the provisions of the ordinance.
On 12th January 1981, both Houses of Parliament not being in session, the President issued the ordinance in exercise of the power conferred upon him under Article 123 of the Constitution.
The ordinance was later replaced by the Act which received the assent of the President on 27th March 1981, but which was brought 958 into force with retrospective effect from 12th January 1981 being the date of promulgation of the ordinance.
The Act is a brief piece of legislation with only a few sections but the ascertainment of their true meaning and legal effect has given rise to considerable controversy between the parties and hence it is necessary to examine the provisions of the Act in some detail.
The long title of the Act describes it as an Act "to provide for certain immunities to holders of Special Bearer Bonds 1991 and for certain exemptions from direct taxes in relation to such Bonds and for matters connected therewith" and the provisions enacted in the Act are proceeded by a Preamble which indicates the object and purpose of the Act in the following words: Whereas for effective economic and social planning it is necessary to canalise for productive purposes black money which has become a serious threat to the national economy; And whereas with a view to such canalisation the Central Government has decided to issue at par certain bearer bonds to be known as the Special Bearer Bonds, 1991, of the face value of ten thousand rupees and redemption value, after ten years, of twelve thousand rupees; And whereas it is expedient to provide for certain immunities and exemptions to render it possible for persons in possession of black money to invest the same in the said Bonds; Sections 3 and 4 are extremely material since on their true interpretation depends to a large extent the determination of the question relating to the constitutional validity of the Act and they may be reproduced as follows: 3.
(1) Notwithstanding anything contained in any other law for the time being in force: (a) no person who has subscribed to or has otherwise acquired Special Bearer Bonds shall be required to disclose, for any purpose whatsoever, the nature and source of acquisition of such Bonds; (b) no inquiry or investigation shall be commenced against any person under any such law on the ground that 959 such person has subscribed to or has otherwise acquired Special Bearer Bonds; and (c) the fact that a person has subscribed to or has other wise acquired Special Bearer Bonds shall not be taken into account and shall be inadmissible as evidence in any proceedings relating to any offence or the imposition of any penalty under any such law.
(2) Nothing in sub section (1) shall apply in relation to prosecution for any offence punishable under Chapter IX or Chapter XVII of the Indian Penal Code, the Prevention of Corruption Act, 1947 or any offence which is punishable under any other law and which is similar to an offence punishable under either of those Chapters or under that Act or for the purpose of enforcement of any civil liability.
Explanation : For the purposes of this sub section "civil liability" does not include liability by way of tax under any law for the time being in force.
Without prejudice to the generality of the provisions of section 3, the subscription to, or acquisition of, Special Bearer Bonds by any person shall not be taken into account for the purpose of any proceedings under the Income tax Act, 1961 (hereinafter referred to as the Income tax Act), the (hereinafter referred to as the ), or the (hereinafter referred to as the ) and, in particular, no person who has subscribed to, or has otherwise acquired, the said Bonds shall be entitled (a) to claim any set off or relief in any assessment, reassessment appeal, reference or other proceeding under the Income tax Act or t reopen any assessment or reassessment made under that Act on the ground that he has subscribed to or has otherwise acquired the said Bonds; (b) to claim, in relation to any period before the date of maturity of the said Bonds, that any asset which is includible in his net wealth for any assessment year under the has been converted into the said Bonds: or 960 (c) to claim, in relation to any period before the date of maturity of the said Bonds, that any asset held by him or any sum credited in his books of account or other wise held by him represents the consideration received by him for the transfer of the said Bonds.
We shall analyse the provisions of these two sections when we deal with the arguments advanced on behalf of the parties and that will largely decide the fate of the challenge against the constitutional validity of the Act, but in the meanwhile we may proceed to summarise the remaining provisions of the Act.
Section S amends the Income tax Act 1961 by providing that the definition of "capital asset" in section 2 clause (14) shall not include that Special Bearer Bonds issued under the Act so that any profit arising on sale of the Special Bearer Bonds would not be liable to capital gains tax and it also excludes from the computation of the total income of the assessee, premium on redemption of the Special Bearer Bonds by introducing a new sub clause in section 10 clause (15).
Section 5 sub section (I) of the Wealth Tax Act 1957 is also amended by section 6 so as to exclude the Special Bearer Bonds from the net wealth of the assessee liable to wealth tax.
Section 7, by amending section S sub section (I) of the exempts gifts of Special Bearer Bonds from the incidence of gift tax.
Section 8 confers powers on the Central Government to make order removing any difficulty which may arise in giving effect to the provisions of the Act and section 9 sub section (1) repeals the ordinance, but since the Act is brought into force with effect from the date of promulgation of the ordinance, sub section (2) of section 9 provides that notwithstanding the repeal of the ordinance, anything done or any action taken under the ordinance shall be deemed to have been done or taken under the corresponding provisions of the Act.
Having set out the provision of the Act and be it noted again that the provisions of the ordinance were substantially in the same terms as the provisions of the Act we may now proceed to consider the challenge against the constitutional validity of the ordinance on the ground that the President had no power to issue the ordinance under Article 123 of the Constitution.
There were two limbs of the argument under this head of challenge; one was that since the ordinance had the effect of amending the tax laws, it was outside the competence of the President under Article 123 and the other was that the subject matter of the ordinance was in the nature 961 of a Money Bill which could be introduced only in the House of the A People and passed according to the procedure provided in Articles 109 and 110 and the President had therefore no power under Article 123 to issue the Ordinance by passing the special procedure provided in article 109 and 1 10 for the passing of a Money Bill.
There is, as we shall presently point out, no force in either of these two contentions, but we may point out straightaway that both these contentions are 1 academic, since the Act has been brought into force with effect from the date of promulgation of the Ordinance and sub section (2) of section 9 provides that anything done or any action taken under the Ordinance shall be deemed to have been done or taken under the corresponding provisions of the Act and the validity of anything done or any action taken under the Ordinance is therefore required to be judged not with reference to the Ordinance under which it was done or taken, but with reference to the Act which was, by reason of its retrospective enactment, in force right from the date of promulgation of the Ordinance and under which the thing or action was deemed to have been done or taken.
It is in these circumstances wholly unnecessary to consider the constitutional validity of the Ordinance, because even if the Ordinance be unconstitutional, the validity of anything done or any action taken under the Ordinance, could still be justified with reference to the provisions of the Act.
This would seem to be clear on first principle as a matter of pure construction and no authority is needed in support of it, but if any were needed, it may be found in the decision of this Court in Gujarat Pottery Works vs B.P. Sood, Controller of Mining Leases for India and Ors.
There the question was whether the Mining Leases (Modification of Terms) Rules, 1956 (hereinafter referred to as the 1956 Rules) made under Mines and Minerals (Regulation and Development) Act, 1948 (referred to shortly as 1948 Act) were void as being inconsistent with the provisions of the 1948 Act and if they were void, they could be said to be continued by reason of section 29 of the (hereinafter called the 1957 Act).
This Court sitting in a Constitution Bench held that the 1956 Rules were not inconsistent with the provisions of the 1948 Act and were therefore valid, but proceeded to observe that even if the 1956 rules were void as being inconsistent with the provisions of the 1949 Act, they must by reason of section 29 of the 1957 Act be deemed to have been made under that Act and 962 their validity and continuity must therefore be determined with reference to the provisions of the 1957 Act and not the provisions of the 1948 Act and since there was no inconsistency between the 1956 Rules and the provisions of the ]957 Act, the 1956 Rules could not be faulted as being outside the power of the Central Government.
Raghubar Dayal, J. speaking on behalf of the Court articulated the reason for taking this view in the following words: "Even if the rules were not consistent with the provisions of the 1948 Act and were therefore void, we do not agree that they could not have continued after the enforcement of the 1957 Act.
Section 29 reads: 'All rules made or purporting to have been made under the Mines and Minerals (Regulation and Development) Act, 1948, shall, in so far as they relate to matters for which provision is made in this Act and are not inconsistent therewith, be deemed to have been made under this Act as if this Act had been in force on the date on which such rules were made and shall continue in force unless and until they are superseded by any rules made under this Act. ' The effect of this section is that the rules which were made or purported to have been made under the 1948 Act in respect of matters for which rules could be made under the 1957 Act would be deemed to have been made under the 1957 Act as if that Act had been in force on the date on which such rules were made and would continue in force.
The Act of 1957 in a way is deemed to have been in force when the modification rules were framed in 1956.
The 1956 rules would be deemed to be framed under the 1957 Act and therefore their validity and continuity depends on the provisions of the 1957 Act and not of the 1948 Act.
" In this connection we may refer to the case reported as Abdul Majid vs P.R. Nayak, A.I.R. 1951 Bom. 440.
In that case section 58 of Act XXXI of 1950 repealed Ordinance No. XXVII of 1949 and provided as follows: 'The repeal by this Act by the Administration of Evacuee Property Ordinance 1949 (XXVII of 1949) shall not affect the previous operation thereof, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under that 963 Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing was done or action was taken. ' Section 58 was construed thus: 'The language used in section 58 is both striking and significant.
It does not merely provide that the orders passed under the Ordinance shall be deemed to be order passed under the Act, but it provides that the orders passed under the Ordinance shall be deemed to be orders under this Act as if this Act were in force on the day on which certain things were done or action taken.
Therefore the object of this section is, as it were, to antedate this Act so as to bring it into force on the day on which a particular order was passed which is being challenged.
In other words, the validity of an order is to be judged not with reference to the Ordinance under which it was passed, but with reference to the Act subsequently passed by Parliament. ' The rules have not been challenged to be ultra vires the 1957 Act in the instant case.
" The same process of reasoning which appealed to this Court in upholding the validity of the 1956 Rules must apply equally in the present case and the validity of anything done or any action taken under the Ordinance must be judged with reference to the provisions of the Act and not of the Ordinance.
It would therefore be academic for us to consider whether the Ordinance was within the Ordinance making power of the President under Article 123 and ordinarily we would have resisted the temptation of pronouncing on this issue because it is a self restraining rule of prudence adopted by this Court that "the court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.
" But since considerable argument was advanced before us in regard to this issue we do not think it would be right on our part to refuse to express our view upon it.
The Ordinance was issued by the President under Article 123 which is the solitary Article in chapter III headed "Legislative Powers of the President.
" This Article provides inter alia as follows: 964 123 (1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance: (a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions: and (b) may be withdrawn at any time by the President.
(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.
It will be noticed that under this Article legislature power is conferred on the President exercisable when both Houses of Parliament are not in session.
It is possible that when neither House of Parliament is in session, a situation may be arise which needs to be dealt with immediately and for which there is no adequate provision in the existing law and emergent legislation may be necessary to enable the executive to cope with the situation.
What is to be done and how is the problem to be solved in such a case ? Both Houses of Parliament being in recess, no legislation can be immediately undertaken and if the legislation is postponed until the House of Parliament meet damage may be caused to public weal.
Article 123 therefore confers powers on the President to promulgate a law by issuing an Ordinance to enable the executive to deal with the emergent situation which might well include a situation created by a law being declared void by a Court of law.
"Grave public inconvenience would be caused", points out Mr. Seervai in his famous book on Constitutional Law, if on a statute like the Sales tax Act being declared void, "no machinery existed whereby a valid law could 965 be promulgated to take the place of the law declared void '.
The President is thus given legislative power to issue an Ordinance and since under our constitutional scheme as authoritatively expounded by this Court in Shamsher and Anr.
vs State of Punjab, the President cannot act except in accordance with the aid and advice of his Council of Ministers, it is really the executive which is invested with this legislative power.
Now at first blush it might appear rather unusual and that was the main thrust of the criticism of Mr. R.K Garg on this point that the power to make laws should have been entrusted by the founding fathers of the Constitution to the executive, because according to the traditional outfit of a democratic political structure, the legislative power must belong exclusively to the ejected representatives of the people aud vesting it in the executive, though responsible to the legislature, would be undemocratic, as it might enable the executive to abuse this power by securing the passage of an ordinary bill without risking a debate in the legislature But if we closely analyse this provision and consider it in all its aspects, it does not appear to be so starting, though we may point out even if it were, the Court would have to accept it as the expression of the collective will of the founding fathers.
It may be noted, and this was pointed out forcibly by Dr. Ambedkar while replying to the criticism against the introduction of Article 123 in the Constituent Assembly that the legislative power conferred on the President under this Article is not a parallel power of legislation.
It is a power exercisable only when both Houses of Parliament are not in session and it has been conferred ex necessitate in order to enable the executive to meet an emergent situation.
Moreover, the law made by the President by issuing an Ordinance is of strictly limited duration.
It ceases to operate at the expiration of six weeks from the reassembly of Parliament or if before the expiration of this period, resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions.
This also affords the clearest indication that the President is invested with this legislative power only in order to enable the executive to tide over an emergent situation which may arise whilst the Houses of Parliament are not in session.
Further more, this power to promulgate an Ordinance conferred on the President is co extensive with the power of Parliament to make laws and the President cannot issue an Ordinance which Parliament cannot enact into a law.
It will therefore be seen that legislative power has been conferred on 966 the executive by the constitution makers for a necessary purpose and it is hedged in by limitations and conditions.
The conferment of such power may appear to be undemocratic but it is not so, because the executive is clearly answerable to the legislature and if the President, on the aid and advice of the executive, promulgates an Ordinance in misuse or abuse of this power, the legislature cannot only pass a resolution disapproving the Ordinance but can also pass a vote of no confidence in the executive.
There is in the theory of constitutional law complete control of the legislature over the executive, because if the executive misbehaves or forfeits the confidence of the legislature, it can be thrown out by the legislature.
Of course this safeguard against misuse or abuse of power by the executive would dwindle in efficacy and value according as if the legislative control over the executive diminishes and the executive begins to dominate the legislature.
But nonetheless it is a safeguard which protects the vesting of the legislative power in the President from the charge of being an undemocratic provision.
We might profitably quote here the words of one of us (Chandrachud, J, as he then was) in the State of Rajasthan vs Union of India where, repelling the contention of the petitioner that the interpretation which the Union of India was inviting the Court to place on Article 356 would impair the future of democracy by enabling the Central Government to supersede a duly elected State Government and to dissolve its legislature without prior approval of Parliament, the learned Judge said ". there may be situations in which it is imperative to act expeditiously and recourse to the parliamentary process may, by reason of the delay involved, impair rather than strengthen the functioning of democracy.
The constitution has therefore provided safety valves to meet extraordinary situations.
They have an imperious garb and a repressive content but they are designed to save, not destroy democracy.
The fault, if any, is not in the meeting of the Constitution but in the working of it.
" These words provide a complete answer to the criticism of Mr. R.K. Garg.
Now once it is accepted that the President has legislative power under Article 123 to promulgate an Ordinance and this legis 967 lative power is co extensive with the power of the Parliament to make laws, it is difficult to see how any limitation can be read into this legislative power of the President so as to make it ineffective to alter or amend tax laws.
If Parliament can by enacting legislation alter or amend tax laws, equally can the President do so by issuing an Ordinance under Article 123.
There have been, in fact, numerous instances where the President has issued an Ordinance replacing with retrospective effect a tax law declared void by the High Court or this Court.
Even offences have been created by Ordinance issued by the President under Article 123 and such offences committed during the life of the Ordinance have been held to be punishable despite the expiry of the Ordinance.
Vide: State of Punjab vs Mohar Singh.
lt may also be noted that Clause (2) of Article 123 provides in terms clear and explicit that an Ordinance promulgated under that Article shall have the same force and effect as an Act of Parliament.
That there is no qualitative difference between an Ordinance issued by the President and an Act passed by Parliament is also emphasized by clause (2) of Article 367 which provides that any reference in the Constitution to Acts or laws made by Parliament shall be construed as including a reference to an Ordinance made by the President.
We do not therefore think there is any substance in the contention of the petitioner that the President has no power under Article 123 to issue an Ordinance amending or altering the tax laws and that the Ordinance was therefore outside the legislative power of the President under that Article.
That takes us to the principal question arising in the writ petitions namely, whether the provisions of the Act are violative of Article 14 of the Constitution.
The true scope and ambit of Article 14 has been the subject matter of discussion in numerous decisions of this Court and the propositions applicable to cases arising under that Article have been repeated so many times during the last thirty years that they now sound platitudinous.
The latest and most complete exposition of the propositions relating to the applicability of Article 14 as emerging from "the avalanche of cases which have flooded this Court" since the commencement of the Constitution is to be found in the Judgment of one of us (Chandrachud, J. as he then was) in Re: Special Courts Bill.
It not only contains a lucid statement of the propositions arising under Article 14, but being a decision given by a Bench of seven Judges of this 968 Court, it is binding upon us.
That decision sets out several propositions delineating the true scope and ambit of Article 14 but not all of them are relevant for our purpose and hence we shall refer only to those which have a direct bearing on the issue before us.
They clearly recognise that classification can be made for the purpose of legislation but lay down that: 1.
The classification must not be arbitrary but must 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 but those qualities or characteristics must have a reasonable relation to the object of the legislation.
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.
In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense above mentioned.
It is clear that Article 14 does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of attaining specific ends.
What is necessary in order to pass the test of permissible classification under Article 14 is that the classification must not be "arbitrary, artificial or evasive" but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature.
The question to which we must therefore address ourselves is whether the classification made by the Act in the present case 969 satisfies the aforesaid test or it is arbitrary and irrational and hence A violative of the equal protection clause in Article 14.
Now while considering the constitutional validity of a statute said to be violative of Article 14, it is necessary to bear in mind certain well established principles which have been evolved by the courts as rules of guidance in discharge of its constitutional function of judicial review.
The first rule is that there is always a presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.
This rule is based on the assumption, judicially recognised and accepted, that the legislature understands and correctly appreciates the needs of its own people, its laws are directed to problems made manifest by experience and its discrimination are based on adequate grounds.
The presumption of constitutionality is indeed so strong that in order to sustain it, the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.
Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc.
It has been said by no less a person than Holmes, J. that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrine or straight jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature.
The court should feel more inclined to give judicial deference to legislature judgement in the field of economic regulation than in other areas where fundamental human rights are involved.
Nowhere has this admonition been more felicitously expressed than in Morey vs Dond where Frankfurter, J. said in his inimitable style: "In the utilities, tax and economic regulation cases, there are good reasons for judicial self restraint if not judicial deference to legislative judgment.
The legislature after all has the affirmative responsibility.
The courts 970 have only the power to destroy, not to reconstruct.
When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events self limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.
" The court must always remember that "legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry" that exact wisdom and nice adaption of remedy are not always possible and that "judgment is largely a prophecy based on meagre and uninterpreted experience".
Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses.
There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid.
The courts cannot, as pointed out by the United States Supreme Court in Secretary of Agriculture vs Central Reig Refining Company, be converted into tribunals for relief from such crudities and inequities.
There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses.
Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity.
The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions.
If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation.
That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues.
971 With these prefatory observations, we may now proceed to examine the constitutional validity of the Act.
The Preamble of the Act which "affords useful light as to what the statute intends to reach" or in other words "affords a clue the scope of the statute" makes it clear that the Act is intended to canalise for productive purposes black money which has become a serious threat to the national economy.
It is an undisputed fact that there is considerable amount of black money in circulation which is unaccounted or concealed and therefore outside the disclosed trading channels.
It is largely the product of black market transactions and evasion of tax.
Indeed, as pointed out by the Direct Taxes Enquiry Committee headed by Mr. Wanchoo, retired Chief Justice of India "tax evasion and black money are closely and inextricably interlinked.
" The abundance of black money has in fact given rise to a parallel economy operating simultaneously and competing with the official economy.
This parallel economy has over the years grown in size and dimension and even on a conservative estimate, the amount of black money circulation runs into some thousand crores.
The menace of black money has now reached such staggering proportions that it is causing havoc to the economy of the country and poses a serious challenge to the fulfilment of our objectives of distributive justice and setting up of an egalitarian society.
There are several causes responsible for the generation of black money and they have been analysed in the Report of the Wanchoo Committee.
Some of the principal causes may be summarised as follows: (1) high rates of taxation under the direct tax laws: they breed tax evasion and generate black money; (2) economy of shortages and consequent controls and licences leading to corruption for issuing licences and permits and turning blind eye to the violation of controls; (3) donations of black money encouraged by political parties to meet election expenses and for augmenting party funds and also for personal purposes; (4) Corrupt business practices such as payments of secret commission, bribes, money, pugree etc.
which need keeping on hand money in black; (5) ineffective administration and enforcement of tax laws by the authorities and (6) deterioration in moral standards so that tax evasion is no longer regarded as immoral and unethical and does not carry any social stigma.
These causes need to be eliminated if we want to eradicate the evil of black money.
But whether any steps are taken or not for removing these causes with a view to preventing future generation of black money, the fact remains that today there is considerable amount of black money, unaccounted and concealed? in the hands of a few persons 972 and it is causing incalculable damage to the economy of the country.
The first casualty cf this evil of black money is the revenue because it loses the tax which should otherwise have come to the exchequer.
The generation of black money through tax evasion throws a greater burden on the honest tax payer and leads to economic equality and concentration of wealth in the hands of the unscrupulous few in the country.
In addition, since black money is in a way 'cheap ' money because it has not suffered reduction by way of taxation, there is a natural tendency among those who possess it to use it for lavish expenditure and conspicuous consumption.
The existence of black money is to a large extent responsible for inflationary pressures, shortages, rise in prices and economically unhealthy speculation in commodities.
It also leads to leakage of foreign exchange, making our balance of payments rather distorted and unreal and tends to defeat the economic policies of the Government by making their implementation ineffective, particularly in the field of credit and investment.
Moreover, since black money has necessarily to be suppressed in order to escape detection, it results in immobilisation of investible funds which would otherwise be available to further the economic growth of the nation and in turn, foster the welfare of the common man.
It is therefore no exaggeration to say that black money is a cancerous growth in the country 's economy which if not checked in time is certain to lead to chaos and ruination.
There can be no doubt that urgent measures are therefore required to be adopted for preventing further generation of black money as also for unearthing existing black money so that it can be canalised for productive purposes with a view to effective economic and social planning.
Now this problem of black money corroding the economy of the country is not a new or recent problem.
It has been there almost since the Second World War and it has been continuously engaging the attention of the Government.
The Government has adopted various measures in the past with a view to curbing the generation of black money and bringing it out in the open so that it may become available for strengthening the economy.
For instance, the Government introduced several changes in the administrative set up of the tax department from time to time with a view to strengthening the administrative machinery for checking tax evasion.
The Government also amended section 37 of the Indian Income Tax Act 1922 with a view to conferring power on the tax authorities to carry out searches and seizures and this power was elaborated and made more 973 effectual when the Income Tax Act 1961 came to be enacted.
Quite apart from these legal and administrative measures taken for the purpose of curbing evasion of tax, certain steps were also taken to tackle the black money built up out of past evasions.
In 1946, just at the close of the Second World War, high denomination notes were demonetised so as to bring within the net of taxation black money earned during the War.
This was followed by the enactment of the Taxation of Income Investigation Commission Act 1947.
Then came the Voluntary Disclosure Scheme of 1951, popularly known as Tyagi Scheme, to facilitate the disclosure of suppressed income by affording certain immunities from the penal provisions.
This scheme was however not successful because it helped to unearth only Rs. 70.20 crores of black money.
Thereafter, nearly a decade and a half later, a second scheme of voluntary disclosure was introduced by section 68 of the Finance Act 1965.
This scheme, popularly known as the sixty forty scheme, enabled the tax evaders to disclose suppressed income by paying 60% of the concealed income as tax and bringing the balance of 40% into their books.
This scheme was a little more successful than the earlier one, but it could help to net only about Rs. 52.1 l crores of black money.
Closely following on the heels of this scheme came another scheme under section 24 of the Finance (No. 2) .Act 1965 popularly known as the 'Block Scheme ' according to which tax was payable at rates applicable to the block of concealed income disclosed and not at a fiat rate as under the sixty forty scheme.
This scheme received a slightly better response and the income disclosed under it amounted to about Rs. 145 crores.
Then came the Taxation Laws (Amendment and Miscellaneous Provisions) Ordinance 1965 followed by an Act in identical terms, which provided for exemption from tax in certain cases of undisclosed income invested in National Defence Gold Bonds 1980.
We shall have occasion to consider the broad scheme of this Act a little later, but for the time being as we may point out that the scheme as envisaged in this Act was very closely similar to the scheme under the impugned Act.
Subsequent to this Act followed the Report of the Wanchoo Committee and as a result of the recommendations made in this Report certain penal provisions contained in the Income Tax Act 1961 were made more severe and rigorous.
Then came the Voluntary Disclosure of Income and Wealth Ordinance 1975 which was followed by an Act in the same terms.
This legislation introduced a scheme of voluntary disclosure of income and wealth and provided certain immunities and exemptions.
The record before us does not show as to what was the concealed income and wealth disclosed pursuant to this scheme.
But it is an indisputable fact 974 that the adoption of these stringent legal and administrative measures as also the introduction of these different voluntary disclosure schemes did not have any appreciable effect and despite all these efforts made by the Government, the problem of black money continues unabated and has assumed serious dimensions.
It may be possible to say and that was the criticism of Mr. R.K. Garg that the enforcement machinery of the tax department is not as effective as it should be and no serious effort has been made to eliminate the other causes of generation of black money, but whatever may be the failures of the political and administrative machinery and we are not here concerned to inquire into that question nor are we competent to express any opinion upon it the fact remains that there is considerable amount of black money in the hands of persons which is causing havoc to the economy of the country and seriously prejudicing mobilisation of resources for social and economical reconstruction of the nation.
It was to combat this menacing problem of black money and to unearth black money lying secreted and outside the ordinary trade channels that the Act was enacted by Parliament.
It was realised that all efforts to detect black money and to uncover it had failed and the problem of black money was an obstinate economic issue which was defying solution and the impugned legislation providing for issue of Special Bearer Bonds was therefore enacted with a view to mopping up black money and bringing it out in the open, so that, instead of remaining concealed and idle, such money may become available for augmenting the resources of the state and being utilised for productive purposes so as to promote effective social and economic planning.
This was the object for which the Act was enacted and it is with reference to this object that we have to determine whether any impermissible differentiation is made by the Act so as to involve violation of Article 14.
We may now turn to examine the provisions of the act.
Section 3 sub section (1) provides certain immunities to a person who subscribed to or otherwise acquired Special Bearer Bonds, Clause (a) protects such a person from being required to disclose, for any purpose whatsoever, the nature and source of acquisition of the Special Bearer Bonds.
Clause (b) prohibits the commencement of any inquiry or investigation against a person on the ground of his having subscribed to or otherwise acquired the Special Bearer Bonds.
And clause (c) provides that the fact of subscription to or acquisition of Special Bearer Bonds shall not be taken into account 975 and shall be inadmissible in evidence in any proceedings relating to any offence or the imposition of any penalty.
It will be seen that the immunities granted under section 3, sub section (1) are very limited in scope.
They do not protect the holder of Special Bearer Bonds from any inquiry or investigation into concealed income which could have been made if he had not subscribed to or acquired Special Bearer Bonds.
There is no immunity from taxation given to the black money which may be invested in Special Bearer Bonds.
That money remains subject to tax with all consequential penalties, if it can be discovered independently of the fact of subscription to or acquisition of Special Bearer Bonds.
The only protection given by section 3, sub section 1 is that the fact of subscription to or acquisition of Special Bearer Bonds shall be ignored altogether and shall not be relied upon as evidence showing possession of undisclosed money.
This provision relegates the Revenue to the position as if Special Bearer Bonds had not been purchased at all.
If without taking into account the fact of subscription to or acquisition of Special Bearer Bonds and totally ignoring it as if it were non existent, any inquiry or investigation into concealed income could be carried out and such income detected and unearthed, it would be open to the Revenue to do so and it would be no answer for the assessee to say that this money has been invested by him in Special Bearer Bonds and it is therefore exempt from tax or that he is on that account not liable to prosecution and penalty for concealment of such income.
This is the main difference between the impugned Act and the .
Under the latter Act, where gold is acquired by a person out of his undisclosed income, which is the same thing as black money, and such gold is tendered by him as subscription for the National Defence Gold Bonds, 1980, the income invested in such gold is exempted from tax, but where Special Bearer Bonds are purchased out of undisclosed income under the impugned Act, the income invested in the Special Bearer Bonds is not exempt from tax and if independently of the fact of purchase of the Special Bearer Bonds and ignoring them altogether, such income can be detected, it would be subject to tax.
The entire machinery of the taxation Laws for inquiry and investigation into concealed income is thus left untouched and no protection is granted to a person in respect of his concealed income merely because he has invested such income in Special Bearer Bonds.
It is therefore incorrect to say that as soon as any person purchases Special Bearer Bonds, he is immunised against the processes of taxation laws.
Here there is no amnesty granted in respect of any 976 part of the concealed income even though it be invested in Special Bearer Bonds.
The whole object of the impugned Act is to induce those having black money to convert it into 'white money ' by making it available to the State for productive purposes, without granting in return any immunity in respect of such black money, if it could be detected through the ordinary processes of taxation laws without taking into account the fact of purchase of Special Bearer Bonds.
Now it is true and this was one of the arguments advanced on behalf of the petitioner that if black money were not invested in Special Bearer Bonds but were Lying in cash, it could be seized by the tax authorities by carrying out search and seizure in accordance with the provisions of the tax laws and this opportunity to detect and unearth black money would be lost, if such black money were invested in Special Bearer Bonds, because even if Special Bearer Bonds were seized, they cannot be relied upon as evidence of possession of black money.
But this argument of the petitioner that the detection and discovery of black money would thus thwarted by the conversion of black money into Special Bearer Bonds is highly theoretical and does not take into account the practical realities of the situation.
If it had been possible to detect and discover a substantial part of the black money in circulation by carrying out searches and seizures, there would have been no need to enact the impugned Act.
It is precisely because, inspite of considerable efforts made by the tax authorities including carrying out of searches and seizures, the bulk of black money remained secreted and could not be unearthed, that the impugned Act had to be enacted.
Moreover, actual seizure of black money by carrying out searches is not the only method available to tax administration for detecting and discovering black money.
There are other methods also by which concealment of income can be detected and these are commonly employed by the tax authorities in making assessment of income or wealth.
Close and searching scrutiny of the books of account may reveal that accounts are not properly maintained, unexplained cash credits may provide evidence of concealment and so too unaccounted for investments or lavish expenditure; information derived from external sources may indicate that income has been concealed by resorting to stratagems like suppression of sales or understatement of consideration; and existence of assets in the names of near relatives may give a lead showing investment of undisclosed income.
All these methods and many others would still remain available to the tax authorities for detecting undisclosed income and bringing it to tax despite investment in Special Bearer Bonds.
The taxable income of the holder of Special Bearer Bonds 977 would not stand reduced by the amount invested in the purchase of Special Bearer Bonds and it would be open to the Revenue to assess such taxable income in the same manner in which it would do in any other case, employing the same methods and techniques of inquiry and investigation for determining the true taxable income.
The only inhibition on the Revenue would be that it would not be entitled to call upon the assessee to disclose for the purpose of assessment, the nature and source of acquisition of the Special Bearer Bonds and in making the assessment, the investment in the Special Bearer Bonds would have to be left wholly out of account and the Revenue would not be entitled to rely upon it as evidence of possession of undisclosed money.
This is the only limited immunity granted under section 3 sub section (1) and even this limited immunity is cut down by the provision enacted in subsection (2) of section 3.
This sub section says that the immunity granted under sub section (1) shall not be available in relation to prosecution for any offence punishable under Chapter IX or Chapter XVII of the Indian Penal Code or the Prevention of Corruption Act 1947 or any other similar law.
If therefore an inquiry or investigation is sought to be made against a public servant in respect of an offence under Chapter IX of the Indian Penal Code or the Prevention of Corruption Act 1947 alleged to have been committed by him, the acquisition or possession of Special Bearer Bonds could be a ground for instituting, such inquiry or investigation and it could also be an admissible piece of evidence in a prosecution in respect of such offence.
The same would be the position in relation to an inquiry, investigation or prosecution in respect of an offence under Chapter XVlI of the Indian Penal Code.
The acquisition or possession of Special Bearer Bonds would not therefore afford any protection to a public servant against a charge of corruption or to a person committing any offence against property.
Equally this immunity would not be available where what is sought to be enforced is a civil liability other than liability by way of tax.
It will thus be seen that the immunity granted in respect of subscription to or acquisition of Special Bearer Bonds is a severely restricted immunity and this is the bare minimum immunity necessary in order to induce holders of black money to bring it out in the open and invest it in Special Bearer Bonds.
It is also necessary to note the further restrictions provided in section 4 which are calculated to pre empt any possible abuse of the immunity granted in respect of subscription to or acquisition of Special Bearer Bonds, This section in its opening part affirms in 978 unmistakable terms that subscription to or acquisition of Special Bearer Bonds shall not be taken into account in any proceeding under the Income tax Act 1961 or the or the .
If any investment in Special Bearer Bonds has been made by the assessee, it is to be ignored in making assessment on him under any of the above mentioned three tax laws, the assessment is to be made as if no Special Bearer Bonds had been purchased at all The process of computation of taxable income and assessment of tax on it remains unaffected and is not in any way deflected or thwarted by the investment in Special Bearer Bonds.
The position remains the same as it would have been if there were no investment in Special Bearer Bonds.
We have already discussed the full implications of this proposition in the preceding paragraph while dealing with section 3 and it is not necessary to say anything more about it.
Then, proceeding further, after enacting this provision in the opening part, section 4 branches off into three different clauses, Clause (a) provides that no person who has subscribed to or otherwise acquired Special Bearer Bonds shall be entitled to claim any set off or relief in any proceeding under the Income tax Act 1961 or to reopen any assessment or reassessment made under that Act on the ground that he has subscribed to or otherwise acquired such Bonds.
The holder of Special Bearer Bonds is thus precluded from claiming any advantage by way of set off or relief or reopening of assessment on the ground of having invested undisclosed money in purchase of Special Bearer Bonds.
Clause (b) enacts another prohibition with a view to preventing abuse of the immunity granted in respect of Special Bearer Bonds and says that no person who has subscribed to or otherwise acquired Special Bearer Bonds shall be entitled to claim, in relation to any period before the date of maturity of such Bonds, that any asset which is includible in his net wealth for any assessment year under the has been converted into such Bonds.
The object of this provision is to preclude an assessee who is sought to be taxed on his net wealth under the wealth tax Act from escaping assessment to tax on any asset forming part of his net wealth by claiming that he has invested it in purchase of Special Bearer Bonds.
The investment in Special Bearer Bonds would not grant immunity from assessment to wealth lax to any asset which is found by the taxing authorities, otherwise than by relying on the fact of acquisition of Special Bearer Bonds, to belong to the assessee and hence forming part of his net wealth .
The asset would be subjected to wealth tax despite the investment in Special Bearer Bonds.
Then follows clause (c) 979 which is extremely important and which effectively counters the possibility of serious abuse to which the issue of Special Bearer Bonds might otherwise have lent itself.
It provides that no person who has subscribed to or otherwise acquired Special Bearer Bonds shall be entitled to claim, in relation to any period before the date of maturity of such Bonds, that any asset held by him or any sum credited in his books of account or otherwise held by him represents the consideration received by him for the transfer of such Bonds.
This provision precludes a person from explaining away the existence of any asset held by him or any sum credited in his books of account or otherwise held by him by claiming that it represents the sale proceeds of Special Bearer Bonds held by him.
If at any time before the date of maturity of the Special Bearer Bonds held by an assessee, it is found that any asset is held by him or any sum is credited in his books of accounts or is otherwise held by him and he is required to explain the nature and source of acquisition of such asset or sums of money, he cannot be heard to say by way of explanation that such asset or sum of money represents the consideration received by him for transfer of the Special Bearer Bonds, even if that be factually correct.
This explanation, though true being statutorily excluded, it would be impossible for the assessee to offer any other explanation for the acquisition of such asset or sum of money, because any such explanation which might be given by him would be untrue and in the absence of any satisfactory explanation in regard to the nature and source of acquisition of such asset or sum of money, the Revenue would be entitled to infer that such asset has been acquired out of undisclosed income or that such sum of money represents concealed income and hence the value of such asset or such sum of money, as the case may be, should be treated as undisclosed income liable to be included in the taxable income of the assessee.
Vide sections 69, 69A and 69B of the Income tax Act, 1961.
It is obvious that this provision is calculated to act as a strong deterrent against negotiability of Special Bearer Bonds for disclosed or 'white ' money.
No holder of Special Bearer Bonds would dare to transfer his Bonds to another person against receipt of disclosed or 'white ' money, because he will not be able to account for the consideration received by him, the true explanation being statutorily unavailable to him, and such consideration would inevitably be liable to be regarded as his concealed income and would be subjected to tax and penalties.
Moreover, it is difficult to see why anyone should want to invest disclosed or 'white ' money in the acquisition of Special Bearer Bonds.
Ordinarily a person would 980 go in for Special Bearer Bonds only for the purpose of converting his undisclosed money into 'white ' money and it would be quite unusual bordering almost on freakishness for anyone to acquire Special Bearer Bonds with disclosed or 'white money ' when he can get only 2% simple interest on the investment in Special Bearer Bonds, while outside he can easily get anything between 15% to 40% yield by openly dealing with his disclosed or 'white ' money.
The transferability of Special Bearer Bonds against disclosed or 'white ' money is thus, from a practical point of view, completely excluded.
The question may still arise whether Special Bearer Bonds would not pass from hand to hand against undisclosed or black money.
Would they not be freely negotiable against payment of undisclosed or black money ? Now it may be conceded that a purchaser of Special Bearer Bonds would undoubtedly be interested in acquiring such Bonds by making payment of 'black ' money, because he would thereby convert his undisclosed or 'black money ' into 'white ' money.
But it is difficult to understand why a holder of Special Bearer Bonds should ever be interested in selling such Bonds against receipt of 'black money '.
Obviously he would have acquired such Bonds for the purpose of converting his 'black money ' into 'white ' in order to avoid the risk of being found in possession of 'black money ' and if that be so, it is inexplicable as to why he should again want to convert his 'white money ' into 'black ' by selling such Bonds against receipt of 'black money '.
The immunity granted under the provisions of the Act, limited as it is extends only to the person who is for the time being the holder of Special Bearer Bonds and the person who has transferred the Special Bearer Bonds for black money has no immunity at all and all the provisions of tax laws are available against him for determining his true income or wealth and therefore no one who has purchased Special Bearer Bonds with a view to earning security against discovery of unaccounted money in his hands would ordinarily barter away that security by again receiving black money for the Special Bearer Bonds.
Furthermore, even if special bearer bonds are transferred against receipt of black money, it will not have the effect of legalising more black money into white, because the black money of the seller which had become white on his subscribing to or acquiring special bearer bonds would again be converted into black money and the black money paid by the purchaser by way of consideration would become white by reason of being converted into Special Bearer Bonds.
The petitioners however expressed an apprehension that special bearer bonds would fetch a much higher value in the black market than that originally subscribed and this would 981 enable a larger amount of black money to be legalised into white than what was originally invested in subscription to special bearer bonds.
We do not think this apprehension is well founded.
It is true that once the date for original subscription to special bearer bonds has expired, the only way in which special bearer bonds could thereafter be acquired would be by going in the open market and the number of special bearer bonds in the market being necessarily limited, they may fetch a higher value in black money from a person who is anxious to convert his black money into white.
If the demand outreaches the limited supply, the price of special bearer bonds in the black market may exceed the amount originally invested in subscription to special bearer bonds.
But even so, the black money paid by the purchaser for acquisition of special bearer bonds would not in its entirety be converted into white, it would change its colour from black to white only to the extent of the amount originally subscribed for the special bearer bonds or at the most, if we also take into account interest on such amount, to the extent of the face value of the special bearer bonds, because whatever be the amount he might have paid in black money for acquisition of the special bearer bonds, the holder of the special bearer bonds will get only the amount representing the face value on maturity of the special bearer bonds.
It will thus be seen that howsoever special bearer bonds may be transferred and for whatever consideration, only a limited amount of black money, namely, the amount originally subscribed for the special bearer bonds or at the most the amount representing the face value of the special bearer bonds would be legalised into white money and the supposedly free negotiability of special bearer bonds would not have the effect of legalising more black money into white or encouraging further generation of black money.
There was also one other abuse, said the petitioners, to which special bearer bonds might lend themselves and it was that if Special Bearer Bonds are sold and the sale proceeds are utilised in meeting expenditure, the assessee would not be precluded by section 4 clause (c) from explaining the source of the expenditure to be the sale consideration of the special bearer bonds and hence by resorting to this strategy, white money can be accumulated as capital while expenditure is met out of black money received by way of consideration for sale of special bearer bonds.
We do not think there is any scope for such abuse; the apprehension expressed by the petitioners is more imaginary than real.
It may be noted that in order to sustain his explanation, the assessee would have to prove to 982 the satisfaction of the tax department that he had special bearer bonds and that he sold them for a certain amount.
Now if he has received black money by way of consideration, it is difficult to see how he would ever be able to establish that he sold special bearer bonds for that particular amount of black money.
Would he be so fool hardy as to admit that he received the consideration in black money and even if he does, would he ever be able to prove it? Who would believe him even if he makes such an admission ? And when he has bought special bearer bonds for the purpose of converting his black money into white, why should he again reconvert it into black by selling special bearer bonds for black money ? The entire postulate of the argument of the petitioners is theoretical and has no basis in reality.
No assessee would ever admit that he incurred expenditure out of black money received as consideration for sale of special bearer bonds because it would be impossible for him to establish receipt of black money from the purchase and if he is unable to do so, the amount of the expenditure would, by reason of section 69C of the Income tax Act, 1961, be deemed to be his concealed income liable to tax.
Even if we assume that in some rare and exceptional case the assessee may be able to establish that he sold special bearer bonds against receipt of black money, the purchaser would straightaway run into difficulties because the evidence furnished by the assessee would, in such a case, clearly establish that the purchaser had black money and he paid it to the assessee by way of consideration and he would in that event be rendered liable to tax and penalty in respect of such black money.
This would show the utter improbability bordering almost on impossibility, of special bearer bonds being subjected to any such abuse as is apprehended by the petitioners.
It was then urged on behalf of the petitioners that section clause (c) operates only in relation to a period before the date of maturity of special bearer bonds and after the date of maturity, the holder of special bearer bonds can sell such bonds, and, without running any risk, disclose the consideration received by him as his white money, because section 4 clause (c) being out of the way, he can account for the possession of such money by showing that he has received it as consideration for sale of special bearer bonds and so far as the purchaser is concerned, if he has paid the consideration out of his black money, he can claim the immunity granted under section 3 sub section (1) and his black money would be converted into white.
Thus the black money Of the seller which had been converted into white on his subscribing 983 to or otherwise acquiring special bearer bonds would remain white and in addition, the black money of the purchaser would also be converted into white by reason of his purchase of special bearer bonds.
This argument plausible though it may seem.
is in our opinion, fallacious and cannot be sustained.
It is a highly debatable issue whether, under the provisions of the Act, special bearer bonds are at all intended to be transferable after the date of maturity, for the postulate of the legislation clearly seems to be that on the date of maturity, special bearer bonds will be encashed.
It is indeed difficult to believe that anyone holding special bearer bonds would keep them uncashed without earning any interest from and after the date of maturity, when they can be immediately encashed and the amount received can be invested yielding interest ranging between 18 per cent to 40 per cent.
Moreover, special bearer bonds would cease to be exempt from wealth tax from and after the date of maturity and they would therefore be includible in the net wealth of the holder for the purpose of wealth tax and if that be so, how would it benefit the holder to keep them as part of his net wealth and pay wealth tax upon it without earning any interest ? It is therefore extremely unlikely that Special Bearer Bonds would remain uncashed after the date of maturity and it would be equally improbable that anyone should want to purchase Special Bearer Bonds after the date of maturity when they do not yield any interest but are still includible in the net wealth for the purpose of liability to wealth tax.
But let us assume for the purpose of argument that in a given case special bearer bonds are not encashed on the date of maturity and they are lawfully transferred after the date of maturity for a consideration paid by the purchaser.
There are two alternatives: the consideration may be paid by the purchaser in white money or in black money.
If the purchaser pays the consideration in white money, no question of conversion of further black money into white arises.
rt would be a straight open transaction to which no exception can be taken.
But let us consider what consequences would ensue if he pays in black money.
The seller would obviously be interested in showing the consideration as his white money and there may be no difficulty so far as he ii concerned, because he would be able to explain the possession of such money by claiming that he has received it by way of consideration for sale of special bearer bonds.
Section 4 clause (c) will not stand in the way of his offering that explanation.
But so far as the purchaser is concerned, he will run into serious difficulties.
Even if the immunity under section 3 sub section (l) were available to him after the date of maturity, he will still be in trouble, because the disclosure made by 984 the seller would be the clearest evidence showing that the purchaser had black money which he paid by way of consideration to the seller, and this evidence, being independent of the fact of acquisition of special bearer bonds by the purchaser, would be admissible and the purchaser would be liable to tax and penalty on the amount of black money paid by him as consideration.
We fail to see how transfer of special bearer bonds after the date of maturity, even if legally permissible, can be utilised for the purpose of legalising black money into white.
But we may point out that if at any time after the date of maturity or even before, it is found that there is some loophole in the provisions of the Act or that special bearer bonds are utilised for any dishonest or nefarious purpose or are being perverted to any improper use, the legislature can always step in and amend the Act or pass other appropriate legislation with a view to preventing such abuse.
It must be remembered that every legislation is an experiment in achieving certain desired ends and trial and error method is inherent in every such experiment.
Therefore, when experience shows that the legislation as framed has proved inadequate to achieve its purpose of mitigating an evil or there are cracks and loopholes in it which are being taken advantage of by the resourcefulness and ingenuity of those minded to benefit themselves at the cost of the State or the others, the legislature can and most certainly would intervene and change the law.
But the law cannot be condemned as invalid on the ground that after a period of ten years it may lend itself to some possible abuse.
We may now proceed to consider the constitutional validity of the Act in the light of the above discussion as regards the scope and effect of its various provisions.
It is obvious that the Act makes a classification between holders of black money and the rest and provides for issue of special bearer bonds with a view to inducing persons belonging to the former class to invest their unaccounted money in purchase of special bearer bonds, so that such money which is today Lying idle outside the regular economy of the country is canalised into productive purposes.
The object of the Act being to unearth black money for being utilised for productive purposes with a view to effective social and economic planning, there has necessarily to be a classification between persons possessing black money and others and such classification cannot be regarded as arbitrary or irrational.
It is of course true and this must be pointed out here since it was faintly touched upon in the course of the arguments that there is no legal bar enacted in the Act against 985 investment of white money in subscription to or acquisition of special bearer bonds.
But the provisions of the Act properly construed are such that no one would even think of investing white money in special bearer bonds and from a practical point of view, they do operate as a bar against acquisition, whether by original subscription or by purchase, of special bearer bonds with white money.
We do not see why anyone should want to invest his white money in subscribing to or acquiring special bearer bonds which yield only 2 per cent simple interest per annum and which are not encashable for a period of not less than ten years.
It is true that special bearer bonds can be sold before the date of maturity but who would pay white money for them and even if in some rare and exceptional case, a purchaser could be found who would pay the consideration in white money, no one will dare to sell special bearer bonds for white money, because of the disincentive provided in section 4 cl.
The investment of white money in special bearer bonds is accordingly, as a practical measure, completely ruled out and the provisions of the Act are intended to operate only qua persons in possession of black money.
There is a practical and real classification made between persons having black money and persons not having such money and this de facto classification is clearly based on intelligible differentia having rational relation with the object of the Act.
The petitioners disputed the validity of this proposition and contended that the classification made by the Act is discriminatory in that it excludes persons with white money from taking advantage of the provisions of the Act by subscribing to or acquiring special bearer bonds.
But this contention is totally unfounded and we cannot accept the same.
The validity of a classification has to be judged with reference to the object of the legislation and if that is done, there can be no doubt that the classification made by the Act is rational and intelligible and the operation of the provisions of the Act is rightly confined to persons in possession of black money.
It was then contended that the Act is unconstitutional as it offends against morality by according to dishonest assesses who have evaded payment of tax, immunities and exemptions which are denied to honest tax payers.
Those who have broken the law and deprived the State of its legitimate dues are given benefits and concessions placing them at an advantage over those who have observed the law and paid the taxes due from them and this, according to the petitioners is clearly immoral and unwarranted by the Constitution.
We do not think this contention can be sustained.
It is necessary 986 to remember that we are concerned here only with the constitutional validity of the Act and not with its morality.
Of course, when we say this we do not wish to suggest that morality can in no case have relevance to the constitutional validity of a legislation.
There may be cases where the provisions of a statute may be so reeking with immorality that the legislation can be readily condemned as arbitrary or irrational and hence violative of Article 14.
But the test in every such case would be not whether the provisions of the statute offend against morality but whether they are arbitrary and irrational having regard to all the facts and circumstances of the case.
Immorality by itself is not a ground of constitutional challenge and it obviously cannot be, because morality is essentially a subjective value, except in so far as it may be reflected in any provision of the Constitution or may have crystalised into some well accepted norm of special behaviour.
Now there can be no doubt that under the provisions of the Act certain immunities and exemptions are granted with a view to inducing tax evaders to invest their undisclosed money in special bearer bonds and to that extent they are given benefits and concessions which are denied to those who honestly pay their taxes.
Those who are honest and who observe the law are mulcted in paying the taxes legitimately due from them while those who have broken the law and evaded payment of taxes are allowed by the provisions of the Act to convert their black money into 'white ' without payment of any tax or penalty.
The provisions of the Act may thus seem to be putting premium on dishonesty and they may, not, without some justification, be accused of being tinged with some immorality, but howsoever regrettable or unfortunate it may be, they had to be enacted by the legislature in order to bring out black money in the open and canalise it for productive purposes.
Notwithstanding stringent laws imposing severe penalties and vigorous steps taken by the tax administration to detect black money and despite various voluntary disclosure schemes introduced by the government from time to time, it had not been possible to unearth black money and the menace of black money had over the years assumed alarming proportions causing havoc to the economy of the country and the legislature was therefore constrained to enact the Act with a view to mopping up black money so that instead of remaining idle, such money could be utilised for productive purposes The problem of black money was an obstinate economic problem which had been defying the Government for quite some time and it was in order to resolve this problem that, other efforts having failed.
the legislature decided to enact the Act, even though the 987 effect of its provisions might be to confer certain undeserved advantages on tax evaders in possession of black money.
The legislature had obviously only two alternatives; either to allow the black money to remain idle and unproductive or to induce those in possession of it to bring it out in the open for being utilised for productive purposes.
The first alternative would have left no choice to the government but to resort to deficit financing or to impose a heavy dose of taxation.
The former would have resulted in inflationary pressures affecting the vulnerable sections of the society while the latter would have increased the burden on the honest tax payer and perhaps led to greater tax evasion.
The legislature therefore decided to adopt the second alternative of coaxing persons in possession of black money to disclose it and make it available to the government for augment in, its resources for productive purposes and with that end in view, enacted the Act providing for issue of special bearer bonds.
It may be pointed out that the idea of issuing special bearer bonds for the purpose of unearthing black money was not a brain wave which originated for the first time in the mind of the legislature in the year 1981.
The suggestion for issue of special bearer bonds was made as far back as 1950 by some of the members of the provisional Parliament, notably those belonging to the opposition and the government was repeatedly asked why it was not issuing special bearer bonds in order to absorb the liquidity and thereby control the inflationary pressures in the country.
Though the majority of the members of the Wanchoo Committee expressed themselves against the issue of special bearer bonds, Shri Chitale a member of that Committee wrote a dissenting note in which he suggested that special bearer bonds should be issued.
We may point out that the majority members of the Wanchoo Committee were against issue of special bearer bonds for the purpose of mopping up black money, because they apprehended certain abuses to which special bearer bonds might be subjected, but as we have already pointed out while discussing the true meaning and legal effect of the provisions of the Act, we do not think that there is any scope for such abuses, for the legislature has, while enacting the provisions of the Act, taken care to see that such abuses are reduced to the minimum, if not eliminated altogether.
It is true that certain immunities and exemptions are granted to persons investing their unaccounted money in purchase of special bearer bonds but that is an inducement which has to be offered for unearthing black money.
Those who have successfully evaded taxation and concealed their income or wealth despite the stringent tax 988 laws and the efforts of the tax department are likely to disclose their unaccounted money without some inducement by way of immunities and exceptions and it must necessarily be left to the legislature to decide what immunities and exemptions would be sufficient for the purpose.
It would be outside the province of the court to consider if any particular immunity or exemption is necessary or not for the purpose of inducing disclosure of black money.
That would depend upon diverse fiscal and economic considerations based on practical necessity and administrative expediency and would also involve a certain amount of experimentation on which the Court would be least fitted to pronounce.
The court would not have the necessary competence and expertise to adjudicate upon such an economic issue.
The court cannot possibly assess or evaluate what would be the impact of a particular immunity or exemption and whether it would serve the purpose in view or not.
There are so many imponderables that would enter into the determination that it would be wise for the court not to hazard an opinion where even economists may differ.
The court must while examining the constitutional validity of a legislation of this kind, "be resilient, not rigid, forward looking, not static, liberal, not verbal" and the court must always bear in mind the constitutional proposition enunciated by the Supreme Court of the United States in Munn vs Illinois(l) namely, "that courts do not substitute their social and economic beliefs for the judgment of legislative bodies".
The court must defer to legislative judgment in matters relating to social and economic policies and must not interfere, unless the exercise of legislative judgment appears to be palpably arbitrary.
The court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theater Co. vs City of Chicago,(2)"The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific.
But even such criticism should not be hastily expressed.
What is best is not always discernible, the wisdom of any choice may be disputed or condemned.
Mere errors of government are not subject to our judicial review.
" It is true that one or the other of the immunities or exemptions granted under the provisions of the Act may be taken advantage of by resourceful persons by adopting ingenious methods and devices with a view to avoiding or saving tax.
But that cannot be helped because 989 human ingenuity is so great when it comes to tax avoidance that it would be almost impossible to frame tax legislation which cannot be abused.
Moreover, as already pointed out above, the trial and error method is inherent in every legislative effort to deal with an obstinate social or economic issue and if it is found that any immunity or exemption granted under the Act is being utilised for tax evasion or avoidance not intended by the legislature, the Act can always be amended and the abuse terminated.
We are accordingly of the view that none of the provisions of the Act is violative of Article 14 and its constitutional validity must be upheld.
These were the reasons for which we passed our order dated 2nd September, 1981 rejecting the challenge against the constitutional validity of the ordinance and the Act and dismissing the writ petitions.
Since these writ petitions are in the nature of public interest litigation, we directed that there should be no order as to costs.
GUPTA, J.
I was unable to share the view taken by the majority in disposing of these writ petitions on September 2, 1981 that "neither the Special Bearer Bonds (Immunities and Exemptions) ordinance, 1981 nor the is violative of article 14 of the Constitution", and I made the following order on the same day: "I have come to the conclusion that the Special Bearer Bonds (Immunities and Exemptions) ordinance, 1981 and the violate article 14 of the Constitution and are there fore invalid.
I would allow the writ petitions with costs.
I shall give my reasons later.
" Here briefly are my reasons.
These five writ petitions question the constitutional validity of the Special Bearer Bonds (Immunities and Exemptions) ordinance, 1981 and .
The ordinance which was promulgated by the President on January 1 2, 1981 was repealed and replaced by the Act.
The Act received the President 's assent on March 27.
Section I 990 (3) of the Act says that it shall be deemed to have come into force on January 12, 1981.
The Provisions of the ordinance and the Act are similar except that section 4 (c) of the Act is worded slightly differently from the corresponding provision of the ordinance but the difference is not material and I shall hereinafter refer to the provisions of the Act only.
As the long title of the Act shows, it is "An Act to provide for certain immunities to holders of Special Bearer Bonds, 1991 and for certain exemptions from the direct taxes in relation to such Bonds and for matters connected therewith.
" The purpose for which the Act was passed as appearing from the preamble is: "Whereas for effective economic and social planning it is necessary to canalise for productive purposes black money which has become a serious threat to the national economy: And whereas with a view to such canalisation the Central Government has decided to issue at par certain bearer bonds to be known as the Special Bearer Bonds, 1991 of the face value of ten thousand rupees and redemption value, after ten years, of twelve thousand rupees; And whereas it is expedient to provide for certain immunities and exemptions to render it possible for per sons in possession of black money to invest the same in the said Bonds ;" The preamble thus takes note of the fact that black money has become a serious threat to national economy and says that to make economic and social planning effective it is necessary to canalise this black money for productive purposes.
The Act does not attempt to define black money.
The Direct Taxes Enquiry Committee set up by the Government of India in 1970 with Shri K.N. Wanchoo, retired Chief Justice of the Supreme Court of India, as Chairman explains what the term black money means in its final report submitted in December, 1971: "It [black money] is, as its name suggests, 'tainted ' money money which is not clean or which has a stigma attached to it.
Black is a colour which is generally associated with evil.
While it symbolises something which 991 violates moral, social or legal norms, it also suggests a veil of secrecy shrouding it.
The term 'black money ' consequently has both these implications.
It not only stands for money earned by violating legal provisions even social conscience but also suggests that such money is kept secret and not accounted for.
Today the term 'black money ' is generally used to denote unaccounted money or concealed income and/or undisclosed wealth, as well as money involved in transactions wholly or partly suppressed.
" The Act contains nine sections.
The sections that are relevant for the present purpose are set out below.
Immuni 3.
(1) Notwithstanding anything contained ties other law for the time being in force, (a) no person who has subscribed to or has otherwise acquired special Bearer Bonds shall be required to disclose, for any purpose whatsoever, the nature and source of acquisition of such Bonds; (b) no inquiry or investigation shall be commenced against any person under any such law on the ground that such person has subscribed to or has other wise acquired Special Bearer Bonds; and (c) the fact that a person has subscribed to or has otherwise acquired Special Bearer Bonds shall not be taken into account and shall be inadmissible as evidence in any proceedings relating to any offence or the imposition of any penalty under any such law.
(2) x x x x 992 Acquisition.4.
Without prejudice to the generality of etc., of the provisions of section 3, the Bonds not to subscription to, or acquisition of, be taken into Special Bearer Bonds by any person account for shall not be taken into account for the certain proc purpose of any proceeding under the eedings.
Income tax Act, 1961 (hereinafter referred to as the Income tax Act), the (hereinafter referred to as the ) or the Gift tax Act, 1958 (hereinafter referred to as the ) and, in particular, no person who has subscribed to, or has otherwise acquired, the said Bonds shall be entitled (a) to claim any set off or relief in any assessment, re assessment, appeal, reference or other proceeding under the Income tax Act or to reopen any, assessment or re assessment made under that Act on the ground that he has subscribed to or has otherwise acquired the said Bonds: (b) to claim, in relation to any period before the date of maturity of the said Bonds, that any asset which is includible in his net wealth for any assessment year under the has been converted into the said Bonds; or (c) to claim, in relation to any period before the date or maturity of the said Bonds, that any asset held by him or any sum credited in his books of account or otherwise held by him represents the consideration received by him for the transfer of the said Bonds.
Amendment 5.
In the Income tax Act, (a) in section of Act 43 2, in clause (14), after sub clause Act of 1961 (iv), the following sub clause shall be inserted, namely: "(v) Special Bearer Bonds, 1991 issued by the Central Government," 993 (b) in section 10, in clause (15), after sub cluase (ia), the following sub clause shall be inserted, namely: (ib) premium on the redemption of Special Bearer Bonds, 1991 :" .
Amendment 6.
In section of 5 of the , of Act 27 in sub section (1), after clause (xvia), of 1957.
the following clause shall be inserted, namely : (xvib) Special Bearer Bonds, 1991 ;" .
Amendment 7.
In section 5 of the , in of Act 18 sub section (1), after clause (iiia), of 1958 the following clause shall be inserted, namely: (iiib) "of property in the form of Special Bearer Bonds, 1991.".
" The marginal notes against sections 5, 6, and 7 indicate that these sections are amendments respectively of the Income tax Act of 1961, of 1957 and Gift tax Act of 1958.
Section 5 excludes Special Bearer Bonds, 1991 from the capital asset of an assessee and exempts the premium payable on the redemption of the Bonds from income tax.
Section 6 exempts the Bonds from wealth tax.
Section 7 exempts from gift tax property in the form of these Bonds.
The Act has been challenged mainly on the ground that it infringes article 14 of the Constitution.
article 14 forbids class legislation but permits classification.
Permissible classification, it is well established, must satisfy two conditions which Das J. enunciated in the State of West Bengal vs Anwar Ali Sarkar(l) as follows: "(1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and, 994 (2) that the differentia must have rational relation.
to the object sought to be achieved by the Act.
" The immunities provided by the impugned Act are clearly for the benefit of those who have acquired the Bonds with black money.
Clauses (a), (b) and (c) of Section 3 (1) provide for these immunities "notwithstanding anything contained in any other law for the time being in force.
" Clause (a) states that no holder of Special Bearer Bonds shall be required to disclose for any purpose the nature and source of acquisition of the Bonds.
Clause (b) forbids commencement of any enquiry or investigation under any law against a person on the ground that he has subscribed to or otherwise acquired the Bonds.
Under clause (c) the fact that a person has subscribed to or otherwise acquired Special Bearer Bonds shall be inadmissible in evidence and cannot be taken into account in any proceeding relating to any offence or the imposition of any penalty under any law.
None of these immunities is required by a person who has paid 'white ' money, that is, money that has been accounted for, to acquire Bonds.
To a person who has disclosed the source of acquisition of the Bonds, these immunities are of no use.
Section 4 makes it clear that the immunities conferred by the Act are of use only to those who have acquired the Bonds with unaccounted money.
Section 4 states that the fact that one has subscribed to or otherwise acquired the Bonds shall not be taken into account in any proceeding under the Income tax Act, 1961, the and the Gift tax Act, 1958 and goes on to provide specifically that no one shall be entitled to: (a) any manner of relief under the Income tax Act on the ground that he has acquired the Bonds; or (b) claim that any asset belonging to him which formed part of his net wealth in any period before the maturity of the Bonds, has been converted into such Bonds; or (c) claim that any asset held by him or any sum of money credited in his books of account or otherwise held by him in the aforesaid period is the consideration received by him for the transfer of the Bonds.
Mr. Salve appearing for the petitioners in writ petitions Nos. 863 and 994 of 1981 contended that section 4(c) did not constitute an 995 absolute bar to the assessee seeking to prove that the said sum or asset represents the sale price of Special Bearer Bonds; on behalf of the Union of India it was asserted that this was an absolute bar.
In view of the conclusion I have reached, I do not propose to decide the point and I shall proceed on the basis that it is an absolute bar.
It is apparent from clauses (a) to (c) of section 4 that the rights they deny affect only those who have disclosed their source of acquisition of the Bonds.
Those in whose case the source of acquisition has not been detected are not affected by the prohibition contained in section 4.
The impugned Act denies to those who have acquired the Bonds not with black money any relief under the Income tax Act or the or any benefit in any other way claimed by on the ground that they are holders of Special Bearer Bonds, and the relief and the benefit denied to them have been made available to those who have acquired the Bonds with black money by ignoring the source of acquisition in their case.
The Act thus distinguishes between two classes of holders of Special Bearer Bonds: tax evaders and honest tax payers.
Has this classification a rational relation to the object of the Act ? The object, as already noticed, is to canalise black money for productive purposes to make economic and social planning effective.
If the exemptions and immunities conferred by the Act are sufficiently attractive to induce tax evaders to acquire Special Bearer Bonds, they will remain as attractive even if all these benefits were granted to those who will pay 'white ' money for the Bonds.
Denial of these benefits to those who have acquired the Bonds with money which has been accounted for does not in any way further the object of canalisation of black money for productive purposes.
The discrimination in favour of black money therefore seems to be obvious.
It was however argued that no one would be inclined to invest 'white ' money for Special Bearer Bonds which carry only 2 per cent annual interest.
I do not think this is a consideration which could justify the discrimination.
Apart from that, a return of 2 per cent simple interest per annum is not a correct measure of the actual advantages conferred by the Act.
Taking into account the income tax and the wealth tax savings if one did not have to pay any tax on the amount with which Special Bearer Bonds were acquired purchasers of the Bonds with black money did not and the tax free premium on the Bonds, the actual return would be many times more than 2 per cent simple interest per annum.
It must therefore be held that 996 the basis on which the holders of Special Bearer Bonds have been classified to give certain advantages to one class and deny them to the other, has no rational nexus with the object of the Act.
The matter has another aspect.
The classification of holders of Special Bearer Bonds into tax payers and tax evaders does disclose a basis.
Would it be an acceptable argument to say that this basis has a relation to the object of the Act because the black money invested in Special Bearer Bonds by tax evaders could be utilised for productive purposes for ten years and that both the conditions of a valid classification were thus satisfied ? I am afraid not.
In State of West Bengal vs Anwar Ali Sarkar, (supra) Das J. points out: "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.
In short while the Article [article 14] forbids class legislation in sense of making improper discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation. " In Anwar Ali Sarkar 's case the constitutional validity of the West Bengal Special Courts Act (X of 1950) constituting special courts and empowering the state government to refer 'cases ' 'offences ' or 'classes of cases ' or 'classes of offences ' to such courts was in question.
The object of the West Bengal Act was to provide for the speedier trial of certain offences.
Das J. Observes further: "To achieve this object, offences or cases have to be classified upon the basis of some differentia which will distinguish those offences or cases from others and which will have a reasonable relation to the recited object of the Act.
The differentia and the object being, as I have said, different elements, it follows that the object by itself cannot be the basis of the classification of offences or the cases, for in the absence of any special circumstances which may distinguish one offence or one class of offences or one class 997 of cases from another offence, or class of offences or class of cases, speedier trial is desirable in the disposal of all offences or classes of offences or classes of cases. ' ' If the differentia, that is, the basis of classification, and the object of the Act are distinct things, it follows that it is not enough that the differentia should have a nexus with the object, but it should also be intelligible.
The presence of some characteristics in one class which are not found in another is the difference between the two classes, but a further requirement is that this differentia must be intelligible.
If the basis of classification is on the face of it arbitrary in the sense that it is palpably unreasonable, I do not think it is possible to call the differentia intelligible.
The following passage from the judgment of Bose J. in Anwar Ali Sarkar 's case illustrates the point: "I can conceive of cases where there is the utmost good faith/and where the classification is scientific and rational and yet which would offend this law.
Let us take an imaginary case in which a State legislature considers that all accused persons whose skull measurements are below a certain standard, or who cannot pass a given series of intelligence tests, shall be tried summarily whatever the offence on the ground that the less complicated the trial the fairer it is to their sub standard of intelligence.
Here is classification.
It is scientific and systematic.
The intention and motive are good.
There is no question of favouritism, and yet I can hardly believe that such a law would be allowed to stand.
But what would be the true basis of the decision ? Surely simply this that the Judges would not consider that fair and proper." The scope of article 14 was further elaborated in some of the later decisions of this Court.
This is what Bhagwati, J. speaking for himself and Chandrachud and Krishna Iyer JJ, in E.P. Royappa vs State of Tamil Nadu and another(l) says: "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 998 concept with many aspects and dimensions and it cannot be "cribed, cabbined and confined" within traditional and doctrinaire limits.
From a positivistic points 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.
" Bhagwati J. reiterates in Maneka Gandhi vs Union of India(l) what he had said in Royappa 's case and adds: "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 .
" To pass the test of reasonableness if it was enough that there should be a differentia which should have some connection with the object of the Act, then these observations made in Maneka Gandhi and Royappa would be so much wasted eloquence.
The decisions of this Court insist that the differentia must be intelligible and the nexus rational, and the observations quoted above would seem to be appropriate only if we attach some significance to the words 'intelligible ' and 'rational '.
The question however remains: when is one justified in describing something as arbitrary or unreasonable ? Terms like 'reasonable ', 'just ' or 'fair ' derive their significance from the existing social conditions.
W. Friedmann in his "Legal Theory" (5th Ed. page 80) points out that expressions like "a reasonable and fair price" or a "fair and equitable" restitution means nothing, except in conjunction with the social conditions of the time".
Brandeis J. in his opinion in Quaker City Cab Co. vs Commonwealth of Pennsylvania(2) explains when a classification shall be reasonable: 'We call that action reasonable which an informed, intelligent, just minded, civilized men could rationally favour.
" Bose J. in Anwar Ali Sarkar 's case says much the same 999 thing in holing that the West Bengal Special Courts Act of 1950 offends article 14: "We find men accused of heinous crimes called upon to answer for their lives and liberties.
We find them picked out from their fellows, and however much the new procedure may give them a few crumbs of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim.
It matters not to me, nor indeed to them and their families and their friends, whether this be done in good faith, whether it be done for the convenience of government, whether the process can be scientifically classified and labelled, or whether it is an experiment in speedier trials made for the good of society at large.
It matters not how lofty and laudable the motives are.
The question with which I charge myself is, can fair minded, reasonable, unbiased and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India today ?" Keeping in mind these observations on what is reasonable, is the basis on which the holders of Special Bearer Bonds have been classified into two groups, honest tax payers and tax evaders, intelligible ? What is arbitrary and offends article 14, cannot be called intelligible.
It is clear from the provisions of the Act set out earlier that the advantages which the tax evaders derive from the immunities provided by the Act are not available to those who have acquired the Bonds with 'white ' money.
The Act promises anonymity and security for tax evaders.
No question can be asked as to the nature and source of acquisition or possession of the Bonds.
The Bonds can be transferred freely, and the apprehension expressed by the petitioners cannot he said to be baseless that passing from hand to hand the Bonds are likely to operate as parallel currency and be used for any kind of transaction.
From a reading of the preamble of the Act it does not seem that the object of the Act was only to enable the Central Government to have some use for 10 years of the black money which is said to have "become a serious threat 1000 to the national economy".
As I read the preamble the purpose of the Act is to unearth black money and use it for productive purposes for effective economic and social planning.
If that be the object of the Act, it is difficult to see how its provisions help to achieve the intended purpose.
The Act discloses a scheme which enables tax evaders to convert black money into white after 10 years and in the meantime use the Bonds as parallel currency initiating a chain of black money investments There is no provision in the Act requiring that on maturity of the Bonds their holders would have to disclose their identity, which means that if after 10 years black money which had taken the shape of Special Bearer Bonds goes under ground again and retain its colour, there is nothing to prevent it.
There is nothing in the scheme to halt generation of black money which threatens the national economy.
Some people by successful evasion manoeuvres are able to throw the burden of taxation of their own shoulders which means a greater burden on the honest tax payers and this leads to economic imbalance.
On the effect of giving concessions to such unscrupulous tax evaders in preference to the honest tax payers, Mr. R.K. Garg appearing in person and Mr. Salve both repeated what the Direct Taxes Enquiry Committee 's final report says: "Resorting to such a measure would only shake the confidence of the honest tax payers in the capacity of the Government to deal with the law breakers and would invite contempt for its enforcement machinery.
" The petitioners submitted further that measures like the Special Bearer Bonds scheme would tempt more people to evade taxes and instead of serving a legitimate public interest would grievously damage it.
It has been pointed out that there have been voluntary disclosure schemes in the past.
That is so, but none of them is quite like the scheme in question which not only exempts the unaccounted money in the shape of Special Bearer Bonds from all taxes but provides also for a tax free premium on it.
According to the petitioners, if the earlier schemes have been conciliatory, the present scheme amounts to capitulation to black money.
I asked the Attorney General if it was his case that all attempts to unearth black money had failed and the present scheme was the only course open.
His answer was that was not his case The affidavit filed on behalf of the Union of India also does not make such a case.
Clearly, the impugned Act puts a premium on dishonesty without even a justi 1001 fication of necessity that the situation in the country left no option.
The Act has been criticised as immoral and unethical.
Any law that rewards law breakers and tax dodgers is bound to invite such criticism.
Should the court concern itself with questions of morality and ethics in considering the constitutional validity of an Act ? of course no law can be struck down only on the ground that it is unethical.
However as Friedmann in his "Legal Theory" (page 43) says: "There cannot be and there never has been a complete separation of law and morality.
Historical and ideological differences concern the extent to which the norlns of the social order are absorbed into the general order.
" It has been held by this Court in Royappa and Maneka Gandhi that the principle of reasonableness is an essential element of equality.
The concept of reasonableness does not exclude notions of morality and ethics.
I do not see how it can be disputed that in the circumstances of a given case considerations of morality and ethics may have a bearing on the reasonableness of the law in question.
Having regard to the provisions of the impugned Act which I have discussed above and the object of the Act to which I have referred, is it possible to say that it is reasonable to classify the E holders of Special Bearer Bonds into honest tax payers and tax evaders for the purpose of conferring benefits on the tax evaders and denying them to those who have honestly paid their taxes, especially when a measure appeasing the tax evaders to the extent the scheme in question does is not claimed as unavoidable ? The informed, fair minded, civilized man on whose judgment both Brandeis J. and Bose J. rely, would he have found the basis of the classification intelligible ? The questions answer themselves, the arbitrary character of the differentiation is so obvious.
I do not think it is possible to take the rhetoric of Royappa and Maneka Gandhi seriously and find that the Act passes the test of reasonableness.
What I have said above on the Special Bearer Bonds scheme should not be read as an expression of opinion on the wisdom of the government policy that the scheme is not the best in circumstances.
My conclusion is based not on what the policy of the government is but on what the equality elause in article 14 requires.
1002 Having held that the Special Bearer Bonds (Immunities and Exemptions) ordinance, 1981 and the are invalid on the ground that they infringe article 14 of the Constitution, I do not find it necessary to consider whether Special Bearer Bonds (Immunities and Exemptions) ordinance, 1981 is outside the ordinance making power of the President under article 123 of the Constitution.
N.V.K. Petitions dismissed.
| IN-Abs | The Special Bearer Bonds (Immunities and Exemptions) ordinance, 1981 was promulgated on January 12,1981.
It was repealed and replaced by the .
The Act received the Presidential assent on March 27,1981.
Section 1(3) of the Act stated that the Act was deemed to have come into force on January 12, 1981.
The provisions of the ordinance and the Act were similar except section 4(2) of the Act which was worded slightly differently from the corresponding provision of The ordinance.
The Act provided for certain immunities to holders of Special Bearer Bonds, 1981, and for certain exemptions from direct taxes in relation to such Bonds and for matters connected therewith.
The object and purpose for which the Act was passed was to canalise for productive purposes black money, which had become a serious threat to the national economy and to provide for certain immunities and exemptions to render it possible for persons in possession of black money to invest the same in the said Bonds.
Section 3 of the Act provided for certain immunities to a person who had subscribed to or otherwise acquired Special Bearer Bonds.
Clause (a) protected such a person from being required to disclose for any purpose whatsoever the I nature and source of acquisition of the Special Bearer Bonds.
Clause (b) prohibited the commencement of any inquiry or investigate on against a person on the 948 ground of his having subscribed to or otherwise acquired the Special Bearer Bonds.
Clause (c) provided that the fact of subscription to or acquisition of Special Bearer Bonds shall not be taken into account and shall be inadmissible in evidence in any proceedings relating to any offence or the imposition of any penalty.
Sub section (2) of section (3) provided that the immunity granted under sub section (1) shall not be available in relation to prosecution for any offence punishable under Chapter 9 or Chapter 17 of the Indian Penal Code or the Prevention of Corruption Act, 1957 or other similar law.
Section 4 provided that without prejudice to the provisions of section 3 subscription to, or acquisition of Special Bearer Bonds by any person shall not be taken into account for the purpose of any proceedings under the Income tax Act, 1961, the or the and that no person who has subscribed to or has otherwise acquired the said Bonds shall be entitled to (a) claim any set off under the Income tax Act or to reopen any assessment or reassessment made under that Act on the ground that he has subscribed to or has otherwise acquired the said Bonds; (b) that any asset which is includible in his net wealth for any assessment year under the has been converted into such bonds, and (c) that any asset held by him represents the consideration received for the transfer of such Bonds.
In their writ petitions to this Court assailing the constitutional validity of the ordinance and the Act it was contended on behalf of the petitioners that: (I) since the ordinance had the effect of amending the tax laws it was outside the competence of the President under Article 123, that the subject matter of the ordinance was in the nature of a Money Bill which could be introduced only in the House of the People and passed according to the procedure provided in Articles 109 and 110, the President had no power under Article 123 to issue the ordinance by passing the special procedure provided in Articles 109 and 110 for the passing of a Money Bill and (2) that the provisions of the Act were violative of Article 14 of the Constitution.
It was also contended: (a) that Special Bearer Bonds would fetch a much higher value in the black market than that originally subscribed and this would enable a larger amount of black money to be legalised into white than what was originally invested in subscription to special bearer bonds, (b) an abuse which special bearer bonds might lend themselves to was that if special bearer bonds are sold and the sale proceeds are utilised in meeting expenditure, the assessee would not be precluded by section 4 clause (c) from explaining the source of the expenditure to be the sale consideration of special bearer bonds and by resorting to this strategy, white money can be accumulated as capital while expenditure is met out of black money received by way of consideration for sale of special bearer bonds, (c) Section 4 clause (c) operates only in relation to a period before the date of maturity of special bearer bonds and after the date of maturity the holder of special bearer bonds can sell such bonds, and, without running any risk disclose the consideration received by him as his white money, because section 4 clause (c) being out of the way, he can account for the possession of such money by showing that he has received it as consideration for sale of special bearer bonds and so far as the purchaser is concerned.
if he has Paid the consideration out of his black money, he can claim 949 the immunity granted under section 3 sub section (1) and his black money would be converted into white, (d) the Act is unconstitutional as it offends against morality by according to dishonest assessees who have evaded payment of tax.
immunities and exemptions which are denied to honest tax payers.
Those who have broken the law and deprived the State of its legitimate dues are given benefits and concessions placing Them at an advantage over those who have observed the law and paid the taxes due from them and this is clearly immoral and unwarranted by the Constitution.
Dismissing the petitions, ^ HELD : [Per majority Chandrachud, C. J., Bhagwati, Fazal Ali & Amarendra Nath Sen, J.J.] [Gupta, J, dissenting] None of the provisions of The Special Bearer Bonds (Immunities and Exemption) Act, 1981 is violative of Article 14 and its constitutional validity must be upheld.
[989 B] l(i).
There is no substance in The contention that the President has no power under Article 123 to issue an ordinance amending or altering the tax laws and that the ordinance was outside the legislative power of the President under that Article.
[967 E] l(ii).
Under Article 123 legislative power is conferred on the President exercisable when both Houses of Parliament are not in session.
It is possible that when neither House of Parliament is in session, a situation may arise which needs to be dealt with immediately and for which there is no adequate provision in the existing law and emergent legislation may be necessary to enable the executive to cope with the situation.
Article 123, therefore, confers powers on the President to promulgate a law by issuing an ordinance to enable the executive to deal with the emergent situation which might well include a situation created by a law being declared void by a Court of law.
The legislative power conferred on the President under the Article is not a parallel power of legislation.
This power is the clearest indication that the President is invested with this legislative power only in order to enable the executive to tide over an emergent situation which may arise whilst The Houses of Parliament are not in session.
The conferment of such power may appear to be undemocratic but it is not so, because The executive is clearly answerable to the legislature and if the President, on the aid and advice of the executive, promulgates an ordinance in misuse or abuse of this power, the legislature can not only pass a resolution disapproving the ordinance but can also pass a vote of no confidence in the executive There is in the theory of Constitutional Law complete control of the legislature over the executive, because if the executive misbehaves or forfeits the confidence of the legislature, it can be thrown out by the legislature.
[954 E G, 965 G 966 B] 1(iii).
If parliament can by enacting legislation after or amend tax laws, equally can the President do so by issuing an ordinance under Article 123.
There have been numerous instances where the President has issued an ordinance replacing with retrospective effect a tax law declared void by the High Court or 950 this Court.
Even offences have been created by ordinance issued by the President under Article 123 and such offences committed during the life of the ordinance have been held to be punishable despite the expiry of the ordinance.
[967 B C] State of Punjab vs Mohar Singh ; , referred to.
Certain well established principles have been evolved by Courts as rules of guidance in discharge of their constitutional function of judicial review.
The first rule is that there is always a presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.
The presumption of constitutionality is indeed so strong that in order to sustain it, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of Legislation.
Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc.
The court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved.
[969 A G] Morey vs Dond, ; , referred to. 2(ii).
The court must always remember that "legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry" that exact wisdom and nice adoption of remedy are not f; always possible and that "judgment is largely a prophecy based on meagre and uninterpreted experience".
Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses.
There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid.
[970 C.D] Secretary of Agriculture vs Central Reig Refining Company, 94 Lawyers ' Edition 381.
referred to.
2(iii).
The court must adjudge the constitutionality of legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provision.
If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation.
That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues.
[970 G H] 3(i).
It is clear that Article 14 does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of attaining specific ends.
What is necessary in order to pass the test of permissible classification under Article 14 is that the classification must not be arbitrary, artificial or evasive but must be based on some real and substantial distinction bearing 951 a just and reasonable relation to the object sought to be achieved by the legislature.
3(ii).
The validity of a classification has to be judged with reference to the object of the legislation and if that is done, there can be no doubt that the classification made by the Act is rational and intelligible and the operation of the provisions of the Act is rightly confined to persons in possession of black money.
The Preamble of the Act makes it clear that the Act is intended to canalise for productive purposes black money which has become a serious threat to the national economy.
It is an undisputed fact that there is considerable amount of black money in circulation which is unaccounted or concealed and therefore outside the disclosed trading channels.
It is largely the product of black market transactions and evasion of tax.
The abundance of black money has in fact given rise to a parallel economy operating simultaneously and competing with the official economy.
This parallel economy has over the years grown in size and dimension and even on a conservative estimate, the amount of black money in circulation runs into some thousand crores.
The menace of black money has reached such staggering proportions that it is causing havoc to the economy of the country and poses a serious challenge to the fulfillment of objectives of distributive justice and setting up of an egalitarian society.
4(ii).
The first casualty of the evil of black money is the Revenue because it loses the tax which should otherwise have come to the exchequer.
The generation of black money through tax evasion throws a greater burden on the honest tax payer and leads to economic inequality and concentration of wealth in the hands of the unscrupulous few in the country.
It also leads to leakage of foreign exchange, making balance of payments rather distorted and unreal and tends to defeat the economic policies of the Government by making their implementation ineffective, particularly in the field of credit and investment.
Urgent measures were required to be adopted for preventing further generation of black money as also for unearthing existing black money so that it can be canalised for productive purposes with a view to effective economic and social planning.
4(iii).
The Government introduced several changes in the administrative set up of the tax department from time to time with a view to strengthening the administrative machinery for checking tax evasion.
The Government also amended section 37 of the Indian Income Tax Act, 1922 with a view to conferring power on the tax authorities to carry out searches and seizures and this power was elaborated and made more effectual under the Income Tax Act, 1961.
The Voluntary Disclosure Scheme of 1951 was made to facilitate the disclosure of suppressed income by affording certain immunities from penal provisions, Nearly a decade and a half later a second scheme of voluntary disclosure was introduced by section 68 of the Finance Act, 1965, popularly known as the sixty forty scheme which was a little more successful.
Closely following on the heels of this scheme came another under section 24 of the Finance (No. Scheme ' according to which tax was payable at rates applicable to the block of concealed income disclosed and not at a flat rate as under the sixty forty scheme.
Then came the Taxation Laws (Amendment and Miscellaneous Provisions) ordinance 1965 followed by an Act which provided for exemption from 952 tax in certain cases of undisclosed income invested in National Defence Gold Bonds 1980.
Later on, the Voluntary Disclosure of Income and Wealth ordinance 1975 which was followed by an Act introduced a scheme of voluntary disclosure of income and wealth and provided certain immunities and exemptions.
All these legal and administrative measures were introduced by the Government and did not have any appreciable effect with regard to the problem of black money which continued unabated 4 (iv).
All efforts to detect black money and to uncover it having failed and the problem of black money being an obstinate economic issue which was defying solution, the impugned legislation providing for issue of Special Bearer Bonds was enacted with a view to mopping up black money and bringing it out in the open, so that, instead of remaining concealed such money may become available for augmenting the resources of the State and being utilised for productive purposes so as to promote effective social and economic planning.
This was the object for which the Act was enacted and it is with reference to this object that it is to be determined whether any impermissible differentiation is made in the Act.
4 (v).
The whole object of the impugned Act is to induce those having black money to convert it into white money by making it available to the State for productive purposes, without granting in return any immunity in respect of such black money if it could be detected through the ordinary processes of taxation laws without taking into account the fact of purchase of Special Bearer Bonds.
4 (vi).
The acquisition or possession of Special Bearer Bonds would not therefore afford any protection to a public servant against a charge of corruption or to a person committing any offence against property.
Equally this immunity would not be available where what is sought to be enforced is a civil liability other than liability by way of tax.
The immunity granted in respect of subscription to or acquisition of Special Bearer Bonds is a severely restricted immunity and this is the bare minimum immunity necessary in order to induce holders of black money to bring it out in the open and invest it in Special Bearer Bonds 5.
Section 4(c) is calculated to act as a strong deterrent against negotiability of Special Bearer Bonds for disclosed or 'white ' money.
The immunily granted under the provisions of the Act, limited as it is, extends only to the person who is for the time being the holder of Special Bearer Bonds and the person who has transferred the Special Bearer Bonds for black money has no immunity at all and all the provisions of tax laws are available against him for determining his true income or wealth and therefore no one who has purchased Special Bearer Bonds with a view to earning security against discovery of unaccounted money in his hands would ordinarily barter away that security by again receiving black money for the Special Bearer Bonds.
Even if special bearer bonds are transferred against receipt of black money it will not have the effect of legalising more black money into white because the black money of the seller which had become white on his subscribing to or acquiring special bearer bonds would again be converted into black money and the black money paid by the 953 purchaser by way of consideration would become white by reason of being converted into special bearer bonds.
No assessee would ever admit that he incurred expenditure out of black money received as consideration for sale of special bearer bonds because it would be impossible for him to establish receipt of black money from the purchaser and if he is unable to do so, the amount of the expenditure, would by reason of section 69C of the Income tax Act, 1961 be deemed to be his concealed income liable to tax.
Even if it is assumed that in some rare and exceptional cases the assessee may be able to establish that he sold special bearer bonds against receipt of black money the purchaser would straight away run into difficulties because the evidence furnished by the assessee would in such a case clearly establish that the purchaser had black money and he paid it to the assessee by way of consideration and he would in that event be rendered liable to tax and penalty in respect of such black money.
Howsoever special bearer bonds may be transferred and for whatever consideration only a limited amount of black money namely The amount originally subscribed for the special bearer bonds or at the most the amount representing the face value of the special bearer bonds would be legalised into white money and the supposedly free negotiability of special bearer bonds would not have the effect of legalising more black money into while or encouraging further generation of black money.
When experience shows that the legislation as framed has proved inadequate to achieve its purpose of mitigating an evil or there are cracks and loopholes in it which are being taken advantage of by the resourcefulness and ingenuity of those minded to benefit themselves at the cost of the State or the others, the legislature can and most certainly would intervene and change The law.
But the law cannot be condemned as invalid on the ground That after a period of ten years it may lend itself to some possible abuse.
It is obvious that the Act makes a classification between holders of black money and the rest and provides for issue of special bearer bonds with a view to inducing persons belonging to the former class to invest their unaccounted money in purchase of special bearer bonds, so that such money which is today Lying idle outside the regular economy of the country is canalised into productive purposes.
The object of the Act being to unearth black money for being utilised for productive purposes with a view to effective social and economic planning, there has necessarily to be a classification between persons possessing black money and others and such classification cannot be regarded as arbitrary or irrational.
The validity of a classification has to be judged with reference to The object of the legislation and if that is done, there can be no doubt that the classification made by the Act is rational and intelligible and the operation of the provisions of the Act is rightly confined to persons in possession of black money.
The legislature had obviously only two alternatives: either to allow the black money to remain idle and unproductive or to induce those in possession 954 of it to bring it out in the open for being utilised for productive purposes.
The first alternative would have left no choice to the government but to resort to deficit financing or lo impose a heavy dose of taxation.
The former would have resulted in inflationary pressures affecting the vulnerable sections of the society while the latter would have increased the burden on the honest tax payer and perhaps led to greater tax evasion.
The legislature therefore decided to adopt the second alternative of coaxing persons in possession of black money to disclose it and make it available to the government for augmenting its resources for productive purposes and with that end in view enacted the Act providing for issue of special bearer bonds.
It would be outside the province of the court to consider if any particular immunity or exemption is necessary or not for the purpose of inducing disclosure of black money.
That would depend upon diverse Fiscal and economic considerations based on practical necessity and administrative expediency and would also involve a certain amount of experimentation on which the Court would be least fitted to pronounce.
The Court would not have the necessary competence and expertise to adjudicate upon such an economic issue.
The Court cannot possibly assess or evaluate what would be the impact of a particular immunity or exemption and whether it would serve the purpose in view or not.
There are so many imponderables that would enter into the determination that it would be wise for the court not to hazard an opinion where even economists may differ.
The court must while examining the constitutional validity of a legislation "be resilient, not rigid, forward looking, not static, liberal, not verbal" and the court must always bear in mind the constitutional proposition "that courts do not substitute their social and economic beliefs for the judgment of legislative bodies".
The court must defer to legislative judgment in matters relating to social and economic policies and must not interfere, unless the exercise of legislative judgment appears to be palpably arbitrary.
[ Per A.C. Gupta, J. dissenting ] 1.
The Special Bearer Bonds (Immunities and Exemptions) ordinance, 1981 and the are invalid on the ground that they infringe Article 14 of the Constitution.
[1002 A] 2 The Act puts a premium on dishonesty without even a justification of necessity that the situation in the country left no option.
[1000 H 1001 A] 3.
The basis on which the holders of Special Bearer Bonds have been classified to give certain advantage to one class and deny them to the other, has no rational nexus with the object of the Act.
[996 A] 4 (i).
Article 14 forbids class legislation but permits classification Permissible classification, it is well established, must satisfy two conditions viz. (i) li that The classification must be founded on an intelligible differential which distinguishes those that are grouped together from others and: (2) that the 955 differential must have a rational relation to the object sought to be achieved by A the Act.
[993 G 994 A] 4 (ii).
The differential that is the basis of classification and the object of the Act are distinct things, it is not enough that the differential should have a nexus with the object, but it should also be intelligible.
The presence of some characteristics in one class which are not found in another is the difference between the two classes, but a further requirement is that this differential must be intelligible.
If the basis of classification is on the face of it arbitrary in the sense that it is palpably unreasonable it is not possible to call the differential intelligible.
[997 B C] The State of West Bengal vs Anwar Ali Sarkar, ; ; E. P. Royappa vs State of Tamil Nadu and another; , and Maneka Gandhi vs Union of India, [1978] 2 SCR 621, referred to.
The preamble of the Act takes note of the fact that black money has become a serious threat to national economy and says that to make economic and social planning effective it is necessary to canalise this black money for productive purposes.
The Act however does not define black money.
[990 F] 6.
The immunities provided by the impugned Act are clearly for the benefit of those who have acquired the Bonds with black money.
Clauses (a), (b) and (c) of section 3(1) provide for these immunities "notwithstanding anything contained in any other law for the time being in force".
None of These immunities is required by a person who has paid 'white ' money, that is, money that has been accounted for to acquire the Bonds.
To a person who has disclosed the source of acquisition of the Bonds, These immunities are of no use.
Section 4 makes it clear that the immunities conferred by the Act are of use only to those who have acquired the Bonds with unaccounted money.
[994 B D] 7.
The impugned Act denies to those who have acquired the bonds not with black money any relief under the Income tax Act or the or any benefit in any other way claimed on the ground that they are holders of Special Bearer Bonds, and the relief and the benefit denied to them have been made available to those who have acquired the Bonds with black money by ignoring the source of acquisition in their case.
[995 C D] 8.
The Act distinguishes between two classes of holders of Special Bearer Bonds; tax evaders and honest tax payers.
The object is to canalise black money for productive purposes to make economic and social planning effective.
If the exemptions and immunities conferred by the Act are sufficiently attractive to induce tax evader to acquire Special Bearer Bonds, they will remain as attractive even if all these benefits were granted to those who will pay white money for the Bonds.
Denial of these benefits to those who have acquired the Bonds with money which has been accounted for does not in any way further the object of canalisation of black money for productive purposes.
The discrimination in favour of black money therefore seems to be obvious.
[995 E F] 9.
Terms like 'reasonable ', 'just ' or 'fair ' derive their significance from the existing social conditions.
Expressions like a 'reasonable and fair price ' or 'fair 956 and equitable restitution ' means nothing, except in conjunction with the social conditions of the time.
That action is called 'reasonable ' which an informed, intelligent, just minded civilised Man could rationally favour.
[998 F G] Quaker City Cab Co. vs Commonwealth of Pennsylvania ; , referred to.
What is arbitrary and offends Article 14 cannot be called intelligible.
It is clear from the provisions of the Act that the advantage which the tax evaders derive from the immunities provided by the Act are not available to those who have acquired the Bonds with 'white money ' The Act promises anonymity and security for tax evaders.
No question can be asked as to the nature and source of acquisition or possession of the Bonds.
The Bonds can be transferred freely and passing of the Bonds from hand to hand is likely to operate as parallel currency and be used for any kind of transaction.
[999 F G] 11.
The Act discloses a scheme which enables tax evaders to convert black money into white after 10 years and in the meantime use the Bonds as parallel currency initiating a chain of black money investments.
There is no provision in the Act requiring that on maturity of the Bonds their holders would have to disclose their identity, which means that if after 10 years black money which had taken the shape of Special Bearer Bonds goes underground again and retain its colour, there is nothing to prevent it.
There is nothing in the scheme to halt generation of black money which threatens the national economy.
Some people by successful evasion manoeuvres are able to throw the burden of taxation off their own shoulders which means a greater burden on the honest tax payers and this leads to economic imbalance.
[1000 B D] 12.
Any law that rewards law breakers and tax dodgers is bound to invite criticism.
No law can be struck down only on the ground that it is unethical.
However, there cannot be and there never has been a complete separation of law and morality.
Historical and ideological differences concern the extent to which the norms of the social order are absorbed into the legal order.
The principle of reasonableness is an essential element of equality.
The concept of reasonableness does not exclude notions of morality and ethics.
It cannot be disputed that in the circumstances of a given case considerations of morality and ethics may have a bearing on the reasonableness of the law in question.
[1001 B D]
|
Civil Appeal Nos.
1629, 1857 & 2087 of 1979.
From the Judgment and Order dated 1 5 1979 of the Delhi High Court in Civil Writ No. 408 of 1978.
F. section Nariman, section D. Parekh, A. D. Mehta, Lalit Bhasin, Vinay Bhasin and Vineet Kumar for the Appellants in C.A. No. 1629 and for R. 1 in C.A. No. 2087/79.
V. N. Tarkunde, section Ganesh, K. Vasudev and T.V.S.N. Chari for the Appellants in CA 1857/79.
Soli J. Sorabjee, Solicitor General and Girish Chandra for Appellants in CA 2087 and for Respondent (UOI) in CA 1629/79.
Soli J. Sorabjee, Solicitor General, section Ganesh Vasdev and T.V.S.N. Chari for Respondent No. 2 in CA 1629.
T. V. section N. Chari for Respondent No. 4 in CA 2087 Suresh Parik and section Swarup for Respondent No. 3 in CA 2087.
F. section Nariman, B. P. Maheshwari and Suresh Sethi for Respondent Swadeshi Cotton Mills Co. Ltd. in CA No. 1857 and 2087/79.
C. M. Chopra for Intervenor.
The Judgment of R. section Sarkaria and D. A. Desai, JJ. was delivered by Sarkaria, J. O. Chinnappa Reddy, J. gave a dissenting Opinion.
542 SARKARIA,J.
These appeals arise out of a judgment, dated May 1, 1979, of the High Court of Delhi, in the following circumstances: Appellant No. 1 in Civil Appeal 1629 of 1979 is Swadeshi Cotton Mills Co. Ltd. (hereinafter referred to as the Company).
It was incorporated as a private company with an authorised capital of Rs. 30 lakhs in 1921 by the Horseman family by converting their partnership business into a Private Joint Stock Company.
Its capital was raised in 1923 to Rs. 32 lakhs and thereafter in 1945 to Rs. 52.50 lakhs by issue of bonus shares.
In 1946, the Jaipuria family acquired substantial holding in the Company.
Jaipuria family is the present management.
By issue of further bonus shares in 1946, the capital of the Company was increased to Rs. 122.50 lakhs.
In 1948, the paid up capital of the Company was raised to Rs. 210 lakhs by the issue of further bonus shares.
The subscribed and issued capital consisting mainly of the bonus shares has since remained constant at Rs. 210 lakhs.
In the year 1946, the Company had only one undertaking, a Textile Unit at Kanpur, known as "The Swadeshi Cotton Mills, Kanpur".
Between 1956 and 1973, the Company set up and/or acquired five further Textile Units in Pondicherry, Naini, Udaipur, Maunath Bhanjan and Rae Bareilly.
Each of these six Units or undertakings of the Company was separately registered in accordance with the provisions of Section 10 of the Industries (Development and Regulation) Act, 1951 (hereinafter called the IDR Act).
In addition to these six industrial undertakings, the Company (it is claimed) had other distinct businesses and assets.
It holds inter alia 97 per cent shares in the subsidiary, Swadeshi Mining and Manufacturing Company Ltd., which owns two sugar Mills.
The Company claims, it has substantial income from other businesses and activities including investments in its subsidiary and in other shares and securities which include substantial holding of 10,00,000 Equity Shares of Rs. 10/ each in Swadeshi Polytex Ltd., representing 30 per cent of the total equity capital value of Swadeshi Polytex Ltd., the intrinsic value whereof exceeds Rs. 5 crores.
The Company made considerable progress during the years 1957 to 1973.
The reserves and surplus of the Company increased from Rs. 2.3 crores in 1957 to Rs. 4.3 crores in 1973 74, but declined to Rs. 2.8 crores in 1976 77.
The fixed assets of the Company increased from 5.8 crores in 1957 to 19 crores in 1973 74, but declined to Rs. 18 crores, registering a marginal decrease of Rs. 1 crore in 1976 77.
543 The Company maintained separate books of accounts for each of its six industrial undertakings.
From and after April 1973, the Company maintained separate sets of books of accounts of the businesses and assets other than of the said six industrial undertakings.
Annual accounts of the six industrial undertakings were first prepared separately in seven sets which were separately audited.
The consolidated annual accounts of the Company were then prepared from such annual accounts at the registered office of the Company at Kanpur, and after audit, were placed before the shareholders of the Company.
The Company made over all profits up to the year 1969 and even thereafter up to 1975.
The Balance Sheet showed that the Company suffered a loss of Rs. 86.23 lakhs after providing depreciation of Rs. 93.93 lakhs and gratuity of Rs. 48.79 lakhs, though the trading results showed a gross profit of Rs. 56.49 lakhs.
During the year ending March 31, 1976, the Company again suffered a loss of Rs. 294.82 lakhs after providing for depreciation.
The last Balance Sheet and Profit & Loss Account adopted by the shareholders and published by the Company relates to the year ending March 31, 1977.
It shows that the Company suffered a loss of Rs. 200.34 Lakhs after taking into account depreciation of Rs. 73.27 lakhs which was not provided in accounts.
Between 1975 and 1978, the Company created the under noted encumbrances on the fixed assets: Unit As on As on As on As on Remarks 31 3 75 31 3 76 31 3 77 31 3 78 (in lakhs) (in lakhs) 1 2 3 4 5 6 (i) Pondi 2.40 Nil Nil Nil On fixed chery assets of of Pondi cherry Unit.
(ii) Maun 11.40 5.71 Nil Nil On fixed ath assets of Bhanjan Unit.
(iii)Udaipur 2.76 Nil Nil Nil On fixed assets of Udaipur Unit.
(iv) Kanpur 13.44 9.75 5.95 2.00 On fixed (ICICI) asset of Kanpur Unit.
(v) Kanpur Nil 150.00 150.00 150.00 On fixed assets of Kanpur, Maunath Bhanjan & Pondi cherry Units for wages and Bank Dues 544 1 2 3 4 5 6 vi)Company 67.53 68.45 59.44 59.44 On diesel generating sets of Kanpur, Naini, Pondi cherry, Maunath Bhanjan and Rae Bareilly Units.
(vii)Udaipur Nil 25.00 25.00 25.00 On fixed assets of Udaipur Unit for gratuity fund.
(viii)Naini Nil Nil 70.00 70.00 On fixed assets of Naini for gratuity.
(ix) Kanpur, 106.20 75.31 50.67 15.97 On new Rae machinery Bareilly of Kanpur, & Naini Rae Bareilly & Naini Units under de ferred payment credit.
203.73 334.22 361.06 322.41 The borrowings of the Kanpur, Pondicherry, Naini, Udaipur, Maunath Bhanjan and Rae Bareilly Units of the Company as on March 31, 1978 against current assets were Rs. 256.78, 183.92, 271.05, 70.72, 47.98 and 55.82 lakhs respectively.
All the encumbrances on fixed assets (except the encumbrances of Rs. 70 lakhs on the fixed assets of Naini Unit for gratuity funding to get the benefit of Section 44A of the Income tax Act) were created prior to March 31, 1976.
In the accounting year 1976 77, only one new encumbrance was created by the Company on its fixed assets.
The following are statistics of production in each of the six units of the Company during the years 1975 76, 1976 77 and 1977 78: Name of the Unit 1975 76 1976 77 1977 78 (figures in lakhs) Naini 66.13 kgs.
65.76 kgs.
72.35 kgs.
Udaipur 18.51 kgs.
18.50 kgs.
18.60 kgs.
Maunath Bhanjan 15.59 kgs.
16.63 kgs.
18.49 kgs.
Rae Bareilly 12.09 kgs.
13.58 kgs.
14.00 kgs.
Pondicherry 170.52 Mtrs 178.77 Mtrs 176.54 Mtrs Kanpur 318.75 Mtrs 472.12 Mtrs 238.22 Mtrs 545 On April 13, 1978, the Government of India in exercise of its power under clause (a) of sub section (1) of Section 18AA of the IDR Act, passed an order (hereinafter referred to as the impugned order) which reads as follows: "SO 265(E)/18AA/IDRA/78 Whereas the Central Government is satisfied from the documentary and other evidence in its possession, that the persons in charge of the industrial undertakings namely, (i) M/s. Swadeshi Cotton Mills, Kanpur, (ii) M/s. Swadeshi Cotton Mills, Pondicherry, (iii)M/s.
Swadeshi Cotton Mills, Naini, (iv) M/s. Swadeshi Cotton Mills, Maunath Bhanjan, (v) M/s. Udaipur Cotton Mills, Udaipur, and (vi) Rae Bareilly Textile Mills, Rae Bareilly of M/s. Swadeshi Cotton Mills Company Ltd., Kanpur (hereinafter referred to as the said industrial under takings), have, by creation of encumbrances on the assets of the said industrial undertakings, brought about a situation which has affected and is likely to further affect the production of articles manufactured or produced in the said industrial undertakings and that immediate action is necessary to prevent such a situation; Now, therefore, in exercise of power conferred by clause (a) of sub section (1) of Section 18AA of the Industries (Development and Regulation) Act, 1951 (65 of 1951), the Central Government hereby authorises the National Textile Corporation Limited (hereinafter referred to as the Authorised person) to take over the management of the whole of the said industrial undertakings, subject to the following terms and conditions, namely: (i) The authorised person shall comply with all the directions issued from time to time by the Central Government; (ii) the authorised person shall hold office for a period of five years from the date of publication of this order in the Official Gazette; (iii)the Central Government may terminate the appointment of the authorised person earlier if it considers necessary to do so.
546 This order shall have effect for a period of five years commencing from the date of its publication in the Official Gazette.
Sd/ R. Ramakrishna Joint Secretary to the Govt.
of India (Seal).
" On April 19, 1978, three petitioners, namely, the Company through its Joint Secretary, Shri Bhim Singh Gupta, its Managing Director, Dr. Rajaram Jaipuria, and its subsidiary company, named Swadeshi Mining and Manufacturing Company, through its Directors and Shareholders filed a writ petition under Article 226 of the Constitution in the Delhi High Court against the Union of India and the National Textile Corporation to challenge the validity of the aforesaid Government Order dated April 13, 1978.
The writ petition was further supplemented by subsequent affidavits and rejoinders.
The Union of India and the National Textile Corporation Ltd., who has been authorised to assume management of the undertakings concerned were impleaded, as respondents.
The writ petition first came up for hearing before a Division Bench who by its order dated August 11, 1978, requested the Chief Justice to refer it to a larger Bench.
The case was then heard by a three Judge Bench who by their order dated October 12, 1978, requested the Hon 'ble the Chief Justice to constitute a still larger Bench to consider the question whether a prior hearing is necessary to be given to the persons affected before the order under Section 18AA is passed.
Ultimately, the reference came up for consideration before a Full Bench of five Judges to consider the question, which was reframed by the Bench as under: "Whether in construing Section 18AA of the Industries (Development and Regulation) Act, 1951, as a pure question of law compliance with the principle of audi alteram partem is to be implied.
If so, (a) whether such hearing is to be given to the parties who would be affected by the order to be passed under the said Section prior to the passing of the order; or (b) whether such hearing is to be given after the passing of the order; and (c) if prior hearing is to be normally given and the order passed under the said Section is vitiated by not giving of such 547 hearing whether such vice can be cured by the grant of a subsequent hearing.
" The Bench by a majority (consisting of Deshpande, C.J.,R. Sacher and M. L. Jain, JJ.) answered this three fold question as follows: "(1) Section 18AA(1) (a) (b) excludes the giving of prior hearing to the party who would be affected by order thereunder.
(2) Section 18F expressly provides for a post decisional hearing to the owner of the industrial undertaking, the management of which is taken over under Section 18AA to have the order made under Section 18AA cancelled on any relevant ground.
(3) As the taking over of management under Section 18AA is not vitiated by the failure to grant prior hearing, the question of any such vice being cured by a grant of a subsequent hearing does not arise." H. L. Anand and N. N. Goswamy, JJ, however dissented.
In the opinion of the minority, in compliance with the principles of natural justice, a prior hearing to the owner of the undertaking was required to be given before passing an order under Section 18AA, that the second question did not arise as the denial of a prior hearing would not cure the vice by the grant of subsequent hearing, but it would be open to the Court to moderate the relief in such a way that the order is kept alive to the extent necessary until the making of the fresh order to subserve public interest, and to make appropriate directions to ensure that the subsequent hearing would be a full and complete review of the circumstances of the take over and for the preservation and maintenance of the property during the interregnum.
After the decision of the reference, the case was reheard on merits by a Bench of three learned Judges (consisting of Deshpande, C.J., Anand and M. L. Jain, JJ.) who by their judgment, dated May 1, 1979, disposed of the writ petition.
The operative part of the judgment reads as under: "In the result, the writ petition succeeds in part, the challenge to the validity of the impugned order fails and to that extent the petition is dismissed.
The petition succeeds in so far as it seeks to protect from the impugned order the corporate entity of the company, the corporate entity of the subsidiary and its assets, the holding of the company in Polytex and the assets and property of the company which are not referable to any of the industrial undertakings.
The respondents are hereby restrained from in any manner interfering 548 with the corporate entity, the assets and property which are outside the impugned order.
The respondents would release from its control and custody and/or deliver possession of any assets or property of the company, which are not referable to the industrial undertakings in terms of the observations made in paras 46 and 47 of the judgment, within a period of three months from today (May 1, 1979).
In the peculiar circumstances the parties would bear their respective costs.
" On the application of the Company, the Delhi High Court certified under Article 133 of the Constitution that the case was fit for appeal to this Court.
Subsequently, on July 12,1979, a similar certificate was granted by the High Court to the Union of India and the National Textile Corporation Ltd. Consequently, the Company, the Union of India and the National Textile Corporation have filed Civil Appeals 1629, 2087 and 1857 of 1979, respectively, in this Court.
All the three appeals will be disposed of by this judgment.
The primary, two fold proposition posed and propounded by Shri F. section Nariman, learned counsel for the appellant Company in Civil Appeal 1629 of 1979, is as follows: (a) Whether it is necessary to observe the rules of natural justice before issuing, a notified order under Section 18AA, or enforcing a decision under Section 18AA, or (b) Whether the provisions of Section 18AA and/or Section 18F impliedly exclude rules of natural justice relating to prior hearing.
There were other contentions also which were canvassed by the learned counsel for the parties at considerable length.
But for reasons mentioned in the final part of this judgment, we do not think it necessary, for the disposal of these appeals to deal with the same.
Thus, the first point for consideration is whether, as a matter of law, it is necessary, in accordance with the rules of natural justice, to give a hearing to the owner of an undertaking before issuing a notified order, or enforcing a decision of its take over under Section 18AA.
Shri Nariman contends that there is nothing in the language, scheme or object of the provisions in Section 18AA and/or Section 18F which expressly or by inevitable implication, excludes the application of the principles of natural justice or the giving a pre decisional hearing, adapted to the situation, to the owner of the undertaking.
It is submitted that mere use of the word "immediate" in sub clause (a) of Section 18AA (1) does not show a legislative intent to exclude the 549 application of audi alterm partem rule, altogether.
It is maintained that according to the decision of this Court in Keshav Mills Company Ltd. vs Union of India, even after a full investigation has been made under Section of the I.D.R. Act, the Government has to observe the rules of natural justice and fairplay, which in the facts of a particular case, may include the giving of an opportunity to the affected owner to explain the adverse findings against him in the investigation report.
In support of his contention, that the use of the word "immediate" in Section 18AA(1)(a) does not exclude natural justice, learned counsel has advanced these reasons: (i) The word "immediate" in clause (a) has been used in contra distinction to 'investigation '.
It only means that under Section 18AA action can be taken without prior investigation under Section 15, if there is evidence in the possession of the Government, that the assets of the Company owning the undertaking are being frittered away by doing any of the three things mentioned in clause (a); or, the undertaking has remained closed for a period of not less than three months and the condition of plant and machinery is such that it is possible to restart the undertaking.
This construction, that the use of the word "immediate" in Section 18AA(1)(a) only dispenses with investigation under Section 15 and not with the principle of audi alterm partem altogether, is indicated by the marginal heading of Section 18AA and para 3 of the Statement of Objects and Reasons of the Amendment Bill which inserted Section 18AA, in 1971.
(ii) The word 'immediate ' occurs only in clause (a) and not in clause (b) of Section 18AA(1).
It would be odd if intention to exclude this principle of natural justice is spelt out in one clause of the sub section, when its other clause does not exclude it.
(iii) Section 18F does not exclude a pre decisional hearing.
This section was there, when in Keshav Mills ' case, (ibid), it was held by this Court, that even at the post investigation stage, before passing an order under Section 18A, the Government must proceed fairly in accordance with the rules of natural justice.
The so called post decisional hearing contemplated by Section 18F cannot be and is not intended to be a substitute for a pre decisional hearing.
Section 18F, in terms, deals with the power of Central Government to cancel an order of take over under two conditions, namely: First when "the purpose of an order under Section 18A has been fulfilled, or, second when "for any other reason it is not necessary that the order should remain in force". "Any other reason" has reference to post "take 550 over" circumstances only, and does not cover a reason relatable to pre takeover circumstances.
An order of cancellation under Section 18F is intended to be prospective.
This is clear from the plain meaning of the expressions "remain in force", "necessary" etc.
used in the Section.
Section 18 incorporates only a facet, albeit qualified, of Section 21 of the General Clauses Act, (Kamla Prasad Khetan vs Union of India, referred to.) Therefore, the illusory right given by Section 18F to the aggrieved owner of the undertaking, to make an application for cancellation of the order, is not a full right of appeal on merits.
The language of the Section impliedly prohibits an enquiry into circumstances that led to the passing of the order of "take over", and under it, the aggrieved person is not entitled to show that on merits, the order was void ab initio.
As held by a Bench (consisting of Bhagwati and Vakil JJ.) of the Gujarat High Court, in Dosabhai Ratanshah Keravale vs State of Gujarat, a power to rescind or cancel an order, analogous to that under Section 21, General Clauses Act, has to be construed as a power of prospective cancellation, and not of retroactive obliteration.
It is only the existence of a full right of appeal on the merits or the existence of a provision which unequivocally confers a power to reconsider, cancel and obliterate completely the original order, just as in appeal, which may be construed to exclude natural justice or a pre decisional hearing in an emergent situation.
(Reference on this point has been made to Wade 's Administrative Law, 4th Edition, PP.464 to 468.) (iv) 'Immediacy ' does not exclude a duty to act fairly, because, even an emergent situation can co exist with the canons of natural justice.
The only effect of urgency on the application of the principle of fair hearing would be that the width, form and duration of the hearing would be tailored to the situation and reduced to the reasonable minimum so that it does not delay and defeat the purpose of the contemplated action.
(v) Where the civil consequences of the administrative action as in the instant case are grave and its effect is highly prejudicial to the rights and interests of the person affected and there is nothing in the language and scheme of the statute which unequivocally excludes a fair pre decisional hearing, and the post decisional hearing provided therein is not a real remedial hearing equitable to a full 551 right of appeal, the Court should be loath to infer a legislative intent to exclude even a minimal fair hearing at the pre decisional stage merely on ground of urgency.
(Reference in this connection has been made to Wade 's Administrative Law, ibid, page 468 bottom.) Applying the proposition propounded by him to the facts of the instant case, Shri Nariman submits that there was ample time at the disposal of the Government to give a reasonably short notice to the Company to present its case.
In this connection, it is pointed out that according to para 3 of the further affidavit filed by Shri Daulat Ram on behalf of the Union of India and other respondents, the Central Government had in its possession two documents, namely: (a) copy of the Survey Report on M/s. Swadeshi Cotton Mills Company Ltd., covering the period from May to September, 1977 prepared by the office of the Textile Commissioner, and (b) Annual Report (dated September 30, 1977) of the Company for the year ending March 31, 1971.
In addition, the third circumstance mentioned in the affidavit of Shri Daulat Ram is, that by an order dated January 28, 1978, the Central Government appointed four Government Officials, including one from the office of the Textile Commissioner, to study the affairs of the Company and to make recommendation.
This Official Group submitted its report on February 16, 1978.
It is submitted that this evidence on the basis of which the impugned order was passed, was not disclosed to the appellant Company till May 1978, only after it had filed the writ petition in the High Court to challenge the impugned order.
It is emphasised that if the Survey Report was assumed to contain something adverse to the appellants, there was time enough about six weeks between the submission of the Survey Report and the passing of the impugned order for giving a short, reasonable opportunity to the appellants to explain the adverse findings against them.
It is urged that even if there was immediacy, situational modifications could be made to meet the requirement of fairness, by reducing the period of notice; that even the manner and form of such notice could be simplified to eliminate delay, that telephonic notice or short opportunity for furnishing their explanation to the Company might have satisfied the requirements of natural justice.
Such an opportunity of hearing could have been given after the passing of a conditional tentative order and before its enforcement under Section 18AA.
For the interregnum suitable interim action such as freezing the assets of the Company or restraining the Company from creating further encumbrances, etc. could be taken under Section 16.
552 Reference in this connection has been made to Keshav Mills case (ibid); Mohinder Singh Gill vs Election Commissioner of India; Maneka Gandhi vs Union of India Sukhdev Singh & Ors.
vs Bhagatram Sardar Singh; A. K. Kraipak vs Union of India; Ridge vs Baldwin; Heatley vs Tasmanian Racing & Gaming Commission; Commissioner of Police vs Tanos; Secretary of State for Education & Science vs Metropolitan Borough of Tameside; Wiseman vs Borneman; Nawabkhan Abbaskhan vs State of Gujarat and State of Orissa vs Dr. Bina Pani Dei.
As against this, Shri Soli Sorabji, learned Solicitor General appearing on behalf of respondent 1, contends that the presumption in favour of audi alteram partem rule stands impliedly displaced by the language, scheme, setting, and the purpose of the provision in Section 18AA.
It is maintained that Section 18AA, on its plain terms, deals with situations where immediate preventive action is required.
The paramount concern is to avoid serious problems which may be caused by fall in production.
The purpose of an order under Section 18AA is not to condemn the owner but to protect the scheduled industry.
The issue under Section 18AA is not solely between the Government and the management of the industrial under taking.
The object of taking action under this Section is to protect other outside interests of the community at large and the workers.
On these premises, it is urged, the context, the subject matter and the legislative history of Section 18AA negative the necessity of giving a prior hearing; that Section 18AA does not contemplate any interval between the making of an order thereunder and its enforcement, because it is designed to meet an emergent situation by immediate preventive action.
Shri Sorabji submits that this rule of natural justice in a modified form has been incorporated in Section 18F which gives an opportunity of a post decisional hearing to the owner of the undertaking who, if he feels aggrieved, can, on his application, be heard to show that even the original order under Section 18AA was passed on invalid grounds and should be cancelled or rescinded.
Thus, 553 Shri Sorabji does not go to the length of contending that the principles of natural justice have been fully displaced or completely excluded by Section 18AA.
On the contrary, his stand is that on a true construction of Section 18AA read with Section 18F, the requirements of natural justice and fair play can be read into the statute only "in so far as conformance to such canons can reasonably and realistically be required of it", by the provision for a remedial hearing at a subsequent stage.
Shri Sorabji further submits that since Section 18F does not specify any period of time within which the aggrieved party can seek the relief thereunder, the opportunity of full, effective and post decisional hearing has to be given within a reasonable time.
It is stressed that under Section 18F, the Central Government exercises curial functions, and that Section confers on the aggrieved owner a right to apply to the Government to cancel the order of take over.
On a true construction this Section casts an obligation on the Central Government to deal with and dispose of an application filed thereunder with reasonable expedition.
Shri Sorabji further concedes that on the well settled principle of implied and ancillary powers, the right of hearing afforded by Section 18F carries with it the right to have inspection and copies of all the relevant books, documents, papers etc.
and the Section obligates the Central Government to take all steps which are necessary for the effective hearing and disposal of an application under Section 18F.
Shri Sorabji has in connection with his arguments cited these authorities: Mohinder Singh Gill vs Chief Election Commissioner (ibid); In re. K. (An Infant), Official Solicitor vs K. & Anr.; Collymore vs Attorney General; Union of India vs Col. J. N. Sinha; Judicial Review, 3rd Edn.
by De Smith; Queen vs Davey; Gaiman vs National Association for Internal Revenue; John H. N. Fahey vs Paul Millionee; Schwartz 's Administrative Law '; Madhav Hayawadanrao Hoskot vs Maharashtra; Vijay Kumar Mundhra vs Union of India; Joseph Kuruvilla Vellukumel vs 554 Reserve Bank of India; Corporation of Calcutta vs Calcutta Tramways and Furnell vs Whapgarei High School.
Before dealing with the contentions advanced on both sides, it will be useful to have a general idea of the concept of "natural justice" and the broad principles governing its application or exclusion in the construction or administration of statutes and the exercise of judicial or administrative powers by an authority or tribunal or constituted thereunder.
Well then what is "natural justice" ? The phrase is not capable of a static and precise definition.
It cannot be imprisoned in the straight jacket of a cast iron formula.
Historically, "natural justice" has been used in a way "which implies the existence of moral principles of self evident and unarguable truth.
In course of time, judges nurtured in the traditions of British jurisprudence, often invoked it in conjunction with a reference to "equity and good conscience".
Legal experts of earlier generations did not draw any distinction between "natural justice" and "natural law".
"Natural justice" was considered as "that part of natural law which relates to the administration of justice".
Rules of natural justice are not embodied rules.
Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules.
But two fundamental maxims of natural justice have now become deeply and indelibly ingrained in the common consciousness of man kind, as pre eminently necessary to ensure that the law is applied impartially, objectively and fairly.
Described in the form of Latin tags these twin principles are :(i) audi alteram partem and (ii) nemo judex in re sua.
For the purpose of the question posed above, we are primarily concerned with the first.
This principle was well recognised even in the ancient world.
Seneca, the philosopher, is said to have referred in Medea that it is unjust to reach a decision without a full hearing.
In Maneka Gandhi 's case, Bhagwati, J. emphasised that audi alteram partem is a highly effective rule devised by the Courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of power.
Hence its reach should not be narrowed and its applicability circumscribed.
During the last two decades, the concept of natural justice has made great strides in the realm of administrative law.
Before the epoch making decision of the House of Lords in Ridge vs Baldwin, it was 555 generally thought that the rules of natural justice apply only to judicial or quasi judicial proceedings; and for that purpose, whenever a breach of the rule of natural justice was alleged, Courts in England used to ascertain whether the impugned action was taken by the statutory authority or tribunal in the exercise of its administrative or quasi judicial power.
In India also, this was the position before the decision, dated February 7, 1967, of this Court in Dr. Bina Pani Dei 's case (ibid); wherein it was held that even an administrative order or decision in matters involving civil consequences, has to be made consistently with the rules of natural justice.
This supposed distinction between quasi judicial and administrative decisions, which was perceptibly mitigated in Bina Pani Dei 's case, was further rubbed out to a vanishing point in A. K. Kraipak vs Union of India (ibid), thus: "If the purpose of these rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries.
Often times it is not easy to draw the line that demarcates administrative enquiries from quasi judicial enquiries. . . .
Arriving at a just decision is the aim of both quasi judicial enquiries as well as administrative enquiries.
An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi judicial enquiry.
" In A. K. Kraipak 's case, the Court also quoted with approval the observations of Lord Parker from the Queens Bench decision in In re H. K. (An Infant) (ibid), which were to the effect, that good administration and an honest or bona fide decision require not merely impartiality or merely bringing one 's mind to bear on the problem, but acting fairly.
Thus irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi judicial, a duty to act fairly, that is, in consonance with the fundamental principles of substantive justice is generally implied, because the presumption is that in a democratic polity wedded to the rule of law, the state or the Legislature does not intend that in the exercise of their statutory powers its functionaries should act unfairly or unjustly.
In the language of V.R. Krishna Iyer, J. (vide Mohinder Singh Gill 's case, ibid.): "Subject to certain necessary limitations natural justice is now a brooding omnipresence although varying in its play.
Its essence is good conscience in a given situation; nothing more but nothing less.
" 556 The rules of natural justice can operate only in areas not covered by any law validly made.
They can supplement the law but cannot supplant it (Per Hegde, J. in A. K. Kraipak, ibid).
If a statutory provision either specifically or by inevitable implication excludes the application of the rules of natural justice, then the Court cannot ignore the mandate of the Legislature.
Whether or not the application of the principles of natural justice in a given case has been excluded, wholly or in part, in the exercise of statutory power, depends upon the language and basic scheme of the provision conferring the power, the nature of the power, the purpose for which it is conferred and the effect of the exercise of that power.
(See Union of India vs Col. J. N. Sinha, ibid.) The maxim audi alteram partem has many facets.
Two of them are: (a) notice of the case to be met; and (b) opportunity to explain.
This rule is universally respected and duty to afford a fair hearing in Lord Loreburn 's oft quoted language, is "a duty lying upon every one who decides something", in the exercise of legal power.
The rule cannot be sacrificed at the altar of administrative convenience or celerity; for, "convenience and justice" as Lord Atkin felicitously put it "are often not on speaking terms".
The next general aspect to be considered is: Are there any exceptions to the application of the principles of natural justice, particularly the audi alteram partem rule ? We have already noticed that the statute conferring the power, can by express language exclude its application.
Such cases do not present any difficulty.
However, difficulties arise when the statute conferring the power does not expressly exclude this rule but its exclusion is sought by implication due to the presence of certain factors: such as, urgency, where the obligation to give notice and opportunity to be heard would obstruct the taking of prompt action of a preventive or remedial nature.
It is proposed to dilate a little on this aspect, because in the instant case before us, exclusion of this rule of fair hearing is sought by implication from the use of the word 'immediate ' in Section 18AA(1).
Audi alteram partem rule may be disregarded in an emergent situation where immediate action brooks no delay to prevent some imminent danger or injury or hazard to paramount public interests.
Thus, Section 133 of the Code of Criminal Procedure, empowers the magistrates specified therein to make an exparte conditional order in emergent cases, for removal of dangerous public nuisances.
Action under Section 17, Land Acquisition Act, furnishes another such instance.
Similarly, action on grounds of public safety public health may justify disregard of the rule of prior hearing.
557 Be that as it may, the fact remains that there is no consensus of judicial opinion on whether more urgency of a decision is a practical consideration which would uniformly justify non observance of even an abridged form of this principle of natural justice.
In Durayappah vs Fernando.
Lord Upjohn observed that "while urgency may rightly limit such opportunity timeously perhaps severely, there can never be a denial of that opportunity if the principles of natural justice are applicable.
These observations of Lord Upjohn in Durayappah 's case were quoted with approval by this Court in Mohinder Singh Gill 's case.
It is therefore, proposed to notice the same here.
In Mohinder Singh Gill 's case, the appellant and the third respondent were candidates for election in a Parliamentary Constituency.
The appellant alleged that when at the last hour of counting it appeared that he had all but won the election, at the instance of respondent, violence broke out and the Returning Officer was forced to postpone declaration of result.
The Returning Officer reported the happening to the Chief Election Commissioner.
An officer of the Election Commission who was an observer at the counting, reported about the incidents to the Commission.
The appellant met the Chief Election Commissioner and requested him to declare the result.
Eventually, the Chief Election Commissioner issued a notification which stated that taking all circumstances into consideration the Commission was satisfied that the poll had been vitiated, and therefore in exercise of the powers under Article 324 of the Constitution, the poll already held was cancelled and a repoll was being ordered in the constituency.
The appellant contended that before making the impugned order, the Election Commission had not given him a full and fair hearing and all that he had was a vacuous meeting where nothing was disclosed.
The Election Commission contended that a prior hearing has, in fact, been given to the appellant.
In addition, on the question of application of the principles of natural justice, it was urged by the respondents that the tardy process of notice and hearing would thwart the conducting of elections with speed, that unless civil consequences ensued, hearing was not necessary and that the right accrues to a candidate only when he is declared elected.
This contention, which had found favour with the High Court, was negatived by this Court.
Delivering the judgment of the Court, V. R. Krishna Iyer, J., lucidly explained the meaning and scope of the concept of natural justice and its role in a case where there is a competition between the necessity of taking speedy 558 action and the duty to act fairly.
It will be useful to extract those illuminating observations, in extenso: "Once we understand the soul of the rule as fairplay in action and it is so we must hold that it extends to both the fields.
After all, administrative power in democratic set up is not allergic to fairness in action and discretionary, executive justice cannot degenerate into unilateral injustice.
Nor is there ground to be frightened of delay, in convenience and expense, if 'natural justice gains access.
For fairness itself is a flexible, pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction.
It is not a bull in a china shop, nor a bee in one 's bonnet.
Its essence is good conscience in a given situation; nothing more but nothing less.
The 'exceptions ' to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present or meet a case.
" After referring to several decisions, including the observations of Lord Upjohn in Durayappah vs Fernando, the Court explained that mere invocation or existence of urgency does not exclude the duty of giving a fair hearing to the person affected: "It is untenable heresy, in our view, to lock law the victim or act behind his back by tempting invocation of urgency, unless the clearest case of public injury flowing from the least delay is self evident.
Even in such cases a remedial hearing as soon as urgent action has been taken is the next best.
Our objection is not to circumscription dictated by circumstances, but to annihilation as an easy escape from benignant, albeit inconvenient obligation.
The procedural pre condition or fair hearing, however minimal, even post decisional, has relevance to administrative and judicial gentlemanliness." "We may not be taken to. say that situational modifications to notice and hearing are altogether impermissible. . the glory of the law is not that sweeping rules are laid down but that it tailors principles to practical needs.
doctors remedies to suit the patient promotes not freezes Life 's processes, if we may mix metaphors.
". . . 559 The Court further emphasised the necessity of striking pragmatic balance between competing requirements of acting urgently and fairly, thus: "Should the cardinal principle of "hearing ' as condition for decision making be martyred for the cause of administrative, immediacy? We think not.
The full panoply may not be there but a manageable minimum may make do." "In Wiseman vs Borneman there was a hint of the competitive claims of hurry and hearing.
Lord Reid said: 'Even where the decision has to be reached by a body acting judicially, there must be a balance between the need for expedition and the need to give full opportunity to the defendant to see material against him (emphasis added).
We agree that the elaborate and sophisticated methodology of a formalised hearing may be injurious to promptitude so essential in an election under way.
Even so, natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances.
To burke it altogether may not be a stroke of fairness except in very exceptional circumstances.
" The Court further pointed out that the competing claims of hurry and hearing can be reconciled by making situational modifications in the audi alteram partem rule: "Lord Denning M.R., in Manward vs Boreman, summarised the observations of the Law Lords in this form.
No doctrinaire approach is desirable but the Court must be anxious to salvage the cardinal rule to the extent permissible in a given case.
After all, it is not obligatory that counsel should be allowed to appear 'nor is it compulsory that oral evidence should be adduced.
Indeed, it is not even imperative that written statements should be called for disclosure of the prominent circumstances and asking for an immediate explanation orally or otherwise may, in many cases be sufficient compliance.
It is even conceivable that an urgent meeting with the concerned parties summoned at an hour 's notice, or in a crisis, even a telephone call, may suffice.
If all that is not possible as in the case of a fleeing person whose passport has to be impounded lest he should evade the course of justice or a dangerous nuisance needs immediate abate 560 ment, the action may be taken followed immediately by a hearing for the purpose of sustaining or setting aside the action to the extent feasible.
It is quite on the cards that the Election Commission, if pressed by circumstances may give a short hearing.
In any view, it is not easy to appreciate whether before further steps got under way he could have afforded an opportunity of hearing the parties, and revoke the earlier directions.
All that we need emphasize is that the content of natural justice is a dependent variable, not an easy casualty." "Civil consequence ' undoubtedly cover infraction of not merely property or personal rights but of civil liberties, material deprivations and non pecuniary damages.
In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence." (emphasis added) In Maneka Gandhi, it was laid down that where in an emergent situation, requiring immediate action, it is not practicable to give prior notice or opportunity to be heard, the preliminary action should be soon followed by a full remedial hearing.
The High Court of Australia in Commissioner of Police vs Tanos, ibid, held that some urgency, or necessity of prompt action does not necessarily exclude natural justice because a true emergency situation can be properly dealt with by short measures.
In Heatley vs Tasmanian Racing & Gaming Commission, ibid, the same High Court held that without the use of unmistakable language in a statute, one would not attribute to Parliament an intention to authorise the Commission to order a person not to deal in shares or attend a stock exchange without observing natural justice.
In circumstances of likely immediate detriment to the public, it may be appropriate for the Commission to issue a warning off notice without notice or stated grounds but limited to a particular meeting, coupled with a notice that the Commission proposed to make a long term order on stated grounds and to give an earliest practicable opportunity to the person affected to appear before the Commission and show why the proposed long term order be not made.
As pointed out in Mohinder Singh Gill vs Chief Election Commissioner and in Maneka Gandhi vs Union of India ibid, such cases where owing to the compulsion of the fact situation or the necessity of taking speedy action, no pre decisional hearing is given but the action is followed soon by a full post decisional hearing to the 561 person affected, do not, in reality, constitute an 'exception ' to the audi alteram partem rule.
To call such cases an 'exception ' is a misnomer because they do not exclude 'fair play in action ', but adapt it to the urgency of the situation by balancing the competing claims of hurry and hearing.
"The necessity for speed", writes Paul Jackson, "may justify immediate action, it will, however, normally allow for a hearing at a later stage.
The possibility of such a hearing and the adequacy of any later remedy should the initial action prove to have been unjustified are considerations to be borne in mind when deciding whether the need for urgent action excludes a right to rely on natural justice.
Moreover, however the need to act swiftly may modify or limit what natural justice requires.
it must not be thought 'that because rough, swift or imperfect justice only is available that there ought to be no justice ' Pratt vs Wanganui Education Board.
" Prof. de Smith the renowned author of 'Judicial Review ' (3nd Edn.) has at page 170, expressed his views on this aspect of the subject, thus: "Can the absence of a hearing before a decision is made be adequately compensated for by a hearing ex post facto ? A prior hearing may be better than a subsequent hearing, but a subsequent hearing is better than no hearing at all; and in some cases the courts have held that statutory provision for an administrative appeal or even full judicial review on the merits are sufficient to negative the existence of any implied duty to hear before the original decision is made.
The approach may be acceptable where the original decision does not cause serious detriment to the person affected, or where there is also a paramount need for prompt action, or where it is impracticable to afford antecedent hearings.
" In short, the general principle as distinguished from an absolute rule of uniform application seems to be that where a statute does not in terms, exclude this rule of prior hearing but contemplates a post decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre decisional stage.
Conversely, if the statute conferring the power is silent with regard to the giving of a pre decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to con 562 strue such a statute as excluding the duty of affording even a minimal hearing, shown of all its formal trappings and dilatory features at the pre decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need or utmost promptitude.
In short, this rule of fairplay "must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands".
The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications.
But, to recall the words of Bhagvati, J., the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.
Keeping the general principles stated above, let us now examine the scheme content, object and legislative history of the relevant provisions of the I.D.R. Act.
The I.D.R. Act (Act 65 of 1951) came into force on May 8,1952 The Statement of Objects and Reasons published in the Gazette of India, dated March 26, 1949, says that its object is to provide the Central Government with the means of implementing their industrial policy which was announced in their Resolution, dated April 6, 1948, and approved by the Central Legislature.
The Act brings under Central Control the development and regulation of a number of important industries specified in its First Schedule, the activities of which affect the country as a whole and the development of which must be governed by economic factors of all India import.
The requirement with regard to registration, issue or revocation of licences of these specific industrial undertakings has been provided in Chapter II of the Act.
Section 3(d) defines an 'industrial undertaking ' to mean "any undertaking pertaining to a scheduled industry carried on in one or more factories by any person or authority including Government": Clause (f) of the same section defines "owner" in relation to an undertaking.
Section 15 gives power to the Central Government to cause investigation to be made into a scheduled industry or industrial undertaking.
The Section reads as follows: "where the Central Government is of the opinion that (a) in respect of any scheduled industry or industrial undertaking or undertakings (i) there has been, or is likely to be a substantial fall in the volume of production in respect of any article or class 563 of articles relatable to that industry or manufactured or produced in the industrial undertaking or undertakings, as the case may be; for which having regard to the economic conditions prevailing, there is no justification, or (ii) there has been, or is likely to be, a marked deterioration in the quality of any article or class of articles relatable to that industry or manufactured or produced in the industrial undertaking or undertakings, as the case may be, which could have been or can be avoided; or (iii) there has been or is likely to be a rise in the price of any article or class of articles relatable to that industry or manufactured or produced in the industrial undertaking or undertakings, as the case may be, for which there is no justification; or (iv) it is necessary to take any such action as is provided in this Chapter for the purpose of conserving any resources of national importance which are utilised in the industry or the industrial undertaking or undertakings, as the case may be; or (b) any industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.
the Central Government may make or cause to be made a full and complete investigation into the circumstances of the case by such person or body of persons as it may appoint for the purpose.
" Section 16 empowers the Central Government to issue appropriate directions to the industrial undertaking concerned on completion of investigation under Section 15.
Such directions may be for all or any of the following purposes: "(a) regulating the production of any article or class of articles by the industrial undertaking or undertakings and fixing the standards of production; (b) requiring the industrial undertaking or undertakings to take such steps as the Central Government may consider necessary, to stimulate the development of the industry to which the undertaking or undertakings relates or relate; 564 (c) prohibiting the industrial undertaking or undertakings from resorting to any act or practice which might reduce its or their production, capacity or economic value; (d) controlling the prices, or regulating the distribution of any article or class of articles which have been the subject matter of investigation.
" Sub section (2) enables the Central Government to issue such directions to the industrial undertakings pending investigation.
In the course, of the working of I.D.R. Act, certain practical difficulties came to light.
One of them was that "Government cannot take over the management of any industrial undertaking, even in a situation calling for emergent action without first issuing directions to it and waiting to see whether or not they are obeyed." In order to remove such difficulties, the Amending Act 26 of 1953 inserted Chapter IIIA containing Sections 18A to 18F in the I.D.R. Act.
Section 18A confers power on the Central Government to assume management or control of an industrial undertaking in certain cases.
The material part of the Section reads as under: "(1) If the Central Government is of opinion that (a) an industrial undertaking to which directions have been issued in pursuance of Section 16 has failed to comply with such directions, or (b) an industrial undertaking in respect of which an investigation has been made under Section 15 (whether or not any directions have been issued to the undertaking in pursuance of Section 16), is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest; the Central Government may, by notified order, authorise any person or body of persons to take over the management of the whole or any part of the undertaking or to exercise in respect of the whole or any part of the undertaking such functions of control as may be specified in the order.
(2) Any notified order issued under sub section (1) shall have effect for such period not exceeding five years as may be specified in the order.
" Section 18B specifies the effect of notified order under Section 18A Sub section (1) of the section reads thus: 565 "On the issue of a notified order under Section 18A authorising the taking over of the management of an industrial undertaking (a) all persons in charge of the management including, persons holding office as managers or directors of the industrial undertaking immediately before the issue of the notified order, shall be deemed to have vacated their offices as such; (b) any contract of management between the industrial undertaking and any managing agent, or any director thereof holding office as such immediately before the issue of the notified order shall be deemed to have been terminated; (c) the managing agent, if any, appointed under Section 18A shall be deemed to have been duly appointed as the managing agent in pursuance of the Indian Companies Act, 1913 (7 of 1913), and the memorandum and articles of association of the industrial undertaking, and the provisions of the said Act and of the memorandum and articles shall, subject to the other provisions contained in this Act, apply accordingly, but no such managing agent shall be removed from office except with the previous consent of the Central Government; (d) the person or body of persons authorised under Section 18A to take over the management shall take all such steps as may be necessary to take into his or their custody or control all the property, effects and actionable claims to which the industrial undertaking is or appears to be entitled, and all the property and effects of the industrial undertaking, shall be deemed to be in the custody of the person or, as the case may be, the body of persons as from the date of the notified order; and (e) the persons, if any, authorised under Section 18A to take over the management of an industrial undertaking which is a company shall be for all purposes the directors of industrial undertaking duly constituted under the Indian Companies Act, 1913 (7 of 1913), and shall alone be entitled to exercise all the powers of the directors of the industrial undertaking, whether such powers are derived from the said Act or from the memorandum or articles of association of the industrial undertaking or from any other source." 566 Section 18D provides that a person whose office is lost under clause (a) or whose contract of management is terminated under clause (b) of Section 18B shall have no right to compensation for such loss or termination.
Section 18F is material.
It reads thus: "If at any time it appears to the Central Government on the application of the owner of the industrial undertaking or otherwise that the purpose of the order made under Section 18A has been fulfilled or that for any other reason it is not necessary that the order should remain in force, the Central Government may, by notified order, cancel such order and on the cancellation of any such order the management or the control, as the case may be of the industrial undertaking shall vest in the owner of the undertaking.
" By the Constitution Fourth Amendment Act 1955, Chapter IIIA of the I.D.R. Act was included as Item 19 in the Ninth Schedule of the Constitution.
Before we may come to Section 18AA, we may notice here the legislative policy with regard to Cotton Textile Industry, as adumbrated in the Cotton Textile Companies Management of Undertakings and Liquidation or Reconstruction Act, 1967 (Act XXIX of 1967).
The Statement of Objects and Reasons for enacting this statute, inter alia, says: "The cotton textile industry provides one of the basic necessities of life and affords gainful employment to millions of people.
Over the last few years, this vital industry has been passing through difficult times.
Some mills have already to close down and the continuing economic operation of many others is beset with many difficulties.
These difficulties have been aggravated in many cases by the heavy burden of past debts.
The taking over the management of the mills for a limited time and then restoring them to original owners has not remedied the situation.
Steps are therefore, necessary to bring about a degree of rationalisation of the financial and managerial structure of such units with a view to their rehabilitation, so that production and employment may not suffer.
" Textile Industry is also among the industries, included in the First Schedule to the I.D.R. Act.
567 The Amendment Act 72 of 1971 inserted Section 18AA in the original I.D.R. Act.
The material part of the Statement of Objects and Reasons for introducing this Bill of 1971 published in the Gazette of India Extraordinary, is as follows: "The industries included in the First Schedule . not only substantially contribute to the Gross National produce of the country, but also afford gainful employment to millions of people.
For diverse reasons a number of industrial undertakings engaged in these industries have had to close down and the continuing economic operation of many others is beset with serious difficulties affecting industrial production and employment.
During the period of take over Government has to invest public funds in such undertakings and it must be able to do so with a measure of confidence about the continued efficient management of the undertaking at the end of the period of take over.
In order to ensure that at the end of the period of take over by Government, the industrial undertaking is not returned to the same hands which were responsible for its earlier misfortune, it has been provided in the Bill that in relation to an undertaking taken over by them, Government will have the power to move for (i) the sale of the undertaking at a reserve price or higher (Government purchasing it at the reserve price if no offer at or above the reserve price is received), action being taken simultaneously for the winding up of the company owning the industrial undertaking; or (ii) the reconstruction of the company owning the industrial undertaking with a view to giving the Government a controlling interest in it.
With a view to ensuring speedy action by Government, it has been provided in the Bill that if the Government has evidence to the effect that the assets of the company owning the industrial undertaking are being frittered away or the undertaking has been closed for a period not less than three months and such closure is prejudicial to the concerned scheduled industry and that the financial condition of the company owning the industrial undertaking and the condition of the plant and machinery installed in the undertaking is such that it is possible to restart the undertaking and such restarting is in the public interest, Government may take over the management without an investigation." (emphasis added).
568 With the aforesaid Objects in view, Section 18AA was inserted by the Amendment Act No. 72 of 1971.
The marginal heading of the Section is to the effect: "Power to take over industrial undertakings without investigation under certain circumstances".
This marginal heading, it will be seen, accords with the Objects and Reasons extracted above.
Section 18AA runs as under: "Without prejudice to any other provision of this Act, if, from the documentary or other evidence in its possession, the Central Government is satisfied, in relation to an industrial undertaking that (a) the persons incharge of such industrial undertaking have, by reckless investments or creation of encumbrances on the assets of the industrial undertaking, or by diversion of funds, brought about a situation which is likely to affect the production of articles manufactured or produced in the industrial undertaking, and that immediate action is necessary to prevent such a situation; or (b) it has been closed for a period of not less than three months (whether by reason of the voluntary winding up of the company owning the industrial undertaking or for any other reason) and such closure is prejudicial to the concerned scheduled industry and that the financial condition of the company owning the industrial undertaking and the condition of the plant and machinery of such undertaking are such that it is possible to re start the undertaking and such re starting is necessary in the interests of the general public, it may, by a notified order, authorise any person (hereinafter referred to as the 'authorised person ') to take over the management of the whole or any part of the industrial undertaking or to exercise in respect of the whole or any part of the undertaking such functions of control as may be specified in the order.
(2) The provisions of sub section (2) of Section 18A shall, as far as may be, apply to a notified order made under sub section (1) as they apply to a notified order made under sub section (1) of Section 18A. (3) Nothing contained in sub section (1) and sub section (2) shall apply to an industrial undertaking owned by a company which is being wound up by or under the supervision of the Court.
569 (4) Where any notified order has been made under sub section (1), the person or body of persons having, for the time being, charge of the management or control of the industrial undertaking, whether by or under the orders of any court or any contract, instrument or otherwise, shall notwithstanding anything contained in such order, contract, instrument or other arrangement, forthwith make over the charge of management or control, as the case may be, of the industrial undertaking to the authorised person.
(5) The provisions of Section 18 B to 18 E (bot inclusive) shall, as far as may be, apply to, or in relation to the industrial undertaking in respect of which a notified order has been made under sub section (1), as they apply to an industrial undertaking in relation to which a notified order has been issued under Section 18 A." A comparison of the provisions of Section 18A(1)(b) and Section 18AA(1)(a) would bring out two main points of distinction: First, action under Section 18A (1)(b) can be taken only after an investigation had been made under Section 15: while under Section 18AA(1)(a) or (b) action can be taken without such investigation.
The language, scheme and setting of Section 18AA read in the light of the objects and Reasons for enacting this provision make this position clear beyond doubt.
Second, before taking action under Section 18A(1) (b), the Central Government has to form an opinion on the basis of the investigation conducted under Section 15, in regard to the existence of the objective fact, namely: that the industrial undertaking is being managed in a manner highly detrimental to the Scheduled industry concerned or to public interest; while under Section 18AA(1) (a) the Government has to satisfy itself that the persons incharge of the undertaking have brought about a situation likely to cause fall in production, by committing any of the three kinds of acts specified in that provision.
This shows that the preliminary objective fact attributable to the persons in charge of the management or affairs of the undertaking, on the basis of which action may be taken under Section 18A(1) (b), is of far wider amplitude than the circumstances, the existence of which is a sine qua non for taking action under Section 18AA(1).
The phrase "highly detrimental to the scheduled industry or public interest" in Section 18A is capable of being construed to over a large variety of acts or things which may be considered wrong with the manner of running the industry by the management.
In contrast with it, action under Section 18AA(1) (a) can be taken only if the Central Gov 570 ernment is satisfied with regard to the existence of the twin conditions specifically mentioned therein, on the basis of evidence in its possession.
From an analysis of Section 18AA(1) (a), it will be clear that as a necessary preliminary to the exercise of the power thereunder, the Central Government must be satisfied "from documentary or other evidence in its possession" in regard to the co existence of two circumstances: (i) that the persons in charge of the industrial undertaking have by committing any of these acts, namely, reckless investments, or creation of incumbrances on the assets of industrial undertaking, or by diversion of funds, brought about a situation, which is likely to affect the production of the article manufactured or produced in the industrial undertaking, and (ii) that immediate action is necessary to prevent such a situation.
Speaking for the High Court (majority), the learned Chief Justice (Deshpande, C.J.) has observed that only with regard to the fulfilment of condition (i) the satisfaction of the Government is required to be objectively reached on the basis of relevant evidence in its possession; while with regard to condition (ii), that is, the need for immediate action, it is purely subjective, and therefore, the satisfaction of the Government with regard to the immediacy of the situation is outside the scope of judicial review.
Shri Sorabji has in his arguments, forcefully supported this opinion of the High Court.
He maintains that the satisfaction of the Government with regard to the existence of the immediacy is not justiciable.
Reliance has been placed on the following passage in the judgment of Channell, J. in Queen vs Davey & Ors.: "The general principle of law is that an order affecting his liberty or property cannot be made against any one without giving him an opportunity of being heard; the result is that, if general words used in a statute empowering the making of such an order as this, it must be made on notice to the party affected.
There are, however, exceptions to this rule, which arise where it can be seen on the words of the statute that it was intended that the order should be made on an ex parte application, and the case in which it is easiest to see the propriety of the exception is where, looking 571 at the scope and object of the legislation, it was clearly intended that the parties putting the law in force should act promptly.
Such a case is an order for the destruction of unsound meat, which clearly may be made ex parte, because it is desirable in the interest of the public health that it should be acted upon at once.
The case of removing an infectious person, likely to spread abroad the infection, to an infectious hospital is obviously of the same character.
" According to the learned Solicitor General, the power conferred on the Central Government is in the nature of an emergency power, that the necessity for taking immediate action is writ large in Section 18AA(1) (a) the provision being a legislative response to deal with an economically emergent situation fraught with national repercussions.
The object of the exercise of this power is not to punish anyone but to take immediate preventive action in the public interest.
On the other hand, Shri Nariman submits that the High Court was clearly in error in holding that the satisfaction of the Central Government with regard to the necessity of taking immediate action was not open to judicial review at all.
It is emphasised that the very language of the provision shows that the necessity for taking immediate action is a question of fact, which should be apparent from the relevant evidence in the possession of the Government.
We find merit in this contention.
It cannot be laid down as a general proposition that whenever a statute confers a power on an administrative authority and makes the exercise of that power conditional on the formation of an opinion by that authority in regard to the existence of an immediacy, its opinion in regard to that preliminary fact is not open to judicial scrutiny at all.
While it may be conceded that an element of subjectivity is always involved in the formation of such an opinion, but as was pointed out by this Court in Bariam Chemicals (ibid), the existence of circumstances from which the inferences constituting the opinion, as the sine qua non for action are to be drawn, must be demonstrable, and the existence of such "circumstances", if questioned, must be proved at least prima facie.
Section 18AA(1)(a), in terms, requires that the satisfaction of the Government in regard to the existence of the circumstances or conditions precedent set out above, including the necessity of taking immediate action, must be based on evidence in the possession of the Government.
If the satisfaction of the Government in regard to the existence of any of the conditions, (i) and (ii), is based on no evidence, or on irrelevant evidence or on an extraneous consideration, 572 it will vitiate the order of 'take over ', and the Court will be justified in quashing such an illegal order on judicial review in appropriate proceedings.
Even where the statute conferring the discretionary power does not, in terms, regulate or hedge around the formation of the opinion by the statutory authority in regard to the existence of preliminary jurisdictional facts with express checks, the authority has to form that opinion reasonably like a reasonable person.
While spelling out by a construction of Section 18AA(1)(a) the proposition that the opinion or satisfaction of the Government in regard to the necessity of taking immediate action could not be the subject of judicial review, the High Court (majority) relied on the analogy of Section 17 of the Land Acquisition Act, under which, according to them, the Government 's opinion in regard to the existence of the urgency is not justiciable.
This analogy holds good only upto a point.
Just as under Section 18AA of the I.D.R. Act, in case of a genuine 'immediacy ' or imperative necessity of taking immediate action to prevent fall in production and consequent risk of imminent injury paramount public interest, an order of 'take over ' can be passed without prior, time consuming investigation under Section 15 of the Act, under Section 17(1) and (4) of the Land Acquisition Act, also, the preliminary inquiry under Section 5A can be dispensed with in case of an urgency.
It is true that the grounds on which the Government 's opinion as to the existence of the urgency can be challenged are not unlimited, and the power conferred on the Government under Section 17(4) of that Act has been formulated in subjective term; nevertheless, in cases, where an issue is raised, that the Government 's opinion as to urgency has been formed in a manifestly arbitrary or perverse fashion without regard to patent, actual and undeniable facts, or that such opinion has been arrived at on the basis of irrelevant considerations or no material at all, or on materials so tenuous, flimsy, slender or dubious that no reasonable man could reasonably reach that conclusion, the Court is entitled to examine the validity of the formation of that opinion by the Government in the context and to the extent of that issue.
In Narayan Govind Gavate vs State of Maharashtra & Ors.
this Court held that while exercising the power under Section 17(4) of the Land Acquisition Act, the mind of the officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under Section 5A of the Act should be eliminated.
It is not just the existence of an 573 urgency but the need to dispense with an inquiry under Section 5A of the Act which has to be considered.
If the circumstances on the basis of which the Government formed its opinion with regard to the existence of the urgency and the other conditions precedent, recited in the notification, are deficient or defective, the Court may look beyond it.
At that stage, Section 106, Evidence Act can be invoked by the party assailing the notification and if the Government or the authority concerned does not disclose such facts or circumstances especially within its knowledge, without even disclosing a sufficient reason for their abstention from disclosure, they have to take the consequences which flow from the non production of the best evidence which could be produced on behalf of the State if its stand was correct.
Again, in Dora Phalauli vs State of Punjab & Ors., this Court held that where the purported order does not recite the satisfaction of the Government with regard to the existence of urgency, nor the fact of the land being waste or arable land, the order was liable to be struck down and the mere direction, therein, to the Collector to take action on ground of urgency was not a legal and complete fulfilment of the requirement of the law.
Recently, in State of Punjab vs Gurdial Singh, V. R. Krishna Iyer, J., speaking for the Court, made these apposite observations: "It is fundamental that compulsory taking of a man 's property is a serious matter and the smaller the man the more serious the matter.
Hearing him before depriving him is both reasonable and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons.
Save in real urgency where public interest does not brook even the minimum time needed to give a hearing, land acquisition authorities should not, having regard to Articles 14 (and 19), burke an enquiry under Section 17 of the Act.
" From these decisions, it is abundantly clear that even under Section 17 of the Land Acquisition Act, the satisfaction or opinion of Government/authority in regard to the urgency of taking action thereunder, is not altogether immune from judicial scrutiny.
For the reasons already stated, it is not possible to subscribe to the proposition propounded by the High Court that the satisfaction of the Central Government in regard to condition (ii), i.e. the exis 574 tence of 'immediacy ', though subjective, is not open to judicial review at all.
From a plain reading of Section 18AA, it is clear that it does not expressly in unmistakable and unequivocal terms exclude the application of the audi alteram partem rule at the pre decisional stage.
The question, therefore, is narrowed down to the issue, whether the phrase "that immediate action is necessary" excludes absolutely, by inevitable implication, the application of this cardinal canon of fairplay in all cases where Section 18AA(1)(a) may be invoked.
In our opinion, for reasons that follow, the, answer to this question must be in the negative.
Firstly, as rightly pointed out by Shri Nariman, the expression "immediate action" in the said phrase, is to be construed in the light of the marginal heading of the Section, its context and the Objects and Reason for enacting this provision.
Thus construed, the expression only means "without prior investigation" under Section 15.
Dispensing with the requirement of such prior investigation does not necessarily indicate an intention to exclude the application of the fundamental principles of natural justice or the duty to act fairly by affording to the owner of the undertaking likely to be affected, at the pre decisional stage, wherever practicable, a short measure fair hearing adjusted, attuned and tailored to the exigency of the situation.
At this stage, it is necessary to examine two decisions of this Court, viz., Ambalal M. Shah vs Hathi Singh Manufacturing Co Ltd.; and Keshav Mills Co. Ltd. vs Union of India (ibid), because according to the High Court (as per Deshpande, C.J., who wrote the leading opinion) these two decisions which are binding on the High Court conclusively show that: "The only prior hearing consisted of the investigation under Section 15 read with Rule 5 before action under Section 18A is taken.
The very object of Section 18AA is to enable action to be taken thereunder without being preceded by the investigation under Section 15.
On the authority of the two Supreme Court decisions in Ambalal M. Shah and Keshav Mills that the only hearing prior to action under Section 18A was the investigation under Section 15, it would follow that action under Section 18AA is to be taken without the investigation under Section 15 and, therefore, without a prior hearing.
" 575 Shri Nariman maintains that the High Court has not correctly construed these decisions.
According to the learned counsel, the corollary deduced by the High Court, viz., that exclusion of the investigation under Section 15 includes exclusion of the audi alteram partem rule at the pre takeover stage, is just the contrary of what was laid down by this Court in Keshav Mills in which Ambalal 's case was also noticed.
Indeed, Shri Nariman strongly relies on this decision in support of his argument that if the application of this rule of natural justice at the pre decisional stage is not excluded even where a full investigation has been made, there is stronger reason to hold that it is to be observed in a case where there has been no investigation at all.
We will first notice the case of Keshav Mills because that is a later decision in which Ambalal 's case was referred to.
In that case, the validity of an order passed by the Central Government under Section 18A was challenged.
By that impugned order the Gujarat State Textile Corporation Ltd. (hereinafter referred to as the Corporation) was appointed as authorised controller of the Company for a period of five years.
The Company was the owner of a cotton textile mill.
Till 1965, the Company made flourishing business.
After the year 1964 65, the Company fell on evil days and the textile mill of the Company was one of the 12 sick textile mills in Gujarat, which had to be closed down during 1966 and 1968.
On May 31, 1969, the Central Government passed an order appointing a Committee for investigation into the affairs of the Company under Section 15 of the I.D.R. Act.
After completing the inquiry, the Investigating Committee submitted its report to the Government who thereafter on November 24, 1970, passed the impugned order under Section 18A authorising the Corporation to take over the management of the Company for a period of five years.
The Company challenged the order of 'take over ' by a writ petition in the High Court of Delhi.
The High Court dismissed the petition.
The main contention of the Company before the High Court was that the Government was not competent to proceed under Section 18A against the Company without supplying before hand, a copy of the report of the Investigating Committee to the Company.
It was further contended that the Government should also have given a hearing to the Company before finally deciding upon take over under Section 18A.
This contention was pressed on behalf of the Company in spite of the fact that an opportunity had been given by the Investigating Committee to the management and the employees of the Company for adducing evidence and for making representation before the completion of the investigation.
On the contentions raised by the Company and 576 resisted by the respondent, in that case, the Court formulated the following questions: (1) Is it necessary to observe the rules of natural justice before enforcing a decision under Section 18A of the Act? (2) What are the rules of natural justice in such a case? (3)(a) In the present case, have the rules to be observed once during the investigation under Section 15 and then again, after the investigation is completed and action on the report of the Investigating Committee taken under Section 18A? (b) Was it necessary to furnish a copy of the Investigating Committee 's Report before passing an order of take over? Mukherjea, J. speaking for the Court, answered these questions, thus: (1) "The first of these questions does not present any difficulty.
It is true that the order of the Government of India that has been challenged by the appellants was a purely executive order embodying on administration decision.
Even so, the question of natural justice does arise in this case.
It is too late now to contend that the principles of natural justice need not apply to administrative order or proceedings; in the language of Lord Denning M.R. in Regina vs Gaming Board, exparte Beniam "that heresy was scotched in Ridge vs Baldwin" (2) "The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer We do not think it either feasible or even desirable to lay down any fixed or rigorous yard stick in this manner.
The concept of natural justice cannot be put into a straight jacket.
It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case.
The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably.
Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly.
See, for instance, the observations of Lord Parker in In re 577 H.K. (an infant).
It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge vs Baldwin as insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances.
However, even the application of the concept of fairplay requires real flexibility.
Everything will depend on the actual facts and circumstances of a case." (3) (a) "For answering that question we shall keep in mind . and examine the nature and scope of the inquiry that had been carried out by the Investigating Committee set up by the Government, the scope and purpose of the Act and rules under which the Investigating Committee was supposed to act, the matter that was being investigated by the Committee and finally the opportunity that was afforded to the appellants for presenting their case before the Investigating Committee." (After noticing the object, purpose and content of the relevant provisions, the judgment proceeded): "In fact, it appears from a letter addressed by appellant No. 2 Navinchandra Chandulal Parikh on behalf of the Company to Shri H. K. Bansal, Deputy Secretary, Ministry of Foreign Trade and Supply on 12th September, 1970 that the appellants had come to know that the Government of India was in fact considering the question of appointing an authorised controller under Section 18A of the Act in respect of the appellants undertaking.
In that letter a detailed account of the facts and circumstances under which the mill had to be closed down was given.
There is also an account of the efforts made by the Company 's Directors to restore the mill.
There is no attempt to minimise the financial difficulties of the Company in that letter .
The letter specifically mentions the company 's application to the Gujarat State Textile Corporation Ltd., for financial help. the Corporation ultimately failed to come to the succour of the Company.
Parikh requested Government not to appoint an authorised controller and further prayed that the Government of India should ask the State Government and the Gujarat State Textile Corporation Ltd., to give a financial guarantee to the Company. " "Only a few days before this letter had been addressed, Parikh, it appears, had an interview with the Minister of 578 Foreign Trade on 26th August, 1970, when the Minister gave him, as a special case, four weeks ' time with effect from 26th August, 1970 to obtain the necessary financial guarantee from the State or the Gujarat State Textile Corporation without which the Company had expressed its inability to reopen and run the mill.
In a letter of 22 September, 1970, Bansal informed Parikh in clear language that if the Company failed to obtain the necessary guarantee by 26 September 1970, Government was proceeding to take action under the Act.
It is obvious, therefore, that the appellants were aware all long that as a result of the report of the Investigating Committee the Company 's undertaking was going to be taken up by Government, Parikh had not only made written representations but had also seen the Minister of Foreign Trade and Supply.
He had requested the Minister not to take over the undertaking and, on the contrary, to lend his good offices so that the Company could get financial support from the Gujarat State Textile Corporation or from the Gujarat State Government." (emphasis added) "All these circumstances leave in no manner of doubt that the Company had full opportunities to make all possible representations before the Government against the proposed take over of its mill under Section 18A.
In this connection, it is significant that even after the writ petition had been filed before the Delhi High Court the Government of India had given the appellants at their own request one month 's time to obtain the necessary funds to commence the working of the mill.
Even then, they failed to do so . ." "There are at least five features of the case which make it impossible for us to give any weight to the appellants complaint that the rules of natural justice have not been observed.
First on their own showing they were perfectly aware of the grounds on which Government had passed the order under Section 18A of the Act.
Secondly, they are not in a position to deny (a) that the Company has sustained such heavy losses that its mill had to be closed down indefinitely, and (b) that there was not only loss of production of textiles but at least 1200 persons had been thrown out of employment.
Thirdly, it is transparently clear from the affidavits that the Company was not in a position 579 to raise the resources to recommence the working of the mill.
Fourthly, the appellants were given a full hearing at the time of the investigation held by the Investigating Committee and were also given opportunities to adduce evidence.
Finally, even after the Investigating Committee had submitted its report, the appellants were in constant communion with the Government and were in fact negotiating with Government for such help as might enable them to reopen the mill and to avoid a take over of their undertaking by the Government.
Having regard to these features it is impossible for us to accept the contention that the appellants did not get any reasonable opportunity to make out a case against the take over of their undertaking or that the Government has not treated the appellants fairly.
There is not the slightest justification in this case for the complaint that there has been any denial of natural justice." "In our opinion, since the appellants have received a fair treatment and also all reasonable opportunities to make out their own case before Government they cannot be allowed to make any grievance of the fact that they were not given a formal notice calling upon them to show cause why their undertaking should not be taken over or that they had not been furnished with a copy of the report.
They had made all the representations that they could possibly have made against the proposed take over.
By no stretch of imagination, can it be said that the order for take over took them by surprise.
In fact, Government gave them ample opportunity to reopen and run the mill on their own if they wanted to avoid the take over.
The blunt fact is that the appellants just did not have the necessary resources to do so.
Insistence on formal hearing in such circumstances is nothing but insistence on empty formality." (emphasis added) (3) (b) "In our opinion it is not possible to lay down any general principle on the question as to whether the report of an investigating body or an inspector appointed by an administrative authority should be made available to the persons concerned in any given case before the authority takes a decision upon that report.
The answer to this question also must always depend on the facts and circumstances of the case.
It is not at all unlikely that there may be certain cases where unless the report is 580 given the party concerned cannot make any effective representation about the action that Government takes or proposes to take on the basis of that report.
Whether the report should be furnished or not must therefore, depend in every individual case on the merits of that case.
We have no doubt that in the instant case, non disclosure of the report of the Investigating Committee has not caused any prejudice whatsoever to the appellants.
(emphasis added) It will be seen from what has been extracted above that in Keshav Mills case, this Court did not lay it down as an invariable rule that where a full investigation after 'notice to the owner of the industrial undertaking has been held under Section 15, the owner is never entitled on grounds of natural justice, to a copy of the investigation report and to an opportunity of making a representation about the action that the Government proposes to take on the basis of that report.
On the contrary, it was clearly said that this rule of natural justice will apply at that stage in cases "where unless the report is given the party concerned cannot make any effective representation about the action that Government takes or proposes to take on the basis of that report.
" It was held that the application or non application of this rule depends on the facts and circumstances of the particular case.
In the facts of that case, it was found that the non disclosure of the investigation report had not caused any prejudice whatever because the Company were "aware all along that as a result of the report of the Investigating Committee the Company 's undertaking was going to be taken (over) by Government", and had full opportunities, to make all possible representations before the Government against the proposed take over of the Mill.
Shri Sorabji submitted that the observations made by this Court in Keshav Mills case, to the effect, that in certain cases even at the post investigation stage before making an order of take over under Section 18A, it may be necessary to give another opportunity to the affected owner of the undertaking to make a representation, appear to be erroneous.
The argument is that the Legislature has provided in Sections 15 and 18A of the Act and Rule 5 framed thereunder, its measure of this principle of natural justice and the stage at which it has to be observed.
The High Court, therefore, was not right in engrafting any further application of the rule of natural justice at the post investigation stage.
According to the learned Solicitor General for the decision of the case, it was not necessary to go beyond the 581 ratio of Shri Ambalal M. Shah & Anr.
vs Hathi Singh Manufacturing Co. Ltd which was followed in Keshav Mills case.
In our opinion, the observations of this Court in Keshav Mills in regard to the application of this rule of natural justice at the post investigation stage cannot be called obiter dicta.
There is nothing in those observations, which can be said to be inconsistent with the ratio decidendi of Ambalal 's case.
The main ground on which the order of take over under Section 18A was challenged in Ambalal 's case was that on a proper construction of Section 18A, the Central Government had the right to make the order under that Section on the ground that the Company was being managed in a manner highly detrimental to public interest, only where the investigation made under Section 15 was initiated on the basis of the opinion as mentioned in Section 15(b), whereas in the present case (i.e. Ambalal 's case), the investigation ordered by the Central Government was initiated on the formation of an opinion as mentioned in clause (a) (i) of Section 15.
It was urged that in fact, the Committee appointed to investigate had not directed its investigation into the question whether the industrial undertaking was being managed in the manner mentioned above.
The High Court came to the conclusion that on a correct construction of Section 18 A(1) (b) it was necessary before any order could be made thereunder that the investigation should have been initiated on the basis of the opinion mentioned in Section 15(b) of the Act.
It also accepted the petitioner 's contention that no investigation had, in fact, been held into the question whether the undertaking was being managed in a manner highly detrimental to public interest.
On appeal by special leave, this Court reversed the decision of the High Court, and held that the words used by the Legislature in Section 18A (1) (b) "in respect of which an investigation has been made under Section 15" could not be cut down by the restricting phrase "based on an opinion that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest"; that Section 18A (1) (b) empowers the Central Government to authorise a person to take over the management of an industrial undertaking if the one condition of an investigation made under Section 15 had been fulfilled irrespective of on what opinion that investigation was initiated and the further condition is fulfilled that the Central Government was of opinion that such undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.
In this Court, it 582 was urged on behalf of the Company that absurd results would follow if the words "investigation has been made under Section 15" are held to include investigation based on any of the opinions mentioned in Section 15(a).
Asked to mention what the absurd results would be, the counsel could only say that an order under Section 18A (1) (b) would be unfair and contrary to natural justice in such cases, as the owner of an industrial undertaking would have no notice that the quality of management was being investigated.
The Court found no basis for this assumption because in its opinion, the management could not but be aware that investigation would be directed in regard to the quality of management, also.
It is to be noted that the question of natural justice was casually and halfheartedly raised in a different context as a last resort.
It was negatived because in the facts and circumstances of that case, the Company was fully aware that the quality of the management was also being inquired into and it had full opportunity to meet the allegations against it during investigation.
The second reason which is more or less a facet of the first for holding that the mere use of the word "immediate" in the phrase "immediate action is necessary", does not necessarily and absolutely exclude the prior application of the audi alteram partem rule, is that immediacy or urgency requiring swift action is a situational fact having a direct nexus with the likelihood of adverse effect on fall in production.
And, such likelihood and the urgency of action to prevent it, may vary greatly in degree.
The words "likely to affect production" used in Section 18AA (1) (a) are flexible enough to comprehend a wide spectrum of situations ranging from the one where the likelihood of the happening of the apprehended event is imminent to that where it may be reasonably anticipated to happen sometime in the near future.
Cases of extreme urgency where action under Section 18AA(1) (a) to prevent fall in production and consequent injury to public interest, brooks absolutely no delay, would be rare.
In most cases, where the urgency is not so extreme, it is practicable to adjust and strike a balance between the competing claims of hurry and hearing.
The audi alteram partem rule, as already pointed out, is a very flexible, malleable and adaptable concept of natural justice.
To adjust and harmonise the need for speed and obligation to act fairly, it can be modified and the measure of its application cut short in reasonable proportion to the exigencies of the situation.
Thus, in the ultimate analysis, the question, (as to what extent and in what measure) this rule of fair hearing will apply at the pre decisional stage will depend upon the degree of urgency, if any, evident from the facts and circumstances of the particular case.
583 In the instant case, so far as Kanpur Unit is concerned, it was lying closed for more than three months before the passing of the impugned order.
There was no `immediacy ' in relation to that unit, which could absolve the Government from the obligation of complying fully with the audi alteram partem rule at the pre decisional or pre takeover stage.
As regards the other five units of the Company, the question whether on the basis of the evidential matter before the Government at the time of making the impugned order, any reasonable person could reasonably form an opinion about a likelihood of fall in production and the urgency of taking immediate action, will be discussed later.
For the purpose of the question under consideration we shall assume that there was a likelihood of fall in production.
Even so, the undisputed facts and figures of production of 2 or 3 years preceding the take over, relating to these units, show that on the average, production in these units has remained fairly constant.
Rather, in some of these units, an upward trend in production was discernible.
Be that as it may, the likelihood of fall in production or adverse effect on production in these five units, could not, by any stretch of prognostication or feat of imagination, be said to be imminent, or so urgent that it could not permit the giving of even a minimal but real hearing to the Company before taking over these units.
There was an interval of about six weeks between the Official Group 's Report, dated February 16, 1978 and the passing of the impugned order dated April 13, 1978.
There was thus sufficient time available to the Government to serve a copy of that report on the appellant Company and to give them a short measure opportunity to submit their reply and representation regarding the findings and recommendations of the Group Officers and the proposed action under Section 18AA(1).
The third reason for our forbearance to imply the exclusion of the audi alteram partem rule from the language of Section 18AA(1) (a) is, that although the power thereunder is of a drastic nature and the consequences of a take over are far reaching and its effect on the rights and interests of the owner of the undertaking is grave and deprivatory, yet the Act does not make any provision giving a full right of a remedial hearing equitable to a full right of appeal, at the post decisional stage.
The High Court seems to be of the view that Section 18F gives a right of full post decisional remedial hearing to the aggrieved party.
Shri Soli Sorabji also elaborately supported that view of the High Court.
In the alternative, the learned counsel has committed himself on behalf of his client, to the position, that the Central Government will if required, give the Company a full and fair hearing on merits, 584 including an opportunity to show that the impugned order was not made on adequate or valid grounds.
Shri Nariman on the other hand contends and we think rightly that the so called right of a post decisional hearing available to the aggrieved owner of the undertaking under Section 18F is illusory as in its operation and effect the power of review, if any, conferred thereunder, is prospective, and not retro active, being strictly restricted to and dependent upon the post takeover circumstances.
By virtue of sub section (2) of Section 18AA, the reference to Section 18A in Section 18F will be construed as a reference to Section 18AA, also.
The power of cancellation under Section 18F can be exercised only on any of these grounds : (i) "that the purpose of the order made under Section 18A has been fulfilled", or (ii) "that for any other reason it is not necessary that the order should remain in force".
These `grounds ' and the language in which they are couched is clear enough to show that the cancellation contemplated thereunder cannot have the effect of annulling, rescinding or obliterating the order of take over with retro active force; it can have only a prospective effect.
Section 18F embodies a principle analogous to that in Section 21 of the General Clauses Act.
The first `ground ' in Section 18F for the exercise of the power, obviously does not cover a review of the merits or circumstances preceding and existing at the date of passing the order of `take over ' under Section 18AA(1).
The words "for any other reason" if read in isolation, no doubt, appear to be of wide amplitude.
But their ambit has been greatly cut down and circumscribed by the contextual phrase "no longer necessary that it should remain in force".
Construed in this context, the expression "for any other reason" cannot include a ground that the very order of take over was invalid or void ab initio.
Thus, the post decisional hearing available to the aggrieved owner of the undertaking is not an appropriate substitute for a fair hearing at the pre decisional stage.
The Act does not provide any adequate remedial hearing or right of redress to the aggrieved party even where his under taking has been arbitrarily taken over on insufficient grounds.
Rather, the plight of the aggrieved owner is accentuated by the provision in 18D which disentitles him and other persons whose officers are lost or whose contract of management is terminated as a result of the `take over ', from claiming any compensation whatever for such loss or termination.
Before we conclude the discussion on this point, we may notice one more argument that has been advanced on behalf of the respondents.
It is argued that this was a case where a prior hearing to the Company could only be a useless formality because the impugned action has been 585 taken on the basis of evidence, consisting of the Balance sheet, account books and other records of the Company itself, the correctness of which could not have been disputed by the Company.
On these premises, it is submitted that non observance of the rule of audi altrem partem would not prejudice the Company, and thus make no difference.
The contention does not appear to be well founded.
Firstly, this documentary evidence, at best, shows that the Company was in debt and the assets of some of its `units ' had been hypothecated or mortgaged as security for those debts.
Given an opportunity the Company might have explained that as a result of this indebtedness there was no likelihood of fall in production, which is one of the essential conditions in regard to which the Government must be satisfied before taking action under Section 18(1)(a).
Secondly, what the rule of natural justice required in the circumstances of this case, was not only that the Company should have been given an opportunity to explain the evidence against it, but also an opportunity to be informed of the proposed action of take over and to represent why it be not taken.
In the renowned case, Ridge vs Baldwin & Ors.
(ibid), it was contended before the House of Lords that since the appellant police officer had convicted himself out of his own mouth, a prior hearing to him by the Watch Committee could not have made any difference; that on the undeniable facts of that case, no reasonable body of men could have reinstated the appellant.
This contention was rejected by the House of Lords for the reason that if the Watch Committee had given the police officer a prior hearing they would not have acted wrongly or unreasonably if they had in the exercise of their discretion decided to take a more lenient course than the one they had adopted.
A similar argument was advanced in section L. Kapoor vs Jagmohan & Ors to which decision two of us (Sarkaria and Chinnappa Reddy, JJ.) were parties.
In negativing this argument, this Court, inter alia, quoted with approval the classic passage, reproduced below, from the judgment of Megarry, J. in John vs Rees & Ors. "As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.
Nor are those with any knowledge of human 586 nature who pause to think for a moment likely to under estimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.
" In General Medical Council vs Spackman, Lord Wright condemned the oft adopted attitude by tribunals to refuse relief on the ground that a fair hearing could have made no difference to the result.
Wade in his Administrative Law, 4th Edn., page 454, has pointed out that "in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly".
In Maxwell vs Department of Trade & Industry, Lawton L.J. expressed in the same strain that "doing what is right may still result in unfairness if it is done in the wrong way.
" This view is founded on the cordinal canon that justice must not only be done but also manifestly be seen to be done.
Observance of this fundamental principle is necessary if the courts and the tribunals and the administrative bodies are to command public confidence in the settlement of disputes or in taking quasi judicial or administrative decisions affecting civil rights or legitimate interests of the citizens.
The same proposition was propounded in R. V. Thames Magistrates ' Court ex p. Polemis, by Lord Widgery C.J. at page 1375; and by the American Supreme Court in Margarita Fuentes et al., vs Tobert L. Shevin.
In concluding the discussion in regard to this aspect of the matter, we can do no better than reiterate what was said by one of us (Chinnappa Reddy, J.) in section L. Kapoor vs Jagmohan (ibid) : "In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed.
The non observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary.
It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced.
" 587 We, therefore, over rule this last contention.
In sum, for all the reasons aforesaid, we are of the view that it is not reasonably possible to construe Section 18AA(1) as universally excluding, either expressly or by inevitable intendment, the application of the audi alteram partem rule of natural justice at the pre takeover stage, regardless of the facts and circumstances of the particular case.
In the circumstances of the instant case, in order to ensure fairplay in action it was imperative for the Government to comply substantially with this fundamental rule of prior hearing before passing the impugned order.
We therefore, accept the two fold proposition posed and propounded by Shri Nariman.
The further question to be considered is : What is the effect of the non observance of this fundamental principle of fairplay? Does the non observance of the audi alteram partem rule, which in the quest of justice under the rule of law, has been considered universally and most spontaneously acceptable principle, render an administrative decision having civil consequences, void or voidable ? In England, the outfall from the watershed decision, Ridge vs Baldwin brought with it a rash of conflicting opinion on this point.
The majority of the House of Lords in Ridge vs Baldwin held that the non observance of this principle, had rendered the dismissal of the Chief Constable void.
The rationale of the majority view is that where there is a duty to act fairly, just like the duty to act reasonably, it has to be enforced as an implied statutory requirement, so that failure to observe it means that the administrative act or decision was outside the statutory power, unjustified by law, and therefore ultra vires and void.
(See Wade 's Administrative Law, ibid, page 448).
In India, this Court has consistently taken the view that a quasi judicial or administrative decision rendered in violation of the audi alteram partem rule, wherever it can be read as an implied requirement of the law, is null and void.
(e.g. Maneka Gandhi 's case, ibid, and section L. Kapoor vs Jagmohan, ibid).
In the facts and circumstances of the instant case, there has been a non compliance with such implied requirement of the audi alteram partem rule of natural justice at the pre decisional stage.
The impugned order therefore, could be struck down as invalid on that score alone.
But we refrain from doing so, because the learned Solicitor General in all fairness, has both orally and in his written submissions dated August 28, 1979, committed himself to the position that under Section 18F, the Central Government in exercise of its curial functions, is bound to give the affected owner of the undertaking taken over, a "full and effective hearing on all aspects touching the validity and/or correctness of the order and/or action of take 588 over", within a reasonable time after the take over.
The learned Solicitor has assured the Court that such a hearing will be afforded to the appellant Company if it approaches the Central Government for cancellation of the impugned order.
It is pointed out that this was the conceded position in the High Court that the aggrieved owner of the undertaking had a right to such a hearing.
In view of this commitment/or concession fairly made by the learned Solicitor General, we refrain from quashing the impugned order, and allowing Civil Appeal 1629 of 1979 send the case back to the Central Government with the direction that it shall, within a reasonable time, preferably within three months from today, give a full, fair and effective hearing to the aggrieved owner of the undertaking, i.e., the Company, on all aspects of the matter, including those touching the validity and/or correctness of the impugned order and/or action of take over and then after a review of all the relevant materials and circumstances including those obtaining on the date of the impugned order, shall take such fresh decision, and/or such remedial action as may be necessary, just, proper and in accordance with law.
In view of the above decision, no separate order is necessary in Civil Appeals 1857 and 2087 of 1979.
All the three appeals are disposed of accordingly with no order as to costs.
Since the appeals have been disposed of on the first and foremost point canvassed before us, in the manner indicated above, it is not necessary to burden this judgment with a discussion of the other points argued by the counsel for the parties.
CHINNAPPA REDDY, J. I have the misfortune to be unable to agree with the erudite opinion of my learned brother Sarkaria on the question of the applicability of the principles of natural justice.
I do so with diffidence and regret.
The first of the submissions of Shri F. section Nariman, learned counsel for the appellant company was that there was a violation of the principles of natural justice.
He submitted that the provisions of the Industries (Development and Regulation) Act did not rule out natural justice and that there were several occasions in the march of events that led to the passing of the order under Sec.
18AA when an opportunity could have been given to the Company and the principles of natural justice observed but the Government of India refrained from doing so.
He urged that the immediate action contemplated by Sec.
18AA(1) (a) was not to be construed as negat 589 ing natural justice but as intended merely to distinguish it from action under Sec.
18A which was to be taken only after investigation under Sec. 15.
He drew inspiration for this argument from the marginal note to Section 18AA which is "power to take over industrial undertakings without investigation under certain circumstances".
He also urged that Sec.
18F contemplated a post decisional situation necessitating cancellation of the order of take over but did not contemplate cancellation of the order of take over on the ground that such order ought never to have been made.
He urged that the scope of Sec.
18F was very narrow and did not entitle the party affected to a fair hearing.
In any case he argued that the remedy such as it was provided by Sec.
18F was not an answer to the claim to pre decisional natural justice.
His submission was that natural justice was not to be excluded except by the clear and unmistakable language of the statute, though the "quantum" of natural justice to be afforded in an individual case might vary from case to case.
Shri Soli Sorabji, learned Solicitor General, while conceding that statutory silence on the question of natural justice should ordinarily lead to an implication by presumption that natural justice was to be observed, urged that the presumption might be displaced by necessary implication, as for instance where compliance with natural justice might be inconsistent with the demands of promptitude, and delayed action might lead to disaster.
The presumption of implication of natural justice was very weak where action was of a remedial or preventive nature or where such action concerned property rights only.
In appropriate situations post decisional hearing might displace pre decisional natural justice.
The statute itself might well provide for a post decisional hearing as a substitute for pre decisional natural justice in situations requiring immediate action.
18 F of the Industries Development and Regulation Act expressly provided for such a post decisional hearing and the urgency of the situation contemplated by Sec.
18AA necessarily excluded pre decisional natural justice.
There was no reason to belittle the scope of Sec.
18F, so, to exclude a fair post decisional hearing at the instance of the party affected and consequently, to imply pre decisional natural justice.
Both the learned counsel invited our attention to considerable case law.
I do not propose to discuss the case law as my brother Sarkaria has referred to all the cases in great detail.
Before I consider the submissions of the learned counsel as to the applicability of the principles of natural justice, a few prefatory remarks, however, require to be made.
590 Natural justice, like Ultra Vires and Public Policy, is a branch of the Public Law and is a formidable weapon which can be wielded to secure justice to the citizen.
It is productive of great good as well as much mischief.
While it may be used to protect certain fundamental liberties, civil and political rights, it may be used, as indeed it is used more often than not, to protect vested interests and to obstruct the path of progressive change.
In the context of modern welfare legislation, the time has perhaps come to make an appropriate distinction between natural justice in its application to fundamental liberties, civil and political rights and natural justice in its application to vested interests.
Our Constitution, as befits the Constitution of a Socialist Secular Democratic Republic, recognises the paramountcy of the public weal over the private interest.
Natural justice, Ultra Vires, Public Policy, or any other rule of interpretation must therefore, conform, grow and be tailored to serve the public interest and respond to the demands of an evolving society.
In Ridge vs Baldwin, it was thought by Lord Reid that natural justice had no easy application where questions of public interest and policy were more important than the rights of individual citizens.
He observed : "If a Minister is considering whether to make a scheme for, say, an important new road, his primary concern will not be with the damage which its construction will do to the rights of individual owners of land.
He will have to consider all manner of questions of public interest and, it may be, a number of alternate schemes.
He cannot be prevented from attaching more importance to the fulfilment of his policy than to the fate of individual objectors, and it would be quite wrong for the Courts to say that the Minister should or could act in the same kind of way as a board of works deciding whether a house should be pulled down." And, as pointed out by a contributor in 1972 Cambridge Law Journal at page 14 : ". the safeguarding of existing rights can after all in some circumstances amount to little more than the fighting of a rear guard action by the reactionary element in society seeking only to preserve its own vested position.
" The United States Supreme Court has recognised the distinction between cases where only property rights are involved and cases where other civil and political rights are involved.
In cases where only 591 property rights are involved postponement of enquiry has been held not to be a denial of due process, vide : Annie G. Phillips vs Commissioner of Internal Revenue, John H. Fahey vs Paul Mallonee, Margarita Fuentes vs Robert L. Shevin, Attorney General of Florida, and Lawrence Mitchell vs W. F. Grant Co. In the first case ; , Brandeis J observed: "Where only property rights are involved, mere postponement of the judicial inquiry is not a denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate.
Delay in the judicial determination of property rights is not uncommon where it is essential that Governmental needs be immediately satisfied.
For the protection of public health, a state may order the summary destruction of property by administrative authorities without antecedent notice or hearing.
Because of the public necessity the property of citizens may be summarily seized in war time.
And at any time, the United States may acquire property by eminent domain, without paying, or determining the amount of the compensation before the taking.
" The principles of natural justice have taken deep root in the judicial conscience of our people, nurtured by Binapani, Kraipak, Mohinder Singh Gill, Maneka Gandhi etc.
They are now considered so fundamental as to be "implicit in the concept of ordered liberty" and, therefore, implicit in every decision making function, call it judicial, quasi judicial or administrative.
Where authority functions under a statute and the statute provides for the observance of the principles of natural justice in a particular manner, natural justice will have to be observed in that manner and in no other.
No wider right than that provided by statute can be claimed nor can the right be narrowed.
Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice.
The implication of natural justice being presumptive it may be excluded by express words of statute or by necessary intendment.
Where the conflict is between the public interest and the private interest, the presumption must necessarily be weak and may, therefore, be readily displaced.
The presumption is also weak where what are involved are mere property rights.
In cases of urgency, particularly where the public interest is involved, pre emptive 592 action may be a strategic necessity.
There may then be no question of observing natural justice.
Even in cases of preemptive action.
if the statute so provides or if the Courts so deem fit in appropriate cases, a postponed hearing may be substituted for natural justice.
Where natural justice is implied, the extent of the implication and the nature of the hearing must vary with the statute, the subject and the situation.
Seeming judicial ambivalence on the question of the applicability of the principles of natural justice is generally traceable to the readiness of judges to apply the principles of natural justice where no question of the public interest is involved, particularly where rights and interests other than property rights and vested interests are involved and the reluctance of judges to apply the principles of natural justice, where there is suspicion of public mischief and only property rights and vested interests are involved.
In the light of these prefatory remarks, I will proceed to consider the relevant statutory provisions.
The Industries (Development and Regulation) Act, 1951, was enacted pursuant to the power given to Parliament by Entry 52 of List I of the Seventh Schedule to the Constitution.
As required by that Entry Section 2 of the Act declares that it is expedient in the public interest that the Union should take under its control the industries specified in the First Schedule to the Act.
Item 23 of the First Schedule to the Act relates to Textiles of various categories, Sec.
3(d) defines "Industrial undertaking" to mean "any undertaking pertaining to a scheduled industry carried on in one or more factories by any person or authority including Government".
The expression undertaking is not, however, defined Sec. 3(f) defines "Owner", "in relation to an industrial undertaking" as "the person who, or the authority which, has the ultimate control over the affairs of the undertaking, and, where the said affairs are entrusted to a manager, managing director or managing agents, such manager, managing director or managing agent shall be deemed to be the owner of the undertaking".
Sec. 3(j) provides that words and expressions not defined in the Act but defined in the Companies Act shall have the meaning assigned to them in that Act.
10 obliges the owner of an industrial undertaking to register the undertaking in the prescribed manner.
10A authorises the revocation of registration after giving an opportunity to the owner of the undertaking in certain circumstances.
11 provides for the licensing of the new industrial undertaking and Sec.
11A provides for the licensing of the production and manufacture of the new articles.
Sec. 13 provides, among other things, that, except under, and in accordance with, a licence issued in that behalf by the Central Government, no owner of an industrial undertaking shall effect any substantial expansion or 593 change the location of the whole or any part of an industrial undertaking.
14 provides for a full and complete investigation in respect of applications for the grant of licence or permission under Sections 11, 11A, 13 or 29B. Sec.
15 authorises the Central Government to make or cause to be made a full and complete investigation into the circumstances of the case if the Central Government is of the opinion that : (a) in respect of any scheduled industry or industrial undertaking or undertakings (i) there has been, or is likely to be, a substantial fall in the volume of production. for which, having regard to the economic conditions prevailing, there is no justification; or (ii) there has been, or is likely to be, a marked deterioration in the quality of any article. . . which could have been or can be avoided; or (iii) there has been or is likely to be a rise in the price of any article. . for which there is no justification; or (iv) it is necessary to take any such action for the purpose of conserving any resources of national importance; or (b) any industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.
After the investigation is made under Sec.
provides, if the Central Government is satisfied that such action is desirable, it may issue appropriate directions for (a) regulating the production of any article . and fixing the standards of production; (b) requiring the industrial undertaking to take such steps as the Central Government may consider necessary, to stimulate the development of the industry; (c) prohibiting resort to any act or practice which might reduce the undertaking 's production, capacity or economic value; (d) controlling the prices, or regulating the distribution of any article.
16(2) also provides for the issue of interim directions by the Central Government pending investigation under Sec. 15.
Such directions are to have effect until validly revoked by the Central Government.
594 Chapter III A consisting of Sections 18A, 18 AA.
18 B, 18 C, 18 D, 18 E and 18 F deals with "direct management or control of Industrial Undertakings by Central Government in certain cases".
18 A which is entitled "Power of Central Government to assume management or control of an industrial undertaking in certain cases" provides that the Central Government may, by notified order, authorise any person or body of persons to take over the management of the whole or any part of an industrial undertaking or to exercise in respect of the whole or any part of the undertaking such functions of control as may be specified in the order, if the Central Government is of opinion that : (a) an industrial undertaking to which directions have been issued in pursuance of Sec.
16 has failed to comply with such directions, or (b) an industrial undertaking in respect of which an investigation has been made under section 15 is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.
18 AA refers to "Power to take over industrial undertakings without investigation under certain circumstances".
It enables the Central Government by a notified order to authorise any person or body of persons to take over the management of the whole or any part of an industrial undertaking or to exercise in respect of whole or any part of the undertaking such functions of control as may be specified in the order, if, without prejudice to any other provisions of the Act, from the documentary or other evidence in its possession, the Central Government is satisfied in relation to the industrial undertaking, that "(a) the persons incharge of such industrial undertakings have, by reckless investments or creation of encumbrances on the assets of the industrial undertaking, or by diversion of funds, brought about a situation which is likely to affect the production of articles manufactured or produced in the industrial under taking, and that immediate action is necessary to prevent such a situation; or (b) it has been closed for a period of not less than three months (whether by reason of the voluntary winding up of the company owning the industrial undertaking or for any other reason) and such closure is prejudicial to the concerned scheduled industry and 595 that the financial condition of the company owning the industrial undertaking and the condition of the plant and machinery of such undertaking are such that it is possible to re start the undertaking and such re starting is necessary in the interests of the general public".
18 AA(5) stipulates that the provisions of Sections 18 B to 18 E shall be applicable to the industrial undertaking in respect of which an order has been made under section 18 AA even as they apply to an industrial undertaking taken over under Sec.
18 A. Sec.
18 B specifies the effect of a notified order under Sec.
18 A. Sec.
18C empowers the Court to cancel or vary contracts made in bad faith etc.
by the management of an undertaking before such management was taken by the Central Government.
18 D provides that there shall be no right to compensation for termination of office or contract as a result of the `take over '.
18 E deprives the shareholders and the Company of certain rights under the Indian Companies Act.
if the industrial undertaking whose management is taken over is a Company.
18 F empowers the Central Government on the application of the owner of the industrial undertaking or otherwise to cancel the order made under Sec.
18 A if it appears to the Central Government that the purpose of the order has been fulfilled or that for any other reason it is not necessary that the order should remain in force.
18FD(3) enables the Central Government to exercise the powers under Sec.
18 F in relation to an undertaking taken over under Sec.
18 AA.
The question for consideration is whether Sec.
18 AA excludes natural justice by necessary implication.
The development and regulation of certain key industries was apparently considered so basic and vital to the economy of our country that Parliament, in its wisdom, thought fit to enact the Industries Development & Regulation Act, after making the declaration required by Entry 52 of List I of the Seventh Schedule to the Constitution that it was expedient, in the public interest, that the Union should take under its control the industries specified in the schedule to the Act, as earlier mentioned by us.
Apart from making provision for the establishment of a Central Advisory Council and other Development Councils, and the licensing of scheduled industries, the Act empowers the Central Government to cause a full and complete investigation to be made where there is a substantial fall in the volume of production for which there is no justification having regard to the prevailing economic conditions or there is marked deterioration in the quality of the 596 goods produced or the price of the goods produced is rising unjustifiably or where conservation of resources of national importance is necessary or the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry or to public interest (Sec. 15) and thereafter to issue necessary and appropriate directions to the industrial undertaking to mend matters suitably (Sec. 16).
Where the instructions issued under Sec.
16 are not complied with or where the investigation reveals that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry or to the public interest the Central Government may take over the industry under Sec.
Whether there is an investigation or not, the Central Government may also `take over ' the management of the industry under Sec.
18 AA, if consequent on certain wilfull acts of commission on the part of the management the production is likely to be effected but immediate action may prevent such a situation, or the industrial undertaking has been closed for a period of not less than three months and the closure is prejudicial to the scheduled industry.
Action under Sec.
18 AA is thus preventive and remedial.
Where there is an apprehension that production is likely to be affected as a result of the wilfull acts of the management or where the production has already come to a stand still because of the closure of the undertaking for a period of not less than three months the Central Government is authorised to intervene to restore production.
The object clearly is to take immediate action to prevent a situation likely to affect production or to restore production.
There was some argument at the Bar that the expression `immediate action ' was not to be found in Sec.
18 AA(1) (b).
I do not think that the absence of the expression "immediate action in Sec.
18 AA(1)(b) makes any difference.
18 AA(1)(a) refers to a situation where immediate preventive action may avert a disaster, whereas Sec.
18 AA contemplates a situation where the disaster has occurred and action is necessary to restore normalcy.
Restoration of production where production has stopped in a key industry or industrial undertaking is as important and urgent, in the public interest, as prevention of a situation where production may be affected.
Immediate action is, therefore, as necessary in the situation contemplated by Sec.
18 AA(1)(b) as in the situation contemplated by Sec. 18 AA(1)(a).
It is true that the marginal note refers to the power to take over without investigation but there is no sufficient reason to suppose that the word `immediate ' is used only to contra distinguish it from the investigation contemplated by Sec. 15 of the Act, though, of course a consequence of immediate action under Sec.
18 AA may be to dis 597 pense with the enquiry under Sec. 15.
In fact, facts which come to light during the course of an investigation under Sec. 15 may form the basis of action under Sec. 18 AA(1)(a).
Where in the course of an investigation under Sec.
15 it is discovered that the management have, by reckless investments or creation of encumbrances on the assets of the industrial undertaking or by diversion of funds brought about a situation which is likely to affect the production of the articles manufactured or produced in the industrial undertaking, if the Government is satisfied that immediate action is necessary to prevent such a situation, there is no reason why the Central Government may not straight away take action under Sec. 18 AA(1)(a) without waiting for completion of investigation under Sec. 15.
Parliament apparently contemplated a situation where immediate action was necessary, and having contemplated such a situation, there is no reason to assume that Parliament did not contemplate situations which brooked not a moments delay.
If Parliament also contemplated situations which did not brook a moment 's delay, it would be difficult to read natural justice into Sec.
18 AA.
The submission of Shri Nariman was that the immediacy of the situation would be relevant and relatable to the quantum of natural justice and not to a total denial of natural justice.
According to him the scope and extent of the opportunity to be given to the party against whom action is taken may depend upon the situation but nothing would justify a negation of a natural justice.
He pointed out that in a situation of great urgency which brooked no delay, an order under Sec.
18 AA might be made, the situation could be so frozen that the persons incharge of the industrial undertaking might do no more mischief and the Government could then, without giving further effect to the order under Sec.
18 AA, give a notice to the person incharge to show cause why the order under Sec.
18 AA should not be given effect.
In another given case, according to Shri Nariman, notice of, say two weeks, might be given before making an order, if the making of an order was not so very urgent.
He suggested that the opportunity to be given might vary from situation to situation but opportunity there must be, either before the decision was arrived at or so shortly after the decision was arrived at and before any great mischief might result from the order.
The argument of Shri Nariman would vest in the Government a power to decide from case to case the extent of opportunity to be given in each individual case and, as a corollary, a corresponding right in the aggrieved party to claim that the opportunity provided was not enough.
Such a procedure may be possible, practicable and desirable in situations where there is no statutory provision enabling the decision making authority to review, or reconsider its decision.
Where there is a 598 provision in the statute itself for revocation of the order by the very authority making the decision, it appears to us to be unnecessary to insist upon a pre decisional observance of natural justice.
The question must be considered by regard to the terms of the statute and by an examination, on the terms of the statute, whether it is possible, practicable and desirable to observe pre decisional natural justice and whether a post decisional review or reconsideration provided by the statute itself is not a sufficient substitute.
The likelihood of production being jeopardized or the stoppage of production in a key industrial undertaking is a matter of grave concern affecting the public interest.
Parliament has taken so serious a view of the matter that it has authorised the Central Government to take over the management of the industrial undertaking if immediate action may prevent jeopardy to production or restore production where it has already stopped.
The necessity for immediate action by the Central Government, contemplated by Parliament, is definitely indicative of the exclusion of natural justice.
It is not as if the owner of the industrial undertaking is left with no remedy.
He may move the Central Government under Sec.
18 F to cancel the order made under Sec.
18 AA.
True some mischief affecting the management and top executives may have already been done.
On the other hand, greater mischief affecting the public economy and the lives of many a thousand worker may have been averted.
While on the one hand mere property rights are involved, on the other vital public interest is affected.
This . again, in the light of the need for immediate action contemplated by Parliament, is a clear pointer to the exclusion of natural justice.
It was submitted by the learned counsel that Sec.
18 F did not provide any remedy but merely provided for cancellation of an order of take over on the fulfilment of the purpose of the order of take over or for any other reason which rendered further continuance in force of the order unnecessary because of the happening of subsequent events.
According to the learned counsel the basic assumption of Sec.
18 F was the validity of the order under Sec.
18 A or Sec.
18 AA.
All that Sec.
18 F did was to prescribe conditions for the exercise of the general power which every authority had under Sec.
21 of the General Clauses Act to cancel its own earlier order.
It was said that if Sec.
18 F could be said to impliedly exclude natural justice there is then no reason not to hold that Sec.
21 of the General Clauses Act similarly excluded natural justice in every case.
I am unable to agree with these submissions of the learned counsel.
Neither Sec.
18 F of the Industries (Development and Regulation) Act nor Sec.
21 of the General Clauses Act, by itself, excludes natural justice.
The exclusion of natural justice, where such exclusion is not express, has to be implied by reference 599 to the subject, the statute and the statutory situation.
Where an express provision in the statute itself provides for a post decisional hearing the other provisions of the statute will have to be read in the light of such provision and the provision for post decisional hearing may then clinch the issue where pre decisional natural justice appears to be excluded on the other terms of the statute.
That a post decisional hearing may also be had by the terms of Sec.
21 of the General Clauses Act may not necessarily help in the interpretation of the provisions of the statute concerned.
On the other hand even the general provision contained in Sec.
21 of the General Clauses Act may be sufficient to so interpret the terms of a given statute as to exclude natural justice.
As I said it depends on the subject, statute and the statutory situation.
I am, therefore, satisfied that the principles of natural justice are not attracted to the situations contemplated by Sec.
18 AA of the Industries (Development and Regulation) Act.
In view of the order proposed by my learned brothers Sarkaria and Desai JJ.
I do not propose to consider the other questions.
ORDER As per majority decision, the appeals are allowed.
N. K. A. Appeals allowed.
| IN-Abs | The Industries (Development and Regulation) Act, 1951 empowers the Union of India in the public interest to take under its control the industries specified in the First Schedule to the Act.
Item 23 of the First Schedule relates to textiles of various categories.
Section 15 authorises the Central Government to make or cause to be made a full and complete investigation into the circumstances of the case if the Central Government is of the opinion that (a) in respect of any scheduled industry or industrial undertaking or undertakings (i) there has been, or is likely to be, a substantial fall in the volume of production for which, having regard to the economic conditions prevailing, there is no justification; or (ii) there has been, or is likely to be, a marked deterioration in the quality of any article. which could have been or can be avoided; or (iii) there has been or is likely to be a rise in the price of any article. . for which there is no justification; or (iv) it is necessary to take any such action for the purpose of conserving any resources of national importance; or (b) any industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.
After the investigation is made under section 15, section 16(1) empowers the Central Government if action is desirable, to issue appropriate directions, and section 16(2) provides for the issue of interim directions by the Central Government pending investigation under section 15.
Chapter III A consisting of Sections 18A, 18 AA, 18 B, 18 C, 18 D, 18 E and 18 F deal with "direct management or control of Industrial Undertakings by Central Government in certain cases".
18 A empowers the Central Government by notified order, to authorise any person or body of persons to take over the management of the whole or any part of an industrial undertaking or to exercise in respect of the whole, or any part of the undertaking such functions of control as may be specified in the order, if the Central Government is of opinion that: (a) an industrial undertaking to which directions have been issued in pursuance of section 16 has failed to comply with such directions, or (b) an industrial undertaking in respect of which an investigation has been made under 534 section 15 is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.
Section 18AA(5) stipulates that the provisions of Sections 18 B to 18 E shall be applicable to the industrial undertaking in respect of which an order has been made under section 18 AA even as they apply to an industrial undertaking taken over under Section 18 A. Section 18 F empowers the Central Government to cancel the order made under section 18 A if it appears that the purpose of the order has been fulfilled or it is not necessary that the order should remain in force.
The appellant M/s. Swadeshi Cotton Mills was taken over by the Government of India by a notification dated April 13, 1978 in exercise of the powers conferred on it under clause (a) of sub section (1) of section 18AA of the Industries (Development and Regulation) Act, 1951 on the ground that the company had by creation of encumbrances on the assets of its industrial undertakings, brought about a situation which had affected and is likely to further affect the production of articles manufactured or produced by it and that immediate action is necessary to prevent such a situation.
The Government authorised the National Textile Corporation Limited to take over the management, subject to the conditions that the authorised person shall comply with all the directions issued from time to time by the Central Government and that the authorised person shall hold office for a period of five years.
The appellant Mills challenged the aforesaid order in a writ petition in the High Court.
The case was heard by a Full Bench of five Judges to consider the question whether in construing section 18AA of the Industries Development and Regulation Act, 1951, compliance with the principle of audi alteram partem is to be implied and whether hearing is to be given to the parties who would be affected by the order to be passed prior to the passing of the order or whether hearing can be given after the order is passed and whether the order passed under the said Section is vitiated by not giving of such hearing and whether such vice can be cured.
The Bench by a majority answered the three questions as follows: (a) Section 18AA(1)(a)(b) excludes the giving of prior hearing to the party who would be affected by order thereunder.
(b) Section 18 F expressly provides for a post decisional hearing to the owner of the industrial undertaking, the management of which is taken over under section 18AA to have the order made under section 18AA cancelled on any relevant ground.
(c) As the taking over of management under section 18A is not vitiated by the failure to grant prior hearing the question of any such vice being cured by a grant of a subsequent hearing does not arise.
The minority, however, held that in compliance with the principles of natural justice, prior hearing to the owner of the undertaking was required to be given before the passing of an order under section 18AA, that the second question did not arise as the denial of a prior hearing would not cure the vice by the 535 grant of subsequent hearing, but it would be open to the Court to moderate the relief in such a way that the order is kept alive to the extent necessary until the making of the fresh order to subserve public interest and to make appropriate directions.
After the decision on the reference the case was reheard on merits by a Full Bench of three Judges and the writ petition was allowed in part.
The challenge to the validity of the order being rejected but insofar as the impugned order seeking to take over the corporate entity of the company, the corporate entity of the subsidiary and its assets, the petition was allowed and the respondents, the Union of India and the authorised person were directed to release from its control and custody and/or deliver possession of any assets or property of the company which were not referable to the industrial undertakings.
Appeals to this Court were filed on behalf of the Company as well as by the Union of India and the National Textile Corporation.
Two propositions were propounded on behalf of the company that: (a) Whether it was necessary to observe the rules of natural justice before issuing a notified order under section 18AA(1)(a) and further whether section 18 F impliedly excludes rules of natural justice relating to prior hearing; and it was contended (1) the mere use of the word 'immediate ' in sub clause (a) of section 18AA does not show a legislative intent to exclude the application of audi alteram partem rule altogether.
(2) The word 'immediate ' in clause (a) has been used in contra distinction to 'investigate '.
It only means that under section 18AA action can be taken without prior investigation under section 15.
The use of the word 'immediate ' in section 18AA(1)(a) only dispenses with investigation under section 15 and not with the principle of audi alteram partem altogether and this is indicated by the marginal note of section 18A and para 3 of the Statement of Objects and Reasons of the Amendment Bill which inserted section 18AA in 1971.
(3) The word 'immediate ' occurs only in clause (a) and not in clause (b) of section 18AA(1).
It would be odd if intention to exclude this principle of natural justice is spelt out in one clause of the sub section when the other clause does not exclude it.
(4) Section 18 F does not exclude a pre decisional hearing.
The so called post decisional hearing contemplated by section 18 F cannot be and is not intended to be a substitute for a pre decisional hearing.
(5) Section 18F incorporates only a facet, albeit qualified, of section 21 of the General Clauses Act.
The language of the Section implicity prohibits an enquiry into circumstances that led to the passing of the order of take over and under it the aggrieved person is not entitled to show that on merits the order was void ab initio.
(6) 'Immediacy ' does not exclude a duty to act fairly because even an emergent situation can co exist with the canons of natural justice.
The only effect of urgency on the application of the principle of fair hearing would be that the width, form and duration of the hearing would be tailored to the situation and reduced to the reasonable minimum so that it does not delay and defeat the purpose of the contemplated action.
(7) Where the civil consequences of the administrative action are grave and its effect is highly prejudicial to the rights and interests of the person affected and there is nothing in the language and scheme of the statute which unequivocally excludes a fair pre decisional hearing and the post decisional hearing provided therein is not a real remedial hearing equitable to a full right of appeal the Court should be loath to infer a legislative intent to exclude even a minimal fair hearing at the 536 pre decisional stage merely on ground of urgency.
(8) The Central Government appointed four Government Officials including one from the office of the Textile Commissioner to study the affairs of the Company and to make recommendation.
This Official Group submitted its report on February 16, 1978.
The evidence on the basis of which the impugned order was passed was not disclosed to the appellant company till May 1978, only after it had filed the writ petition in the High Court.
If there was anything adverse to the appellants in the survey report there was time enough about six weeks between the submission of the Survey Report and the passing of the impugned order for giving a short, reasonable opportunity to the appellants to explain the adverse findings against them.
If there was immediacy situational modifications could be made to meet the requirement of fairness, by reducing the period of notice; that even the manner and form of such notice could be simplified to eliminate delay, that telephonic notice or short opportunity for furnishing their explanation to the Company might have satisfied the requirements of natural justice.
Such an opportunity of hearing could have been given after the passing of a conditional tentative order and before its enforcement under section 18AA.
For the interregnum suitable interim action such as freezing the assets of the Company or restraining the Company from creating further encumbrances, could be taken under section 16.
On behalf of the Union of India and the Authorised Officer it was contended that (1) the presumption in favour of audi alteram partem rule stands impliedly displaced by the language scheme, setting and the purpose of the provision in section 18AA.
(2) Section 18AA on its plain terms deals with situations where immediate preventive action is required.
The paramount concern is to avoid serious problems which may be caused by fall in production.
The purpose of an order under section 18AA is not to condemn the owner but to protect the scheduled industry.
The issue under section 18AA is not solely between the Government and the management of the industrial undertaking.
The object of taking action under this Section is to protect other outside interests of the community at large and the workers.
(3) The rule of natural justice to give a hearing has been incorporated in section 18 F which gives an opportunity of a post decisional hearing to the owner of the undertaking who if he feels aggrieved can on his application be heard, to show that even the original order under section 18AA was passed on invalid grounds and should be cancelled or rescinded.
(4) On a true construction of section 18AA read with section 18 F the requirements of natural justice and fair play can be read into the statute only insofar as conformance to such canons can reasonably and realistically be required of it by the provision for a remedial hearing at a subsequent stage.
(5) Under section 18 F the Central Government exercises curial functions and that Section confers on the aggrieved owner a right to apply to the Government to cancel the order of take over.
This section casts an obligation on the Central Government to deal with and dispose of an application filed thereunder with reasonable expedition.
Allowing the appeal by the Company, ^ HELD: (Sarkaria & Desai, JJ.
per Chinnappa Reddy, J. dissenting.) In the facts and circumstances of the instant case, there has been a noncompliance with the implied requirement of the audi alteram partem rule of 537 natural justice at the pre decisional stage.
The impugned order could be struck down as invalid on that score alone.
But in view of the commitment / concession that a hearing would be afforded to the Company, the case is remitted to the Central Government to give a full, fair and effective hearing.
[587G H, 588C] 1.
The phrase 'natural justice ' is not capable of a static and precise definition.
It cannot be imprisoned in the straight jacket of a cast iron formula.
Rules of natural justice are not embodied rules.
Hence not possible to make an exhaustive catalogue of such rules.
Two fundamental maxims of natural justice have now become deeply and indelibly ingrained in the common consciousness of mankind as pre eminently necessary to ensure that the law is applied impartially objectively and fairly.
These twin principles are (i) audi alteram partem and (ii) nemo judex in re sua.
Audi alteram partem is a highly effective rule devised by the Courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of power.
Its reach should not be narrowed and its applicability circumscribed.[554C G] 2.
The rules of natural justice can operate only in areas not covered by any law validly made.
If a statutory provision either specifically or by inevitable implication excludes the application of the rules of natural justice then the Court cannot ignore the mandate of the Legislature.
Whether or not the application of the principles of natural justice in a given case has been excluded in the exercise of statutory power depends upon the language and basic scheme of the provision conferring the power, the nature of the power the purpose for which it is conferred and the effect of that power.
[556A B] 3.
The maxim audi alteram partem has many facets.
Two of them are (a) notice of the case to be met, and (b) opportunity to explain.
The rule cannot be sacrificed at the altar of administrative convenience or celerity; for, convenience and justice are often not on speaking terms.
Difficulties, however, arise when the statute conferring the power does not expressly exclude this rule but its exclusion is sought by implication due to the presence of certain factors such as urgency where the obligation to give notice and opportunity to be heard would obstruct the taking of prompt action of a preventive or remedial nature.
Audi alteram partem rule may be disregarded in an emergent situation where immediate action brooks no delay to prevent some imminent danger or injury or hazard to paramount public interests.
Section 133 of the Code of Criminal Procedure empowers the magistrates specified therein to make an exparte conditional order in emergent cases for removal of dangerous public nuisances.
Action under section 17 Land Acquisition Act furnishes another such instance.
Similarly action on grounds of public safety public health may justify disregard of the rule of prior hearing.
[556C H] 4.
Cases where owing to the compulsion of the fact situation or the necessity of taking speedy action no pre decisional hearing is given but the action, is followed soon by a full post decisional hearing to the person affected do not in reality constitute an exception to the audi alteram partem rule.
To call such cases as exception is a misnomer because they do not exclude fair play in action but adapt it to the urgency of the situation by balancing the competing claims of hurry and hearing.
[560H 561A] 5.
The general principle as distinguished from an absolute rule of uniform application seems to be that where a statute does not in terms exclude this rule 538 of prior hearing but contemplates a post decisional hearing amounting to a full review of the original order on merits then such a statute would be construed as excluding the audi alteram partem rule at the pre decisional stage.
[561G] 6.
If the statute conferring the power is silent with regard to the giving of pre decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature and no full review or appeal on merits against that decision is provided courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing shorn of all its formal trappings and dilatory features at the pre decisional stage, unless viewed pragmatically it would paralyse the administrative process or frustrate the need for utmost promptitude.
[561H] 7(i).
A comparison of the provisions of Section 18A(1)(b) and Section 18AA(1)(c), bring out two main points of distinction: First, action under Section 18A(1)(b) can be taken only after an investigation had been made under Section 15; while under Section 18AA(1)(a) or (b) action can be taken without such investigation.
The language, scheme and setting of Section 18AA read in the light of the Objects and Reasons for enacting this provision make this position clear beyond doubt.
Second, before taking action under Section 18A(1)(b), the Central Government has to form an opinion on the basis of the investigation conducted under section 15, in regard to the existence of the objective fact, namely: that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest; while under section 18A(1)(a) the Government has to satisfy itself that the persons incharge of the undertaking have brought about a situation likely to cause fall in production, by committing any of the three kinds of acts specified in that provision.
This shows that the preliminary objective fact attributable to the persons in charge of the management or affairs of the undertaking, on the basis of which action may be taken under section 18(A)(1)(b), is of far wider amplitude than the circumstance, the existence of which is a sine qua non for taking action under section 18AA(1).
The phrase "highly detrimental to the scheduled industry or public interest" in section 18 A is capable of being construed to cover a large variety of acts or things which may be considered wrong with the manner of running the industry by the management.
In contrast with it, action under section 18AA(1)(a) can be taken only if the Central Government is satisfied with regard to the existence of the twin conditions specifically mentioned therein, on the basis of evidence in its possession.
[569D H] 7(ii).
An analysis of section 18AA(1)(a), indicates that as a necessary preliminary to the exercise of the power thereunder, the Central Government must be satisfied "from documentary or other evidence in its possession" in regard to the co existence of two circumstances: (i) that the persons in charge of the industrial undertaking have by committing any of these acts, namely, reckless investments, or creation of incumbrances on the assets of industrial undertaking, or by diversion of funds, brought about a situation which is likely to affect the production of the article manufactured or produced in the industrial undertaking, and (ii) that immediate action is necessary to prevent such a situation.
[570B D] 8.
It cannot be laid down as a general proposition that whenever a statute confers a power on an administrative authority and makes the exercise of that power conditional on the formation of an opinion by that authority in regard 539 to the existence of an immediacy, its opinion in regard to that preliminary fact is not open to judicial scrutiny at all.
While it may be conceded that an element of subjectivity is always involved in the formation of such an opinion, the existence of the circumstances from which the inference constituting the opinion, as the sine qua non for action, are to be drawn, must be demonstrable, and the existence of such "circumstances", if questioned, must be proved at least prima facie.
[571 E G] 9.
From a plain reading of section 18AA, it is clear that it does not expressly in unmistakable and unequivocal terms exclude the application of the audi alteram partem rule at the pre decisional stage.
[574B] In the instant case, so far as Kanpur Unit is concerned, it was lying closed for more than three months before the passing of the impugned order.
There was no 'immediacy ' in relation to that unit, which could absolve the Government from the obligation of complying fully with audi alteram partem rule at the pre decisional or pre takeover stage.
[583A] Keshav Mills Co. Ltd. vs Union of India, ; ; Kamla Prasad Khetan vs Union of India, ; ; Maneka Gandhi vs Union of India, [1978] 2 S.C.R. 621; Sukhdev Singh & Ors.
vs Bhagatram Sardar Singh, ; ; A. K. Kraipak vs Union of India, ; Ridge vs Baldwin, ; ; 196; Heatley vs Tasmanian Racing & Gaming Commission, 14 Australian Law Reports 519; Nawabkhan Abbaskhan vs State of Gujarat, ; ; State of Orissa vs Dr. Bina Pani Dei, ; Ambalal M. Shah vs Hathi Singh Manufacturing Co. Ltd. ; and section L. Kapoor vs Jagmohan & Ors.
, ; , referred to.
(Per Chinnappa Reddy, J. dissenting) The principles of natural justice are not attracted to the situations contemplated by section 18AA of Industries (Development and Regulation) Act.
Natural justice like Ultra Vires and Public Policy is a branch of the public law and is a formidable weapon which can be wielded to secure justice to the citizen.
While it may be used to protect certain fundamental liberties, civil and political rights, it may be used as indeed it is used more often than not, to protect vested interests and to obstruct the path of progressive change.
The time has come to make an appropriate distinction between natural justice in its application to fundamental liberties, civil and political rights and natural justice in its application to vested interests.
[590A B] 2.
Our constitution as befits the Constitution of a Socialist Secular Democratic Republic, recognises the paramountcy of the public weal over the private interest.
Natural justice, ultra vires, public policy, or any other rule of interpretation must, therefore, conform, grow and be tailored to serve the public interest and respond to the demands of an evolving society.
[590C] 3(i).
The principles of natural justice have taken deep root in the judicial conscience of our people.
They are now considered so fundamental as to be implicit in every decision making function, judicial, quasi judicial or administra 540 tive.
Where authority functions under a statute and the statute provides for the observance of the principles of natural justice in a particular manner, natural justice will have to be observed in that manner and in no other.
Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice.
Where the conflict is between the public interest and the private interest the presumption must necessarily be weak and may, therefore, be readily displaced.
The presumption is also weak, where what are involved are mere property rights.
In cases of urgency, particularly where the public interest is involved, preemptive action may be a strategic necessity.
Even in cases of preemptive action, if the statute so provides or if the Courts so deem fit in appropriate cases, a postponed hearing may be substituted for natural justice.
[590A C; 591F G] 3(ii).
Where natural justice is implied, the extent of the implication and the nature of the hearing must vary with the statute, the subject and the situation.
[592B] 4.
The absence of the expression 'immediate action ' in section 18AA(1)(b) does not make any difference.
Section 18AA(1)(a) refers to a situation where immediate preventive action may avert a disaster, whereas section 18AA contemplates a situation where the disaster has occurred and action is necessary to restore normalcy.
Restoration of production where production has stopped in a key industry or industrial undertaking is as important and urgent in the public interest as prevention of a situation where production may be affected.
Immediate action is, therefore, as necessary in the situation contemplated by section 18AA(1)(b) as in the situation contemplated by section 18AA(1)(a).
[596 F G] 5.
The marginal note refers to the power to take over without investigation but there is no sufficient reason to suppose that the word immediate is used only to contra distinguish it from the investigation contemplated by section 15 of the Act, though of course a consequence of immediate action under section 18AA may be to dispense with the enquiry under section 15.
In fact, facts which come to light during the course of an investigation under section 15 may form the basis of action under section 18AA(1)(a).
Where in the course of an investigation under section 15 it is discovered that the management have, by reckless investments or creation of encumbrances on the assets of the industrial undertaking or by diversion of funds brought about a situation which is likely to affect the production of the articles manufactured or produced in the industrial undertaking, if the Government is satisfied that immediate action is necessary to prevent such a situation, there is no reason why the Central Government may not straightaway take action under section 18AA(1)(a) without waiting for completion of investigation under section 15.
[597A B] 6.
Where there is a provision in the statute itself for revocation of the order by the very authority making the decision, it appears to be unnecessary to insist upon a pre decisional observance of natural justice.
[598A] 7.
The likelihood of production being jeopardized or the stoppage of production in a key industrial undertaking is a matter of grave concern affecting the public interest.
Parliament has taken so serious a view of the matter that it has authorised the Central Government to take over the management of the industrial undertaking if immediate action may prevent jeopardy to production or restore production where it has already stopped.
The necessity for immediate 541 action by the Central Government contemplated by Parliament is definitely indicative of the exclusion of natural justice.
It is not as if the owner of the industrial undertaking is left with no remedy.
He may move the Central Government under section 18 F to cancel the order made under section 18AA.
[598C D] 8.
Neither section 18 F of the Industries (Development and Regulation) Act nor section 21 of the General Clauses Act by itself excludes natural justice.
The exclusion of natural justice where such exclusion is not express has to be implied by reference to the subject, the statute and the statutory situation.
Where an express provision in the statute itself provides for a post decisional hearing the other provisions of the Statute will have to be read in the light of such provision and the provision for post decisional hearing may then clinch the issue where pre decisional natural justice appears to be excluded on the other terms of the statute.
That a post decisional hearing may also be had by the terms of section 21 of the General Clauses Act may not necessarily help in the interpretation of the provisions of the statute concerned.
[599 A C] Ridge vs Baldwin, 1964 A.C. p. 40; Annie G. Phillip vs Commissioner of Internal Revenue; , ; John H. Fahey vs Paul Mallonee, ; ; Margarita Fuentes vs Robert L. Shevin, Attorney General of Florida; , and Lawrence Mitchell vs W. T. Grant Co., ; , referred to.
|
Civil Appeal No. 1872 of 1970.
From the judgment and decree dated the 24th December, 1969 of the Calcutta High Court in appeal from Original Decree No. 843 of 1966 (Probate) S.S. Ray and section Ghosh for the Appellant.
V.S. Desai D.N. Mukherjee and N.R. Choudhary for the Respondents.
1190 The Judgment of the Court was delivered by BAHARUL ISLAM, J.
This appeal by certificate granted by the Calcutta High Court under Article 133(1) (b) of the Constitution is from a decree dated December 24, 1969 and arises out of a probate suit.
The material facts may be briefly stated as follows.
One Manindra Chandra Bose (original respondent No. 1 since deceased) and Jogendra Nath Mitra (respondent No. 2 before us) filed an application before the Subordinate Judge, Alipore, for probate of a will alleged to have been executed by one Ranendra Chandra Bose on November 8, 1952, Jitendra Chandra bose, a brother of the testator entered caveat and filed a written statement and contested the application for probate.
The plaintiffs ' case was that Renendra died unmarried on November 16, 1952, leaving the alleged will (Exhibit 1) executed on November 8, 1952.
Ranendra left behind him three brothers Jitendra, aforesaid, Gopendra and plaintiff No. 1.
Manindra.
Manindra and Jogendra (plaintiff No. 2) had been appointed executors of the will.
By the will Ranendra bequeathed one half of his properties to his nephew, Bhabesh, who was the son of his younger brother, Phanindra, who had pre deceased him, and the remaining half to his younger brother Manindra for life, and after his (Manindra 's) death to Bhabesh absolutely.
During the pendency of the suit, Jitendra died and his heirs who were substituted, contested the suit.
The contentions of the defendants were that Ranendra on November 8, 1952, was not in a physical or mental condition to execute a will; he was in a semiconscious state of mind and had not the testamentary capacity to execute the alleged will.
They alleged that the will was brought into existence at the instance, and under the influence of, the propounder Manindra; that the signatures of Ranendra on the will were not genuine and that must have been obtained on blank papers by Manindra who was looking after the properties of Ranendra as well as all litigations in which Ranendra was involved.
The trial court found that the signatures of the testator and the attesting witnesses on the will were genuine, and that the provisions of the will was neither unfair nor unnatural.
But he dismissed the suit and refused to grant probate of the will on the ground that there were certain "doubts and suspicions about the condition of the testator 's mind on 8.11.1952".
1191 5.
The plaintiffs filed an appeal before the high Court.
The High Court held that "there was no suspicious circumstance relating to the will and whatever little suspicion there was has been satisfactorily explained by the plaintiff", with the result that the High Court set aside the decree of the trial court and granted probate of the will.
The judgment and decree of the High Court has been challenged by the appellants before us.
Mr. S.S. Ray, learned counsel appearing for the appellants has not challenged the trial court 's findings that the signatures of the testator and the signatures of the attesting witnesses on the will were genuine.
In other words, the execution and the attestation of the will have not been challenged before us.
The only submission of learned counsel is that the "suspicious circumstances" surrounding the execution of the will have not been satisfactorily explained by the propounders.
This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by Section 63 of the Successions Act.
The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus.
Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine.
Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court.
The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator 's mind, the disposition made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator 's mind was not free.
In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator.
If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence.
If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might 1192 cut off wholly or in part near relations.
(See AIR 1964 SC 529, [1959] Suppl.
1 SCR 426 & [1962]3 SCR 195).
Needless to say that any and every circumstance is not a 'suspicious ' circumstance.
A circumstance would be 'suspicious ' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
Learned counsel relied on the decision of this Court in the case of Rani Purnima Devi and Another vs Kumar Khagendra Narayan Dev and Another.
In this case the will in question gave the entire property by the testator to a distant relation of his to the exclusion of the testator 's widow, sister and his other relations, and even his daughter, who would be his natural heirs, but subject, of course, to the condition that the legatee would maintain the widow and the sister of the testator.
The testator 's signatures were not his usual signatures, nor in the same ink as the rest of the will; the testator used to sign blank papers for use in his cases in court and he used to send them to his lawyer through his servants; the testator did not appear before the Sub Registrar for the purpose of registration of the will but the Sub Registrar sent only his clerk to the residence of the testator for the purpose of registration; there were 16 attesting witnesses who attested the will, but of them, only 4 interested witnesses were examined to the execution of disinterested witnesses.
The above are undoubtedly suspicious circumstances, circumstances creating doubt in the mind of the Court.
In spite of these circumstances, it was held by the Trial Court that the will was duly executed and attested.
On appeal, the High Court affirmed the order of the Trial Court.
On further appeal, this Court held that the circumstances were suspicious and were not satisfactorily explained and hence held that "the due execution and attestation of the will were not proved.
As in the instant appeal, the judgment of the High Court is one of reversal of the judgment of the Trial Court, we should also examine the law under which the order of the appellate court can be or should be interfered with, inasmuch as learned counsel has cited the two following decisions before us, and urged that the High Court ought not to have interfered with the judgment of the Trial Court.
The first case cited is The Bank of India Ltd. and others vs Jamsetji 1193 A.H. Chinoy and Messrs. Chinory and Co.
In that case the Privy Council has held: "The appellate Court would be reluctant to differ from the conclusion of the trial Judge if his conclusion is based on the impression made by a person in the witness box.
If however, the trial Judge based his finding and his opinion of the person on a theory derived from documents and a series of inferences and assumptions founded on a variety of facts and circumstances which, in themselves, offer no direct or positive support for the conclusion reached, the right of the appellate Court to review this inferential process cannot be denied.
" The other case cited is Madholal Sindhu of Bombay vs Official Assignee of Bombay and others, in which the Federal Court held: "It is true that a Judge of first instance can never be treated as infallible in determining on which side the truth lies and like other tribunals he may go wrong on question of fact, but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the appeal Court should not lightly interfere with the judgment.
Keeping the above principles of law in view let us now turn to the facts of the present case.
Learned counsel for the appellant has enumerated the following 11 'suspicious ' circumstances: (i) Attempt on the part of the propounder to conceal the real nature of testator 's illness.
(ii) The propounder failed to tell the date when the testator went to his lawyer (P.W. 3s ') house or when the draft was given by the lawyer to the testator.
(iii)The draft has not been produced and no explanation has come forth as to what happened to the draft.
1194 (iv) No date has been mentioned when the testator sent for his lawyer trough Banqshidhar for corrections in the draft.
(v) The diary of P.W. 3 has not been produced.
(vi) The senior lawyer (Sudhangshu Babu) has not been examined.
The lawyer examined, namely P.W.3, is a partisan witness.
(vii)Banqshidhar has not been examined as a witness although he was attending court during the trial of the suit.
(viii)The statement of the propounder, Manindra, that he knew about the will only three or four days after its execution cannot be accepted as true when one of the attesting witnesses, namely P.W. 5, had been told of it a month earlier.
(ix) No body knows what alterations were made in the draft.
(x) The scribe and one of the attesting witnesses are employees, another witness (P.W.4) is a friend and the other attesting witness (P.W.5) is a relation.
(xi) The evidence of the propounder, Manindra, is partly false; he disavows all knowledge of the will.
A careful perusal of the above circumstances shows that they are by no means suspicious circumstances and stand self explained.
Circumstances Nos.
(ii) and (iv) are really test of memory.
It may be remembered that the witnesses were deposing thirteen years after the execution of the will.
It will be difficult for any witness after such a long lapse of time to give the dates when the testator went to the house of his lawyer or when the draft was given by the lawyer to the testator or when the testator sent for the lawyer through Banqshidhar for correction of the draft.
With regard to circumstance No. (iii) there is no evidence to show that there was any invariable practice that the draft of a will had to be preserved.
No question was put in cross examination to the scribe (P.W. 1) who perhaps might have been able to say what he had done with it.
Similar is the position with regard to the diary of P.W. 3.
P.W. 3 1195 who deposed that his diary would show that he had drafted the will was not asked in cross examination as to whether he at all preserved in 1965 the diary of 1952 or whether he could produce it.
With regard to grievances Nos.
(vi) and (vii) we do not see any necessity of calling the testator 's employee Banqshidhar, as witnesses in the case.
So far as Sudhangshu Babu was concerned, Manindra was not asked as to why he had not been called as a witness; possibly he had died as P.W. 3 spoke of him as "my late senior".
With regard to circumstance No. (ix), it may be said that there was no necessity of knowing what alterations had been made in the draft.
With regard to the circumstance that the scribe and the attesting witnesses were either employees, or friend or relation of the propounders ' group, the answer is simple.
No body would normally invite a stranger or a foe to be a scribe or a witness of a document executed by or in his favour; normally a known and reliable person, a friend or a relation is called for the purpose.
The same argument applies to P.W.3 who is said to be a partisan witness for the reason that he was the testator 's advocate.
But there is nothing to show that he was not telling the truth in his deposition.
With regard to the circumstances Nos.
(viii) and (x) that Narendra was not telling the whole truth, when he said that he had come to know of the will three or four days after its execution the complaint may be correct, although it was not impossible that he had not been taken into confidence in the matter of the will in his favour, although P.W. 5 had been.
Another possibility is that Manindra deposed so in order to avoid cross examination.
In any case this does not appear to be a suspicious circumstance surrounding the execution of the will.
With regard to circumstance No. (i), the submission is that the testator, according to the medical evidence, was at the time of the execution of the will suffering from high blood pressure, diabetes, acidosis, kidney trouble and that he had no food for two days before 8.11.1952.
The evidence of P.W.2 Naresh C. Das Gupta who is a medical practitioner is that "Ranen Babu was not taking his meals and usual food", which means, he was taking sick diet with 'hydro protien ' prescribed by him.
But P.W. 2 deposes in cross examination that "the patient was not in coma .
The patient had talks with me on the last day" which was eight days after the execution of the will when the testator "suddenly" died of coronary thrombosis in the lap of his employee, Banqshidhar.
There is no evidence that Ranendra did not have the mental capacity to execute the will.
Even D.W. 2 Sailendra Bose who visited Ranendra during his illness, and 1196 D.W. 1, Dr. Amal Chakravorty who deposed by perusing the prescriptions, did not depose that Ranendra was in coma or had lost his mental faculty.
On the contrary the following circumstances lend strong support to the plaintiff 's case of genuineness and valid execution of the will.
(1) Gopendra, one of the brothers, who has not been given anything under the will had filed a written statement stating that he "has no objection to the grant of probate inasmuch as the will is executed and attested according to law.
" (2) The disposition under the will is quite fair and there are no suspicious circumstances in it at all.
(3) As there were litigations between the two groups of the brothers, the will was the natural outcome to avoid further future litigation.
We do not find any suspicious circumstance surrounding the execution of the will.
The circumstances pointed out by learned counsel are not only not suspicious but normal as pointed out above.
The rule, as observed by the Privy Council, is that "where a will is charged with suspicion, the rules enjoin a reasonable septicism, not as obdurate persistence in disbelief.
They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity.
He is never required to close his mind to the truth.
" (See 14.
The trial court was wrong in holding that the circumstances in question were suspicious and the High Court was fully justified in setting aside the judgment of the trial court.
We are in entire agreement with the judgment of the High Court.
In the result this appeal fails and is dismissed with costs.
S.R. Appeal dismissed.
| IN-Abs | One Ranendra died unmarried on November 16, 1952 leaving the alleged will (Exhibit 1) executed on November, 8, 1952.
Ranendra left behind him three brothers Jitendra Chandra Bose, Gopendra and Manindra plaintiff No. 1.
Manindra and Jogendra (Plaintiff No. 2) had been appointed executors of the will.
By the will Ranendra bequeathed one half of his properties to his nephew, Bhabesh, who was the son of his younger brother, Phanindra, who had predeceased him, and the remaining half to his younger brother Manindra for life, and after Manindra 's death to Bhabesh absolutely.
The executors of the will as aforesaid filed an application before the Subordinate Judge.
Alipore, for probate of a will executed by Ranendra.
Jitendra entered caveat and filed a written statement and contested application for probate.
During the pendency of the suit, Jitendra died and his heirs who were substituted, contested the suit.
The contentions were that Ranendra was not in a physical or mental condition to execute a will; he was in a semi conscious state of mind and had not the testamentary capacity to execute the alleged will and that the alleged will was brought into existence at the instance, and under the influence of the propounder Manindra; that the signatures of Ranendra on the will were not genuine.
The trial court found that the signatures of the testator and the attesting witnesses were genuine and that the provisions of the will was neither unfair nor unnatural.
But the trial court dismissed the suit and refused to grant probate of the will on the ground that there were certain "doubts and suspicions about the condition of the testator 's mind on 8 11 1952".
In appeal before the High Court, the decree of the trial court was set aside and the propounder was granted probate of the will.
Dismissing the appeal by certificate granted by the Calcutta High Court under Article 133(1)(b) of the Constitution, the Court, ^ HELD: 1.1.
The mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by section 63 of the Successions Act.
[1191 D] 1:2.
The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of test a 1189 mentary capacity and the signature of the testator as required by law is sufficient to discharge the onus.
Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine.
Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court.
The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator 's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator 's mind was not free.
In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator.
If the propounder himself takes the prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence.
If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations.
[1191 D H 1192 A] Shashi Kumar Banerjee & Ors.v.
Subodh Kumar Banerjee & Ors, A.I.R. 1964 S.C. 529; H. Venkatachala Iyengar vs B.N. Thimmajamma & Ors., [1959] Supp. 1 S.C.R. 426; Rani Purnima Devi and Another vs Kumar Khagendra Narayan Dev and Another, followed.
A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
[1192 A B] 1:4.
A careful perusal of the eleven circumstance shows that they are by no means suspicious circumstances and stand self explained.
On the contrary the following circumstances lend strong support to the plaintiffs ' case of genuineness and valid execution of the will: (i) Gopendra one of the brothers, who has not been given anything under the will had filed a written statement stating that the "has no objection to the grant of probate inasmuch as the will is executed and attested according to law"; (ii) the disposition under the will is quite fair and there are no suspicious circumstances in it at all; (iii) as there were litigations between the two groups of the brothers, the will was the natural outcome to avoid further future litigation.
B C] Harmes and Anr vs Hinkson, , referred to.
|
ition No. 4675 of 1978.
(Under article 32 of the Constitution of India) M.C. Bhandare, Mrs. Urmila Kapoor, Mrs. Shobha Dikshit, Hasan Imam, Shanker Saran Lal and Miss Kamlesh Bansal for the Petitioners.
1086 O.P. Rana and section Markandeya for Respondents Nos.
Anil B. Dewan, K.L. Hathi, P. Parmeswaran, P.C. Kapoor and M.A. Quadeer for Respondents Nos.
Haider Abbas and Miss Kamini Jaiswal for Respondent No. 8 (Shia Waqf Board, U.P.) F.S. Nariman, M. Qamaruddin, Mrs. M. Qamaruddin, Z. Jilani and Mrs. Sahkil Ahmed for Respondent No. 7 (U.P. Sunni Central Board of Waqf) M.C. Dhingra for Intervenor Institute for Re writing History.
The Judgment of the Court was delivered by TULZAPURKAR, J.
By this writ petition filed under article 32 of the Constitution of India the petitioners and through them the Shia community of Mohalla Doshipura, Varanasi are complaining against the various actions of the respondents (including respondents 5 and 6 as representing the Sunni community of Mohalla Doshipura) which constitute serious infraction and/or infringement of their fundamental rights guaranteed to them under articles 25 and 26 of the Constitution in the matter of enjoying their religious faith and performance of religious rites, practices and observances on certain plots and properties situated in the said Mohalla of Doshipura, Police Station Jaitpura (formerly Adampur) in the city of Varanasi and in particular are seeking a declaration that the 9 plots of land bearing plot Nos. 245, 246, 247, 248/23/72, 602, 603, 602/1133, 246/1134 and 247/1130 in the said Mohalla and buildings and structures thereon belong to the Shia Waqf of Mohalla Doshipura and that the members of Shia community of that Mohalla have a right to perform their religious functions and practices on the said plots and structures thereon as also an appropriate writ, direction or order in the nature of mandamus commanding respondents 1 to 4 not to prohibit or restrain the Shias of the Mohalla from performing their religious functions and practices thereon.
It may be stated that this Court by its order dated December 12, 1978 not merely granted permission to the petitioners under Order I Rule 8 C.P.C. to institute this action qua themselves as representing the Shia community and respondents 5 and 6 as representing Sunni community, but directed at certain stage of the hearing that the two Waqf Boards in U.P. State, namely, Shia 1087 Central Waqf Board and Sunni Central Waqf Board be impleaded as parties to the petition as their presence was felt necessary for complete adjudication of the controversy and even otherwise under the U.P. Muslim Waqf Act, 1960, which has been done and both the Waqf Boards have also been heard through their counsel in the matter.
In Mohalla Doshipura of Varanasi City there are two seats of mohammedan the Shias and the Sunnis.
Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grand sons of Prophet Mohammed, during the MOHARRAM but in a different manner.
The case of the petitioners and through them of the Shias of Mohalla Doshipura is that the members of their sect numbering about 4000 constitute a religious denomination having a common faith and they observe MOHARRAM for two months and eight days in a year in memory of Hazrat Imam Hussain who alongwith his 72 followers attained martyrdom at Karbala in Iraq.
The said religious belief is practised by the men folk and the women folk of the Shia community by holding Majlises (religious discourses), Recitations, Nowhas, Marsia, doing Matam (wailing) and taking out processions with Tabut Tazia, Alama, Zuljinha, etc.
For performing these religious rites, practices and observances the Shia community has been customarily using from time immemorial the nine plots in Mohalla Doshipura and the structures on some of them, particulars whereof are as under: Plot No. 246: on which stands a Mosque which, it is common ground, belongs to both the sects as it was constructed out of general subscription from members of both the sects and every Mohammedan is entitled to go in and perform his devotions according to the ritual of his own sect or school.
Plot No. 247/1130: on which stands the Baradari (Mardana Imambara structure of white stone having 12 pillars) constructed by Shias in 1893 used for holding Majlises, Recitations, Marsia and doing other performances.
Plot No. 245: on which there is a Zanana Imambara used by Shias ladies for mourning purposes and holding Majlises etc.
1088 Plot No. 247: on which there is Imam Chowk used for placing the Tazia thereon (said to have been demolished by the Sunnis during the pendency of the instant proceeding).
Plot No. 248/23/72: a plot belonging to one Asadullah, a Shia Muslim, with his house standing thereon.
Plot No. 246/1134: on which stands a Sabil Chabutra (platform for distributing drinking water) belonging to one Nazir Hussain, a Shia Muslim.
Plots Nos.
602/1133, 602 and 603: being vacant plots appurtenant to the Baradari in plot No. 247/1130 used for accommodating the congregation assembled for Majlises etc.
when it over flows the Baradari.
Particulars of the religious rites, practices and functions performed by the members of the Shia community on the occasion of the observance of MOHARRAM RE: (a) the Tazia (representing and signifying the dead body of Hazrat Imam Hussain) is kept in the Baradari on plot No. 247/1130 and for the first 12 days of MOHARRAM Majlises (religious discourses) of men folk and women folk is held daily by the men folk in the Baradari and on the adjoining plot Nos 602/ 1133, 603 and 602 and by the women folk in the Zanana Imam Bara on Plot No. 245.
(b) On the 6th day of MOHARRAM the Zuljana procession (a procession of the replica of the horse of Prophet Mohammed, which was also killed at the Karbala at the time of martyrdom of Hazarat Imam Hussain) of not less than 5000 Shias from all over Banaras City is brought to the Baradari in which the Tazia is placed and after visiting the Tazia there the horse procession moves in the whole city of Varanasi non stop for another 36 hours and terminates at the place of its origin.
Offerings to the horse are made not only by the Shias 1089 but also by persons of other communities during the procession under the religious belief that such offerings bring in good fortune.
(c) On the 10th day of MOHARRAM, the Tazia bedecked with flowers is taken out in huge procession to Karbala situated near Lord Bharon, 3 miles from Doshipura (the place signifying the Karbala in Iraq where martyrdom occurred), where the flowers of the Tazia are buried and then Majlis is held at that place.
(d) On the 11th and 12th day of MOHARRAM Majlis (religious discourse) is held and the Qurankhani and Tajia are performed in the Baradari and the adjoining plots which consist of offering of prayers, recitations of Quran Sharif, Nowhaz (short melancholic poems) and Marsias (poems of grief and sorrow) these being performed both by men folk and women folk, the latter at Zanana Imam Bara.
(e) On the 25th day of MOHARRAM, being the death anniversary of Hazarat Zanulabadin s/o Hazrat Imam Hussain, again Majlis, Matam (wailing accompanied by breast beating), Nawhaz and Marsias are held and performed in the Baradari and the adjoining plots by men and in Zanana Imambara by women.
(f) On the 40th day of the MOHARRAM Chehalum ceremony of Hazrat Imam Hussain is performed when Majlis, Matam, Nawhaz and Marsia are held, the Tazia bedecked with flowers is taken out in procession up to Karbala near Lord Bhairon where again the flowers are buried with religious ceremonies and the Tazia is brought back to the Baradari in Doshipura.
(g) On the 50th day of the MOHARRAM i.e. 50th day of the martyrdom of Hazrat Imam Hussain Pachesa is performed by taking out the Tazia again in procession to the Karbala and after burial of flowers it is brought back to the Baradari.
On both these days i.e. Chehalum and Pachesa, Majlis, Qurankhani, Nawhaz, Marsias and Matam are performed on the Baradari, 1090 adjoining plots and the Zanana Imam Bara in Doshipura.
(h) Four days after the Moharram period the Shias observe the Barawafat which according to them is the death anniversary of Prophet Mohammad and on this day again on the Baradari, adjoining plots and Zanana Imambara Majlis is held which is accompanied by Qurankhani, Nawhaz and Marsias in which menfolk and women folk participate.
It is the case of petitioners that the Tazia at Doshipura is a unique Tazia in the whole country, being made of fine wood carvings, about 15 ft.
in height, having five storeys, and decorated with gold and silver and would be of the value of not less than Rs. 3 lakhs.
According to the petitioners the entire period of Moharram is a period of mourning for the Shias whose staunch belief is that the whole purpose of their life is to carry out these religious practices and functions during the MOHARRAM and that in case they do not perform all these rites, practices, observances and functions, including those relating to the Tazia, they will never be delivered and till these are performed the whole community will be in mourning and in none of their families any marriage or other happy function can take place.
The aforesaid religious faith and the performance of the rites, practices, observances and functions detailed above constitute their fundamental rights guaranteed to them under articles 25 and 26 of the Constitution and the members of the Shia community of Mohalla Doshipura have a customary right to perform these on the said nine plots and in or about the structures standing thereon from time immemorial.
The Petitioners and through them the Shia community of Mohalla Doshipura are basing their customary rights to perform the aforesaid religious rites, practices, observances and functions on the said nine plots and the structures thereon on two foundations: (1) Decisions of competent civil courts adjudicating these rights in their favour in earlier litigations and (2) Registration of Shia Wakfs concerning the plots and structures for performance of these practices and functions under secs.
5 and 38 of the U.P. Muslim Wakfs Act, 1936 which has become final as no suit challenging the Commissioner 's Report and registration was filed within two years by any member of Sunni community or the Sunni Central Wakf Board.
In other words previous decisions of Civil Courts and registration of their Shia Wakfs under the U.P. Muslim 1091 Wakfs Act.
1936 have concluded the said rights in their favour and therefore Counsel for the Petitioners pointed out that the prayer for declaration in the Writ Petition was really incidental, the rights in favour of the Shia community having been already determined and the real grievance was regarding the infringement of their said rights and their enforcement and hence the substantial prayer was for mandamus commanding the respondents not to prohibit or restrain the Shias from performing their religious rites, practices, observances and functions on the plots and the structures standing thereon.
The Petitioners ' case further is that after the final declaration by the court of law in regard to their rights in their favour and the rejection of the false claims of the Sunnis the position in Mohalla Doshipura remained satisfactory for nearly two decades and the Shias could perform their religious functions and ceremonies without any let or hindrance but from the year 1960 onwards the Sunnis, who were in majority and were able to muster support of local politicians and the police, started creating trouble and interference by indulging in violence with a result that the Executive Authorities of Varanasi acting under sec.
144 Cr.
P.C. but in abuse of the power thereunder started placing undue restrictions on the members of the Shia community in the performance of their religious functions and ceremonies.
Thus during the period 1960 66 the Executive power under sec.
144 Cr.
P.C. came to be used each year to curtail the rights of the Shias to perform their religious practices and functions at the Baradari, other structures and the appurtenant plots on the occasion of the Barawafat; sometimes restraints were also placed on the Sunnis.
During the years 1967 to 1969 similar orders depriving the Shias of their legitimate rights on the occasion of MOHARRAM, Chehulam, Pachesa and Barawafats u./sec.
144 were issued by the District authorities.
In subsequent years also similar orders were passed sometimes placing restrictions on one community and sometimes on the other, sometimes permitting certain observances on terms and conditions during the stated hours.
More often than not under the pretext of imminent danger to peace and tranquility both the communities were completely prohibited from carrying out their religious functions and ceremonies under such orders but since members of the Sunni community had very little to lose in relation to the plots and structures in question it was the Shia community that suffered most.
According to the Petitioners the aggrieved party and mostly Shias were aggrieved was required to approach 1092 the superior Courts by way of appeal or revision but usually before the matter could be decided on merits the impugned orders exhausted themselves by influx of time and the remedy by way of appeal or revision was rendered infructuous and the controversy remained undecided.
However, when in the year 1973 on the occasion of Barawafat the City Magistrate, Varanasi by his order dated 12th April, 1973 prohibited the Shias from performing Barawafat on the Baradari and its adjoining plots and Sunnis were illegally permitted to observe Barawafat on Plot No. 602/1133 by reciting Qurankhani, Milad and Fathiha on 16th April, 1963 from 9 A.M. to 12 Noon Gulam Abbas and other Shia Muslims filed a Writ Petition No. 2397 of 1973 in the Allahabad High Court for quashing the order of the City Magistrate and for prohibiting the City Magistrate and local authorities from passing or promulgating any order depriving the Shia of peaceful use and enjoyment of the Baradari and the adjoining plots appurtenant to it and also prohibiting them from permitting the Sunnis to make use of the Baradari and its adjoining plots.
This Writ Petition and the connected criminal cases (being Criminal Revision and a Criminal Reference against similar earlier orders u./sec.
144 Cr.P.C.) were heard and disposed of by the High Court by a common judgment delivered on August 8, 1975.
Notwithstanding the fact that the various impugned orders had exhausted themselves by efflux of time the High Court felt that where a situation arose year after year making it necessary to take action u./sec.
144 Cr.
P.C. it would be proper exercise of its discretion to interfere with the impugned order, if found to be illegal or improper, so that the Magistrate may not be encouraged to use his powers in the same manner again when the similar situation arose and that if a repetition of successive orders under sec.
144 resulted in a permanent interference with private legal rights it had to be deprecated and the High Court went on to give guide lines to the Magistrates in the exercise of their discretionary power under sec.
144 by observing that though the section does not empower a Magistrate to decide a dispute of a civil nature between the private individuals, he must, before passing his order, take into consideration the nature of the claims set up by the rival parties in order to judge whether or not it was possible to afford protection to those who seek only the lawful exercise of the legal and natural rights, that the authority of a Magistrate under this section should ordinarily be exercised in defence of legal rights and lawful performance of duties rather than in suppressing them and that this power is not to be used in a manner that would either give material advantage to one 1093 party to the dispute over the other or interdict the doing of an act by a party in the exercise of its right or power declared or sanctioned under the decree of a competent Court.
On merits the High Court recorded its findings on the rights of the Shias in their favour in view of Civil Court 's decision in earlier litigation and quashed the City Magistrate 's order dated 12 4 1973 allowing the Sunnis and restraining the Shias from holding various religious functions on the occasion of Barawafat on the Baradari and the adjoining plots in question in Mohalla Doshipura and also passed appropriate orders in the connected criminal cases.
Against this common judgment rendered by the High Court on August 8, 1975, Civil Appeal No. 941 of 1976 and Crl.
432 to 436 of 1976 were preferred by Mohammad Ibrahim, a Sunni Muslim, all of which were disposed of by this Court by a Common judgment dated 6 12 1976 and this Court held that the High Court should not have pronounced any view on the impugned orders under sec.144 when those orders had ceased to be operative and that the High Court should not have given findings on rights, title and property depending on disputed questions of facts in a writ petition the judgment and findings of the High Court were set aside and parties were relegated to have their rights agitated or settled in a civil suit.
Feeling aggrieved by the said judgment, Gulam Abbas and others filed a Review Petition No. 36 of 1977 in Civil Appeal No.941 of 1976 which was dismissed by this Court on 16th December, 1977 after making some observations: "Questions of title cannot be decided here (under sec.
144) but previous judgment on them may have a bearing on the question whether and if so, what order could be passed under sec.
144 Cr.P.C. .It was asserted on behalf of the Petitioners (Gulam Abbas and others) that in a representative suit between Shia and Sunni sects of Muslims question of title to properties or places to which the Magistrates ' orders under sec.
144 Cr P.C. related has already been decided.
If that be so, we have no doubt that the Magistrate will respect that decision in making an order under sec.
144 Cr.
P.C. in the future.
" According to the Petitioners even after the aforesaid decision of this Court the city Magistrate, Varanasi, who had passed an order on 15 12 1977 under sec.
144 directing both the communities of Mohalla Doshipura to follow the terms and conditions laid down in this said order, on the representation being made by the Shias on 17 12 1977 bringing to his notice this Court 's order dated 16 12 1977 in the Review Petition modified his earlier order on 19 12 1977 1094 permitting holding of Majlis only at the house of Shamsher Ali but in respect of other properties postponed the passing of his order till 21 1 1978 but on that day he merely passed an order stating that his initial prohibitory order dated 15th December, 1977 as modified on 19th December, 1977 has exhausted itself as Moharram had passed off and further observed that while passing orders on the occasion of Moharram, Chehalum and Pachesa etc.
in the coming years due regard will be given to the judgment of this Court dated 16 12 1977 in Review Petition along with the decisions rendered in earlier civil litigation in representative character between the parties including the Allahabad High Court 's decision in second Appeal No. 1726 of 1935.
But one week later the same City Magistrate passed another order under sec.
144 Cr. P. C. on 28th January, 1978 on the occasion of Chehalum and Pachesa to be observed on the Baradari and the adjoining plots which was quite contrary to his earlier order dated 21 1 1978 and in utter disregard of the judgment of this Court in Review Petition No. 36 of 1977 and all other earlier judicial pronouncements in favour of the Shias; in fact by that order the City Magistrate completely prohibited every person from holding any Majlis either on the Baradari or on any portion of the adjoining plots in Mohalla Doshipura.
This order dated 28 1 1978 was challenged by way of revision in the High Court but the Revisional application was dismissed on 13 2 1978 on the ground that the impugned order had ceased to be operative by then and Revision had become infructuous.
Subsequent to this on several occasions requests were made by Shias of Mohalla Doshipura seeking permission for doing ceremonies and taking out Tazia Procession but on every occasion the City Magistrate refused permission.
In the circumstances a Writ Petition No. 3906 of 1978 was filed by Gulam Abbas and other Shia Muslims in the Allahabad High Court praying for mandamus against the State of U. P. and its Magisterial officers, Varanasi, directing them to grant permission for performing some ceremonies and taking out Tazias but the same was dismissed by the High Court in limini on 22.9.1978 principally relying on the earlier judgment dated 6.12.1976 of this Court in Civil Appeal No. 941 of 1976; Special Leave Petition No. 6226 of 1978 against the same was filed by Gulam Abbas and others but it was withdrawn on 4 12 1978 as they were advised to file the present Writ Petition.
During the hearing the Petitioners have amended their Petition by challenging the latest order passed by the City Magistrate, Varanasi on 24th November, 1979 under sec.
144 Cr. P. C. prohibiting both Shia and Sunni communities from holding their Majlises and imposing other 1095 restrictions (the restriction on Recitation of Tabarra by Shias is not challenged) on the occasion of celebration of Moharram Festival at the Baradari and the adjoining plots in question in Mohalla Doshipura.
The Petitioners have pointed out that Shias do not utter Tabarra (a ritual regarded as a filthy abuse of the elected Imams hurting the feelings of Sunnis) but have fairly conceded the justness of the prohibition against uttering Tabarra.
Petitioners have contended that the exercise of the power under sec.
144 Cr. P. C. has invariably been perverse and in utter disregard of the lawful exercise of their legal rights to perform their religious ceremonies and functions and in stead of being in aid of such lawful exercise it is in favour of those who unlawfully and illegally interfere with such lawful exercise under the facile ground of apprehension of imminent danger to peace and tranquility of the locality.
By their counter affidavit filed in reply Respondents 5 and 6 on behalf of themselves and the Sunni community have resisted the reliefs claimed by the Petitioners in the Writ Petition principally on three or four grounds.
On merits they have denied that there is clear on decisive material on record either in the form of judicial pronouncements or the registration of the Shia Wakfs of Mohalla Doshipura under the U. P. Muslim Wakfs Act, 1936 concluding in favour of Shias ' title to the concerned plots or structures thereon or their entitlement to the performance of the religious rites, practices, observances and functions on the property in question as claimed; it is contended that a clear and sharp distinction must be made between title and ownership of the concerned plots of land, title and ownership of the structures on those plots and the rights exercisable by the Shia community over the concerned plots and structures thereon and there are considerable gaps and inadequacies in the documents and the material before the Court in that behalf which can only be filled in by trial and by recording evidence and in the absence of adequate material no declaration as to the title to the plots or the structures or even as to the rights in or over the plots and structures thereon could be granted in favour of the Shia community.
In other words the contention is that a Writ Petition under Article 32 for such a relief of declaration is not maintainable in as much as the basic purpose of a Petition under Article 32 is to enforce existing or established fundamental rights and not to adjudicate and seek a declaration of such rights or entitlement thereto.
In this behalf respondents 5 and 6 have doubted and disputed the effect and binding nature of the earlier court decisions, particularly of the judgments rendered by the Munsif 's Court, Vanarasi in Suit No. 232 of 1934 1096 (Fathey Ullah & Ors.
vs Nazir Hussain and Ors.) and by the Appellate Courts in appeals therefrom, on the entire Sunni community and as regards registration of the Shia Wakfs they have contended that the position arising out of the U. P. Muslim Wakfs Act, 1936 and the U. P. Muslim Wakfs Act, 1960 in the context of the Sunni Wakfs in regard to the properties in dispute under the latter Act requires serious consideration.
As regards reliefs sought against the orders passed by a City Magistrate or Sub Divisional Magistrate under sec.
144 Cr. P. C. it is contended that no mandamus under article 32 is competent in as much as these are judicial or quasi judicial orders passed by a Court under sec.
144 Cr. P. C. and no fundamental right can be said to be infringed by any judicial or quasi judicial orders; alternatively are administrative even if it were assumed that these orders are administrative or executive orders passed by Executive Magistrates these cannot be challenged unless the Magistrate has exceeded his powers or acted in disregard to the provisions of the law or perversely and in the instant case the impugned orders subsequent to this Court 's decision dated 16 12 1977 in Review Petition No. 36 of 1977 have been passed by keeping in mind the observations or the guide lines contained in that decision and in light of the emergent situation then obtaining in the locality.
In the circumstances, the Petitioners are not entitled to any of the reliefs sought by them in the Writ Petition: Lastly, it has been contended that the present Writ Petition is barred by res judicata or principles analogous to res judicata by reason of this Court 's decisions in (a) Civil Appeal No. 941 of 1976, (b) Review Petition No. 36 of 1977 and (c) Order permitting withdrawal of SLP No. 6226 of 1978 on 4.12.1978.
In any case the view taken by a Bench of three judges of this Court in their judgment dt.
6 12 1976 and reiterated in the order dt.
16 12 1977 on the Review Petition, however wrong it may appear to be, should not be disturbed.
The two Boards, Shia Central Wakfs Board and Sunni Central Wakfs Boards impleaded as parties to the Writ Petition under this Court 's Order dated 28th March, 1980 have supported the respective cases of each community represented by the Petitioners on the one hand and respondents 5 and 6 on the other respectively and each one has placed such additional material before the court as was in its possession touching the registration of Shia Wakfs and Sunni Wakfs under the two enactments U.P. Muslim Wakfs Act, 1936 and U.P. Muslim Wakfs Act, 1960.
1097 It cannot be disputed that ordinarily adjudication of questions of title or rights and granting declaratory relief consequent upon such adjudication are not undertaken in a Writ Petition under article 32 of the Constitution and such a petition is usually entertained by this Court for enforcement of existing or established title or rights or infringement or encroachment thereof complained by granting appropriate reliefs in that behalf.
But as stated earlier, counsel for the Petitioners contended before us and in our view rightly that all that the Shia community is seeking by this Petition is enforcement of their customary rights to perform their religious rites, practices, observances and functions on the concerned nine plots and structures thereon which have already been adjudicated, determined and declared in their favour by decisions of competent Civil Courts in the earlier litigations and that the declaration sought in the prayer clause is really incidental.
It is true that title and ownership of the plots of land in question is distinct from title and ownership of structures standing thereon and both these are again distinct from the customary rights claimed by the members of the Shia community to perform their religious ceremonies and functions on the plots and the structures thereon.
However, it is clear that even if the Petitioners and through them the Shia community are unable to prove their existing or established title either to the concerned plots or to the structures standing thereon but they are able to prove that they have existing or established customary rights to perform their religious ceremonies and functions on the plots and the structures thereon simultaneously complaining of illegal deprivation or encroachment by executive officers at the behest of respondents 5 and 6 or the Sunni community the reliefs sought by them by way of enforcement of such customary rights will have to be entertained and considered on merits and whatever relief they may be found legally and properly entitled to may have to be granted to them.
This is not to suggest that the petitioners or the Shia community have failed to prove that they have existing or established title and ownership over the plots and/or over the structures thereon an aspect which will have to be considered on merits though secondarily, the primary question being whether they have succeeded in proving their subsisting entitlement to the customary rights claimed by them.
In this behalf, as stated earlier, they are basing their customary rights on two foundations, namely, decisions of competent Civil Courts adjudicating these rights in their favour and registration of Shia Wakfs concerning the plots and structures for performance of these practices and functions under secs.
5 and 1098 38 of the U.P. Muslim Wakfs Act, 1936 and we proceed to examine critically these two foundational basis.
Dealing first with Civil Court 's decisions in earlier litigations it would be necessary to refer to two or three earlier litigations and to state accurately the result in each which will have a bearing on the rival contentions of the parties hereto.
In Suit No. 849 of 1878 filed by Sheikh Sahib and Ors.
(Shia Muslims) against Sheikh Rahmatu and Ors.
(Sunni Muslims) in the Munsif 's Court at Benaras the dispute pertained to the mosque in Plot No. 246 and the Plaintiffs ' rights to hold their Majlises on 9th and 12th of MOHARRAM inside the mosque and to keep and repair their Tazia in that mosque, and the learned Munsif Shri Pramode Charan Banerji by his judgment dated 29th March, 1879 held : (a) that the disputed mosque was built by general subscription, that it belonged to members of both the sects and that every Mohammedan had a right to worship in it; (b) that the plaintiffs failed to establish their claims about the holding of the Majlises and the cooking and distribution of food in the mosque but the probabilities were that the Majlises of 9th and 12th MOHARRAM were held by them on or close to the platform on the surrounding ground and (c) that the plaintiffs had acquired by a long user a right to keep their Tazia in the Hujra (apartment) of the mosque and to repair the same in the tiled Saeban (Varandah) of the mosque and the defendants were restrained from interfering with plaintiff 's rights in respect of the above matter; the rest of the plaintiffs ' claim was dismissed.
Civil Appeal No. 73 of 1879 was preferred by the plaintiffs against that part of the decision which went against them and cross objections were filed by the defendants against declaratory relief and injunction passed against them but both the appeal as well as the cross objections were dismissed by Shri Ram Kali Choudhary, Subordinate Judge, Banaras on 16th December, 1879 and the trial court 's decree was confirmed.
In other words this litigation declared the mosque in plot No. 246 to be a public mosque at which every Mohammedan became entitled to worship and further declared the plaintiffs right to keep their Tazia in the apartment attached to the mosque and repair it in the Varandah thereof and to hold their Majlises on 9th and 12 of MOHARRAM on or near the platform on the surrounding ground of the mosque as early as on 29th March, 1879.
1099 It appears that the Sunni Muslims of Mohalla Doshipura, Varanasi repeatedly tried to put forward their false claims and rights over some of the Plots in question and in particular attempted to encroach upon plot No. 602/1133, which had been recorded as Banjar Qadim (barren land) in the revenue records, by falsely alleging that it was a grave yard where they had buried their dead.
The then Maharaja of Banaras (plaintiff No. 1) filed Suit No. 424 of 1931 in the Court of Additional Munsif, Banaras against Shamshuddin and Ors.
representing all Muslims residing in Banaras under O. 1, R. 8 C.P.C. (though the nominee defendants were Sunni Muslims) praying for a declaration of his rights as owner and Zamindar and for a permanent injunction restraining the defendants from interfering with his rights and also for removal of fictitious graves if any on that plot.
It may be stated that Shias of Varanasi had never claimed the plot to be a grave yard, though they were claiming other rights to perform their religious ceremonies and functions thereon, but only Sunnis were claiming the plot as their grave yard and therefore the suit and the reliefs were virtually directed against the Sunni Muslims residing in Banaras.
It appears that since a portion of the plot No. 602/1133 to the extent of two Biswas had been taken by one Abdul Hamid (also a Sunni) under Qabuliyat dated 7th January, 1907 on payment of Rs. 1/4/ as Parjat from the Maharaja for construction of a house and since even after his death plaintiffs Nos. 2 to 5, though in continuous possession of the said portion as Abdul Hamid 's heir 's could not construct a house over that portion because of defendants ' interference, they were also joined as co plaintiffs in the suit.
It was alleged that the defendants had interfered with the plaintiffs ' rights by claiming plot No. 602/1133 to be a grave yard and they had built some bogus graves since one year back to support their illegal stand.
The suit was contested primarily on the ground that the plot in question was an old grave yard and that the defendants (representing Sunni Muslims) had acquired a right to bury their dead in the said plot.
The suit was dismissed by the trial court, the learned Munsif holding that the plot in question was an old grave yard and the defendants had acquired customary right to bury their dead.
All the plaintiffs filed an appeal being Civil Appeal No. 134 of 1932 but subsequently plaintiffs Nos. 2 to 5 retired leaving plaintiff No. 1 (the Maharaja) alone to fight out the case.
Shri Kanhaiya Lal Nagar the learned Subordinate Judge by his judgment dated 6th February, 1933 allowed the appeal and decreed the suit in favour of the Maharaja.
In the course of his judgment he made a reference to the fact that 1100 the plot in question had become an apple of discord between the two rival Muslim communities of Shias and Sunnis, that the former was using it for holding their religious meetings on occasions of festivals, marriages and for Taziadari, with structures on adjoining places while she latter wanted to make their encroachments by burying their dead just in close proximity with the above sacred places in order to wound the former 's religious feelings but one had to look to the proprietory title and possession of His Highness the Maharaja.
On appreciation of oral and documentary evidence on record the learned Sub Judge held: (a) that the plot in question was not a grave yard but that between 1929 and 1931 attempts had been made by the Sunni Muslims to manufacture and fabricate evidence indicating that it was a grave yard; (b) that the Sunni Muslims had acquired no customary rights in the matter of burial of their dead over the plot in question; and (c) by permanent injunction he restrained the defendants and through them the Muslims of Banaras (in effect Sunni Muslims) from using the said plot in the future as a burial ground.
However, as regards the prayer for actual removal of graves he took the view that it would be a bit improper that the soul of the dead be stirred and the defendants be ordered to remove them and they were given liberty to read Fathia or attend to the graves if any (there was clear evidence of only one old grave that of one Hakim Badruddin situate on the southern side of the plot in suit as shown in Map Paper No. 3A existing since 1307 H or 45 years) with due regard to the rights of the Maharaja.
This decree was upheld by the High Court and it thus became final.
Two things become clear from the aforesaid decision.
In the first place though the suit was directed against all muslims residing in Banaras (defendants representing them under O.1, R.8 P. C.) the customary rights of Shias to perform their religious ceremonies and functions on plot No. 62/1133 or on adjoining plots were not but the customary rights of Sunnis in the matter of the burial of their dead on the plot were the subject matter of litigation and secondly the decision was virtually against all Sunni Muslims residing in Banaras to the effect that the plot in question was neither a grave yard nor had they any customary right to bury their dead in the said plot and such rejection of their claim must be held to be binding on the entire Sunni community not only of Doshipura but all those residing in the city of Banaras, albeit as against the Maharaja.
Then comes the third and the most important litigation which was between the two rival sects of Muslims of Mohalla Doshipura, 1101 Varanasi and that is Suit No. 232 of 1934 filed in the Court of City Munsif, Banaras by Fathey Ullah and Ors.
(Sunni Muslims against Nazir Hussain and Ors.
(Shia Muslims).
The plots in dispute were Khasra Nos. 245, 246, 247, 248/23/72, 602, 603, 602/1133, 246/1134 and 247/1130 (same as are involved in the instant Writ Petition) which were claimed to be Sunni Wakfs by long user.
The plaintiffs asserted their customary rights (specified in para 4 of the plaint) over the said plots and structures thereon.
It was alleged that the defendants ' ancestors had no rights in these plots except for placing their Tazia in a Huzra (apartment) on the mosque and repairing the same and holding their Majlises on the 9th and the 12th of the MOHARRAM (apparently accepting the decision of Pramode Charan Banerji in the earlier litigation being Suit No. 849 of 1878 as affirmed in Civil Appeal No. 73 of 1879) but they had made unauthorised constructions on some of the plots.
The plaintiffs prayed that the defendants be directed to remove their unauthorised constructions and that a perpetual injunction be issued against them restraining them from holding their majlises near the mosque or Imam Chowk.
Or on any other plot in suit except on 9th and 12th of MOHARRAM.
The defendants contested the suit and denied that the plots were Sunni Wakfs and further denied that the plaintiffs had acquired any customary right over them.
They asserted their exclusive rights to perform their religious ceremonies and functions over the plots and averred that existing constructions (details whereof were specified) had been put up long ago exclusively by the Shias and were used for their religious ceremonies and functions.
The trial court (Shri Shah Ghayas Alam Sahib, the Additional Munsif) partly decreed the suit on 2nd February, 1935.
He ordered the demolition of the construction on plot No. 245 (being Zanana Imambara) and issued a perpetual injunction restraining the defendants from holding their Majlises in the Baradari (being Mardana Imambara on plot No.247/1130) except on the 9th and 12th of MOHARRAM but he dismissed the suit so far as it related to the demolition of Chabutra (platform) of Asadullah 's house in plot No. 248/23/72.
The Shias went up in appeal being Civil Appeal No. 65 of 1935 while the Sunnis filed a cross objection regarding that part of the relief which was denied.
Shri Brij Narain the learned second Additional Sub Judge of Banaras on 18th September, 1935 allowed the defendants ' appeal, set aside the decree of the trial Court and dismissed the plaintiffs ' suit with costs through out; the cross objection was also dismissed with costs.
It was admitted by both the parties before the appellate Court that His Highness the Maharaja of Banaras was the Zamidar of the plots 1102 in question and the Khasras of 1291 Fasli (1884 A.D.) also showed the same thing.
The appellate Court held: (a) that in plot No. 246 there was a Pokhta mosque which was wakf property but that none of the other plots in suit were appurtenant to that mosque in 246 as was claimed by plaintiffs and that neither the plaintiffs nor members of Sunni community were owners of any of the plots in question; (b) that the plaintiffs had failed to prove that the other plots were wakfs in their favour: (c) that the plaintiffs had failed to prove that they had been exercising customary rights specified in para 4 of the plaint over the plots in suit except in the mosque in plot No. 246; (d) that the boundary walls on plot No. 245 described in settlement papers to be Chabutra Imam Sahib (Zanana Imambara) had been built by Shias about 25 years ago and that this plot had all along been used by Shia ladies for mourning purposes during the MOHARRAM; (e) that the Baradari (Mardana Imambara) was built by the Shias in the year 1893 A.D. (1311 Hizri) on plot No.247/1130 which had been in their possession all along and it was a Wakf; (f) that the defendants and the Shia Muslims were entitled to use plots Nos.246/1134,(containing Sabil Chabutra) and 247/1130 (the Baradari i.e. Mardana Imambara) for holding their majlises on all the days during the MOHARRAM but were not entitled to hold Majlises an Thursday of the remaining portion of the year; (g) that on plot No. 248/23/72 there existed the house of Asadullah, a Shia Muslim being defendant No. 5 to the suit and the construction (Chabutra) that appertained to the house had been rightly directed not to be demolished.
As regards the two plots namely plot No. 602 (Two Biswas and ten Dhoors) which was taken on lease by one Sheikh Fazil, a Sunni barber from the Maharaja of Banaras under a Patta dated 26th June, 1927 and plot No. 603 (Two Biswas Three Dhoors) which was taken on lease by one Mahomad Niamat Ullah a Sunni weaver from the Maharaja under a Patta dated 15th September, 1930 the appellate Court observed that these did not appear to have remained in the possession of the plaintiffs (Sunni Muslims).
The decision clearly establishes the title or ownership of Shias over at least two main structures Zanana Imambara on plot No. 245 and Baradari on plot No. 247/1130 and the land below the structures and what is more substantially the customary rights claimed by the Shia Muslims over the plots and structures were upheld and those claimed by the Sunni Muslims were rejected and the plaintiffs ' suit stood wholly dismissed.
The Sunnis preferred an appeal to the High Court being Second Appeal No. 1726 of 1935 but the same was dismissed by the High Court by its judgment 1103 dated 9th December, 1938.
Dealing with the question of the Shias ' right to hold their Majlises in the Baradari in the context of the position that the Baradari had been built by the Shias for that purpose the High Court observed: "the plaintiffs in the present suit have claimed that the Shias defendants are not entitled to hold their Majlises in the Baradari which the Shias have built.
This appears to us to be a very strange proposition.
Where a community has made a building for the purpose of its own religious services it appears to us contrary to law that any one can question the right of that community to hold its services.
" The clear implication is no restriction could be imposed on Shias in the matter of holding their Majlises and other services in the Baradari built by them as was done by the lower appellate Court.
Counsel for respondents 4 and 5 strenuously contended that the aforesaid litigation was not a representative one so as to bind the entire Sunni community of Mohalla Doshipura, Banaras by the result thereof and in that behalf counsel pointed out that neither the title of the plaint showed that the suit had been filed by the plaintiffs as representing all the members of Sunni community of Mohalla Doshipura, Varanasi nor was any copy of the Order passed by the trial Court granting leave to the plaintiffs to file the suit in representative capacity produced and there was no statement in any of the judgments indicating the representative character of the suit.
It is not possible to accept this contention for more than one reason.
In the first place besides reciting in para 1 of the plaint that the plaintiffs were Muslims of Sunni sect and defendants were Muslims of Shia sect, both settled in Mohalla Doshipura of Banaras City, in para 11 there was an express averment that the suit was filed under Order 1 r. 8 C.P.C. and that a proclamation be issued by the Court in the interest of justice so that those from Sunni sect and Shia sect of Muslims who desired to contest the suit may get themselves impleaded to the suit, secondly a public notice under Order 1 r. 8 of the C.P.C. with the Court 's seal was actually published in Urdu language in the issue of Oudh Panch dated 19th August, 1934 (English translation whereof has been annexed as Annexure VI to the Writ Petition and the original issue of Oudh Panch, Lucknow dated 19th August 1934 was produced during the hearing) setting out in brief the averments and the reliefs contained in the plaint and inviting members of both Sunni and Shia sects to get them impleaded as party to the suit if they so desired; thirdly the expenses of such publication of the notice amounting to Rs. 7 have been shown as an item of costs 1104 incurred by the plaintiffs in the Bill of costs appearing at the foot of the preliminary decree passed by the trial Court in the suit (certified copy whereof was produced by respondents 5 and 6) and lastly the suit Register (general Index) of the Court of Additional Munsif (Extract copy whereof has been produced) shows that public notice was published in Oudh Panch and the copy of the newspaper issue was filed in the Court on 21st August, 1934 and the bill received from that Newspaper was also filed on 25th Sept. 1934.
From this material which is available on the record it seems to us clear that the Suit No. 232 of 1934 had been filed in the representative capacity both as regards the plaintiffs as well as the defendants and all the formalities under Order 1 r. 8 of the C.P.C. had been complied with.
A crude attempt was made at a belated stage of hearing by respondents 5 and 6 to get over the effect of the aforesaid material by producing a document which purports to be a certified copy of a purported Order said to have been passed by the Additional Munsif, Banaras rejecting the plaintiffs ' application to file the suit in a representative character.
To say the least the document is of a spurious character, reciting a dubious order.
Apart from the fact that this document is seeing the light of the day nearly fifty years after the expiry of litigation, the copy does not bear any seal of the court; the order recites that the defendants have denied the plaintiffs ' status and capacity as being representatives of their (Sunni) sect and have also denied their status as representatives of Shias whereas there is no such denial to be found at all in the written statement, and what is more it passes one 's comprehension how such an order rejecting the plaintiffs ' application for leave under O. 1 r. 8 came to be passed on 24th August, 1934 5 days after the publication of the public notice in the issue of Oudh Panch on 19th Aug. 1934; and if the order dt.
24th August, 1934 was genuine how could expenses of such publication be shown as an item of plaintiffs costs in the preliminary decree passed on 2nd Feb. 1935 and why were the issue of Oudh Panch and the Bill from the Newspaper filed in the Court on 21st August, 1934 and 25th Sept. 1934 respectively.
In our view the three or four circumstances which we have indicated above conclusively establish that the suit was filed by the plaintiffs as representing entire Sunni community of Mohalla Doshipura, Varanasi against the defendants who represented the Shia community and as such the final decision in that litigation is binding on members of both the communities.
1105 Counsel for respondents 5 and 6 next contended that the decision in this litigation (Suit No. 242 of 1934) would not operate res judicata against them or the Sunni community of Mohalla Doshipura inasmuch as Munsif 's Court at Banaras did not have either pecuniary or subject wise jurisdiction to grant the reliefs claimed in the instant writ petition; in other words that Court was not competent to decide the present subject matter and such the bar of res judicata under section 11 of the Civil Procedure Code 1908 was not attracted, and it would be open to the respondents 5 and 6 and the members of the Sunni community to agitate question of title either to the plots or to the structures thereon or even the Shias ' entitlement to their customary rights over them.
In support of this contention counsel relied on two decisions namely, Rajah Run Bahadoor Singh vs Mussumut Lachoo Koer and Mst.
Gulab Bai vs Manphool Bai.
It is not possible to accept this contention for the reasons which we shall presently indicate.
It is well settled that section 11 of the C.L.C. is not exhaustive of the general doctrine of res judicata and though the rule of res judicata as enacted in section 11 has some technical aspects the general doctrine is founded on considerations of high public policy to achieve two objectives, namely, that there must be a finality to litigation and that individuals should not be harassed twice over with the same kind of litigation.
In Daryao and others vs The State of U.P. this Court at page 582 has observed thus: "Now 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 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.
" Reference in this connection was made by the Court to the famous decision in the leading Duchess of Kingston 's(4) case.
Halsbury 's laws 1106 of England and Corpus Juris.
In Gulab Chand Chhotalal Parikh vs State of Bombay (now Gujarat) the question was whether after the dismissal of a writ petition on merits after full contest by the High Court under article 226 of the Constitution a subsequent suit raising the same plea claiming discharge from the liability on the same ground was entertainable or not and this Court held that on general principles of res judicta the decision of the High Court on the writ petition operated as res judicata barring the subsequent suit between the same parties with respect to the same matter.
On a review of entire case law on the subject, including Privy Council decisions, this Court at page 574 observed thus: "As a result of the above discussion, we are of opinion that the provisions of section 11 C.P.C. are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit.
It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter.
The nature of the former proceeding is immaterial.
We do not see any good reason to preclude such decisions on matters in controversy in writ proceeding under articles 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest." (Emphasis supplied).
The above observations were approved by this Court in a subsequent decision in the case of Union of India vs Nanak Singh.
It is thus 1107 clear that technical aspects of section 11 of C. P. C., as for instance, pecuniary or subject wise competence of the earlier forum to adjudicate the subject matter or grant reliefs sought in the subsequent litigation would be immaterial when the general doctrine of res judicata is to be invoked.
The two decisions relied upon by counsel for the respondents 5 and 6 were directly under section 11 of C. P. C. Even under section 11 the position has been clarified by inserting a new Explanation VIII in 1976.
It was not disputed that the Munsif 's Court at Banaras was competent to decide the issues that arose for determination before it in earlier litigation and, therefore, the decision of such competent Court on the concerned issues must operate as a bar to any subsequent agitation of the same issues between the same parties on general principles of res judicata.
The contention raised by counsel for respondents 5 and 6 in this behalf, therefore, has to be rejected.
It was then faintly urged by counsel for respondents 5 and 6 that the dismissal of plaintiffs ' suit (No. 232 of 1934) would not confer any rights on the Shia community who were party defendants to the suit.
The contention is merely required to be stated to be rejected.
Not only were the Sunnis ' customary rights (specified in para 4 of the plaint) over the plots and structures in question put in issue during the trial but the customary rights to perform their religious ceremonies and functions on the plots and structures thereon claimed by the Shias were also directly and substantially put in issue inasmuch as the plaintiffs (Sunni Muslim) `had sought an injunction restraining the Shias from exercising their customary rights.
Therefore, the decision in this litigation which bore a representative character not merely negatived the Sunnis ' customary rights claimed by them over the plots and structures but adjudicated, determined and declared the Shias ' entitlement to their customary rights to perform their religious ceremonies and functions on the plots and structures thereon in question and this decision is binding on both the communities of Mohalla Doshipura.
There is no question of there being any gap or inadequacy of the material on record in the matter of proof of Shias ' entitlement to customary rights over the plots and structures in question, whatever be the position as regards their title to the plots or structures.
We have already indicated that this decision even upholds their title to two main structures, Zanna Imambara and Mardana Imambara (Barardari).
In our view, therefore, this is a clear case of an existing or established entitlement to the customary rights in favour of the Shias ' community to perform their religious ceremonies and functions over the plots and structures 1108 in question under the decree of competent Civil Court for the enforcement of which the instant Writ Petition has been filed.
Turning to the other fundamental basis on which the petitioners are claiming their customary rights for performing their religious ceremonies and functions on the plots and constructions in question is the registration of these plots and structures thereon as Shia Wakfs under the U. P. Muslim Wakfs Act, 1936.
A two fold plea has been raised by counsel on their behalf namely (a) that the Report of the Chief or Provincial Commissioner of Wakfs dated 28th/31st October, 1938 submitted to the State Government under sec.
4 (5) showing these plots and structures as Shia Wakfs followed by the Notification dated 15 1 1954 issued by the Shia Central Wakf Board under sec.
5 (1) of the Act and published in the U. P. Government Gazette on 23rd January, 1954, had become final and conclusive under sec.
5(3) of the Act since no suit challenging his decision had been filed either by the Sunni Board or any other Sunni Muslim interested in it within the period specified under sec.
5(2) of the Act, and (b) that plots and structures in question had been registered as Shia Wakfs for purposes of performing their religious ceremonies and functions thereon under sec.
38 of the Act as early as in 1952 and therefore their case is that Shia Muslims cannot be deprived of the lawful exercise of their customary rights over the properties which have been recognised and registered as Shia Wakfs.
As against this, respondents 5 and 6 and through them the Sunni community are relying upon a notification dated 26th February, 1944 issued by the Sunni Central Wakfs Board under sec.
5(1) of the U. P. Muslim Wakf Act, 1936 following upon the Report of the Chief or Provincial Commissioner of Wakfs in respect of Mosque in Doshipura showing the same as Sunni Wakfs and registration of some of these properties as Sunni Wakfs under sec.
29 of the U. P. Muslims Wakfs Act, 1960.
Before going into the factual aspects it will be desirable to indicate briefly the legal position arising under the two enactments, the U.P. Muslim Wakfs Act, 1936 (Act XVIII of 1936) and the U.P. Muslim Wakfs Act, 1960 (Act XVI of 1960), which repealed earlier Act, in the matter of finality Survey Reports and effect of Registration of Wakfs belonging to the respective sects in the State of U.P.
Broadly speaking it could be stated that while repealing the 1936 Act the 1960 Act maintains and preserves the finality and conclusiveness accorded to the Survey Reports completed and submitted by the Wakfs Commissioners under the former Act and the 1109 registration of Wakfs under the 1936 Act has been kept alive and effective as if such registration has taken place under the latter Act and registration of Wakfs under the latter Act has been permitted only in respect of Wakfs other than those which have already been registered under the former Act.
Under the 1936 Act appointment of district wise Commissioners of Wakfs for the purpose of undertaking survey of all Wakfs in such districts and appointments of Provincial Commissioners of Wakfs having jurisdiction in all the districts of the State for the same purpose and with same duties and powers were contemplated by sec. 4 and 4A respectively; under sec.
4 (3) such Commissioners were required to make such inquiries as they considered necessary for ascertaining and determining the number of all Shia and Sunni Wakfs within the area of their jurisdiction, the nature of each Wakf, the gross income of property comprised in the Wakf etc.
and under sec. 4 (5) on completion of inquiry they had to submit their Reports of Inquiries to the State Government; under sec.
5 (1) a copy of the Commissioner 's Report had to be sent to each of the Central Boards (the Shia Central Wakfs Board and Sunni Central Wakfs Board) whereupon each Central Board had to, as soon as possible, notify in the Official Gazette the Wakfs relating to the particular sect to which, according to such report, the provisions of this Act applied: under sec.
5 (2) the Central Board or the Mutawali of a wakf of any other person interested in it, if aggrieved by the decision recorded by the Commissioner in his Report had to bring a suit in a Civil Court competent jurisdiction for a declaration or appropriate relief and such a suit by the Central Board had to be filed within two years of the receipt of the Report by the Board and by the Mutawali or a person interested within one year of the Notification mentioned in sub sec.
(1); and sec.
5 (3) accorded, subject to the final result of such suit, finality and conclusiveness to the Commissioner 's Report.
Section 38 of the Act provided for registration of Wakfs pertaining to each sect by the concerned Central Board and the procedure to be followed and inquiry to be made by the concerned Board in that behalf was indicated in that section and under sec.
39 it was made incumbent upon each Central Board to maintain a Register of Wakfs showing various particulars specified therein in respect of each Wakf.
Under the 1960 Act, appointments of Commissioner of Wakfs and Additional or Assistant Commissioner of Wakfs is contemplated by sec.
4 while Survey of Wakfs to be undertaken by such Commissioners is contemplated by sec.
6 and under sec.
6(4) the Commissioner 's Report of Inquiry is required to be forwarded to each of the Boards 1110 and to the State Government and the State Government has to, as soon as possible, notify in the Official Gazette the Wakfs relating to particular sect to which, according to such Report, the provisions of this Act apply; sec. 8 provides that if a dispute arises with regard the findings or decisions recorded by Commissioner in his Report the same shall be referred to Tribunal for adjudication, which must be done within one year from the date of publication by the State Government of the list of Wakfs under sec.
6 (4); sec.
9 is important and provides that proceedings of any survey of wakf properties started before the commencement of this Act shall continue and such survey shall be completed in accordance with provisions of the 1936 Act and under sub sec.
(2) it is provided that nothing in this chapter shall effect the finality of the decisions of the Chief State Commissioner of Wakfs or of any State Commissioner of Wakfs or Commissioner of Wakfs in cases in which, prior to the commencement of this Act, the report of such Commissioner has become final; in other words the finality and conclusiveness accorded to the Wakf Commissioners ' Report under sec.
5 (3) of the 1936 Act has been preserved.
Registration of Wakfs under the 1960 Act has been provided by secs.
28 and 29: under sec.
28 it is provided that a Wakf registered before the commencement of this Act under the 1936 Act shall be deemed to have been registered under the provisions of this Act; and sec 29 which follows sec.
28: says: Every other Wakf, whether subject to this Act or not and whether created before or after the commencement of this Act shall be registered at the office of the Board of the sect to which the Wakf belongs"; the opening words "every other Wakf" occurring in sec.
29 must mean that sec.
29 provides for registration of all Wakfs other than those which have already been registered under the 1936 Act.
As stated earlier a perusal of these provisions of the two enactments clearly show that the finality and conclusiveness accorded to the Commissioner 's Report under sec.
5 (3) of the 1936 Act has been preserved and the registration of Wakfs under the 1936 Act has been maintained under the 1960 Act notwithstanding the repeal of the former Act by the latter.
In other words any Survey Report submitted under the 1960 Act and any Registration made under the 1960 Act will be futile and of no avail in regard to Wakf properties respecting which the Commissioner 's Report under the 1936 Act has become final and registration has been effected under the 1936 Act.
It appears that the Government of Uttar Pradesh appointed Shri Munshi Azimuddin Khan, a Deputy Collector, as a Chief or 1111 Provincial Commissioner of Wakfs under sec.
4A of the 1936 Act for the purpose of making a survey of all the Waqfs in all the districts of the State.
During the survey proceedings one Imam Ali Mahto, a Shia Muslim, who was defendant No. 2 in Suit No. 232 of 1934 as the Mutawalli of Imambara and the Mosque of Mohalla Doshipura has filed an application on 25th June, 1938 before the said Chief or Provincial Commissioner of Waqfs claiming six items of property, namely, (1) the Mosque on Municipal No. J 15/94 (i.e. plot No. 246) (2) Imambara on Municipal No. J. 15/95 (i. e. Baradari on plot No. 247/1130), (3) Zanana Imambara on Municipal No. J 15/96 (i.e. Plot No. 245), (4) Imam Chowk with land (i. e. on plot No. 247), (5) Chabutra Sabil Pucca (i. e. on Plot No. 246/1134) and (6) one Sabil Stone on the land to the east of Imambara Baradari (i.e. on plot No. 602/1133) to be Shia Waqfs having been used since time immemorial for the purposes of their religious ceremonies and functions (Azadari, Majlises Mourning in Moharram, Tazia and Zulzana processions, Taziadari, Matam, etc.), the constructions having been made by subscriptions and requesting the Commissioner to enter the same in the list of Shia Public Waqfs; on the same day i.e. 25th June, 1938 Imam Ali 's statement on oath was also recorded before the Commissioner and an order was passed to the effect "the waqf property be taken under the control of Waqfs Act".
A copy of the application, the statement of Imam Ali recorded on oath, together with the endorsement of the order, which formed part of Survey File No. 55 before the Commissioner have been produced as Annexure P 15 (colly) to the affidavit in rejoinder dt.
Nov. 5, 1979 of Shri Iqbal Hussain, petitioner No. 3 filed on behalf of the writ petitioners and also as an Annexure to the affidavit dated January 9, 1980 of Dularey Mirza, the Peshkar of the Shia Central Waqfs Board, Lucknow.
After making the necessary inquiries Shri Munshi Azimuddian Khan submitted to the State Government his Report dated 28th/31st October, 1938 and annexed several appendices to his Report; Appendix VIII referred to Waqfs pertaining to Sunnis and declared as subject to the 1936 Act and Appendix IX mentioned waqfs pertaining to Sunni sect which were exempted from the Act; Appendices X and XI contained corresponding information about the Shia waqfs which were respectively declared as subject to the Act or exempt from the Act.
The original Report bearing the signature of Shri Munshi Azimmuddin Khan, Chief Waqfs Commissioner was produced before us (marked Exh.
A) for our inspection by Mr. Rana, counsel for the State of U.P. and the same was made available for inspection to the parties.
There is a slip attached to 1112 the Report placed in between Annexure VII and Annexure XIII containing an endorsement to the effect "Appendices VIII and IX sent to the Sunni Board" and Appendices X and XI sent to the Shia Board" with the signature of the Chief Commissioner of Waqfs below it.
The aforesaid facts mentioned in connection with the original Report have been stated in the affidavit of Shri Sayed Shamshuddin Ahmed, Secretary to the Government of Uttar Pradesh in the Waqfs and Appointment Department sworn on January 6, 1980, filed before us by the counsel for the State of U. P. alongwith the Report.
Presumably the aforesaid action of sending the relevant appendices alongwith a copy of the Commissioner 's report to the respective Sunni Central Waqf Board and the Shia Central Waqf Board was taken as required by section 5(1) of the Act.
It may be stated that the Shia Central Waqfs Board has accepted the position that it did receive a copy of Commissioner 's Report together with Appendices X and XI and through an affidavit dated 9th January, 1980 of their Pashkar Dularey Mirza, the Shia Board offered to produce the said Appendices stating that the copy of the Report itself was not traceable as the same appeared to have been produced in some court proceedings.
It further appears that after receiving the aforesaid documents (Report together with the Appendices X and XI), the Shia Central Waqf Board, as required by sec.
5 (1) of the Act, took steps to notify in the Official Gazette all the Waqfs relating to their sect on the basis of the Appendices annexed to the Report; the relevant Notification under sec.
5 (1) was issued on 15th January, 1954 and published in the Government Gazette on 23rd January, 1954.
According to the petitioners the Shia Waqfs in question appear at Sl.
No. 55 (entry against the name of Imam Ali, Dhoshipura, Banaras) on page 157 of Appendix X and at Sl.
No. 431 (entry being 'Imambara and Masjid against the name of Imam Ali Mahato in the Gazette Notification dated 15th January, 1954).
Photostat copy of Entry at Sl.
No. 55 on page 157 of Appendix X has been annexed to Dularey Mirza 's Affidavit dated.
9th January, 1980 and a copy of the Gazette Notification dated 15th January, 1954 published in the U.P. Government Gazette on 23rd January, 1954 under sec.
5 (1) of the 1936 Act has been separately produced by the petitioners on the record.
It is true that entry at Sl.
No. 431 in the Gazette Notification dated 15th January, 1954 shows the name of Imam Ali Mahato as the Waqif, which is obviously a mistake for he never claimed himself to be the settlor or Waqif but only a Mutawalli of the Waqfs as is clear from the application made by him and the statement on oath given by him before the Commissioner and in fact the properties were claimed 1113 to be Shia public Waqfs by long user.
It is also true that in the column 'Name of Waqf 's the entry reads 'Imambara and Masjid ' suggesting as if only two properties were declared to be Shia Waqfs but at the foot of the Notification under section 5 (1) there is a nota bena to the following effect: "the details regarding property and other matters relating to the Wakfs are kept in the Board 's office and can be inspected by any person who is interested in the matter.
" It seems to us quite clear having regard to the six properties being specifically asked to be entered in the list of Shia Waqfs by Imam Ali Mahto in his application and the order made thereon, all the properties mentioned in the application must be regarded as having been entered in the list of Shia Waqfs by the Chief or Provincial Commissioner for Waqfs and the Notification under section 5(1) related to all those properties as having been notified to be Shia Waqfs, particulars whereof were stated to be available in the Board 's office.
The Nota Bena at the foot of the Notification, in our view amounted to sufficient particularisation of the properties notified as Shia Waqfs.
Non mentioning of those properties as Sunni Waqfs in Appendices VIII and IX sent to the Sunni Central Waqfs Board must amount to a notice to the Sunni Board and the Sunni Muslims that these had been enlisted as Shia Waqfs.
Admittedly, no suit was filed either by the Sunni Central Board or any other person interested in those waqfs challenging the decision recorded in his Report by the Chief or Provincial Commissioner for Waqfs within the time prescribed under section 5(2) of the Act, and, therefore, the Chief Commissioner 's Report together with the appendices X and XI thereto dated 28th/31st October, 1938, on the basis of which the Notification dated 15th January, 1954 was issued and published in Official Gazette on 23rd January, 1954, must be held to have become final and conclusive as between the members of the two communities.
In this behalf we would like to refer to the decision of the Court in Board of Muslim Waqfs vs Radha Krishna and Ors.
where one of us (Sen, J.) has analysed the scheme of the Waqfs Act,1954 (a Central enactment) which is substantially the same as the scheme of the 1936 Act and we are in respectful agreement with the ratio of that case but here we are not concerned with any paramount title of any stranger (like the 1114 Maharaja) to any property declared as waqf and hence that part of the ratio of that decision will be inapplicable.
As against the aforesaid material respondents 5 and 6 and through them the Sunni community have relied upon a Notification dated 26th February, 1944 issued by the Sunni Central Waqfs Boards under section 5(1) of the U.P. Muslim Waqfs Act, 1936 following upon the receipt of the Report of the Chief or Provincial Commissioner of Waqfs in respect of mosque in Doshipura showing the same as Sunni Waqf, copy whereof has been annexed as Annexure S 2 to the affidavit dated 6th February, 1980 of Mohd. Bashir Khan filed on behalf of the Sunni Central Waqfs Board as its 'Pairokar '.
This Notification on which reliance has been placed by the Sunnis appears to us of doubtful validity and probative value for the reasons which we shall presently indicate.
Though issued and published earlier in point of time than the Notification of Shia Central Waqfs Board, it is admittedly not based on Appendices VIII and IX annexed to the Chief Commissioner 's Report dated October 28th/31st October, 1938 but on the basis of some Registers of Waqfs (meaning lists of Waqfs) (said to have been received by the Sunni Board from the Commissioner of Waqfs.
Curiously enough the Sunni Central Waqfs Board had stated through two affidavits dated 6th January, 1980 and 9th January, 1980 of their Pairokor Shri Mohd. Bashir Khan that along with the copy of the Commissioner 's Report Registers of Waqfs were received but no appendices like Appendices VIII and IX were received from the Commissioner, that according to the Registers of Waqfs there were 245 charitable Sunni Waqfs in the District of Banaras which were covered by the 1936 Act and all such Waqfs were accordingly notified by the Sunni Board in the Government Gazette by issuing the Notification dated 26th February, 1944 under sec.
5 (1) of the Act.
The Original Report of the Commissioner does not refer to anything like Registers of Waqfs but, as stated earlier, it refers to Appendices Nos.
VIII, IX, X and XI and the endorsement on the slip under the signature of the Chief Commissioner shows that the former two appendices were sent to the Sunni Board and the latter two to the Shia Board.
In face of this endorsement and having regard to the fact that the Shia Board had received Appendices X and XI alongwith the Commissioner 's Report which that Board offered to produce, it is difficult to accept the statement of the Pairokar of the Sunni Board that no appendices were received by the Board along with a copy of the Commissioner 's Report.
It seems the relevant appendices, though received, are being withheld as their production would be adverse to the Sunnis.
Apart form that aspect it is clear on their own 1115 admission that the Notification under section 5 (1) of the 1936 Act was issued by the Sunni Central Waqfs Board not on the basis of Appendices VIII and IX which formed part of the Commissioner 's Report but on the basis of some Registers of Waqfs said to have been received by it.
The Notification regarding the Sunni Waqfs issued on the basis of material which did not form part of the Chief Commissioner 's Report would be in violation of section 5(1) of the Act which required issuance of a Notification thereunder 'according to ' the Commissioner 's Report and as such the Notification dated February 26, 1944 relied upon by respondents 5 and 6 and members of the Sunni community would be of doubtful validity.
Secondly, the relevant entry in the Register of Waqfs is at Serial No. 224 and it pertains to "one quita mosque and land" of which the "present Mutawali" is shown as "Hayatullah resident of Dhosipura, Banaras" and correspondingly the entry in the Notification dated February 26, 1944 issued under section 5 (1) of the 1936 Act is also at Sl.
No. 224 which reads: "Masjid Dhoshipura Hayatullah r/o Doshipura, Banaras one quita mosque", but the petitioners have produced documentary and other material throwing doubt on the genuineness of the entry as being in relation to the mosque in question on plot No. 246 (i.e. Municipal No. J 15/94); according to the affidavits of Dularey Misra (the Peshkar of Shia Central Waqfs Board) dated 12th August, 1980 and 1st October, 1980 there were two Hayatullahs in Mohalla Dhoshipura, Varanasi, one was Hayatullah alias Hayatoo r/o H. No. J 15/125, Mohalla Doshipura, who had died in 1926 long prior to Survey of Waqfs under the 1936 Act, that his son Abdul Shakoor, who was plaintiff No. 2 in suit No. 232/1934 admitted in his evidence in that suit that his father (Hayatullah) had expired 8 years before the filing of the suit and as such entry at serial No. 224 which describes Hayatullah r/o Mohalla Doshipura as the "present Mutawali" (i.e. in 1944 when the Notification was issued) obviously could not refer to this Hayatullah father of Abdul Shakoor, while the other Hayatullah, who was known by the name of Moulavi Hayatullah r/o H. No J 15/8 in Mohalla Dhosipura was the father of Hakim Mahmood and Ali Ahmed, who are the present Mutawalis of a mosque in Mohalla Salarpura standing on Municipal No. J 18/108 and therefore, if the name in entry at serial No. 224 refers to this Hayatullah who could be its "present Mutawali" in 1944 then the mosque would be the mosque in Mohalla Salarpur and not the mosque in question standing on Municipal No. J 15/94 (i.e. Plot No. 246) in Mohalla Doshipura and while making the entry by mistake Mo 1116 halla Doshipura was wrongly mentioned instead of Mohalla Salarpura as the two Mohallas are quite adjacent to each other; in other words, according to the petitioners if the entry at serial No. 224 in the Registers of Waqfs or in the Notification dated 26th February, 1944 refers to Hayatullah father of Abdul Shakoor the entry is obviously wrong as it would be mentioning a dead person as the "present Mutawali" of the mosque and in case the entry at serial No. 224 is referable to Maulvi Hayatullah then the reference to the mosque being in Mohalla Doshipura would be erroneous.
It is the petitioners ' case that it was Maulavi Hayatullah who had as early as in 1944 submitted an application for registration of the mosque in Mohalla Salarpura standing on Municipal No. J 18/108 to the Sunni Central Waqfs Board but by mistake it was stated therein that the mosque was for the benefit of people of Doshipura and it was registered under his name under serial No. 224 in the Register of Waqfs maintained by the Sunni Board and by mistake that mosque was wrongly entered as being in Mohalla Doshipura; and in support of this reliance has been placed upon a Report dated 14th February, 1961 submitted by Inspector Ashraf Ali to the Sunni Board in which he had noticed and placed on record such mistake having taken place copy whereof has been annexed as Annexure I to the affidavit of Dularey Mirza (Peskhar of Shia Board) dated 13th February, 1980; in other words, the aforesaid material casts a serious doubt on the aspect whether the mosque mentioned in entry No. 224 in the Notification dated February 26, 1944 really pertains to the mosque in question standing on Plot No. 246 (Municipal No. J 15/94) in Mohalla Doshipura and as such the Notification will have no probative value.
In this state of affairs Notice dated 11.4.1945 issued by Shia Board under section 53 of the 1936 Act complaining about this entry at Sl.
No. 224 relied upon by counsel for respondents 5 and 6 must be regarded as having been issued ex majori cautela.
Thirdly, even if it were assumed for the purposes of argument that entry at Serial No. 224 in the Notification dated 26th February, 1944 refers to the mosque in question it cannot affect the customary rights of the petitioners and through them the Shia community to perform their religious ceremonies and functions over the other 8 plots and structures thereon which had been listed as Shia Wakfs under the Notification dated 15th January, 1954, especially when it is now common ground that the mosque on Plot No. 246 is a public mosque constructed by general subscriptions and is accessible to members of both the sects for offering 1117 prayers and doing worship therein.
Admittedly the Notification dated 26th February, 1944, does not refer to any other plots or the structures thereon at all.
We are, therefore, clearly of the view that the Notification dated 26th February, 1944 issued under section 5(1) of the 1936 Act by the Sunni Board is of no avail to the Sunnis for the purpose of defeating the customary rights of the Shias to perform their religious ceremonies and functions on the other plots and structures thereon.
Apart from the finality attaching to the Chief Commissioner 's Report (together with the Appendices X and XI annexed thereto) dated 28th/31st October, 1938 the petitioners have also claimed that the aforesaid plots and structures thereon had been registered as Shia Waqfs for performance of their religious ceremonies and functions under s.38 of the 1936 Act by the Shia Central Waqfs Board after making full inquiry and following the procedure prescribed by that section as early as in 1952 and the Board had issued the requisite Sanads in that behalf.
Reliance in this regard has been placed on five certificates issued by Shia Central Waqfs Board, Lucknow, bearing Certificate Nos. 209, 210, 211, 214 and 21 all dated 22nd December, 1952 first relating to Mardana Imambara (the Baradari) on Plot No. 247/1130, the second relating to Zanana Imambara on Plot No. 245, the third relating to Imam Chowk on Plot No. 247, being appurtenant to Baradari the fourth relating to the entire Plot No. 602/1133 being appurtenant to the Baradari and the last relating to Sabil Chabutra Mardana on Plot No. 246/1134 (Annexures VIII & VIII A to VIII D to the Writ Petition).
It may be stated that the petitioners have also produced a certificate of registration in respect of Purani Masjid of Doshipura as a Shia Waqf dated 3rd July, 1973, the registration being under the 1960 Act, but counsel for the petitioners fairly conceded that the mosque in question belongs to both the sects and no special rights are claimed by the Shias over it except those conferred on them under the decree in Suit No. 849 of 1878 by Shri Pramoda Charan Banarjee.
The registration in respect of the five properties mentioned above under sec.
38 of the 1936 Act would be available to the petitioners and must prevail over the subsequent registration, if any, obtained by the Sunnis in respect of some of the properties under the 1960 Act; really speaking such latter registration would be non est in the eye of law.
Apart from the Certificates of Registration issued by the Shia Central Waqfs Board on 22nd December, 1952 the petitioners are 1118 also relying upon yet another Notification issued by the Shia Central Waqfs Board under Rule 54 (vii) of the U.P. Shia Central Waqfs Rules, 1944 enlisting the Shia Waqfs in question and published in the U.P. Government Gazette on 1st December, 1956.
It may be stated that the Shia Board had framed rules called the U.P. Shia Central Waqfs Rules 1944 in exercise of powers conferred on it by sec. 61 of the 1936 Act and under Rule 54(vii) the Board was required to notify a list of Waqfs which had been registered during the year under report.
It appears that a consolidated list of Shia Waqfs which were registered during the period 28th July, 1942 to 31st March, 1956 subsequent to the submission of the Report of the Chief Commissioner for Waqfs under sec.
5 of the Act was published for the first time by the Shia Board under the Notification dated 1st December, 1956 issued under Rule 54(vii); a copy of the relevant portion of that Notification is annexed as Annexure VII to the writ petition showing registration of Imambara Baradari, Doshipura, at Serial No. 152, Imambara Mutalik Purani Masjid, Doshipura at Serial No. 153, Mardana Imambara Baradari at Serial No. 155, Purani Masjid, Doshipura at Serial No. 157, Zanana Imambara, Doshipura at Serial No. 159, Imam Chowk, Dhoshipura at Serial No.160 and Chabutra Mardana Sabil at Serial No. 161 as Shia Waqfs.
This Notification issued by the Shia Board on 1st December, 1956 also supports the petitioners ' case that the concerned properties had been registered as Shia Waqfs under section 38 of the Act.
It is thus clear that even on the second foundational basis the Shias have proved their existing or established entitlement to their customary rights to perform their religious ceremonies and functions on the concerned plots and structures thereon.
Much was made by Counsel for respondents 5 and 6 of certain documents on record showing derivative title of Sunni Muslims to a couple of plots in question and Counsel contended that whatever be the position with regard to three earlier documents (Pattas of 1907, 1927 and 1930 about which the Courts have made observations in earlier litigations), there was yet one more lease of 20.4.1952 in respect of portions of three plots, namely, 602/1133,247 and 245 in favour of Hafiz Mohd. Yusuf and Akram ul Haq, two Sunni Muslims from the Maharaja, whereunder they had acquired lessee 's interest over the plots at an yearly rent of Rs. 3 and they had dedicated the same to the Sunni community for use as graveyard and such subsequent title could not be affected by the decisions in earlier litigations.
It must be stated that in support of this lease of 1952 no lease deed nor any Patta has been produced, but reliance is placed on two 1119 documents (i) Extract of Register of Agreements (Agreement to Lease) dated 20.4.52 and (ii) Receipt for payment of rent (curiously enough relating to three prior years July 1949 to June 1950, July 1950 to June 1951 and July 1951 to June 1952=1357, 1358 and 1359 Fasli), being Annexures 3 and 4 to the Counter Affidavit of Respondent No. 5 dated 17.4.1979.
At the outset we would observe that it is difficult to accept the claim that the three plots had been dedicated by the two Sunni Muslims to their community for use as graveyard, for, the Commissioners appointed by this Court for survey and spot inspection in December 1979 did not find any such use being made of plots No. 247 and 245 and merely noticed two graves and one in damaged condition on plot No. 602/ 1133 only same plot with graves which was the subject matter of Maharaja 's Suit No. 424/1931 in which a permanent injunction was issued restraining all Muslims (virtually all Sunnis) from using the said plot as any graveyard in future.
Dealing with the aspect of derivative title put forward by counsel on behalf of the respondents No. 5 and 6, we have already made the position clear in the earlier part of our judgment that the Shias ' are claiming the right to perform their religious ceremonies and functions on the plots and structures in question not so much on the basis of any title or ownership thereof but on the basis of customary exercise since time immemorial and they have been claiming customary rights by prescription over the plots belonging to the Maharaja of Banaras as Zamindar and superior title holder and the prescriptive rights have enured for the benefit of all the Shias notwithstanding such superior title in the Maharaja and if that be so they will also enure for their benefit as against any derivative title claimed by anyone under the Maharaja.
Moreover, when these plots and structures, particularly these three plots were being registered as Shia Waqfs under the U.P. Muslim Waqfs Act 1936 by the Shia Board and Sanads of Certificates of Registration in respect thereof were being issued in December 1952, the two Sunni Lessees who are said to have obtained a Lease on 20.4.1952 did not raise any objection to such registration.
The Shias customary rights acquired by prescription over these plots cannot thus be defeated by such derivative title.
The next question that arises for consideration is whether an Order made under section 144 Criminal Procedure Code is judicial or quasi judicial order or whether it is passed in exercise of an executive power in performance of executive function amenable to writ jurisdiction under article 32 of the Constitution ? Counsel for respon 1120 dents 5 and 6 and through them the Sunni community contended that such an order is a judicial or quasi judicial order passed by a Magistrate 's Court after hearing parties (except in cases of emergency when it is passed ex parte without notice to the person or persons affected under sub section
(2) of section 144) and since no fundamental right can be said to be infringed by any judicial or quasi judicial order a Writ of mandamus under article 32 would not lie, but the order may be and is revisable by a superior Court like the Sessions Court or the High Court.
In support of this contention reliance was placed upon one decision of the Bombay High Court and three of the Madras High Court.
It was pointed out that in D. V. Belvi vs Emperor a Division Bench of the Bombay High Court has held that the orders under section 144 are judicial and not administrative and that this question had been set at rest by several earlier decisions cited in the judgment; in Queen Empress vs Tirunarasimha Chari the Madras High Court has taken the view that the Magistrate, making inquiry before the issue of an order under section 144 is acting in a stage of judicial proceeding and has, therefore, jurisdiction to take action under section 476, if he is of the opinion that false evidence has been given before him; similarly in Muthuswami Servaigram and Anr.
vs Thangammal Ayyiar as also in Bondalpati Thatayya vs Gollapuri Basavayya and Ors.
the same view is taken.
Counsel also invited our attention to three cases of this Court, namely Babulal Parate 's case, K K. Mishra 's case and Madhu Limaye 's case, in each one of which the constitutional validity of section 144 Cr.
P.C. or part thereof was challenged, and while upholding the constitutional validity of the section or of the concerned part this Court has touched upon certain aspects of the section and the procedure thereunder (hearing the parties, order being of temporary character and revisable) which suggest that the proceeding before the Magistrate is judicial or quasi judicial proceeding.
Counsel, therefore, urged that if the order under section 144 Cr. P. C. is a judicial or quasi judicial order then this Court has taken the view that such an order will not attract writ jurisdiction of this Court under article 32 since such an order cannot affect or infringe any fundamental right and in that behalf reliance 1121 was placed upon Sahibzada Saiyed Muhammed Amirabbas Abbasi and Ors.
vs The State of Madhya Bharat and Ors., The Parbhani Transport Co operative Society Ltd. vs The Regional Transport Authority, Smt.
Ujjam Bai ' case (subject to three exceptions mentioned therein) and N.S. Mirajkar 's case, the principle in the last mentioned case having been stated at p. 760 of the Report thus: "When a Judge deals with matters brought before him for adjudication, he first deals with questions of facts on which the parties are at issue, and then applies the relevant law to the said facts.
Whether the findings of fact recorded by the Judge are right or wrong and whether the conclusions of law drawn by him suffers from any infirmity, can be considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the Appellate Court.
But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Art 19(1).
What the judicial decision purports to do is to decide the controversy between the parties brought before the court and nothing more.
If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by Court in or in relation to a matter brought before it for its decision cannot be said to affect that fundamental rights of citizens under article 19(1).
" The question whether an order under section 144 Criminal Procedure Code is a judicial order or an order in exercise of the executive power in performance of an executive function will have to be decided in the instant case by reference to the new Criminal Procedure Code, 1973 and not by reference to the old Criminal Procedure Code, 1898.
We would like to point out that the position under the 1898 Code, wherein separation between the judicial functions and executive or administrative functions of Magistrates did not obtain, was quite different and the power to act in urgent cases of nuisance and apprehended danger to public tranquility under section 144 1122 of the Code had been conferred on "District Magistrates, Chief Presidency Magistrates, Sub Divisional Magistrates, or other Magistrates specially empowered by the State Government" and it was in those circumstances that the view prevailed in the decisions of several High Courts that the order passed by a Magistrate under section 144 of that Code was a judicial order and it must be pointed out that all the decisions including those of this Court that have been relied upon by counsel for respondents 5 and 6 are in relation to the said section under that Code, while the position under the new Criminal Procedure Code 1973 is entirely different whereunder the scheme of separation of judicial functions from executive functions of the Magistrates, as recommended by the Law Commission has been implemented to a great extent.
The Law Commission in its 37th Report on the Code of Criminal Procedure 1898 made several recommendations in this behalf to which we might usefully refer, At page 15 of the Report the Law Commission in para 41 has observed thus: "41.
The usual way of classifying the functions of Magistrates under the Code of Criminal Procedure and various other statutes is to divide them into three broad categories, namely (a) Functions which are 'police ' in their nature, as for instance, the handling of unlawful assemblies; (b) functions of an administrative character, as for instance, the issue of licences for fire arms, etc., etc.
; and (c) functions which are essentially judicial, as for instance, the trial of criminal cases.
The essential features of the scheme for separation (it is stated) would be, that purely judicial functions coming under category (c) above are transferred from the Collector and Magistrates subordinate to him, to a new set of officers who will be under the control not of the Collector but of the High Court.
Functions under (a) and (b) above will continue to be discharged by the Collector and the Revenue Officers subordinate to him.
" Again in para 43 the Law Commission observed thus: 1123 "43.
It is in this background that the concept of separation has to be understood.
In its essence, separations means separation of judicial and executive functions in such manner that the judicial functions are exercised by the judiciary which is not controlled by the executive.
This would ensure that influence of the executive does not pollute the administration of criminal justice.
" On the question of allocation of functions between judicial and executive Magistrates it appears that there were before it three main patterns of separation (1) the Bombay pattern (suggested in the Report of the Committee on the separation of judiciary from the executive, 1947 appointed by the Government of Bombay), (2) the Madras pattern (Government of Madras, Public (Separation) Department G.O. Ms. No. 2304 dated 24th September, 1952) and (3) the Punjab pattern (introduced by Punjab Separation etc.
Act 25 of 1964) and according to the Law Commission the allocation under the Bombay and Punjab schemes proceeded on the basis that powers other than those of trial of offences should be left to the Executive Magistrates even where recording and sifting of evidence and a decision thereon were required and this was brought about by making the requisite amendments in certain sections of the Code including section 144 while under the Madras scheme matters involve the recording and sifting of evidence were strictly within the purview of the Judicial Magistrates but concurrent jurisdiction was provided in some cases and powers in those cases particularly under section 144 were kept with both judicial and executive Magistrates but Judicial Magistrate were to exercise them in emergency and until an executive Magistrate was available.
After considering all the patterns of allocation as also patterns of Magistracy under the Bombay, Punjab, and Madras schemes in paragraphs 94 to 98 of the Report the Law Commission came to the conclusion that the combination of Bombay and Punjab scheme was the best for being adopted as a model.
In Paragraph 113 of its Report while dealing with the aspect of appointment of Magistrates the Law Commission recommended that executive Magistrates should be continued to be appointed by the State Government and their area should be defined by the State Government or by the District Magistrate subject to the control of the State Government while judicial Magistrates should to appointed by the High Court and if separation was to be introduced effectively the conferment of magisterial powers should belong to the High Court.
As regards section 144 (1) of the old Code in para 353 of its Report the Law Commission in terms recommended that before 1124 the words 'other magistrate ' the word 'executive ' be added and the recommendation has been accepted while drafting that section in the new Code.
Turning to the 1973 Code itself the scheme of separating judicial Magistrates from executive Magistrates with allocation of judicial functions to the former and the executive or administrative functions to the latter, as we shall presently indicate, has been implemented in the Code to a great extent.
Section 6 provides that there shall be in every State four classes of Criminal Courts, namely, (1) Courts of Session, (ii) Judicial Magistrates of the First Class and, in any Metropolitan area, Metropolitan Magistrates; (iii) Judicial Magistrates of the Second Class; and (iv) Executive Magistrates; sections 8 to 19 provide inter alia for declaration of metropolitan area, establishment of Courts of Session, Courts of Judicial Magistrates, Courts of Metropolitan Magistrates and appointments of Sessions Judges, Additional Sessions Judges, Assistant Sessions Judges, Chief Judicial Magistrates Judicial Magistrates, Chief Metropolitan Magistrates and Metropolitan Magistrates together with inter subordination, but all appointments being required to be made by the High Court, while sections 20, 21, 22 and 23 deal with appointment of District Magistrates, Additional District Magistrates, Executive Magistrates, Sub Divisional Magistrates and Special Executive Magistrates and their respective jurisdictions in every district and metropolitan area together with inter se subordination, but appointments being made by the State Government, Chapter III comprising sections 26 to 35 clearly shows that Executive Magistrates are totally excluded from conferment of powers to punish, which are conferred on Judicial Magistrates; this shows that if any one were to commit a breach of any order passed by an Executive Magistrate in exercise of his administrative or executive function he will have to be challaned or prosecuted before a Judicial Magistrate to receive punishment on conviction.
Further, if certain sections of the present Code are compared with the equivalent sections in the Old Code it will appear clear that a separation between judicial functions and executive or administrative functions has been achieved by assigning substantially the former to the Judicial Magistrates and the latter to the Executive Magistrates.
For example, the power under section 106 to release a person on conviction of certain types of offences by obtaining from him security by way of execution of bond for keeping peace and good behaviour for a period not exceeding three years a judicial function is now exclusively entrusted to a Judicial Magistrate whereas under section 106 of the old 1125 Code such power could be exercised by a Presidency Magistrate, a District Magistrate or Sub Divisional Magistrate, but the power to direct the execution of a similar bond by way of security for keeping peace in other cases where such a person is likely to commit breach of peace or disturb the public tranquility an executive function of police to maintain law and order and public peace which was conferred on a Presidency Magistrate, District Magistrate, etc.
under the old section 107 is now assigned exclusively to the Executive Magistrate under the present section 107; Chapter X of the new Code deals with the topic of maintenance of public order and tranquility and in that Chapter sections 129 to 132 deal with unlawful assemblies and dispersal thereof, sections 133 to 143 deal with public nuisance and abatement or removal thereof, section 144 deals with urgent cases of nuisance and apprehended danger to public tranquility and sections 145 to 148 deal with disputes as to immovable properties likely to cause breach of peace all being in the nature of executive ( 'police ') functions, powers in that behalf have been vested exclusively in executive Magistrate whereas under equivalent provisions under the old Code such powers were conferred indiscriminately on any Magistrate, whether Judicial or Executive.
In particular it may be stated that whereas under the old section 144 the power to take action in urgent cases of nuisance or apprehended danger to public tranquility had been conferred on "a District Magistrate, a Chief Presidency Magistrate, a sub Divisional Magistrate or any other Magistrate, specially empowered by the State Government", under the present section 144 the power has been conferred on "a District Magistrate, Sub Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in that behalf." Having regard to such implementation of the concept of separation of judicial functions from executive or administrative functions and allocation of the former to the Judicial Magistrates and the latter to the Executive Magistrates under the Code of 1973, it will be difficult to accept the contention of the counsel for respondents 5 and 6 that the order passed by a District Magistrate, Sub Divisional Magistrate or any other Executive Magistrate under the present section 144 is a judicial order or quasi judicial order, the function thereunder being essential an executive (police) function.
Under the new Code the designation of District Magistrate of Sub Divisional Magistrate has been statutorily used in relation to officers performing executive functions only in recognition of the concept of separating Executive Magistrates from Judicial Magistrates.
It is true that before passing the order the District 1126 Magistrate, Sub Divisional Magistrate or the Executive Magistrate gives a hearing parties except in cases of emergency when ex parte order can be made under section 144 (2) by Him without notice to the person or persons against whom it is directed, but in which cases on an application made by any aggrieved person he has to give hearing to such person under section 144 (5) and thereupon he may rescind or alter his earlier order.
It is also true that such an order made by the Executive Magistrate is revisable under section 397 of the Code because under the Explanation to that section all Magistrates, whether executive or judicial or whether exercising appellate or original jurisdiction, are deemed to be inferior Courts for purposes of the revisional power of the High Court or Court of Sessions.
But the fact that the parties and particularly the aggrieved party are heard before such an order is made merely ensures fair play and observance of audi alteram partem rule which are regarded as essential in the performance of any executive or administrative function and the further fact that a revision lies against the order of the executive magistrate either to the Sessions Court or to the High Court removes the vice of arbitrariness, if any, pertaining to the section.
In fact, in the three decisions of this Court which were relied upon by counsel for respondents 5 and 6 namely Babu Parate 's case, K. K. Mishra 's case and Madhu Limaye 's where the constitutionality of sec.
144 of the old code was challenged on the ground that it amounted to unreasonable restriction on the fundamental right of a citizen under article 19 (1) of the Constitution the challenge was repelled by relying upon these aspects to be found in the provision.
In our view, however these aspects cannot make the order a judicial or quasi judicial order and such an order issued under sec.
144 of the present code will have to be regarded as an executive order passed in performance of an executive function where no lis as to any rights between rival parties is adjudicated but merely an order for preserving public peace is made and as such it will be amenable to writ jurisdiction under article 32 of the Constitution.
We would like to mention in this context that the power conferred upon sec.
is comparable to the power conferred on the Bombay Police under sec.
37 of the Bombay Police Act, 1951, both the provisions having been put on the statute book to achieve the objective of preservation of public peace and tranquility and prevention of disorder and it has never been disputed that any order passed under sec.
37 of the Bombay Police Act is subject to writ jurisdiction of the High Court under article 226 of the Constitution on the ground that it has the effect of violating or infringing 1127 a fundamental right of a citizen.
The nature of the power under both the provisions and the nature of function performed under both being the same by parity of reasoning an order made under sec.
must be held to be amenable to writ jurisdiction either under article 32 or under 226 of the Constitution if it violates or infringes any fundamental right.
The contention raised by Counsel for respondents 5 and 6 therefore, has to be rejected.
Having come to the conclusion that the order under sec.
is amenable to writ jurisdiction under article 32, the same being in exercise of executive power in performance of executive function the next question that we have to deal with is whether the petitioners could be said to have made out any ground for challenging the impugned order passed by the City Magistrate, Varanasi on 24th November, 1979 prohibiting both Shia and Sunni communities from holding their Majlises and imposing other restrictions on the occasion of celebration of MOHARRAM festival at the Baradari in Mohalla Doshipura.
As already stated the challenge to this order was incorporated in the writ petition by way of an amendment which had been allowed by the Court.
Since however, that impugned order has by now exhausted itself by efflux of time it would not be proper for us to go into either the grounds of challenge urged by the petitioners or the materials justifying the same put forward by the respondents for determining its legality or validity.
Since however, occasions or situations arise even during a year as well as year after year making it necessary for the executive magistracy of Varanasi to take action under sec.
144 and since it has been the contention of the petitioners, though stoutly disputed by all the respondents that the exercise of the power under the said provision has invariably been perverse and in utter disregard of the lawful exercise of their legal rights to perform their religious ceremonies and functions on the plots and structures in question it will be desirable to make general observations by way of providing to the local authorities requisite guidelines with a view to ensure a correct and proper exercise thereof with a brief reference to few decided cases on the point.
Without setting out verbatim the provisions of sec.
144 of the 1973 Code, we might briefly indicate the nature of power thereunder and what it authorises the executive magistracy to do and in what circumstances.
In urgent cases of nuisance or apprehended danger, where immediate prevention or speedy remedy 1128 is desirable, a District Magistrate, a Sub Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf may, by a written order stating the material facts of the case, direct a particular individual, or persons residing in a particular place or area, or the public generally when frequenting or visiting a particular place or area, (i) to abstain from a certain act or (ii) to take certain order with respect to certain property in his possession or under his management, if he considers that such direction is likely to prevent or tends to prevent obstruction, annoyance or injury to any other person lawfully employed, or danger to human life, health or safety, or a disturbance of public tranquillity, or a riot or an affray.
As stated earlier sub sec.
(2) authorises the issuance of such an order ex parte in cases of emergency or in cases where circumstances do not admit of the serving in due time of a notice upon the person or persons against whom the order is directed but in such cases under sub sec.
(5) the executive magistrate, either on his own motion or on the application of the person aggrieved after giving him a hearing, may rescind or alter his original order.
Under sub section (4) no order under this section shall remain in force for more than two months from the making thereof unless under the proviso thereto the State Government by Notification directs that such order shall remain in force for a further period not exceeding six months.
The entire basis of action under section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquillity.
Preservation of the public peace and tranquillity is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to over ride temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail.
It is further well settled that the section does not confer any power on the Executive Magistrate to adjudicate or decide disputes of Civil nature or questions of title to properties or entitlements to rights but at the same time in cases where such disputes or titles or entitlements to rights have already been adjudicated and have become the subject 1129 matter of judicial pronouncements and decrees of Civil Courts of competent jurisdiction then in the exercise of his power under section 144 he must have due regard to such established rights and subject of course to the paramount consideration of maintenance of public peace and tranquillity the exercise of power must be in aid of those rights and against those who interfere with the lawful exercise thereof and even in cases where there are no declared or established rights the power should not be exercised in a manner that would give material advantage to one party to the dispute over the other but in a fair manner ordinarily in defence of legal rights, if there be such and the lawful exercise thereof rather than in suppressing them.
In other words, the Magistrate 's action should be directed against the wrong doer rather than the wronged.
Furthermore, it would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a minor section of the community rather than prevent a larger section more vociferous and militant.
In Muthialu Chetti vs Bapun Sahib the facts were that in 1875 Mohammedans of Sevvaipett applied for permission to erect a mosque in that village on the site occupied by the previous mosque that had recently been destroyed but the Hindus objected and the application was refused; the Mohammedans nevertheless occupied the site and in 1878 again applied for permission to build the mosque but the Hindus again opposed the application expressing their apprehension that the erection of mosque would lead to disturbances when they were conducting their processions with music or celebrating ceremonies in the temples adjoining the river.
The Collector accorded sanction to the erection of the mosque on condition that the Mohammedans undertook to allow the free passage of processions but professing to act as the District Magistrate he at the same time ordered that all music should cease when any procession was passing or repassing the mosque and directed that the order be notified to the inhabitants of Sevvaipett and Gogoi.
The restriction that music should cease when processions would be passing or repassing the mosque was imposed in accordance with G.O. dated 9th May, 1874 which ran thus "All Magistrates should 1130 make it an invariable condition that music shall cease playing while the procession is passing any recognised place of worship, to whatever denomination belonging, except of course the places of worship appertaining to the processionaries themselves.
" Some leading Hindus of Sevvaipett filed a suit in Munsif 's Court against Mohammedans for a declaration of their right to conduct their processions with music past the site occupied by the mosque and challenged the validity of the District Magistrate 's order that the music of their processions should stop whilst passing or repassing the mosque.
The Munsif 's Court granted a decree in favour of the plaintiffs which was reversed by the District Court but was restored with some qualification by the High Court in second appeal.
The High Court laid down that whilst the law recognised the right of an assembly, lawfully engaged in religious worship or religious ceremonies, not to be disturbed, it also recognised the right of persons for a lawful purpose, whether civil or religious, to use a common highway in parading it attended by music, so that they do not obstruct use of it by other persons; that whenever a conflict of rights exists, it is the duty of the Magistrate, if he apprehends civil tumults, to guard against it, and, if necessary, to interdict a procession; but that a general order interdicting all musical processions is ultra vires and illegal.
The High Court pointed out that the extent of authority possessed by the Magistrate was to suspend the exercise of the right on particular occasions, and not prohibit it absolutely and before the occasion arose which entitled him to act; and it consequently held the District Magistrate 's order to be ultra vires.
In Parthasaradi Ayyangar vs Chinna Krishna Ayyangar Turner C.J. laid down the law at page 309 of the report thus: "Persons of whatever sect are entitled to conduct religious processions through public streets so that they do not interfere with the ordinary use of such streets by the public and subject to such directions as the Magistrates may lawfully give to prevent obstructions of the thoroughfare or breaches of the public peace." In Sundram Chetti and Ors.
vs The Queen before a Full Bench of the Madras High Court the aforesaid position was maintained and it was further laid down that the worshippers in the mosque or temple 1131 which abutted on a high road could not compel the processionists to intermit their (processionists ') worship while passing the mosque or temple on the ground that there was continuous worship there.
Turner C.J. who presided over the Full Bench observed at page 217 of the Report thus: "With regard to processions, if they are of a religious character, and the religious sentiment is to be considered, it is not less a hardship on the adherents of a creed that they should be compelled to intermit their worship at a particular point, than it is on the adherents of another creed, that they should be compelled to allow the passage of such a procession past the temples they revere.
But the prejudices of particular sects out not to influence the law.
" At page 215 of the Report the learned Chief Justice observed thus: "The Criminal Procedure Code declares the authority of the Magistrate to suspend the exercise of rights recognised by law, when such exercises may conflict with other rights of the public or tend to endanger the public peace.
But by numerous decisions it has been ruled that this authority is limited by the special ends it was designed to secure and is not destructive of the suspended rights.
" Again at page 220 he has observed thus: "I must nevertheless observe that this power (to suspend the exercise of legal rights on being satisfied about the existence of an emergency) is extraordinary and that the Magistrate should resort to it only when he is satisfied that other powers with which he is entrusted are insufficient.
Where rights are threatened, the persons entitled to them should receive the fullest protection the law affords them and circumstances admit of.
It needs no argument to prove that the authority of the Magistrate should be exerted in the defence of rights rather than in their suspension; in the repression of illegal rather than in interference with lawful acts.
If the Magistrate is satisfied that the exercise of a right is likely to create a riot, he can hardly be ignorant of the per 1132 sons from whom disturbance is to be apprehended, and it is his duty to take from them security to keep the peace.
(Emphasis supplied).
It may be stated that the aforesaid view of the Madras High Court was preferred by the Privy Council to the contrary view of the Bombay High Court.
In Manzur Hasan and Ors.
vs Muhammad Zaman and Ors.
the facts were that Shia Mahomedans in the town of Aurangabad, District Aligarh conducted Muharram a procession bearing religious emblems and pausing from time to time for the performance of "matam" (wailing).
From time immemorial the procession performing "matam" had passed along a public street immediately behind a Sunni Mahommedan mosque; in and after 1916 the respondents (Sunnis) interfered to prevent "matam" near the mosque, as they alleged that it disturbed their devotions.
The appellants (Shias) brought a suit for declaration of their rights to make short pauses behind the mosque for the performance of "matam" and for a permanent injunction against the Sunnis from interfering with their rights.
The Judicial Committee upholding the Madras view and rejecting the Bombay view held that in India there is a right to conduct a religious procession with its appropriate observances through a public street so that it does not interfere with the ordinary use of the street by the public, and subject to lawful directions by the Magistrates and that a civil suit for declaration lies against those who interfere with a religious procession or its appropriate observances.
These decisions show that legal rights should be regulated and not prohibited altogether for avoiding breach of peace or disturbance or public tranquillity.
In Haji Mohammed Ismail vs Munshi Barakat Ali and Ors.
there was a dispute concerning the conduct of a prayer in a mosque, and there being an apprehension of breach of peace the Magistrate under section 144 drew up a proceeding and eventually recorded an order that ."no man of either party will be allowed to read prayers in the mosque." The Court held that the order was mis conceived; that the effect of the order was that no Mohammedan would be allowed to say his prayers in the mosque it was not justified under section 144 and that the proper course was for the Magistrate to ascertain which party was in the wrong and was interfering unnecessarily with 1133 the legal exercise of the legal rights of the other party, and to bind down that party restraining them from committing any act which may lead to a breach of peace.
(Emphasis supplied).
In Madhu Limaye 's case (supra) this Court has also expressed the view that the key note of the power in section 144 is to free the society from menace of serious disturbances of a grave character and the section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health.
The instant case, as we have held above, is one where the entitlement of the Shias to their customary rights to perform their religious ceremonies and functions on the plots and structures in question has been established and is the subject matter of a judicial pronouncement and decree of Civil Court of competent jurisdiction as also by reason of these properties having been registered as Shia Waqfs for performance of their religious ceremonies and functions and their complaint has been that the power under section 144 is being exercised in utter disregard of the lawful exercise of their legal rights and every time instead of exercising the power in aid of their rights it is being exercised in suppressing their rights under the pretext of imminent danger to peace and tranquillity of the locality.
Having elaborated the principles which should guide the exercise of that power we hope and trust that in future that power will be exercised by the executive magistracy in defence of such established rights of the petitioners and the Shia community and instead of prohibiting or suspending the exercise of such rights on concerned occasions on the facile ground of imminent danger to public peace and tranquillity of the locality the authorities would make a positive approach to the situation and follow the dictum of Turner C.J. that if they are satisfied that the exercise of the rights is likely to create a riot or breach of peace it would be their duty to take from those from whom disturbance is apprehended security to keep the place.
After all the customary rights claimed by the petitioners part take of the character of the fundamental rights guaranteed under Articles 25 and 26 of the Constitution to the religious denomination of Shia Muslims of Varanasi, a religious minority, who are desirous of freely practising their religious faith and perform their rites, practices, observances and functions without let or hindrance by members belonging to the majority sect of the community namely, Sunni Muslims, and as such a positive approach is called for on the part of the local authorities, 1134 It is only in an extremely extraordinary situation, when other measures are bound to fail, that a total prohibition or suspension of their rights may be resorted to as a last measure.
Lastly, counsel for the respondents contended that the present writ petition was barred by res judicata or principle analogous to res judicata by reason of this Court 's decision in (a) Civil Appeal No. 941 of 1976, (b) Review Petition No. 36 of 1977 and (c) order dated 4.12.1978 permitting withdrawal of Special Leave Petition No. 6226 of 1978; alternatively it was urged that the view taken by a Bench of 3 Judges of this Court in their Judgment dated 6.12.1976 in Civil Appeal No. 941 of 1976 and reiterated in its order dated 16.12.1976 on Review Petition No. 36 of 1977, however wrong, should not be disturbed by another Bench of 3 Judges, especially as the petitioners are seeking by the present petition to set at naught the earlier decision or get it revised on the same material which they should not be allowed to do.
It is difficult to accept either of these contentions for reasons which we shall presently indicate.
As regards res judicata or the bar based on the principle analogous to res judicata, we have already referred in the earlier part of our judgment to the leading decision of this Court in Daryao 's case (supra) where the basts on which the general doctrine of res judicata is founded has been explained, namely, that it is founded on considerations of high public policy to achieve two objectives, namely, (a) that there must be a finality to litigation and (b) that the individuals should not be harassed twice over with the same kind of litigation and in our view neither of these aspects is present here so as to bar the present petition by res judicata or principle analogous to res judicata.
We would like to point out that the present litigation has been fought in a representative character both as regards the petitioners who are representing the Shia community and as regards the respondents 5 and 6 who are representing the Sunni community whereas the earlier writ petitions Nos.
2397 of 1973 (out of which arose the Civil Appeal No. 941 of 1976) and No.3906 of 1978 (out of which arose Special Leave Petition No. 6226 of 1978) were filed in the Allahabad High Court by the then petitioners in their individual capacity and as such these earlier litigations which were fought right up to this Court cannot be regarded as between the same parties who are before us; further, where it was felt by this Court that proper adjudication would not be possible without impleading the two Boards (Shia Central Wakf Board and Sunni Central Wakf Board) notices were issued to them and they were also im 1135 pleaded as parties to the petition who have filed their respective affidavits in the matter and have been heard through respective counsel.
Secondly, the earlier decision of this Court in Civil Appeal No.941 of 1976 did not record any decision on the rights of the parties on merits but the Court took the view that the parties should be relegated to a civil suit on the assumption that the petitioners before the Allahabad High Court (in W.P.No.2397) had raised disputed questions of title and the Allahabad High Court had decided them for the first time in the writ petition; irrespective of whether the assumption made by this Court was right or wrong, the fact remains that there was no adjudication or decision on the petitioners ' rights on merits as a result of the final order passed by this Court in the appeal, which was confirmed in the Review Petition; all that could be said to have been decided by this Court in Civil Appeal No. 941 of 1976 and Review Petition No. 36 of 1977 was that parties should get their rights adjudicated in a Civil Court suit.
For these reasons it is obvious that neither res judicata nor principle analogous to res judicata would bar the present writ petition.
We may point out that the setting aside of the Allahabad High Court judgment and its findings in writ Petition No.2397/1973 by this Court in Civil Appeal No.941 of 1976 cannot have effect of obliterating or effecting in any manner the findings recorded and adjudication done between the parties to the earlier litigations, particularly Suit No. 232/1934.
As regards the alternative submission made by counsel for the respondents, we would like to point out that it is not correct to say that the petitioners are seeking to set at naught the earlier decision of this Court or to have the same revised by present petition on the same materials; if that were so there would have been some force in the contention.
Fresh material of substantial character in the form of the original Survey Report of the Chief Commissioner of Wakfs dated 28th/31st October, 1938 and the relevant Notification issued by the Shia Board on 15th of January, 1954 published in the U. P. Government Gazette dated 23rd of January 1954 under sec.
5 (1) of the U. P. Muslim Wakfs Act, 1936, not produced in the earlier litigation either before the Allahabad High Court, or before this Court was produced before us during the hearing on the basis of which the members of the Shia community sought to prove their existing and established entitlement to their customary rights.
In fact it was one of the contentions of the respondents 5 and 6 that before the Allahabad High Court in the earlier litigation the then petitioners had misled the Court into believing that the Notification issued by the Shia Board on 1st of December, 1956 under Rule 54 1136 (vii) was the Notification under s.5 (1) of the U.P. Muslim Wakfs Act, 1936.
Moreover, additional material has come before us through both the Boards affording considerable assistance to us in arriving at proper conclusions in the case.
Thus where the parties before us are different and when fresh material has been produced before us which was not there in the earlier litigation, the alternative contention loses all force and must be rejected.
In the result we hold that the petitioners and through them the Shia community of Mohalla Doshipura, Varanasi have established their existing customary rights to perform their religious rites, practices, observances, ceremonies and functions minus the recitation and utterance of Tabarra (detailed in the writ petition) over the Plots and structures in question and respondents 5 and 6 and the Sunni community of Mohalla Doshipura are permanently restrained by an injunction from interfering with the exercise of said rights in any manner by the petitioners or members of Shia community and respondents 1 to 4, particularly the executive magistracy of Varanasi is directed, if action under section 144 Cr.
P.C. is required to be taken, to issue their orders under the said provision having regard to the principles and the guidelines indicated in that behalf in this judgment.
The writ petition is thus allowed but each party will bear its own costs.
S.R. Petition allowed.
| IN-Abs | Uttar Pradesh Muslim Wakf Act, 1960 (Act XVI of 1960) repealing Uttar Pradesh Muslim Wakf Act, 1936 (Act XIII of 1936 Legal position as to the finality of Survey Reports and effect of registration of Wakfs already made under the earlier Act long before it was repealed Words and phrases "Every other Wakf " in section 29 of the 1960 Act, meaning of.
Criminal Procedure Code, 1973, section 144 Whether an order made under section 144 Criminal Procedure Code is judicial or quasi judicial order or whether it is passed in exercise of an executive power in performance of executive function amenable to writ jurisdiction under Article 32 of the Constitution Nature and power under the section and what it authorises the executive magistracy to do and in what circumstances, explained.
In Mohalla Doshipura of Varanasi city, there are two sects of Mohamedans the Shias and the Sunnis.
Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grand sons of Prophet Mohammed, during the Moharram but in a different manner.
Nine plots bearing Nos. 245, 246, 247, 248/23/72, 602, 603, 602/1133, 246/1134 and 247/1130 in the said Mohalla and buildings and structures thereon belong to the Shia Waqf of Mohalla Doshipura.
Shias of that Mohalla numbering about 4000 constitute a religious denomination having a common faith and they observe Moharram for two months and eight days in a year in memory of Hazrat Imam Hussain who along with his 72 followers attained martyrdom at Karbala in Iraq.
The said religious belief is practised by the men folk and the women folk of the Shia community by holding Majlises (religious discourses), Recitations, Nowhas, Marsia, doing 1078 Matam (wailing) and taking out processions with Tabut Tazia, Alams, Zukinha, etc.
For performing these religious rites, practices and observances the Shia community has been customarily using from time immemorial the nine plots in Mohalla Doshipura and the structures thereon.
The entire period of Moharram is a period of mourning for the Shias whose staunch belief is that the whole purpose of their life is to carry out these religious practices and functions during the Moharram and that in case they do not perform all these rites, practices, observances and functions, including those relating to the Tazia, they will never be delivered and till these are performed the whole community will be in mourning and in none of their families any marriage or other happy function can take place.
The petitioners, in the writ petition, and through them the Shia community, contended as follows: (i) that their customary rights to perform several religious rites, practices, observances and functions on the said nine plots and the structures thereon having been already determined in their favour by decisions of competent civil courts ending with the Review Petition 36177 in Civil Appeal 941176 in the Supreme Court, the respondents must be commanded by a mandamus not to prohibit or restrain the Shias from performing their religious rites etc.
On the said plots; (ii) that the registration of Shia Waqfs concerning the plots and structures for performance of these practices and functions under sections 5 and 38 of the Uttar Pradesh Muslim Wakfs Act, 1936, which had become final as no suit challenging the Commissioner 's report and registration was filed within two years by any member of Sunni Community or the Sunni Central Wakf Board, also concluded the said rights in their favour; and (iii) that the power under section 144 Criminal Procedure Code is being invariably exercised perversely and in utter disregard of the lawful exercise of Shias ' legal rights to perform their religious ceremonies and functions and instead of being exercised in aid of such lawful exercise it is exercised in favour of those who unlawfully and illegally interfere with such lawful exercise under the facile ground of apprehension of imminent danger to peace and tranquility of the locality.
The respondents contested and contended as follows: (i) that a Writ Petition under Article 32 for such a relief of declaration is not maintainable in as much as the basic purpose of a petition under Article 32 is to enforce existing or established fundamental rights and not to adjudicate and seek a declaration of such rights or entitlement thereto; (ii) that no mandamus under Article 32 is competent inasmuch as orders under section 144 Cr.
P.C. these are judicial or quasijudicial; alternatively even if it were assumed that these orders are administrative or executive orders passed by the Executive Magistrates, they cannot be challenged unless the Magistrate has exceeded his powers or acted in disregard to the provisions of the law or perversely; and (iii) that the writ petition was barred by res judicata or principles analogous to res judicata by reason of the Supreme Court 's decisions in (a) Civil Appeal 941/1976.
(b) Review Petition 36 of 1977 and (c) order permitting withdrawal of S.L.P. 6226 of 1978 on 4 12 1978.
Allowing the petition, the Court ^ HELD: 1: 1.
The petitioners and through them the Shia community of Mohalla Doshipura, Varanasi, have established their customary rights to perform 1079 their religious rites, practices, observances, ceremonies and functions minus the A recitation and utterance of Tabura over the plots in question.
[1136 B C] 1: 2.
The litigation arising out of Suit No. 849 of 1878 (Sheik Sahib and ors.
vs Rahtnatu and ors.) declared the mosque in plot No. 246 to be a public mosque at which every mohammedan became entitled to worship and further declared the Shias ' right to keep their Tazia in the apartment attached to the mosque and repair it in the verandah thereof and to hold their majlises on 9th and 12th of Moharram on or near the platform on the surrounding ground of the mosque as early as on 29th March, 1879.
[1098 B, G H] The alleged customary rights of Sunnis in the matter of burial of their dead on the plot No. 60211133 was decided against them, in the Suit No. 42411931 filed by the then Maharaja of Banaras in the Court of Addl.
Munsiff, Banaras.
[1099 A B, G] The third and most important Suit No. 232/1934 filed in the court of City Munsiff, Banaras (Fathey Ullah and Ors.
(Sunnis) vs Nazir Hussain and Ors.
(Shias) in respect of all the plots in Khasra Nos 245, 246, 247, 248/23/72, 602, 603, 602/1133, 246/1134 and 247/1130 which were claimed to be Sunni Wakfs by long user, also went against the Sunnis and in favour of the Shias, clearly establishing the title or ownership of Shias over at least two main structures Zanana Imambara on plot No. 245 and Baradari on plot No. 247/1130 and to the land below the structures and what is more substantially the customary rights claimed by the Shia Muslims over the plots and structures were upheld.
[1100 H, 1101 A B, 1102 F G] The said suit 232/34 had been filed in the representative capacity both as regards the Sunni plaintiffs and Shia defeadants and all the formalities under order I rule 8 of the Civil Procedure Code had been complied with and as such he final decision in that litigation is binding on both the communities.
[1104 B C, G H] 2 :1.
Ordinarily adjudication of questions of title or rights and granting declaratory relief consequent upon such adjudication are not undertaken in a Writ Petition under Article 32 of the Constitution and such a petition is usually entertained by the Supreme Court for enforcement of existing or established title or lights for preventing infringement or encroachment thereof by granting appropriate reliefs in that behalf.
Here, what Shia community is seeking by the Writ Petition is enforcement of their customary rights to perform their religious rites, practices, observances and functions on the concerned nine plots and structures thereon which have already been adjudicated, determined and declared in their favour by decisions of competent Civil Courts in the earlier litigations and that the declaration sought in the prayer clause is really incidental.
[1097 A C] 2: 2.
It is true that title and ownership of the plots of land in question is distinct from title and ownership of structures standing thereon and both these are again distinct from the customary rights claimed by the members of the Shia community to perform their religious ceremonies and functions on the plots and the structures thereon.
However, even if the petitioners and through them the Shia community are unable to prove their existing or established title either to the concerned plots or to the structures standing thereon but they are able to 1080 prove that they have existing or established customary rights to perform their religious ceremonies and functions on the plots and the structures thereon simultaneously complaining of illegal deprivation or encroachment by executive officers at the behest of the respondents or the Sunni community the reliefs sought by them by way of enforcement of such customary rights will have to be entertained and considered on merits and whatever relief they may be found legally and properly entitled to may have to be granted to them.
[1097 C F] 3: 1.
It is well settled that section 11 of the Civil Procedure Code is not exhaustive of the general doctrine of res judicata and though the rule of res judicata as enacted in section 11 has some technical aspects the general doctrine is founded on considerations of high public policy to achieve two objectives, namely, that there must be a finality to litigation and that individuals should not be harassed twice over with the same kind of litigation.
The technical aspects of section 11 of Civil Procedure Code, as for instance, pecuniary or subject wise competence of the earlier forum to adjudicate the subject matter or grant reliefs sought in the subsequent litigation would be immaterial when the general doctrine of res judicata is to be invoked.
Even under section 11 of the Civil Procedure Code the position has been clarified by inserting a new Explanation VIII in 1976 [1105 C D, 1107 A B] 3: 2.
In the instant case; (a) it was not disputed that the Munsif 's Court at Banaras was competent to decide the issues that arose for determination before it in earlier litigation and, therefore, the decision of such competent court on the concerned issues must operate as a bar to any subsequent agitation of the same issues between the same parties on general principles of res judicata; (b) not only were the Sunnis ' customary rights over the plots and structures in question put in issue during the trial but the customary rights to perform their religious ceremonies and functions on the plots and structures thereon claimed by the Shias were also directly and substantially put in issue inasmuch as the plaintiffs (Sunni Muslims) has sought an injunction restraining the Shias from exercising their customary rights.
Therefore, the decision in this litigation which bore a representative character not merely negatived the Sunnis ' customary rights claimed by them over the plots and structures but adjudicated, determined and declared the Shias ' entitlement to their customary rights to perform their religious ceremonies and functions on the plots and structures thereon in question and this decision is binding on both the communities of Mohalla Doshipura; (c) there is no question of there being any gap or inadequacy of the material on record in the matter of proof of Shias ' entitlement to customary rights over the plots and structures in question, whatever be the position as regards their title to the plots or structures; and (d) a clear case has been made out of an existing or established entitlement to the customary rights in favour of the Shias ' community to perform their religious ceremonies and functions over the plots and structures in question under the decrees of competent Civil Court for the enforcement of which the instant Writ Petition has been filed.
[1107 B H, 1108 A] Rajah Run Bahadoor Singh vs Musumut Lachoo Koer, XII I. A. 23: Mst.
Gulab Bai vs Manphool Bai, ; ; Daryao and others vs State of U.P. ; ; Gulabchand Chhotalal parikh vs State of Bombay (now 1081 Gujarat); , and Union of India vs Nanak Singh, ; , referred to.
Broadly speaking, while repealing the 1936 Act, the 1960 Act maintains and preserves the finality and conclusiveness accorded to the Survey Reports completed and submitted by the Wakfs Commissioners under the former Act and the registration of Wakfs under the 1936 Act has been kept alive and effective as if such registration has taken place under the latter Act and registration of Wakfs under the latter Act has been permitted only in respect of Wakfs other then those which have already been registered under the former Act.
A perusal of sections 6, 9, 28 and 29 of the 1960 Act and sections 4(3), 4(5), 5(1), (2), (3) and 39 of the 1936 Act clearly show that the finality and conclusiveness accorded to the Commissioner 's report under section 5(3) of the 1936 Act has been preserved and the registration of Wakfs under the 1936 Act has been maintained under the 1960 Act notwithstanding the repeal of the former Act by the latter.
In other words any Survey Report submitted under the 1960 Act and any registration made under the 1960 Act will be futile and of no avail in regard to Wakf properties respecting which the Commissioner 's Report under the 1936 Act has become final and registration has been effected under the 1936 Act.[1108H, 1109A, 1110 F G] 4:2.
In the instant case; (a) having regard to the six properties being specifically asked to be entered in the list of Shia waqfs by Imam Ali Mahto in his application and the order made thereon, all the properties mentioned in the application must be regarded as having been entered in the list of Shia wakfs by the Chief or Provincial Commissioner for Wakfs and the Notification under section 5(1) related to all those properties as having been notified to be Shia Wakfs particulars whereof were stated to be available in the Board 's office.
The Nota Bena at the foot of the Notification amounted to sufficient particularisation of the properties notified as Shia Wakfs.
Non mentioning of those properties as Sunni Wakfs in Appendices VIII and IX sent to the Sunni Central Wakfs Board must amount to a notice to the Sunni Board and the Sunni Muslims that these had been enlisted as Shia Wakfs.
Admittedly, no suit was filed either by the Sunni Central Board or any other person interested in those Wakfs challenging the decision recorded in his Report by the Chief or Provincial Commissioner for Wakfs within the time prescribed under section 5(2) of the Act and, therefore, the Chief Commissioner 's Report together with the appendices X and XI thereto dated 28th/31st October, 1938, on the basis of which the Notification dated 15th January, 1954 was issued and published in Official Gazette on 23rd January, 1954, must be held to have become final and conclusive as between the members of the two communities; (b) the Notification dated 26 2 1944 issued by the Sunni Wakf Board on the basis of material which did not form part of the Chief Commissioner 's Report would be in violation of section 5(1) of the 1936 Act; (c) Notice issued by the Shia Board under section 53 of the 1936 Act complaining about the entry at Serial No. 224 must be regarded as having been issued ex majori cautela; and (d) even if it were assumed for the purposes of argument that entry at Serial 224 in the Notification dated 26th February, 1944 refers to the mosque in question it cannot affect the customary rights of the petitioners and through them the Shia community to perform their religious ceremonies and functions over the other 8 plots and structures thereon which had been listed as Shia Wakfs under the Notification dated 15th January, 1954, especially when it is now common ground 1082 that the mosque on Plot No. 246 is a public mosque constructed by general subscriptions and is accessible to members of both the sects for offering prayers and doing worship therein; (e) the registration under section 38 of the 1936 Act would be available to the petitioners and must prevail over the subsequent registration, if any, obtained by the Sunnis in respect of some of the properties under the 1960 Act; really speaking such latter registration would be non est in the eye of law.
Even on the second foundational basis the Shias have proved their existing or established entitlement to their customary rights to perform their religious ceremonies and functions on the concerned plots and structures thereon.[1113 B G, 1115 A B, 1116 E A, 1117 A B] 4:3.
Shias are claiming the right to perform their religious ceremonies and functions on the plots and structures in question not so much on the basis of any title or ownership thereof but on the basis of customary exercise since time immemorial and they have been claiming such customary rights by prescription over the plots belonging to the Maharaja of Banaras as Zamindar and superior title holder and the prescriptive rights have enured for the benefit of all the Shias notwithstanding such superior title in the Maharaja and if that be so they will also enure for their benefit as against any derivative title claimed by anyone under the Maharaja.
Moreover when these plots and structures, particularly these three plots were being registered as Shia Wakfs under the U.P. Wakfs under the U.P. Muslims Wakfs Act 1936 by the Shia Board and Sanads or Certificates of Registration in respect thereof were being issued in December 1952, the two Sunni Lessees who are said to have obtained a lease on 20.4.1952 did not raise any objection to such registration.
The Shias ' customary rights acquired by prescription over these plots cannot thus be defeated by such derivative title.
[1119 C G] 5:1.
Having regard to such implementation of the concept of separation of judicial functions from executive or administrative functions and allocation of the former to the Judicial Magistrate and the later to the Executive Magistrates under the Code of 1973, the order passed by a District Magistrate, Sub Divisional Magistrate or any other Executive Magistrate under the present section 144 is not a judicial order or quasi judicial order, the function thereunder being essentially an executive (police) function.
[1125 E G] 5:2.
It is true that before passing the order the District Magistrate, Sub Divisional Magistrate or the Executive Magistrate gives a hearing to parties except in cases of emergency when exparte order can be made under section 144(2) by him without notice to the person or persons against whom it is directed, but in which cases on an application made by any aggrieved person he has to give hearing to such person under section 144(5) and thereupon he may rescind or alter his earlier order.
It is also true that such an order made by the Executive Magistrate is revisable under section 397 of the Code because under the Explanation to that section all Magistrates, whether executive or judicial or whether exercising appellate or original jurisdiction, are deemed to be inferior Courts for purposes of the revisional power of the High Court or Court of Sessions.
But the fact that the parties and particularly the aggrieved party are heard before such an order is made merely ensures fair play and observance of audi alterem partem rule which are regarded as essential in the performance of any executive or administrative function and the further fact that a revision lies against the order of the executive magistrate either to the Sessions Court or to the High Court 1083 removes the vice of arbitrariness, if any, pertaining to the section.
In fact, in the three decisions of the Supreme Court which were relied upon by counsel for respondents 5 and 6, namely, Babu Parate 's case, K.K. Mishra 's case and Madhu Limaye 's case where the constitutionality of section 144 of the old Code was challenged on the ground that it amounted to unreasonable restriction on the fundamental right of a citizen under Article 19(1) of the Constitution, the challenge was repelled by relying upon these aspects to be found in the provision.
However, these aspects cannot make the order a judicial or quasi judicial order and such an order issued under section 144 of the present code will have to be regarded as an executive order passed in performance of an executive function where no lis as to any rights between rival parties is adjudicated but merely an order for preserving public peace is made and as such it will be amenable to writ jurisdiction under Article 32 of the Constitution.[1125H, 1126 F] 5:3.
The power conferred under section 144 Criminal Procedure Code 1973 is comparable to the power conferred on the Bombay Police under section 37 of the Bombay Police Act, 1951 both the provisions having been put on the statute book to achieve the objective of preservation of public peace and tranquility and prevention of disorder and it has never been disputed that any order passed under section 37 of the Bombay Police Act is subject to writ jurisdiction of the High Court under Article 226 of the Constitution on the ground that it has the effect of violating or infringing a fundamental right of a citizen.
The nature of the power under both the provisions and the nature of function performed under both being the same by parity of reasoning an order made under section 144 Criminal Procedure Code, 1973 is amenable to writ jurisdiction either under Article 32 or under 226 of the Constitution if it violates or infringes any fundamental right.
[1126 F H, 1127 A B] 5:4.
In urgent cases of nuisance or apprehended danger, where immediate prevention or speedy remedy is desirable, a District Magistrate, a Sub Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf may, by a written order stating the material facts of the case, direct a particular individual, or persons residing in a particular place or area, or the public generally when frequenting or visiting a particular place or area, (i) to abstain from a certain act or (ii) to take certain order with respect to certain property in his possession or under his management, if he considers that such direction is likely to prevent or tends to prevent obstruction, annoyance or injury to any other person lawfully employed, or danger to human life, health or safety, or a disturbance of public tranquility, or a riot or an affray.
Sub section (2) authorises the issuance of such an order ex parte in cases of emergency or in cases where circumstances do not admit of the serving in due time of a notice upon the person or persons against whom the order is directed but in such cases under subsection (5) the executive magistrate, either on his own motion or on the application of the person aggrieved after giving him a hearing, may rescind or alter his original order.
Under Sub section (4) no order under this section shall remain in force for more than two months from the making thereof unless under the proviso thereto the State Government by Notification directs that such order shall remain in force for a further period not exceeding six months.[1127 H, 1128 A E] 1184 The entire basis of action under section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquility.
Preservation of the public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to over ride temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves, for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail.
The section does not confer any power on the Executive Magistrate to adjudicate or decide disputes of Civil nature or questions of title to properties or entitlements to rights but at the same time in cases where such disputes or titles or entitlement to rights have already been adjudicated and have become the subject matter of judicial pronouncements and decrees of Civil Courts of competent jurisdiction then in the exercise of his power under section 144 he must have due regard to such established rights and subject of course to the paramount consideration of maintenance of public peace and tranquility the exercise of power must be in aid of those rights and against those who interfere with the lawful exercise thereof and even in cases where there are no declared or established rights the power should not be exercised in a manner that would give material advantage to one party to the dispute over the other but in a fair manner ordinarily in defence of legal rights, if there be such and the lawful exercise thereof rather than in suppressing them.
In other words, the Magistrate 's action should be directed against the wrong doer rather than the wronged.
Furthermore, it would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would effect only a minor section of the community rather than prevent a larger section more vociferous and militant.
Legal rights should be regulated and not prohibited all together for avoiding breach of peace or disturbance or public tranquility.
The key note of the power in section 144 is to free the society from menace of serious disturbances of a grave character and the section is directed against those who attempt to prevent the exercise of legal rights or others or imperil the public safety and health.[1128 E H, 1129 A D, 1138B] Muthialu Chetti vs Bapun Sahib, ILR ; Parthasaradi Ayyangar vs Chinna Krishna Ayyangar, ILR 5 Mad.
304 and Sundram Chetti and Ors.
vs The Queen, ILR 6 Mad. 203, approved.
Hasan and Ors.
vs Muhammad Zaman and Ors.
52 I.A. 61 and Haji Mohammad Ismail vs Munshi Barkat Ali and Ors., , applied.
Madhu Limaye 's case; , , followed.
D.V. Belvi vs Emperor, AIR 1931 Bom.
325; Queen Empress vs Tirunarasimha Chari, I.L.R. ; Muthuswami Servaigram and Anr.
vs Thangammal Ayiyar, AIR 30 Mad. 242; Bondalpati Thatayya vs Gollapuri Basavayya and Ors., AIR 1953 Mad. 956; Babulal Parate 's case ; K.K. Misra 's case.
1085 ; ; Sahibzada Saiyed Muhammed Amirabbas Abbasi and Ors.
vs The State of Madhya Bharat and Ors., , The Parbhani Transport Co operative Society Ltd. vs The Regional Transport Authority; , , Smt.
Ujjam Bai 's case, [1963] 1 SCR 778, N. section Mirajkar 's case; , , explained and distinguished.
After all the customary rights claimed by the petitioners partake of the character of the fundamental rights guaranteed under Articles 25 and 26 of the Constitution to the religious denomination of Shia Muslims of Varanasi, a religious minority, who are desirous of freely practising, their religious faith and perform their rites, practices, observances and functions without let or hindrance by members belonging to the majority sect of the community, namely, Sunni Muslims and as such a positive approach is called for on the part of the local authorities.
It is only in an extremely extraordinary situation, when other measures are bound to fail, that a total prohibition or suspension of their rights may be resorted to as a last measure.[1133F H.1134A] 6:2.
In the instant case, the earlier litigations which was fought right up to the Supreme Court cannot be regarded as between the same parties, in as much as the same was not fought in representative character while the present writ petition is litigated between the petitioners and the respondents representing their respective sects; further, it was felt by the Supreme Court that proper adjudication would not be possible without impleading the two Boards (Shia Central Wakf Board and Sunni Central Wakf Board) notices were issued to them and they were also impleaded as parties to the petition who have filed their respective affidavits in the matter and have been heard through respective counsel.
Moreover the earlier decision of the Supreme Court in Civil Appeal No. 941 of 1976 did not record any decision on the rights of the parties on merits but the Court took the view that the parties should be relegated to a civil suit on the assumption that the petitioners before the Allahabad High Court (i.e. W.P. No.2397 of 1978) had raised disputed questions of title and the Allahabad High Court had decided them for the first time in the writ petition; irrespective of whether the assumption made by the Supreme Court was right or wrong; the fact remains that there was no adjudication or decision on the petitioners ' right on merits as a result of the final order passed by the Supreme Court in the appeal, which was confirmed in the Review Petition; all that could be said to have been decided by the Supreme Court in Civil Appeal No. 941 of 1976 and Review Petition No. 36 of 1977 was that parties should get their rights adjudicated in Civil Suit.
For these reasons it is obvious that neither res judicata nor principle analogous to res judicata would bar the present writ petition.
[1134 G H, 1135 A D]
|
Civil Appeal No. 2383 of 1977.
Appeal by special leave from the judgment and order dated 18th November, 1976 of the Bombay High Court in Civil Appln.
No. 1741 of 1976.
Gobind Ram Bhatia, R. C. Bhatia and P. C. Kapoor for the Appellant.
Nemo for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against the judgment of the High Court of Bombay dated December 24, 1975.
The short point of law involved in this case is whether the lease in question granted by the landlord to the appellant tenant was a lease for manufacturing purposes.
In case the lease was for a purpose of manufacture then it is manifest that under section 106 of the Transfer of Property Act the lease could be terminated only by giving six months notice.
The suit was contested by the defendant tenant.
The plaintiff 's case was that the tenancy was from month to month and, therefore, a month 's notice to terminate the tenancy was sufficient and the provision under section 106 of the Transfer of Property Act was not attracted.
The plaintiff also denied that the lease was for a manufacturing purpose.
The High Court upheld the judgment of the District Judge holding that the lease was not for a manufacturing 1199 purpose and held that the tenancy was rightly terminated as the notice was valid.
Mr. Gobind Ram Bhatia, learned counsel for the appellant tenant, has submitted a short point of law before us.
He submits that having regard to the process of manufacturing carried on by the defendant, there can be no doubt that the lease was for a manufacturing purpose and could be terminated only by six months notice under Section 106 of the Transfer of Property Act.
Notice was issued to the respondents.
That notice was duly served on them.
There is a certificate given by the High Court of Bombay itself that the notice on the respondents was served.
Nobody has appeared for the respondents to contest this appeal.
In the present case, the admitted facts are as under: 1.
That to begin with the lease was given to the defendant in respect of an open piece of land; 2.
That on the open piece of land the appellant installed a flour mill and that the defendant was not using the land for any other purpose except running a flour mill.
That the receipts filed by the tenant clearly show that the lease was doubtless a yearly one.
Reliance was placed by the District Judge on the counter foils where the plaintiff landlord tried to make out a case of monthly tenancy but the entry in the counter foil being an admission in his own favour was not admissible against the appellant.
On the other hand, the trial court has pointed out at page of its judgment that the receipts produced by the tenant clearly show that the rent used to be paid from year to year.
Exhibits 24 to 26 pertained to the rent paid on an yearly basis right from 1959 to May 31, 1961.
On point of fact, therefore, we are satisfied that in the instant case the lease was from year to year and, therefore, a month 's notice was not legal if the lease was for a manufacturing purpose.
The second point which arises for decision is as to the purpose of the lease.
This point is no longer res integra and is concluded by a clear authority of this Court in Allenburry Engineers Private Ltd. vs Ramakrishna Dalmia and Ors.
where this Court has laid 1200 down that the expression "manufacturing purposes" in Section 106 of the Transfer of Property Act must be used in its popular and dictionary meaning as the statute has not defined the word "manufacturing purposes".
We might state that in the present set up of our socialistic pattern of society when our country has made strong strides in various spheres of industrial activities an industrial venture must be given the most liberal interpretation so as to subserve the object of the statute.
Of course the burden of proof whether the purpose of the lease was a manufacturing purpose would be on the defendant but we are satisfied that the defendant in this case has amply discharged its onus.
In the aforesaid case this Court observed as follows: "The word 'manufacture ', according to its dictionary meaning, is the making of articles or material (now on large scale) by physical labour or mechanical power.
(Shorter Oxford English Dictionary, Vol.
I 1203).
According to the Permanent Edition of Words and Phrases Vol.
26, 'manufacture ' implies a change but every change is not manufacture and yet every change in an article is the result of treatment, labour and manipulation.
But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use.
" In coming to this conclusion this Court relied on two of its earlier decisions in South Bihar Sugar Mills vs Union of India and Union of India vs Delhi Cloth and General Mills.
Even before the decision of this Court, B.K. Mukherjea, J. (as he then was) who was later elevated to the Bench of this Court and retired as Chief Justice of India observed in Joyanti Hosiery Mills vs Upendra Chandra Das as follows: "To manufacture, according to its Dictionary meaning means "to work up materials into forms suitable for use".
The word "material" does not necessarily mean the original raw material for a finished article may have to go through several manufacturing processes before it is fit and made ready for the market.
What is itself a manufactured commodity may 1201 constitute a "material" for working it up into a different product.
"Thus, for example for the tanner, the material would be the raw hide, but the leather itself a manufactured article would constitute the material for the shoemaker 's business, and we cannot say that the shoe makers are not manufacturers because they do not work on raw hides.
" In the case of John Augustine Peter Mirande and anr.
vs N. Datha Naik the Mysore High Court following the Calcutta decision held that the lease in that case, which was a case of saw mill, was for manufacturing purposes.
We might observe that so far as the present case, where the mill is a flour mill, stands higher than the facts of the case in Mysore case (supra).
Coming now to the tests laid down by this Court the position may be summarised as follows: 1.
That it must be proved that a certain commodity was produced; 2.
That the process of production must involve either labour or machinery; 3.
That the end product which comes into existence after the manufacturing process is complete, should have a different name and should be put to a different use.
In other words, the commodity should be so transformed so as to lose its original character.
In the instant case what happened was that wheat was transformed, by the manufacturing process which involved both labour and machinery, into flour.
The commodity before manufacture was wheat which could not be consumed by any human being but would be used only for cattles or medicine or other similar purposes.
The end product would be flour which was fit for human consumption and is used by all persons and its complexion has been completely changed.
The name of the commodity after the product came into existence is Atta and not Gehun (wheat).
Thus in the instant case all the three tests have been fully satisfied.
This being the position the irresistible inference and the inescapable conclusion would be that the present lease was one for manufacturing purposes.
In this view of the matter, the notice of one month must be held to be invalid and suit for ejectment should have failed on that ground.
1202 We, therefore, allow this appeal, set aside the judgment of the High Court and dismiss the plaintiff 's suit.
Before concluding we would like to add that with due respect, that the judgment of the High Court is not very satisfactory as it has not made any real attempt to apply its mind to the substantial question of law that was involved in the case and seems to have rushed to its conclusions even without considering the authorities on the subject particularly the one referred to in the judgment as also the authoritative decision of this Court referred to above which was pronounced five years before the judgment of the High Court was given.
From such a prestigious High Court as Bombay we do expect a more careful and cautious approach in a matter like this.
As the respondents have not appeared before us, we make no order as to costs in this Court.
The appellant will certainly be entitled to costs in the Courts below.
P.B.R. Appeal allowed.
| IN-Abs | A piece of open land belonging to the plaintiff (respondent) was given on lease to the defendant (appellant).
The appellant installed a flour mill on that land.
He did not use it for any purpose other than running the flour mill.
In his suit for eviction of the tenant from the land, the plaintiff claimed that the tenancy was from month to month and that a month 's notice given by him to terminate the tenancy was sufficient.
The trial court, on the basis of receipts produced by the plaintiff, held that rent was paid on an yearly basis.
Upholding the view of the District Judge that the lease was not for a "manufacturing purpose", the High Court held that the tenancy was rightly terminated by giving a valid notice.
On further appeal to this Court it was contended on behalf of the tenant that the lease was for a "manufacturing purpose", and that under section 106 of the Transfer of Property Act it could be terminated only by giving six months ' notice.
Allowing the appeal, ^ HELD: The lease was from year to year and was for a "manufacturing purpose", and, therefore, a month 's notice was not legal.
The suit for ejectment should have failed on this ground.
[1201 H] When the country is making rapid strides in various spheres of industrial activity the term "manufacturing purpose" must be given the most liberal interpretation so as to subserve the object of the statute.
So interpreted the tests for deciding whether a lease was for a "manufacturing purpose" are (i) that a certain commodity is produced; (ii) that the process of production would involve either labour or machinery and (iii) that the end product coming into existence after the manufacturing process is complete, should have a different name and should be put to a different use.
[1200 B 1201 D E] 1198 In the instant case all the three tests have been satisfied because wheat was transformed into flour by the use of labour and machinery making it fit for human consumption and, therefore, the lease was for a manufacturing purpose".
[1201 F] Allenburry Engineers Private Ltd. vs Ramakrishna Dalmia and Ors. ; followed.
Joyanti Hosiery Mills vs Upendra Chandra Das, A.I.R. 1946 Calcutta 317 and John Augustine Peter Mirande and Anr.
vs N. Datha Naik, A.I.R. approved.
|
Civil Appeal No. 2104 of 1980.
Appeal by special leave from the judgment and order dated the 30th July, 1980 of the Himachal Pradesh High Court at Simla in C.W.P. No. 2 of 1980.
WITH CIVIL APPEAL No. 2384 OF 1980 Appeal by special leave from the judgment and order dated the 30th July, 1980 of the Himachal Pradesh High Court at Simla in C.W.P. No. 288 of 1979.
T.U. Mehta, S.K. Sabharwal.
A. P. Mohanty and C.P. Pandey for the Appellant In C. A. No. 2104/80 & for Respondent 2 in C.A. No. 2384 of 1980.
G.L. Songhi, Vineet Kumar and Ashok Kaul for the Appellant in C.A. No. 2384 of 1980.
M.M. Abdul Khader and Miss A. Subhashini for the Respondent: State V.M. Tarkunde and C.M. Nayar for Respondent No. 5 in C.A. No. 2104 of 1980.
The Judgment of the Court was delivered by VARADARAJAN, J.
These appeals by special leave are against the common judgment of a Division Bench of the Himachal Pradesh High Court rendered in Writ Petitions Nos. 2 of 1980 and 288 of 1979.
They were heard together by us in view of this Court 's order dated 6.11.1980.
Writ Petition No. 288 of 1979 was filed by Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur against the State of Himachal Pradesh, Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. K. Pandeya.
Writ Petition No. 2 of 1980 was filed by Dr. R.M. Bali against the State of Himachal Pradesh and eight others including Dr. Jiwan Lal, Dr. (Mrs.) Damyanti Kapur, Dr. S.P. Kapoor and Dr. K. Pandeya, who were respondents Nos. 8, 9, 6 and 7 respectively in the Writ Petition.
Dr. S.P. Kapoor, the appellant in C.A. No. 2104 of 1980 is the second respondent in Writ Petition No. 288 of 1979 and 6th respondent in W.P. No. 2 of 1980.
Dr. Jiwan Lal, 1048 the appellant in C.A. No. 2384 of 1980 is the first petitioner in W.P. No. 288 of 1979 and 8th respondent in W. P. No. 2 of 1980.
Writ Petition No. 288 of 1979 challenged the reversion of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur, the petitioners therein, from the post of Deputy Directors of Health Services, as illegal and violative of the conditions of service as also the provisions of the Constitution of India.
In Writ Petition No. 2 of 1980 Dr. R.M. Bali prayed for quashing the seniority of specialists indicated in the office Memo dated 2.11.1979 and Annexure PX 1 containing the list and for assignment of Serial No. 1 in the seniority list to him.
Dr. R.M. Bali prayed for certain other reliefs also including declaration of the appointment of Dr. S.P. Kapoor as Director of Health Services as null and void and for his case being considered for appointment to that post on the basis of the seniority prayed for in his Writ Petition.
The case of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur, the Writ Petitioners in W.P. No. 288 of 1979, was that they were appointed as Deputy Directors of Health Services on a regular basis.
The post of Deputy Director, Health Services was held by Dr. Jiwan Lal for 4.5 years and by Dr. (Mrs.) Damyanti Kapur for about 31 years.
The appointment of Dr. S.P. Kapoor, the appellant in C.A. No. 2104 of 1980 and Dr. R.M. Bali and Dr. K. Pandeya (respondents 2 and 4 in W.P. No. 288 of 1979) as Deputy Directors of Health Services, is contrary to the provisions of the Himachal Pradesh Health Services Rules, 1974 (hereinafter referred to as the 'Rules ').
They were appointed in disregard of the rights of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur.
The Departmental Promotion Committee constituted for making the appointment was not properly constituted as one of the members of the Committee, namely, the Principal Secretary to the then Chief Minister was unauthorisedly inducted into the Committee in the place of the Secretary to Government, Health and Family Welfare Department, Himachal Pradesh.
Therefore, the proceedings of the Committee are vitiated.
The annual confidential reports of the petitioners Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were initiated by an officer who was not only junior to them but also an aspirant for promotion to the higher post along with them.
There fore, those confidential reports should not have been taken into consideration for further promotion by the Departmental Promotion Committee.
The appointment of Dr. S.P. Kapoor, the appellant in C.A. No. 2104 of 1980, Dr. R.M. Bali and Dr. K. Pandeya, res 1049 pondents 2 and 4 in that Writ Petition was made in haste on 3.11.1979 immediately after the final seniority list was issued on 2.11.1979. 'the appointment of Dr. S.P. Kapoor, the second respondent in W.P. No. 288 of 1979 and appellant in C.A. No. "104 of 1980 as Director of Health Services on the same day is illegal as he did not satisfy the conditions prescribed in the Rules and he did not have even the requisite qualifying service.
Further the post of Director of Health Services must have been filled up from amongst the Health Services Grade I officers and not from amongst Specialists.
The reversion of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur from the posts of Deputy Directors is illegal and violative of the conditions of their service as also the provisions of the Constitution of India.
The case of Dr. R.M. Bali, the petitioner in W.P. No. 2 of 1980 was that he was appointed as T.B. Officer, T.B. Sanatorium, Mandodhar, a Gazetted Class 11 post, with effect from 9.4.1955 and he continued to work as such till 28.5.1962.
He was, thereafter, appointed as Superintendent in that Sanatorium, a Class I post, and after joining the post he was selected for appointment on a regular basis through the Public Service Commission and he was confirmed in that post, categorized as Category 'D ' post and Class I post in the Central Health Services, in 1966.
The Medical and Health Department of Himachal Pradesh Government appointed him as Director of Health (T.B.), a Category 'D ' post by a Notification dated 1.7.1963.
He was inducted into the Central Health Services with effect from 9.9.1966 and included in the initial constitution of that Service and confirmed in that Service on 9.9.1968.
But Dr. Grover, who has since retired, and Dr. S.P. Kapoor, who were respondents 5 and 6 respectively in Writ Petition No. 2 of 1980, were appointed merely on a temporary basis to the Central Health Service with effect from 1.11.1966.
The inter se seniority of Dr. R.M. Bali, the petitioner in W. P No. 2 of 1980 and Dr. Grover and S.P. Kapoor in the Central Health Services (Specialists ' Grade) had to be preserved and could not be disturbed at the time of absorption in the Himachal Pradesh Health Services having regard to the Punjab Reorganisation Act and the protection given to the members of the Punjab Service.
In these circumstances, Dr. R.M. Bali prayed for quashing of the seniority list of the cadre of Specialists indicated in the office Memorandum dated 2.11.1979 (Annexure PX 1 containing in the list) and assigning to him Serial No. 1 in the seniority list.
He also prayed for other reliefs including declaration of the appointment of Dr. S.P. Kapoor as Director of Health Services as null and 1050 void and for his appointment to that post on the basis of the revised seniority claimed by him.
The contention of the Himachal Pradesh Government, the first respondent in W.P. No. 288 of ]979 was that Dr. Jiwan Lal and Dr. (Mrs) Damyanti Kapoor were appointed as Deputy Directors of Health Services on ad hoc basis.
The Deputy Director 's post is a selection post which cannot be claimed as of right by persons appointed on ad hoc basis by way of stop gap arrangement.
The incumbent to the post of Secretary to Government, Health and Family welfare was on leave from the 3rd to 9th November, 1979 and the Principal Secretary to the then Chief Minister was appointed to function in his place as Secretary to Government in the Departmental Promotion Committee by order dated 3 11.1979.
The constitution of the Departmental Promotion Committee was, therefore, perfectly valid.
The annual confidential reports written by Dr. Grover, who was working on ad hoc basis, were not the only reports taken into account by the Departmental Promotion Committee.
That Committee did not take into account the reports of Dr. J. C. Sharma about the work and conduct of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur.
The post of Director of Health Services was manned on an ad hoc basis since the retirement of Dr. Krishan Swarup in December 1973.
The posts of Deputy Director also were manned on an ad hoc basis.
These ad hoc appointments were necessitated by the absence of the final seniority list which was prepared only on 2.11.1979 and since that impediment was over on 2.11.1979 the Departmental Promotion Committee on 3.11.1979 and orders of appointment to those selected by that Committee on that date were issued on the same day.
The promptness in making the regular appointments was necessitated by the intention to make the regular appointment as quickly as possible after the preparation of the final seniority list on 2.11.1979.
Specialists are necessarily officers possessing post graduate qualifications while G.D.O., Class I are, as a rule, only graduates.
Therefore, the Rule making authority divided the higher posts equally amongst the Officers of the two categories taking all factors into consideration.
The appointment of Dr. section P. Kapoor, the second respondent in W.P. No. 288 of 1979 as Director of Health Services is valid Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were not Deputy Directors of Health Services on the date of selection of Dr. S.P. Kapoor as Director of Health Services and, therefore, their claim for being considered for promotion to that post is wholly untenable having regard to Rule 9(3) of the Rules, according to 1051 which only Deputy Directors could be considered for promotion to the post of Director of Health Services.
The contention of the Himachal Pradesh Government, the first respondent in W.P. 2 of 1980 was that the post of Superintendent, T.B. Sanatorium held by Dr. R.M. Bali, the petitioner in that Petition, was a junior Class I post until he was appointed to the Specialist grade of the Central Health Services with effect from 9.9.1966.
Dr. Grover and Dr. S.P. Kapoor, respondents 5 and 6 respectively in W.P. No. 2 of 1980 were appointed to the Specialists ' grade in the Central Health Services with effect from 1.11.1966 though the Central Government kept the question of seniority open.
Dr. R.M. Bali exercised his option to join the Himachal Pradesh Health Service after a copy of the Rules was supplied to him.
The final seniority of Dr. R.M. Bali and others was fixed under the provisions of the Rule issued on 10.1.1974.
Seniority assigned to Dr. R.M. Bali is strictly in accordance with the provisions of Rule 10 (a) (iii) of the Rules.
The words "whichever is earlier" which occurred in the original Rule 10 (a)(i) and 10 (a)(iii) were deleted by the Amendment Rules, 1966.
The claim of Dr. R.M. Bali for seniority on the basis of his ad hoc appointment is not tenable.
The Central Government and Dr. S.P. Kapoor, respondents 2 and 6 in W.P. No. 2 of 1980 had also filed counter affidavits opposing the Writ Petition.
In the Central Government 's counter affidavit it is stated that Dr. R.M. Bali has been in the Specialist 's grade only from 9.9 1966 and that Dr. Grover and Dr. S.P. Kapoor were appointed to the Specialists ' grade on 1.11.1966 leaving the question of seniority open.
In the counter affidavit of Dr. S.P. Kapoor reference is made to Government of India 's letter dated 9.7.1971 which deals with the fixation of seniority of medical officers of the Punjab Government absorbed in the Central Health Services in the Himachal Pradesh Union Territory and states as follows.
; "The Central Health Services was constituted with effect from 9.9.1966 and the seniority of Medical officers appointed to the Service with effect from that date has been determined in accordance with the principles laid down in this Ministry 's letter dated 27.7.1967.
In accordance with sub para 1 of this memoranda officers appointed to a grade of the Central Health Services under Rule 7A of the Central H Health Services Rules, as amended by the Central Health Services Amendment Rules, 1966, will rank en bloc senior 1052 in that grade under Rule 8 of the Central Health Services Rules, 1963.
The Officers of the Punjab Government were appointed to the Central Health Services with effect from 1.11.1966 under Rule 8(A) of the Central Health Services Rules, 1963.
Those officers have come to the Central Health Service only after the initial constitution of that Service was over.
In accordance with the principles laid down for the Central Health Services it is not permissible to assign them seniority in the Central Health Services over the officers appointed to the Central Health Services at the initial constitution of the Service.
However, as the Government of Himachal Pradesh have proposed to formulate their own Health Services and the Medical officers who opt from the Central Health Services are to be included in that Service, those officers may be asked to exercise their option.
In case they chose to remain as members of the Central Health Services their seniority will be reckoned only at the maintenance stage of the Central Health Services and they cannot get seniority in the Central Health Service on the basis of their prior service under the Punjab Government.
Those Officers who opt to join the proposed Himachal Pradesh Health Service may, however, be given the benefit of their past continuous service while fixing their seniority in the Himachal Pradesh Health Service.
At the time of formation of that Service these persons can be considered for inclusion in the initial constitution of that Service and their seniority fixed bearing in mind the principles mentioned in Shri A.D. Pande 's D.O. Letter No. 22/5167 SR(S) dated 14th February, 1967".
The learned Judges of the Himachal Pradesh High Court who heard these two Writ Petitions and other Writ Petitions jointly found that Dr. Jiwan Lal, Dr. S.P. Kapoor and Dr. (Mrs.) Damyanti Kapur were appointed as Deputy Directors of Health Services on ad hoc basis in July 1975 and January 1976 respectively after the Rules came into force on 19.1.1974, that it has not been contended by them that they had been appointed in accordance with the Rules or after relation of the Rules, that Dr. Jiwan Lal, Dr. (Mrs.) Damyanti Kapur and Dr. S.P. Kapoor were specifically appointed 1053 on ad hoc basis and that, therefore, Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur cannot claim right to the post of Deputy Directors of Health Services or to seniority on the basis of their ad hoc appointments, though they can add the period of such appointment in the matter of experience for promotion and confirmation in view of the addition of notice to Rule 9 of the Rules.
Regarding the attack on the constitution of the Departmental Promotion Committee, the learned Judges found that when the regular Secretary to the Government, Health and Family Welfare Department, was on leave, the Principal Secretary to the then Chief Minister was appointed to function additionally as Secretary to Government, Health and Family Welfare Department, as per office order dated 2.11.1979 and, therefore, the Departmental Promotion Committee has been properly constituted.
Regarding the question whether seniority in the Himachal Pradesh Health Service is to be determined with reference to the date of joining the Central Health Service or with reference to the date of joining the Punjab Civil Medical Service, Grade I [in short PCMS (1)] with Post Graduate qualifications on the date of appointment as Deputy Medical Superintendent / Resident Medical Officer /Surgical Specialists, Ripon Hospital from the date on which they were given the PCMS scale, the learned Judges of the High Court found that the Central Health Service was constituted by the Central Government and the Health Service Rules, hereinafter referred to as the "Central Rules", framed by the President of India, in exercise of the powers conferred by Article 309 of the Constitution of India, came into force with effect from 15.5.1963 and that the Central Rules were amended by the Central Health Services (Amendment) Rules, 1966.
Before the Punjab Reorganisation Act came into force the State of Punjab had its own Health Service known as the PCMS with two grades, Grade I and Grade Il.
After the Punjab Reorganisation Act came into force, and the Central Health Service was formed, some persons belonging to the PCMS and some persons working as Medical officers in hospitals run by Local Bodies were inducted into that into that Service after they had exercised their option to be inducted therein.
The Writ Petitioners and contesting employees respondents had been inducted into the Central Health Service after they had exercised their option.
When the Himachal Pradesh Union Territory was in existence, its Health Department was manned by officers of the Central Health Service, But after Himachal Pradesh became a full fledged State, the Himachal Health Service was constituted on 24.1.1974 under the Himachal Pradesh Health Service Rules, which 1054 came into force on 19.1.74 and the members of the Central Health Service serving in the erstwhile Himachal Pradesh Union Territory were asked to exercise their option to continue in the new Himachal Pradesh Health Service.
The writ petitioners and the contesting employees respondents exercised their option to continue in the Himachal Pradesh Health Service.
The question for consideration was the basis on which seniority in the Himachal Pradesh Health Service is to be determined, namely, whether it is with reference to the date of entry into the Central Health Service or into the PCMS (I) with post graduate qualifications or the date of appointment as Deputy Medical Officer /Surgical Specialists, Ripon Hospital from the date on which they were given PCMS scales According to Rule 4 of the Himachal Pradesh Health Service Rules, which relates to classification, categories and scales of pay, there are two wings in the Himachal Pradesh Health Service, namely, the General Wing and the Teaching Wing, which are independent and not inter changeable except in regard to certain posts.
The writ petitions had nothing to do with any of the officers in the Teaching Wing.
The General Wing has six categories, each having grades as specified in the table annexed to the Rules.
We are concerned in these appeals with Specialists and Grade I officers.
The officers who were concerned with the writ petitions were Specialists on the one hand and Himachal Pradesh Health Service Grade I officers on the other in respect of whom seniority is to be fixed on a separate basis.
Under the Himachal Pradesh Health Service Rule 10 relating to fixation of seniority, inter se seniority of departmental candidates absorbed under Rule 7 and 8 shall be determined under Rule 10 (a) (ii) as regards (i) Himachal Pradesh Health Service Grade I officers.
from the date of regular appointment having been duly selected by the Union Public Service, Punjab Public Service Commission and Himachal Pradesh Public Service Commission and or by a regular Departmental Promotion Committee in the grades of (i) PCMS (I) and (ii) G.D.O. Grade I, and under Rule 10 (a) (iii) as regards (ii) Specialists from the date of regular appointment having been selected by the Union Public Service Commission, Public Service Commission and Himachal Pradesh Public Service Commission and or by a regular Departmental Promotion Committee in the following grades, namely (i) Specialists (Central Health Service), (ii) PCMS (I) with post graduate qualifications and (iii) Deputy Medical Superintendent/ Resident Medi 1055 cal Officer/Surgical Specialists, Ripon Hospital from the date on which the scale of PCMS (I) was given to them.
It was admitted that as alleged in W.P. No. 2 of 1980, Dr. R.M. Bali was inducted into the Central Health Service on a regular basis only on 9.9.1966 and Dr. Grover and Dr. S.P. Kapoor, respondents 5 and 6 in that Writ Petition, were inducted into the Central Health Service only with effect from 1.11.1966 and, therefore, Dr. R.M. Bali was senior to Dr. Grover and Dr. section P. Kapoor in the Central Service.
Dr. R. M. Bali and Dr. section P. Kapoor were both specialists.
section P. Kapoor contended before the High Court that he had been selected by the Punjab Service Commission on 29.1.1965 and had post graduate qualifications when he was inducted into the Central Health Service.
But Dr. R.M. Bali contended that he was entitled to seniority from 1.6.1962 when he was appointed as T.B. Specialist at Mandodhar on an ad hoc basis or at least from 31.3.1964 when he was regularly appointed after selection by the Union Public Service Commission.
In Rule 10 (a) (iii) the words "whichever is earlier" which were originally found have been deleted retrospectively by an amendment as stated earlier.
The learned Judges of the High Court held that seniority has to be determined on the basis of the date of induction into the Central Health Service and not on the basis of the earlier service if any, in the PCMS though they have observed that the words "whichever is earlier" which occurred in the Himachal Pradesh Health Service Rule 10 (a) (iii) were omitted retrospectively in order to do justice in the matter of seniority to those doctors who came into the Himachal Pradesh Health Service from any local authority or PCMS and not from the Central Health Service.
They have fixed the seniority of Dr. R.M. Bali above Dr. S.P. Kapoor on the basis that the former was inducted on 9.9.1966 and the latter was inducted on 1.11.1966 into the Central Health Service and held that Dr. D.S. Chauhan 's seniority is rightly reflected in the Specialists.
grade, and they directed modification of the seniority of Doctors in the Specialists ' grade in accordance with their decision, namely, on the basis of date of induction into the Central Health Service.
Regarding writing of the annual confidential reports by Dr. Grover and Dr. J.C. Sharma, the contention of the Himachal Pradesh Government in W.P. No. 2 of 1980 was that Dr. Sharma 's reports were not taken into consideration, that Dr. Grover 's reports were revised, sometimes with additional remarks in favour or against H the incumbents, by the higher authorities and that his reports were not the only reports which were taken into consideration by the 1056 Departmental Promotion Committee in November 1979.
The learned Judges of the High Court accepted that contention of the first respondent and held that no prejudice has been caused to the writ petitioners while the annual confidential reports were considered by the Departmental Promotion Committee on 3.11.1979.
They quashed the seniority list of Specialists prepared on 2.11.1979 as well as the notification dated 3.11.1979 appointing Dr. S.P. Kapoor, the appellant in C.A. No. 2104 of 1980, Dr. K. Pandeya and Dr. R.M. Bali as Deputy Directors (super time Grade II General) and Dr. S.P. Kapoor as Director.
Health Services (Super time Grade I General) and directed the State Government to make the appointments to these posts on the basis of the modified seniority list to be prepared in accordance with the directions given in their judgment.
They disposed of Writ Petitions Nos.
288 of 1979 and 2 of 1980 as indicated above and directed the parties to bear their respective costs.
The Himachal Pradesh Union Territory was constituted on 1.11.1966.
On and from the appointed day, which in the present case is 1.11.1966, Simla, Kangra, Kulu and Lahaul and Spiti districts and certain other areas in the original State of Punjab became parts of that Union Territory under section 5 of the Punjab Reorganisation Act (Central Act) 1966.
The Central Rules, 1963 came into force on the appointed day and were later amended by the Central Health Service (Amendment) Rules 1966.
These Rules, as amended, are found on pages 336 to 346 of the paper book in C.A. No. 2104 of 1980.
The Central Health Service was constituted only with effect from 9.9.1966.
This is clear from the letter dated 9.7.1971 from the Ministry of Health and Family Planning (Department of Health) Government of India, addressed to the Secretary to Government (Medical and Health Department), Himachal Pradesh to which detailed reference will be made later in the course of this judgment.
Dr. R.M. Bali was regularly appointed in the specialist 's grade of the Central Health Service on probation with effect from 9.9.1966 alongwith certain others, pursuant to the power conferred by Rule 7A(I) of the Central Rules, as amended in 1966, by the President 's order No. 1 3/67 CHS II dated 8.6.1967.
At that time Dr. R.M. Bali was working as a Specialist in the T.B. Sanatorium, Mandhodhar, Himachal Pradesh Union Territory, a category 'D ' post, having been appointed on the recommendation of the Union Public Service Commission.
According to the counter affidavit filed on behalf of the Himachal Pradesh Government in W.P. No. 2 of 1980, the post of 1057 Superintendent, T.B. Sanatorium, Mandodhar was a Junior Class I post at that time.
It has been up graded subsequently.
Dr. Jiwan Lal was appointed substantively on 21.12.1946 as Assistant Surgeon (Grade I) and had been promoted as the Chief Medical officer in the Civil Surgeon 's grade on 1.7.1958.
According to paragraph 3 of the counter affidavit filed by Dr. Jiwan Lal in S.L.P. (Civil) No. 6574 of 1980, he was appointed under rule 7A(I) (b) of the Central Rules, as amended in 1966, to a post in the category of G.D.O., Grade I on 9.9.1966 before the constitution of Himachal Pradesh Union Territory and was confirmed in the post on 9.9.1968 after the constitution of that State.
Dr. R.M. Bali and Dr. Jiwan Lal were allotted to Himachal Pradesh Union Territory on its constitution.
On the recommendation of the Punjab Public Service Commission, Dr. S.P. Kapoor was appointed by the Governor of Punjab as officiating Senior Medical officer against the up graded post of PCMS (Class I) by Memo No. 177 4 MBI 65 dated 7.1.1965 with a direction to join the new assignment within a fortnight, which he did on 29.1.1965, and he was put on probation for a period of two years with effect from the date of taking charge of the post.
After joining the post 13 as per that order, Dr. S.P. Kapoor was serving at a station which was in the territory of the former Punjab State prior to the date of its organisation, which later became part of the Himachal Pradesh Union Territory under section S of the as mentioned above.
During the period of his probation he had to come into the Central Health Service on the constitution of Himachal Pradesh Union Territory on 1.11.1966 as he was allotted to that State and had been selected by the Union Public Service Commission in the same manner as Dr. R.M. Bali had been selected.
Thus, all the three individuals, Dr. R.M. Bali, Dr. Jiwan Lal and Dr. S.P. Kapoor came to be in the Central Health Service on the constitution of Himachal Pradesh Union Territory on 1.11.1966.
Dr. S.P. Kapoor was appointed to Specialists ' Grade in the Central Health Service along with Dr. Grover and two others under Rule 8A of the Central Rules as amended in 1966 by the President 's Order No. F.32/48/65 CHS II (V. Il) dated 26.8 1970 with effect from 1.11.1966.
Dr. R.M. Bali was appointed along with another to the Specialists ' Grade in the Central Health Service with effect from 9.9.1968 by the President 's order No. F. 32 1(6)/70 CHS III dated 27.1.1971.
The full fledged Himachal Pradesh State was formed under Section 3 of the State of Himachal Pradesh Act 53 of 1970, a Cen 1058 tral enactment, on and from the appointed day, 25.1.1971, and it comprised the Himachal Pradesh Union Territory.
The Rules (Himachal Pradesh Health Service Rules) came into force on 19.1.1974.
Consequent on the exercise of option for being absorbed in the Himachal Pradesh Health Service on the terms and conditions stipulated in the Rules and keeping in view the recommendations of the Screening Committee appointed under Rule 7 of those Rules, the Governor of Himachal Pradesh appointed Dr. Grover, Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. D.S. Chauhan as Specialists on the General Side and Dr. K. Pandeya, Dr. Jiwan Lal, Dr. Jyoti Prasad and Dr. (Mrs.) Damyanti Kapur as Himachal Pradesh Grade I Officers with effect from 24 .1.1974 by his order No. 1 15/75 H&FP dated 9.6.1975 in the categories to which they had been appointed prior to the commencement of the Rules as amended.
In that order relating to seven Specialists and four Himachal Pradesh Health Grade I Officers, Dr. Grover, Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. D.S. Chauhan are ranked as Nos. 2, 3, 6 & 7 respectively among Specialists while Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur are ranked later as Nos. 2 and 4 respectively amongst Himachal Pradesh Health Service Grade I officers.
This was after the Governor of Himachal Pradesh, in view of the Central Government 's concurrence to the transfer of the officers of the Central Health cadre to the Himachal Pradesh Health Service and on the recommendations of the Screening Committee constituted under Rule 7 of the Rules, appointed nine Doctors as Professors on the Teaching Wing, 19 Doctors as Specialists in the Teaching Wing, 10 Doctors including S.P. Kapoor and Dr. R.M. Bali as Specialists on the General Side and Dr. K. Pandeya and Dr. Jiwan Lal as Himachal Pradesh Health Service Grade I officers by his Order No. 1/15/75 H&FP dated 9.6.1975.
As stated earlier, we are not concerned in these appeals with any of the Doctors on the Teaching Wing.
In that order dated 9.6.1975 also Dr. Grover, Dr. S.P. Kapoor and Dr. R.M. Bali are ranked as Nos. 2, 3 and 6 respectively amongst the General Side Specialists while Dr. Jiwan Lal is ranked later as No. 2 and below Dr. K. Pandeya amongst the Himachal Pradesh Health Service Grade I officers.
Thus it is seen that Dr. S.P. Kapoor and Dr. R.M. Bali are Specialists on the General Side and that Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur l are Himachal Pradesh Health Service Grade I Officers.
The Himachal Pradesh Government, by order No. HFW/B (9) 7/78 dated 19.8.1978 confirmed Dr. Grover and Dr. S.P. Kapoor, 1059 who originally belonged to the Punjab Civil Medical Service, with effect from 27.4.1964 and 29.1.1965 respectively and Dr. R.M. Bali who came originally from the Central Health Service with effect from 9.9.1966 and certain others with effect from 24.1.1974, leaving the question of seniority open.
Prior to 2.11.1979, Dr. S.P. Kapoor, Dr. K. Pandeya, Dr. R.M. Bali, Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were working as Deputy Directors, Health Services in the Himachal Pradesh Health Service on ad hoc basis and Dr. Grover was working as Director of Health Services on ad hoc basis during 1975 to 1977.
Dr. K. Pandeya replaced Dr. Grover as Director of Health Services on ad hoc basis in June 1978 by the Government 's order No. 1 15/74 HP (Apptt) dated 8.6.1978.
This fact, mentioned by Mr. Mehta, learned counsel appearing for Dr. S.P. Kapoor in the course of the arguments, was not disputed by Mr. V.M. Tarkunde, learned counsel appearing for Dr. R.M. Bali and Mr. G.L. Sanghi, learned counsel appearing for Dr. Jiwan Lal.
On 2.11.1979 the final seniority lists of Specialists and Grade I Officers in the Himachal Pradesh Health Service as on 1.1.1979 were published by the Himachal Pradesh Government 's order No. HPW B(9) 2/77 dated 2.11.1979.
In the List relating to eight Specialists, Dr. Grover, Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. D.S. Chauhan are ranked as Nos. 1, 2, 3 and 5 respectively while in the List relating to 79 Grade I Officers, Dr. K. Pandeya, Dr. Jiwan Lal and Dr. (Mrs.).) Damyanti Kapur are ranked as Nos. 1, 2 and 3 respectively.
Now, Dr. Grover and Dr. K. Pandeya are stated to have retired.
On 3.11.1979, the Departmental Promotion Committee constituted under Rule 2(g) of the Rules, the constitution of which is attacked by Mr. Mehta, Mr. Tarkunde and Mr. Sanghi, recommended on the basis of the said final seniority lists, the appointment of Dr. S.P. Kapoor, Dr. K. Pandeya and Dr. R.M. Bali as Deputy Directors of Health Services and Dr. S.P. Kapoor as Director of Health Services in the place of Dr. K. Pandeya.
On the same day, they were appointed as such by the Government 's Order No. Health Kb(9)4/79 dated 3.11.1979.
On the same day Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were reverted with immediate effect to Himachal Pradesh Grade I posts by the Governor 's Order No. Health B(9)4/79 and Dr. S.P. Kapoor was promoted as Director of Health Services by the Government 's Notification No. 171002 and put on probation for a period of two years.
It is stated in that Notification that orders of posting of Dr. K. Pandeya, presently officiating as Director of Health Services purely on a temporary basis, will be issued by the Secretary (Health and Family Welfare) to the 1060 Government of Himachal Pradesh separately.
The correctness of these seniority lists and orders of appointments were challenged in the Writ Petitions.
The writing of the annual confidential reports by Dr. Grover and Dr. J.C. Sharma, the constitution of the Departmental Promotion Committee, and the rotation of Specialists in preference to Himachal Pradesh Grade I Officers for appointment as Director of Health Services on the admitted 50 : 50 basis were also questioned in the Writ Petitions.
There is no dispute that the basis for selection of the Specialists and Grade I Officers as Director of Health Services is 50 : 50.
The learned Judges of the High Court held that seniority has to be determined on the basis of the date of Induction into the Central Health Service and not on the basis of the earlier induction into the Punjab Civil Medical Service though they have observed that the words "whichever is earlier" which occurred originally in Rule 10 (a) (iii) of the Rules were omitted retrospectively in order to do justice in the matter of seniority to these Doctors who came into the Himachal Pradesh Health Service from any local authority or the Punjab Civil Medical Service and not from the Central Health Service.
On that basis they have fixed the seniority of Dr. R.M. Bali above Dr. S.P. Kapoor on the ground that the former was inducted on 9.9.1966 and the latter was inducted on 1.11.1966 into the Central Health Service and found that the seniority of Dr. D.S. Chauhan is rightly reflected in the Specialists ' Grade.
They have directed modification of the seniority of Doctors in the Specialists Grade in accordance with their judgment; namely, on the basis of the date of induction into the Central Health Service.
Regarding writing of the annual confidential reports by Dr. Grover and Dr. J.C. Sharma, the learned Judges of the High Court accepted the contention put forward by the Himachal Pradesh Government in the counter affidavit filed in W.P. No. 2 of 1980 that Dr. Sharma 's reports were not taken into consideration that Dr. Grover 's report were revised, sometimes with additional remarks in favour or against the incumbents by the higher authorities and that his reports were not the only reports that were taken into consideration by the Departmental Promotion Committee in November 1979 and held that no prejudice has been caused to the Writ Petitioners while the annual confidential reports were considered by the Departmental Promotion Committee.
The learned Judges have not expressed any view regarding the attack on the Departmental Promotion Committee.
On the question of rotation and selection of the Specialist as Director of Health Services in preference to Grade I officers, the learned Judges of the High Court 1061 held that the Rules are silent on the question as to which category should be chosen first and they accepted the contention of the Himachal Pradesh Government that the Government had power under Rule 21 of the Rules to supplement the same by providing for starting the roster with the category of Specialist on the ground that the senior most of the Specialists had on the date of meeting of the Departmental Promotion Committee namely, 3.11.1979, put in greater length of qualifying service than the senior most officer of the Himachal Pradesh Health Service Grade I officers and that the Government, therefore, started the roster rightly with the category of Specialists keeping in view the length of qualifying service in each of grades, namely, Specialists and Himachal Pradesh Service Grade I officers.
Mr. Mehta, appearing for Dr. S.P. Kapoor, contended that having regard to Rule 10 (a) (iii) of the Rules and the fact that Dr. S.P. Kapoor had been appointed as PCMS Grade I officer by the Punjab Government on 29.8.1965, long before Dr. R.M. Bali and Dr. Jiwan Lal came into Central Health Service on 9.9.1966 and that Dr. S.P. Kapoor had been appointed as a Specialist in the Central Health Service with effect from 1.11.1966 while Dr. R.M. Bali had been appointed in the Specialists ' Grade only with effect from 9.9.1968, Dr. S.P. Kapoor is senior to both Dr. R.M. Bali and Dr. Jiwan Lal in the Himachal Pradesh Health Service though he would undoubtedly be junior to Dr. R.M. Bali and Dr. Jiwan Lal in the Central Health Service as he had come to that Service only on 1.11.1966 while those two individuals had come into that Service on 9.9.1966.
But Mr. Tarkunde, appearing for Dr. R.M. Bali and Mr. Sanghi, appearing for Dr. Jiwan Lal, contended that the basis of seniority has been rightly determined by the learned Judges of the High Court, and Mr. Sanghi submitted that in the List Dr. Jiwan Lal will come first and that if Dr. R.M. Bali is held to be senior, Dr. Jiwan Lal would rank next to him.
Mr. Pande, the then Joint Secretary, Home Affairs, Government of India had stated in his D.O. Letter No. 22/5/67 67 SR (S) dated 14 2 1967 addressed to the Chief Secretary, Himachal Pradesh Government (Union Territory), that the Central Government has already informed the Chief Secretary by letter dated 17.11.1966 that the allocation of the Government servants among the States of Punjab, Haryana and Himachal Pradesh and Chandigarh, which had already been made provisionally under section 82 (b) of the , are to be finalized by the end of February, 1967.
1062 He had requested the Chief Secretary for action for integration of the service being initiated soon after the finalisation of the allocation and had stated that it involves two steps, namely (I) determination of the equivalent posts and (2) determination of the relative seniority of persons holding equivalent posts but drawn from different integrating units.
It is also stated in that letter that while determining the relative seniority as mentioned above, it may also be borne in mind that inter se seniority of officers drawn from the same integrated unit should, as far as possible, be maintained.
He had further stated in that letter that as the Chief Secretary is aware that Section 82 (4) of the casts responsibility on the Central Government for ensuring fair and equitable treatment to all the officers affected by the provisions of that Act.
The Ministry of Health and Family Planning (Department of Health), Government of India wrote, the letter dated 9.7.1971 to the Secretary to the Government, Medical and Health Department Himachal Pradesh regarding fixing of seniority of the Medical officers of the Punjab Government absorbed in the Central Health Service in Himachal Pradesh as in the case of Dr. S.P. Kapoor.
Unfortunately, the learned Judges of the High Court have not referred to this letter, which is strongly relied upon by Mr. Mehta, in their judgment.
Mr. Tarkunde submitted that this letter was not relied upon before the High Court.
That letter can not be ignored.
It is stated in that letter thus: "The Central Health Service was constituted with effect from 9.9.1966 and the seniority of the Medical officers appointed to this Service with effect from that date, has been determined in accordance with the principles laid down in this Ministry 's O.M No. 5 (II) /67 CHSI dated 22.7.1967.
In accordance with sub para I of this Memorandum, officers appointed to a grade of the Central Health Service under Rule 7A of Central Health Service Rules, 1963 as amended by the Central Health Service (Amendment) Rules, 1966, will rank enbloc senior in that grade to those who may be appointed to that grade under Rule 8A of the Central Health Service Rules, 1963.
The officers of the Punjab Government were appointed to the Central Health Service with effect from 1.11.1966 1063 under Rule 8A of the Central Health Service Rules, 1963.
As these officers have come into the Central Health Service only after the initial constitution of that service was over, in accordance with the principles laid down for the Central Health Service, it is not permissible to assign them seniority in the Central Health Service over the officers appointed to the Central Health Service at the initial constitution of the Service.
However, as the Government of Himachal Pradesh have proposed to form their own Health Service and the Medical officer who are to opt from the Central Health Service are to be included in that Service, these officers may be asked to exercise the option first.
In case they choose to remain as members of the Central Health Service, their seniority will be ranked only at the maintenance stage of the Central Health Service and they cannot get seniority in the Central Health Service on the basis of their prior ser vice under the Punjab Government.
Those officers who opt to join the proposed Himachal Pradesh Health Service may, however, be given the benefit of their past continuous service while fixing their seniority in the Himachal Pradesh Health Service.
At the time of formation of that Service these persons can be considered for inclusion in the initial constitution of that service and their seniority fixed bearing in mind the principles mentioned in Shri A.D. Pande 's D.O. letter No. 2215/67 SR (S) dated 14th February, 1967.
" We think that this stand of the Central Government in regard to seniority of officers who came into the Central Health Service at the initial constitution of that Service vis a vis those who came into that service after initial constitution of that service is correct and the only stand that could be reasonably taken in the circumstance of the case.
It would not be proper for anyone who came into that Service after it had been constituted, to ask for seniority over those who were in that Service on the date of its initial constitution on the basis of their earlier appointment before they came into the Central Health Service after its initial constitution.
Before the Rules were framed there was a meeting of officials on 24.1.1972 to consider the question as to how seniority of officers 1064 who were already in the Central Health Service, having been appoint ed to that Service under Rule 7A of that Central Health Service Rules at the initial constitution of the service and of officers of the erst while Punjab Government who were appointed in the Central Health Service with effect from 1.11.1966 should be fixed.
The minutes of that meeting are found at pages 285 to 287 of the paper book relating to C.A. No. 2104 of 1980.
It is seen from those minutes that in that meeting Mr. T.V. Menon of the Ministry of Law, Central Government, evidently on the basis of the aforesaid letter dated 9.7.1971 of the Ministry of Home Affairs, Health and Family Planning addressed to Secretary to Government, Himachal Pradesh, stated that: "As the Government of Himachal Pradesh proposes to form a separate Himachal Pradesh Health Service, it is well within the right of the Himachal Pradesh Government to frame Rules and Regulations to govern the service conditions of officers who might be appointed to that Service including their seniority.
The only safeguard that should be taken is that these rules and principles of seniority should be circulated among all the officers and their option obtained in writing either to join the Himachal Pradesh Health Service or to remain in the Central Health Service.
The Government of Himachal Pradesh need not be bound by the Rules and Regulations governing Central Health Service Scheme in respect of the provisions that might be made in the Himachal Pradesh Health Service.
The Government of Himachal Pradesh may lay down any principles that may be acceptable to the officers concerned keeping in view the principles of equity and justice.
" Rule 4 of the Rules relates to classification, categories and scales of pay and reads as follows: "4.
Classification, categories and scales of pay and reads as follows: (1) The Himachal Pradesh Health Service Carde will consist of the two wings namely the General Wing and the Teaching Wing.
These two wings of the service shall 1065 be independent of the each other and posts will not be inter changeable at any stage, except the posts which carry a scale of Rs. 400 1100 or a pay scale lower than that which are included in the service.
There shall be six categories in Health Wing; (General) and four categories in Health Wing (Teaching).
Each category B shall consist of the grades specified in column 2 of the table below: (2) The scales of pay and classification of such grades shall be specified in corresponding entries in columns 3 & 4 of the said tables.
General Sr.
Categories Scales of pay Classification Wing No. 1.
Super time Grade I 2250 125 2500 Class I including NPA 2.
Super time Grade 1800 100 2000 Class I II including NPA 3.
Specialists 900 50 1150/50 1300 Class I 4.
Himachal Pradesh 900 50 1150/50 1300 Class I Health Service, Grade I. 5.
Himachal Pradesh 400 30 700/40 1109 Class II Health Services, Grade II.
Amend 6.
Dental Surgeon 400 30 700/40 1100 Class II ment Eight II 1066 Note: Two Selection Grade posts one each for Himachal Pradesh Health Services Grade I and specialists shall be in the pay scale of Rs. 1800 100 2000 (inclusive of N.P.A.) Note II: See amendment sixth and eighth (III).
Teach 1.
Principal/Professors 1300 30 1600 100 1800 Class I ing Wing 2.
Specialists Grade Associate Prof./ 900 50 1150/50 1300 Class I Asstt.
Professor 3.
Asstt.
Professor 900 50 1150/50 1350 Class I (Dental).
Amend 4.
Asstt.
Surgeon 450 30 660 EB 40 Class I ment (Dental).
1100 50 1250 Eight VI The special pay attached to various posts is as under: (1) Principal (Medical College) Rs. 100/ PM (2) Assistant Professor Rs. 100/ PM (3) officers appointed as Chief Medical Rs. 100/ PM Officers Rule 10(a) mentions about how seniority of departmental candidates absorbed under Rules 7 and 8 shall be determined and reads as follows: "10.
Fixation of Seniority.
1067 (a) The inter se seniority of departmental candidates absorbed under rule 7 and 8 shall de determined as follows: (i) . . . . . . . . . (ii) Himachal Pradesh Health Service Grade I from the date of regular appointment having been duly selected by the Union Public Service Commission, Punjab Public Service Commission and Himachal Pradesh Public Service Commission and or by a regular Departmental Promotion Committee (whichever is earlier) in the following grades: P.C.M.S. I. G.D.O.Gr.
I. (iii) Sepecialists From the date of regular appointment having been duly selected by Union Public Service Commission, Punjab Public Service Commission and Himachal Pradesh Public Service Commission and or by a regular Departmental Promotion Committee (whichever is earlier) in the following grades: 1.
Specialists (C.H.S.) 2.
P.C.M.S.I. (with post graduates qualifications) 3.
Deputy Medical Supdt./Resident Medical officers/Surgical Specialists, Ripon Hospital from the date the scale of P.C.M.S.I. was given.
" It would appear from Rule 10 (a) (ii) that so far as Himachal Pradesh Health Service Grade I officers are concerned, seniority will have to be reckoned from the date of regular appointment having been duly selected by the Union Public Service Commission and Himachal Pradesh Public Service Commission and or by regular Departmental Promotion Committee in the following grades, 1068 namely, PCMS Grade I and GDO Grade I and that so far as Specialists are concerned, their seniority will count from the date of regular appointment having been duly selected by the Union Public Service Commission, Punjab Service Commission.
Himachal Pradesh Public Service Commission and or by regular Departmental Promotion Committee in the following grades namely, (1) Specialist (CHS); B(2) PCMSI (with post graduate qualifications) and (3) Deputy Medical Superintendents/Resident Medical officers/Surgical Specialists, Ripon Hospital from the date on which the scale of PCMS (I) was given to them.
It has been seen above that Dr. S.P. Kapoor has been appointed to the PCMS (Grade 1) post on 29.1.1905 and he was inducted into the Specialists, grade in the Central Health Service with effect from 1.11.1966 while Dr. R.M. Bali and Dr. Jiwan Lal, who were in the Central Health Service on the date of its constitution on 9.9.1966 had been taken in the Specialists ' grade and G.D.O. Grade I respectively under the Central Health Service with effect only from 9.9.1968.
Therefore, under Rule 10 (a) (iii) of the Rules, Dr. S.P. Kapoor has to rank senior to Dr. R.M. Bali as well as Dr. Jiwan Lal who admittedly has to rank after Dr. R.M. Bali.
Mr. Tarkunde submitted that a letter like the one dated 9.7.1971 mentioned above could have been addressed by the Central Government under Section 84 of the to the Administrator of the Himachal Pradesh Union Territory and that the letter dated 9.7.1971 referred to above could not have been written under that Section as Himachal Pradesh Union Territory ceased to be in existence when the full fledged Himachal Pradesh State came into existence on 25.1.1971 itself.
Section 84 of the says that the "Central Government may give such directions to the State Governnent of Punjab and Haryana and to the Administrators of the Union Territories of Himachal Pradesh and Chandigarh as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this part and the State Governments and the Administrator shall comply with such directions." Mr. Tarkunde relied in this connection upon the decision of this Court in Roshan Lal Tanldon vs Union of India(1) and submitted that having come into the Central Health Service on 1.11.1966 it is not open to Dr. S.P. Kapoor who came into that service subsequent to the date on which Dr. R.M. Bali joined that Service on the date of its initial constitution to contend that his seniority must be fixed 1069 with reference to the date of his appointment to the Punjab Civil Medical Service Grade I.
In that decision we find the following passage at page 192: "At the time when the petitioner and the direct recruits were appointed to Grade 'D ' there was one class in Grade 'D ' formed of direct recruits and the promotees from the grade of artisans.
The recruits from both the sources to Grade 'D ' were integrated into one class and no discrimination could therefore be made in favour of recruits from one source against the recruits from the other source in the matter of promotion to Grade 'C '.
To put it differently, once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher Grade 'C '.
In the present case it is not disputed on the part of the first respondent that before the impugned Notification was issued there was only one rule of promotion for both the departmental promotees and the direct recruits and that 1 rule was seniority cum suitability, and there was no rule of promotion separately made for application to the direct recruits.
As a consequence of the impugned notification a discriminatory treatment is made in favour of the existing Apprentice Train Examiners who have already been absorb ed in Grade 'D ' by March 31, 1966 because the Notification provides that this group of Apprentice Train Examiners should first be accommodated enbloc in Grade 'C ' up to 80 percent of vacancies reserved from them without undergoing any selection.
As regards 20 per cent of the vacancies made available for the category of Train Examiners to which the petitioners belong the basis of recruitment was selection on merit and the previous test of seniority cum suitability was abandoned.
In our opinion, the present case falls within the principle of the recent decision of this Court of Marvyn vs Collector ; We are of the opinion that the ratio of this decision will not apply to the facts of the present case.
On the other hand, Mr. Mehta invited our attention to two decisions of this Court in N. Subba Rao etc.
vs Union of India and Ors(1), and C.P. Damodaran Nayar and P.S. Menon vs State of Kerala 1070 and Others(1).
The decision in N. Subba Rao etc.
vs Union of India and ors.
related to the inter se seniority of officers of two regions of different States which came to form a single State on Ist November, 1956.
On 1.11.1956 the State of Andhra Pradesh came into existence under the .
That State was formed out of the former State of Andhra Pradesh and the Telangana area of the former Hyderabad State.
The appellants in that case were Engineers in the employment of Andhra Pradesh.
On the formation of Andhra Pradesh, the appellants under the continued to serve the State of Andhra Pradesh.
The respondents who were Telangana officers in the employment of the Hyderabad State continued to serve the State of Andhra Pradesh.
The Central Government directed the State Government in September, 1956 to draw up provisional common Gradation List keeping in view the general principles agreed to at the Conference of the Chief Secretaries held in April and May, 1966.
The State Government prepared a provisional common gradation list of Gazetted officers in November 1961.
The Telangana Engineers challenged the common Gradation List by filing Writ Petition in the Andhra Pradesh High Court.
This Court observed in the Judgment that: "Under the power is conferred on the Central Government to bring out the integration of the Service in the State of Andhra Pradesh by ensuring fair and equitable treatment to all persons affected by the provisions of Section 115 of the Act.
The Government of Andhra Pradesh has a duty to bring all relevant facts to the notice of the Central Government.
Under the States ' Reorgnisation Act, the Central Government is entrusted with the power of the division and integration of the Service and the ensuring of fair and equitable treatment to all persons affected by the provisions of Section 115 of the Act in regard to allotment of officers from an existing State to a successor State.
" In the case of C.P. Damodaran Nayar and P.S. Menon vs State of Kerala and others (supra) the State of Kerala came into being on 1.11.1956 and the appellant had been selected by the Madras Public Service Commission as a District Munsif and was posted as such on 26.5.1951 and he was in continuous service since then.
The service of appellant was regularised as from 6.10.1961.
The appellant was allotted to Kerala State with effect from 24.10.1956.
On 26.3.1966 1071 the Kerala State published the final integrated list of the Travancore, Cochin and Madras Judicial officers in the integrated State of Kerala as on 1.11.1956, showing respondents 6 and 7, whose dates of commencement of continuous service were 20.7.1951 and 1.10.1951 respectively as senior to the appellant on the basis that he commenced his continuous service on 6.10.1951.
The appellant questioned the final seniority list contending that the date of commencement of his continuous service is 26.5.1951.
This Court observed thus: "Under Section 117 of the Act (States Reorganization Act 1956) the Central Government may at any time before or after the appointed day give such directions to any State Government as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directions." In accordance with the provisions of that Act, a meeting of the Chief Secretaries of the various States that were to be affected by the Reorganization ' was held at the invitation of the Central Government.
In that meeting it was agreed that in determining the relative seniority as between two persons holding posts declared equivalent to each other and drawn from different States, inter alia the length of continuous service, whether temporary or permanent, excluding periods in which an appointment is held in a purely stop gap or fortuitous arrangement, should be taken into account.
This Court held that the appellant in that case should be given the benefit of his seniority reckoning his continuous appointment and assigning the date 26.5.1951 and substituting the same in the final list for 6.10.1951, and observed: "It is common ground that the appellant has been appointed in a regular manner through the Public Service Commission and his appointment cannot by any stretch of imagination be made to fill a "pure stop gap or fortuitous" vacuum.
As noted earlier, the Government of India has accepted the position that an allotted employee should not suffer any disadvantage if he would not have been subjected to a like handicap in his parent State.
It is clear from the position taken by the Madras Government that the appellant would have got the benefit 1072 of his continuous appointment in Madras with effect from May 26, 1951.
That being the position, the submissions of the learned counsel for the respondents are of no avail".
We are of the opinion that the ratio of these two decisions relied upon by Mr. Mehta would apply to the facts of the present case.
Section 45 of the lays down that "the Central Government may give such directions to the Government of the State of Himachal Pradesh as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and also the provisions of of the and the State Government shall comply with such directions ' ' .
We agree with Mr. Mehta that the aforesaid letter dated 9.7.1971 from the Ministry of Health, Family Planning, Department of Health, Government of India, addressed to the Government of Himachal Pradesh, was written under the provisions of Section 45 of the .
Mr. Tarkunde submitted that even if that letter dated 9. 7. 1971 had been written under the provisions of Section 45 of the , equivalent posts must be determined and that nobody has fixed the equivalent posts and it is for the Government of India to decide.
We are of the opinion that this submission is not well founded as the equivalent grades have already been fixed by placing Dr. section P. Kapoor and Dr. R. M. Bali in the category of Specialists and Dr. Jiwan Lal in the category of Himachal Pradesh Health Service Grade I officer, as mentioned above by the Himachal Pradesh Government 's Notification No. 1 15/75 H&FP dated 9. 6. 1975 referred to above.
The Central Government was under an obligation to see that in fairness and equity the seniority of officers drafted into the newly formed State from the integrating States is properly fixed and that obligation has been discharged by the Central Government: (1) by Mr. Pande 's D. O. letter dated 14.2.1967, (2) the stand taken by Mr. 1 '.
V. Menon Deputy Legal Adviser, Central Government in the meeting of officers held on 24.1.1972 and (3) the letter dated 9.7.1971 written by the Ministry of Health and Family Planning Welfare, Government of India to the Secretary to the Government of Himachal Pradesh.
In these circumstances we are of the opinion that the learned Judges of the High Court have erred in holding that the inter se seniority has to be determined only on the basis of the date of induction into the Central Service and not with reference to Rule 10 (a) (iii) of the Rules 1073 which had, however, been noticed by the learned Judges without a correct appreciation of its impact on what the Government of Himachal Pradesh should do in the matter of fixing the relative seniority of the officers drawn from the integrating States.
We are of the opinion that inter se seniority has to be determined only in accordance with Rule 10 (n) (iii) of the Rules and that Dr. section P. Kapoor would be senior to Dr. R. M. Bali, who in turn would rank senior to Dr. Jiwan Lal.
The annual confidential reports relating to Dr. section P. Kapoor, t Dr Jiwan Lal and others had to be looked into by the Departmental Promotion Committee on 3.11.1979.
The contention of Dr. Jiwan Lal was that the annual confidential reports of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were initiated by an officer not only junior to them but also an aspirant for promotion to a higher post alongwith them, and, therefore, these confidential reports should not have been taken into consideration for further promotion.
The contention of the Himachal Pradesh Government was that the confidential reports made by Dr. J. C. Sharma were not taken into account and that Dr. Grover 's reports were revised, sometimes with additional remarks for or against the individuals by higher authorities and they were not the only reports which were taken into consideration by the Departmental Promotion Committee.
It is clear from this contention of the Himachal Pradesh Government that Dr. Grover 's reports were taken into consideration by the Departmental Promotion Committee.
though it is stated that they had been earlier revised by higher authorities.
Dr. Grover was in the field competing with Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. (Mrs.) Damyanti Kapur at the relevant time for promotion to the higher post Therefore, it would not have been fair for the Depart mental Promotion Committee to take into account the annual confidential reports made by Dr. Grover though they might have been revised by the higher authorities Section 2 (g) of the Rules defines a Departmental Promotion Committee as: "a Committee constituted from time to time by the Government for the purpose of making recommendation for promotion or confirmation in 2nd category".
Dr. Jiwan Lal has stated in his Special Leave Petition that under the Rules the Departmental Promotion Committee of Himachal 1074 Pradesh in respect of the Health Services consisted of the Chief Secretary, Financial Commissioner and Secretary, Health and Family Welfare, of the Himachal Pradesh Government.
There is no dispute about this fact.
But the Departmental Promotion Committee which met on 3.11.1979 to consider the question of appointment of Deputy Directors and Director of Health Services, consisted of the Chief Secretary, Financial Commissioner and Principal Secretary to the Chief Minister of Himachal Pradesh, who was appointed additionally as Secretary of Health and Family Welfare in the absence on leave of the regular Secretary, Health and Family Welfare from 3rd to 8th November, 1979.
It is seen from the counter affidavit of the Himachal Pradesh Government that the Director of Health Services and Deputy Director of Health Wealth were holding the posts on ad hoc basis from the year 1973.
The final seniority list was prepared only on 2.11.1979 and the Depart mental Promotion Committee was constituted on 3.11.1979.
The Joint Secretary, Personnel Department, Himachal Pradesh Government had written the letter No. Per (A l) B 79 dated 3.11.1979 requesting Mr. R. C. Gupta, Secretary (Health) Himachal Pradesh Government to attend the Departmental Promotion Committee Meeting to be held at 3.00 P. M.
On that day for considering the names of officers for the posts of Director, Health Services.
It is seen from what has been stated above and it is also admitted by the Himachal Pradesh Government that the selection of the Deputy Directors and the Director of Health Services from amongst the Deputy Directors had been made by the Departmental Promotion Committee on 3.11.1979 itself and that even the orders of appointment had been issued on the same day with the approval of the Governor of Himachal Pradesh.
Though before the High Court it does not appear that Dr. Jiwan Lal had alleged any malafides to anybody he has alleged in Special Leave Petition that the constitution of the Departmental Promotion Committee and the process of selection and appointment were obviously malafides and that they were appointed on the date on which Mr. Yadav, the regular Secretary, Health and Family Welfare Department, was on leave and that this haste suggests that he would not have agreed to carry out the political wish of the then Chief Minister in making the appointments in the post haste manner.
Though it is not possible to accept the belated contention that there was any malafides on the part of the then Chief Minister in the matter of constitution of the Departmental Promotion Committee with his Principal Secretary as one of its members in the place of the regular Secretary, Health and Family Welfare, we are of the opinion 1075 that there is room for suspecting the reason why the whole thing was completed in haste on 3.11.1979 after the preparation of the final seniority list on 2.11.1979, in the light of the admitted position that the Deputy Directors and Director of Health Services, Himachal Pradesh were holding ad hoc appointments from 1973.
The matter was not such as could not have been put off by a few days.
Such rush is not usual in any State Government.
The post haste manner in which these things have been done on 3.11.1979 suggests that some higher up was interested in pushing through the matter hastly when the regular Secretary, Health and Family Welfare was on leave.
Therefore, we are of the opinion that the matter requires to be considered afresh.
In regard to the question of rotation, Rule 9(4) of Rules lays down: (I) super time Grade II (General) posts shall be filled by promotion of (i) HPHS Grade I officers with not less than seven years of service in the category or (ii) Specialists ' Grade officers with not less than five years service in that category.
The selection will have to be on the recommendation of a Departmental Promotion 1) Committee on the basis of merit cum seniority of the officers concerned at (i) and (ii) above on 50: 50 basis keeping in view the nature of the duties of the post.
Suppertime Grade I (General) posts shall be filled by promotion on the recommendations of the Departmental Promotion Committee on the basis of merit with due regard to seniority of officers holding the posts of Deputy Directors with not less than five years service in that category.
The contention of Dr. Jiwan Lal was that the Departmental Promotion Committee should not have started the rotation to post of Director of Health Services with a Specialist.
On the other hand, the contention of the Himachal Pradesh Government before the High Court was that Rule 9 was silent on the question as to the category with which the roster should be started and, therefore, the State Government decided to supplement the Rule by starting the roster with the category of Specialists having regard to the fact that the senior most Specialist officer available on the date of the Departmental Promotion Committee meeting on 3.11.1979 had put in greater length of qualifying service than the senior most HPHS (Grade I) officer.
Rule 21 of the Rules provides that if any difficulty is felt in giving effect to provisions of these Rules the Government may in consultation with the Public Service Commission give such directions not inconsistent with the provisions of those Rules, as appear to be necessary or expedient for the removal of the difficulty.
In view of the fact that Rule 9(4) does not provide the category with which the roster may be started.
1076 whether with HPHS (Grade I) officer or Specialists, difficulty appears to have arisen in starting the roster.
Therefore, the Government stopped in and supplemented the Rule by directing that the roster may be started with the category of Specialists keeping in view the length of qualifying service in each of the two grades, namely, Specialists and HPHS (Grade 1) officers.
The learned Judges of the High Court have expressed the view that the Specialists had an advantage for their category starting the roster by the senior most of the Specialists having put in more number of years of qualifying service than the HPHS (Grade I) officers.
We are of the opinion that the learned Judges were perfectly justified in taking this view and that the Government was right in getting the roster started with Specialists instead of of HPHS (Grade I) officers.
For the reasons stated above Civil Appeal No. 2104 of 1980 is allowed and Civil Appeal No. 2384 of 1980 is dismissed.
The principle on which relative seniority should be fixed having been settled in this judgment.
it shall be fixed accordingly and the matter of selection of Deputy Directors and Director of Health Services, Himachal Pradesh shall be decided afresh according to the Rules and in the light of this judgment.
Under the circumstances of the case, we make no order as to costs.
N.V.K. C.A. 2104 of 1980 allowed and C.A. 2384 of 1980 dismissed.
| IN-Abs | The Central Health Service was constituted by the Central Government and the Central Health Service Rules 1963 came into force with effect from 15 5 1963.
These Rules were amended by the Central Health Service (Amendment) Rules 1966.
Before the Punjab Reorganisation Act came into force the State of Punjab had its own Health Service known as the PCMS with two grades, Grade I and Grade II.
After the Punjab Reorganisation Act came into force, and the Central Health Service was formed, some persons belonging to the PCMS and some persons working as Medical officers in hospitals run by Local Bodies were inducted into that Service after they had exercised their option to be inducted therein.
The petitioners and contesting employees respondents in writ petition nos 2 of 1980 and 288 of 1979 filed in the High Court had been inducted into the Central Health Service after they had exercised their option.
When the Himachal Pradesh Union Territory was in existence, its Health Department was manned by officers of the Central Health Service, but after Himachal Pradesh became a full fledged State, the Himachal Health Service was constituted on 24.1.1974 1044 under the Himachal Pradesh Health Service Rules which came into force on 19.1.74.
The members of the Central Health Service serving in the erstwhile Himachal Pradesh Union Territory were asked to exercise their option to continue in the new Himachal Pradesh Health Service.
The writ petitioners and the contesting employees respondents exercised their option to continue in the Himachal Pradesh Health Service.
The Appellant in C.A. No. 2384 of 1980 who was one of the petitioners in writ petition No. 288 of 1979 contended before the High Court that his reversion from the post of Deputy Director of Health Services to which post he was appointed on a regular basis was void.
The petitioner in writ petition No. 2 of 1980 claimed that the seniority list of Specialists prepared by the State Government was contrary to the rules and that the appointment of the appellant in C.A. No. 2104 of 1980 and of respondents 2 and 4 in writ petition 288 of 1979 as Deputy Directors of Health Services was contrary to the provisions of the 1974 Rules.
It was contended that the appointments were also vitiated because the Departmental Promotion Committee constituted for making appointment was not properly constituted because one of the members of the committee the Principal Secretary to the Chief Minister was unauthorised by inducted into the Committee in place of the Secretary to the Government Health and Family Welfare Department and (ii) that their confidential reports were written by an officer junior to them and who was an aspirant for promotion to the higher post.
The appointments of the Director of Health Services and the two Deputy Directors having been made in haste immediately after the seniority list was issued rendered the appointments void.
The petitioner in writ petition 2 of 1980 claimed that the inter se seniority between himself and the respondents could not be disturbed at the time of absorption in the Himachal Pradesh Health Services having regard to the Punjab Reorganisation Act and the protection given to the members of the Punjab Service.
These two petitions were contested.
It was contended by the State of Himachal Pradesh that the petitioners in W.P. No. 288 of 1979 were appointed as Deputy Directors of Health Services only on ad hoc basis that the post is a selection post which cannot be claimed as of right by persons appointed on ad hoc basis by way of stop gap arrangement.
The incumbent to the post of Secretary Health and Family Welfare being on leave at the relevant period the Principal Secretary to the Chief Minister was appointed to function in his place as Secretary to Government in the Departmental Promotion Committee the constitution of the Departmental Promotion Committee was perfectly valid.
The annual confidential reports which were written by the junior officer who was working on ad hoc basis were not the only reports taken into account by the Departmental Promotion Committee.
The post of Director of Health Services was manned on an ad hoc basis.
Ad hoc appointments were necessitated by the absence of the final seniority list which was prepared only on 2.11.1979 and since that impediment was over the Departmental Promotion Committee met on 3.11.1979 and orders of appointment to those selected by that Committee were issued on the same day.
Specialists were officers possessing post graduate qualifications while General Duty officers were as a rule only graduates.
The Rule making autho 1045 rity divided the higher posts equally amongst the officers of the two categories taking all factors into consideration.
Therefore the claim for being considered to the post of Director of Health Services is wholly untenable having regard to Rule 9(3) of the Rules which provides that only Deputy Directors should be considered for promotion to the post of Director of Health Services.
On behalf of the Central Government it was contended that the Central Health Service was constituted with effect from 9 9.1966 and the seniority of the Medical Officers appointed to the service with effect from that date had been determined to be that officers appointed to a grade under rule 7A of the Central Health Services Rules 1963 as amended by the Central Health Service (Amendment) Rules 1966 will rank en bloc senior in that grade to those who may be appointed to that grade under rule 8A.
The officers of the Punjab Government were appointed to the Central Health Service with effect from 1.11.1966 under rule 8A. As These officers have come into the Central Health Service only after the initial constitution of that service was over it was not possible to assign them seniority over the officers appointed at the initial constitution of the service.
The Government of Himachal Pradesh having proposed to formulate their own Health Service and the Medical officers who are to opt from the Central Health Service are to be included in that service those officers were asked to exercise their option.
Those officers who opted to join the proposed Himachal Pradesh Health Service were given the benefit of past continuous service while fixing their seniority in the Himachal Pradesh Health Service.
The High Court allowed the writ petitions and held (1) that the petitioners therein being appointed as Deputy Directors on ad hoc basis cannot claim a right to the post of Deputy Directors of Health Services or to seniority on the basis of ad hoc appointment though then can add the period of such appointment in the matter of experience for promotion and confirmation.
(2) The Principal Secretary E to the Chief Minister was appointed to function additionally as Secretary to Government Health and Family Welfare Department as per office order dated 2.11.1979 and therefore the Departmental Promotion Committee had been properly constituted.
(3) Seniority has to be determined on the basis of the date of induction into the Central Health Service and not on the basis of the earlier service.
Allowing the appeal to this Court ^ HELD: 1.
The High Court erred in holding that the inter se seniority has to be determined only on the basis of the date of induction into the Central Health Service and not with reference to Rule 10 (a)(iii) of the Rules.
Inter se seniority has to be determined only in accordance with Rule 10 (a)(iii) of the Rules and Dr. S.P. Kapoor would be senior to Dr. R.M. Bali who in turn would rank senior to Dr. Jiwan Lal.
[1072 1073 B] In the instant case the Central Government was under an obligation to see that in fairness and equity the seniority of officers drafted into the newly formed State from the integrating States is properly fixed and that obligation has been properly discharged by the Central Government.
Dr. section P. Kapoor had been appointed to the PCMS (Grade I) post on 29.1.1965 and he was inducted into the Specialist Grade in the Central Health Service with effect from 1.11.1966 while 1046 Dr. R.M. Bali and Dr. Jiwan Lal who were in the Central Health Service on the date of its constitution on 9.9.1966 had been taken in the Specialists Grade and G.D.O. Grade I respectively under the Central Health Service with effect only from 9.9.1968.
[1072 1068 C] Roshan Lal Tandon vs Union of India ; held inapplicable.
N. Subba Rao etc.
vs Union of India and Ors.
, ; and C.P. Damodaran Nayar and P.S. Menon vs State of Kerala and others ; referred to. 2.
The annual confidential reports were initiated by an officer not only junior but also an aspirant for promotion to the higher post and therefore such Confidential reports should not have been taken into consideration for further promotion.
[1073 C] In the instant case it would not have been fair for the Departmental Promotion Committee to take into account the annual confidential reports made by Dr. Grover though they might have been revised by the higher authorities.[1073F] 3.
The post haste manner in which the Departmental Promotion Committee Meeting was held on 3.11.1979 suggests that some higher up was interested in pushing through the matter hastily when the regular Secretary Health and Family Welfare was on leave.
The matter is therefore required to be considered afresh.
[1075 B] In the instant case the Director of Health Services and Deputy Director of Health Services were holding the posts on ad hoc basis from the year 1973.
The final seniority list was prepared only on 2.11.1979 and the Departmental Promotion Committee was constituted on 3.11.1979.
The Joint Secretary Personnel Department had written the letter dated 3.11.1979 requesting the Principal Secretary to the Chief Minister who was appointed additionally as Secretary of Health and Family Welfare to attend the Departmental Promotion Committee Meeting at 3.00 p.m.
On that day.
There is room for suspecting the reason why the whole thing was completed in haste on 3.11.1979 after the preparation of the final seniority list on 2.11.1979.
The matter was not such as could not have been put off by a few days.
Such rush is not usual is in any State Government.
[1074 GD.
1075 A] 4.
The High Court was right in finding that the Specialists had an advantage for their category starting the roster by the senior most of The Specialists having put in more number of years of qualifying service than the HPHS (Grade I) officers and that the Government was right in getting the roster started With Specialists instead of HPHS (Grade I) officers.
[1076 B C] In the instant case as Rule 9(4) did not provide the category with which the roster may be started whether with HPHS (Grade I) officers or Specialists difficulty arose.
The Government therefore stepped in and supplemented the Rule by directing that the roster may be started with the category of Specialists keeping in view the length of qualifying service in each of the two grades namely Specialists and HPHS (Grade I) officers.
This they were entitled to by Rule 21 [1075 H. 1076 A]
|
ition No. 8193 of 1981.
(Under article 32 of the Constitution of India.) R. K. Garg and C.S. Vaidyanathan for the Petitioner.
Miss A. Subhashini for Respondent No. 1.
N. C. Talukdar, K.S. Gurumoorly and R. N. Poddar for Respondents Nos. 2 to 4.
P. N. Lekhi and K. C. Dua for the Applicants.
P. K. Bahardwaj in person for Times of India.
B. M. Srivastava for U.N.I. V. section Karnic for P.T.I. The order of the Court was delivered by CHANDRACHUD, C.J. This is a petition under article 32 of the Constitution by the Chief Reporter of the Hindustan Times, Smt.
Prabha Dutt, asking for a writ of mandamus or any other appropriate writ or direction directing the respondents, particularly the Delhi Administration and the Superintendent of Jail, Tihar, to allow her to interview two convicts Billa and Ranga who are under a sentence of death.
We may mention that the aforesaid two prisoners have been sentenced to death for an offence under section 302 Indian Penal Code and the petitions filed by them to the President of India for commutation of the sentence are reported to have been rejected by the President recently.
Before considering the merits of the application, we would like to observe that the constitutional right to freedom of speech and expression conferred by article 19(1)(a) of the Constitution, which includes the freedom of the Press, is not an absolute right, nor indeed does it confer any right on the Press, to have an unrestricted access to means of information.
The Press is entitled to exercise its freedom of speech and expression by publishing a matter which does not invade the rights of other citizens and which does not violate the sovereignty and integrity of India, the security of the State, public order, decency and morality.
But in the instant case, the right claimed by the petitioner is not the right to express any particular view or opinion but the right to means of information through the medium of an interview of the two prisoners who are sentenced to death.
No such right can be claimed by the Press unless in the first instance, the person sought to be interviewed is 1186 willing to be interviewed.
The existence of a free Press does not imply or spell out any legal obligation on the citizens to supply information to the Press, such for example, as there is under section 161(2) of the Criminal Procedure Code.
No data has been made available to us on the basis of which it would be possible for us to say that the two prisoners are ready and willing to be interviewed.
We have, however, no data either that they are not willing to be interviewed and, indeed, if it were to appear that the prisoners themselves do not desire to be interviewed, it would have been impossible for us to pass an order directing that the petitioner should be allowed to interview them.
While we are on this aspect of the matter, we cannot overlook that the petitioner has been asking for permission to interview the prisoners right since the President of India rejected the petitions filed by the prisoners for commutation of their sentence to imprisonment for life.
We are proceeding on the basis that the prisoners are willing to be interviewed.
Rule 549(4) of the Manual for the Superintendence and Management of Jails, which is applicable to Delhi, provides that every prisoner under a sentence of death shall be allowed such interviews and other communications with his relatives, friends and legal advisers as the Superintendent thinks reasonable.
Journalists or newspapermen are not expressly referred to in clause (4) but that does not mean that they can always and without good reasons be denied the opportunity to interview a condemned prisoner.
If in any given case, there are weighty reasons for doing so, which we expect will always be recorded in writing, the interview may appropriately be refused.
But no such consideration has been pressed upon us and therefore we do not see any reason why newspapermen who can broadly, and we suppose without great fear of contradiction, be termed as friends of the society be denied the right of an interview under clause (4) of rule 549.
Rule 559A also provides that all reasonable indulgence should be allowed to a condemned prisoner in the matter of interviews with relatives, friends, legal advisers and approved religious ministers.
Surprisingly, but we do not propose to dwell on that issue, this rule provides that no newspapers should be allowed.
But it does not provide that no newspapermen will be allowed.
Mr. Talukdar who appears on behalf of the Delhi Administration contends that if we are disposed to allow the petitioner to interview the prisoners, the interviews can be permitted only subject to the rules and regulations contained in the Jail Manual.
There 1187 can be no doubt about this position because, for example, rule 552A provides for a search of the person who wants to interview a prisoner.
If it is thought necessary that such a search should be taken, a person who desires to interview a prisoner may have to subject himself or herself to the search in accordance with the rules and regulations governing the interviews.
There is a provision in the rules that if a person who desires to interview a prisoner is a female, she can be searched only by a matron or a female warden.
Taking an overall view of the matter, we do not see any reason why the petitioner should not be allowed to interview the two convicts Billa and Ranga.
During the course of the hearing of this petition, representatives of the Times of India, India Today, PTI and UNI also presented their applications asking for a similar permission.
What we have said must hold good in their cases also and they, in our opinion, should be given the same facility of interviewing the prisoners as we are disposed to give to the petitioner in the main writ petition.
We therefore direct that the Superintendent of the Tihar Jail shall allow the aforesaid persons, namely the representatives of the Hindustan Times, the Times of India, India Today, the Press Trust of India and the United News of India to interview the aforesaid two prisoners, namely, Billa and Ranga, today.
The interviews may be allowed at 4 O 'Clock in the evening.
The representatives agree before us that all of them will interview the prisoners jointly and for not more than one hour on the whole.
There will be no order as to costs.
Mr. Lekhi who appears on behalf of the magazine India Today as also Mr. Jain who appears on behalf of the Hindustan Times has requested us to direct the Superintendent of Jail to allow the aforesaid representatives to be present at the time of the execution of the death sentence.
That is not a matter for us to decide.
If such an application is made to the Superintendent of Jail, he will be free to consider the same on merits and in accordance with the jail regulations.
| IN-Abs | The constitutional right to freedom of speech and expression conferred by article 19(1)(a) of the Constitution, which includes the freedom of Press, is not an absolute right; nor indeed does it confer any right on the Press to have an unrestricted access to means of information.
The Press is entitled to exercise its freedom of speech and expression by publishing a matter which does not invade the rights of other citizens and which does not violate the sovereignty and integrity of India the security of the State, public order, decency and morality.
[1185 FG] The right claimed by the petitioner in the present case, a newspaper reporter, to interview two convicts under sentence of death is not a right to express any particular view, or opinion but the right to means of information through the medium of an interview with them.
No such right can be claimed by the Press unless the person sought to be interviewed is willing to be interviewed.
[1185 H] The existence of a free Press does not imply or spell out any legal obligation on the citizens to supply information to the Press, such as there is under section 161(2) of the Criminal Procedure Code.
[1186 A] Rule 549(4) of the Jail Manual provides that a prisoner under a sentence of death shall be allowed interviews and other communications with relatives, friends and legal advisers, journalists and newspapermen, though not expressly referred to in this rule cannot be denied the opportunity of interview without good reasons.
There is no reason why newspapermen who could be termed as friends of the society be denied the right of interview under rule 549(4).
[1186 D F] There can be no doubt that a person, who desires to interview a prisoner may have to subject himself or herself to the search in accordance with the rules and regulations governing the interviews.
[1187 A B] Whether representatives of the Press should be allowed to be present at the time of the execution of the death sentence is a matter for the Superintendent to consider on merits and in accordance with the jail regulations.
It is not a matter for the Court to decide.
[1187 G] 1185
|
DICTION: Writ Petitions Nos.
7477 79 of 1981 33 (Under article 32 of the Constitution of India) AND SPECIAL LEAVE PETITION (CIVIL) NOS.
9116 & 8735 of 1981 From the judgment and order dated the 15th October, 1981 and 22nd September, 1981 of the Punjab and Haryana High Court in Civil Writ Petitions Nos.
4734/81 & 4370/81 respectively.
B. Datta for the Petitioners in Writ Petitions.
Ravindra Bana for the Petitioners in both SLPs.
O. P. Sharma and M. section Dhillon for the Respondents.
The Judgment of the Court was delivered by SEN, J.
These petitions under article 32 of the Constitution and the connected special leave petitions mainly challenge the constitutional validity of the second proviso to sub cl.(1) of cl 11 of the Punjab Foodgrains Dealers Licensing and Price Control Order, 1978 (for short 'the Order '), as inserted by the Punjab Foodgrains Dealers Licensing and Price Control (First Amendment) Order, 1980, with effect from March 27, 1980, as violative of articles 14 and 19 (1) (g) of the Constitution, as also the legality and propriety of the action of the licensing authorities in suspending the licences held by the petitioners.
It appears that the licences held by the petitioners who are foodgrains dealers in the State of Punjab, have been suspended by orders passed by the District Food and Supplies Controllers, Faridkot and Bhatinda, for a period not exceeding ninety days under the second proviso to sub cl.
(1) of cl. 11 of the Order.
The orders of suspension of licence in each of these cases rest on the allegation that the licensee has committed a breach of conditions Nos. 4, 8 and 10 of the licence.
The petitioners have all been served with notices under the first proviso to sub cl.
(1) of cl. 11 of the Order to show cause why their licences should not be cancelled.
Some of the petitioners accept that in the recent past their licences were suspended under the second proviso to sub cl.
(1) of cl. 11 of the Order for alleged breach of the licence conditions 34 for having sold large quantities of wheat to dealers outside the State without disclosing the names of the purchasers in their stock registers.
It, therefore, appears that the present suspension is for a repeated breach.
These petitioners have filed the petitions under article 32 of the Constitution for protection of their fundamental rights to carry on trade or business as foodgrains dealers within the meaning of article 19 (1) (g) read with article 301 thereof.
The other petitioners allege that because they approached the High Court by way of petitions under article 226 of the Constitution, complaining against restrictions placed on movement of wheat by rail, their licences have been suspended under the second proviso to sub cl.
(1) of cl.11 of the order as a punitive measure.
Incidentally, these petitioners had first moved the High Court under article 226 of the Constitution, but the High Court dismissed their writ petitions summarily.
The connected special leave petitions are directed against the order of the High Court.
The State of Punjab in the counter affidavits filed by the Deputy Secretary to the Government of Punjab, Food and Supplies Department, Chandigarh, and the District Food and Supplies Controller, Faridkot, controvert the allegations of the petitioners.
It is stated that the petitioners have been served with show cause notices under the first proviso to sub cl.(1) of cl. 11 of the Order for cancellation of their licences, for breach of the licence conditions.
Learned counsel for the petitioners seek to assail the constitutional validity of the second proviso to sub cl.
(1) of cl.11 of the Order on two grounds.
First of these is that the second proviso to sub cl.
(1) of cl. 11 of the Order, inserted by the Punjab Foodgrains Dealers Licensing and Price Control (First Amendment) Order, 1980, confers upon the licensing authority unguided, uncontrolled and arbitrary power to suspend a licence and it, therefore, infringes the fundamental right to carry on trade or business guaranteed under article 19 (1) (g) of the Constitution.
It is also urged that the conferral of such unguided, uncanalised and arbitrary power on the licensing authority, without any guidelines whatsoever, makes the impugned proviso unconstitutional as offending article 14 of the Constitution.
The second contention is that the suspension of the foodgrains dealers ' licences held by the petitioners was mala fide and motivated, as in reality it was not on account of any breach of the licence conditions on their part, but on extraneous considera 35 tions.
It is said that the real purpose was to prevent them from exporting wheat from the State of Punjab to various other States in the course of inter State trade and commerce within the meaning of article 301 of the Constitution.
We are unable to accept any of these contentions.
To make the point intelligible, it is necessary to deal with the scheme of the Order.
3 of the Order provides that no person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence granted by the licensing authority.
Cl. 7 (3) thereof provides that where an application for grant of a licence is not refused, the licensing authority shall grant a licence in Form B subject to the conditions specified therein.
Condition No. 4 of the licence enjoins that the licensee shall submit to the licensing authority concerned fortnightly returns in Form C of the stock receipts and deliveries.
Condition No. 8 of the licence lays down that the licensee shall exhibit the price list of foodgrains held by him for sale and it shall indicate separately the prices of different varieties of foodgrains.
Condition No. 10 thereof interdicts that the licensee shall give all facilities at all reasonable times to the licensing authority or any officer authorised by it or the State Government, for the inspection of his stocks and accounts at any shop, godown or other place used by him for the storage, sale or purchase of foodgrains etc.
11 of the Order provides for cancellation or suspension of a licence.
The power of cancellation or suspension of a licence which was subject to the giving of a reasonable opportunity to the lincensee of stating his case was not adequate and sufficient to effectively check and control flagrant breaches of the provisions of the order, during the pendency of the proceedings for cancellation of a licence.
The State Government, therefore, inserted the second proviso to sub cl.
(1) of cl. 11 of the Order.
11 of the Order, as amended, in so far as material, reads: "Cancellation or suspension of licence: (1) If a licensee or his agent or any person acting on his behalf contravenes any of the terms and conditions of his licence or any provision of this Order then, without prejudice to any action that may be taken against him, the licensing authority may by an order in writing, cancel or suspend licence in so far as it relates to the foodgrains in respect of which contravention has been made.
36 Provided that no order shall be made under this clause unless the licensee has been given a reasonable opportunity of stating his case; Provided further that the licensing authority may suspend a licence without giving a reasonable opportunity to the licensee of stating his case for a period not exceeding ninety days during the pendency or in contemplation of the proceedings for cancellation of his licence.
" It is plain upon the terms of sub cl.
(1) of cl. 11 of the order that it deals with the substantive punishment of cancellation or suspension of a licence.
The power of cancellation or suspension of a licence of a foodgrains dealer under sub cl.
(1) of cl. 11 of the Order is, however, subject to the limitation contained in the first proviso.
The power of cancellation or suspension of a licence is, therefore, not exercisable by the licensing authority until it affords a reasonable opportunity to the licensee of stating his case.
This necessarily entails the holding of an inquiry into the question of the alleged breach.
The making of an inquiry into the breach of licence conditions by a foodgrains dealer is a time consuming process which may many a time verily frustrate the purpose and object of the Order.
The State Government was evidently of the opinion in the light of the experience gained in the recent past, that for effective control and regulation of the trade in foodgrains, it was necessary and expedient that the licensing authority should be clothed with powers to suspend a licence on the spot when it detects contravention of any of the terms and conditions of the licence or any of the provisions of the Order.
Otherwise, a foodgrains dealer after committing flagrant breaches of the terms and conditions of his licence and the provisions of the Order, may, with impunity, carry on his trading activities without any check or control.
The power of suspension conferred by the second proviso to sub cl.
(1) of cl. 11 of the Order is by way of an interim measure, pending the holding of an inquiry as to whether there is any breach which must result in cancellation of the licence.
It is true that the suspension of licence is a drastic measure, if taken without affording to the dealer a reasonable opportunity of stating his case, but it is 37 a measure of social control in the interests of the community.
The power of suspension is a necessary concomitant of the power to grant a privilege or a licence.
By reason of cl. 3 of the Order, no dealer can engage in the business of purchase and sale of foodgrains except under and in accordance with the terms and conditions of a licence issued by the licensing authority in that behalf.
The dealers are free to carry on their trade or business in foodgrains, subject to their complying with the terms and conditions of their licence and the provisions of the Order.
But, if they commit a breach, they must face the consequence that their licence may be cancelled or suspended under sub cl.
(1) of cl. 11 of the Order.
They must face the further consequence of suspension of their licence during the pendency or in contemplation of the proceedings for cancellation of the licence, if the breach is of such a nature that it must result in the cancellation of a licence.
As already stated, the power of suspension is a necessary adjunct of the power to grant a licence.
In view of the acute shortage of foodstuffs in the country, the Government is bound to take all effective steps to implement the provisions of the Act and the various orders issued under section 3 thereof, from time to time.
The conferral of the power of suspension of the licence of a foodgrains dealer under the second proviso to sub cl.
(1) of cl. 11 of the Order during the pendency or in contemplation of the proceedings for cancellation of his licence, is an important step taken by the Government to subserve the object of the legislation and is in public interest.
It cannot be said that the second proviso to sub cl.
(1) of cl. 11 of the Order does not satisfy the test of reasonableness.
It seeks to strike a proper balance between the freedom of trade or business guaranteed under article 19 (1) (g) and the social control permitted by cl.
(6) of article 19 of the Constitution.
It is, therefore, difficult to hold that the second proviso to sub cl.
(1) of cl. 11 of the Order is of an excessive nature beyond what is required in the interests of the general public.
There is no warrant for the submission that the second proviso to sub cl.
(1) of cl. 11 of the Order confers upon the licensing authority unguided, uncontrolled and uncanalised power to suspend a licence and is, therefore, void by reason of article 14 of the Constitution.
It is urged that the impugned orders of suspension in these cases are for a period of 89 days, and the licensing authority would, as in the past, pass fresh orders of suspension ad infinitum 38 completely paralysing the business of the petitioners.
There is no substance in the contention that repeated orders of suspension of a licence can be passed under the second proviso in respect of the same breach.
The second proviso expressly states that the licensing authority may suspend a licence for a period not exceeding ninety days.
It, therefore, fixes the period of suspension.
From its very terms, it is obvious that there cannot be repeated orders of suspension of a licence under the second provision in respect of the same breach.
Normally, the order of suspension under the second proviso to sub cl.
(1) of cl. 11 of the Order after the expiry of the period of 90 days, would automatically lapse.
However, if the licensee commits another breach, after the expiry of the period of suspension, there is nothing to prevent the licensing authority to suspend his licence afresh.
On a fair reading of the second proviso to sub cl.
(1) of cl. 11 of the Order, it cannot be said that it commits to the unrestrained will of the District Food and Supplies Controller, who is the licensing authority, the power of suspension of a licence.
It does not confer arbitrary and uncontrolled power because the suspension can only be for specified reasons and the second proviso lays down the circumstance or grounds on which the power may be exercised.
Such guidelines are expressly and specifically stated.
In the first place, the power of suspension is not exercisable unless there is a breach and the breach is of such a nature that it must entail cancellation of the licence.
The substantive provision contained in sub cl.
(1) of cl. 11 of the Order provides for the power of cancellation or suspension, if any dealer commits any contravention of the 'terms and conditions of his licence or any provision of this order '.
The first proviso is in the nature of a limitation on the power contained in sub cl.
(1), and there can be no cancellation or suspension of a licence unless the licensee is afforded a reasonable opportunity of stating his case.
The proper function of the second proviso is to carve out an exception to the first proviso.
It dispenses with the requirement of affording a reasonable opportunity to the licensee in case of suspension of his licence during the pendency or in contemplation of the proceedings for cancellation.
It must, however, be read along with the main enacting provision in sub cl.
(1), and, if so construed, the power of suspension during the pendency of an inquiry cannot be exercised unless there is contravention of any of the terms and conditions of the licence or any of the 39 provisions of the Order.
Secondly, it provides for a reasonable safeguard, in that it limits the period of suspension.
The period of suspension would necessarily depend upon the nature of the breach, and in no case, can it exceed ninety days.
During this period, the licensing authority is expected to complete the inquiry and take a decision as to the cancellation or otherwise of the licence.
Thirdly, as a check upon possible injustice that might result from an improper exercise of the power of suspension of a licence by the licensing authority under the second proviso, there is an additional safeguard to a dealer by way of an appeal to the Director, Food and Supplies, under cl. 13 of the Order.
This Court has repeatedly laid down that where the discretion to apply the provisions of a particular statute is left with the Government or one of the highest officers, it will be presumed that the discretion vested in such highest authority will not be abused.
It would, therefore, appear that the second proviso to sub cl.
(1) of cl. 11 of the Order furnishes sufficient guidelines for the exercise of the power of suspension of a licence during the pendency of or in contemplation of the proceedings for cancellation thereof, and it does not suffer from the vice of arbitrariness and is, therefore, not violative of article 14 of the Constitution.
On the contrary, as already indicated, it affords reasonable safeguards.
There still remains the question whether the impugned orders of suspension are mala fide or motivated.
We are unable to hold from the material on record that the licensing authorities acted with improper motives or were actuated with bias in directing the suspension of the licences held by the petitioners.
All that is averred in para 9 is: "(Under oral instructions of the Punjab Government from the Civil Supplies and Food Department to all the Licensing Authorities, including the Food Department and Supplies Controllers, instructions were issued that if any one dealer is found exporting wheat to another State, there being no direct or indirect ban on such movement, he should be punished at the spot by way of suspension of licences so that the dealer may not export wheat to any other State for which there are no restrictions imposed by 40 any law or notified order or even the terms and conditions of the licence." The petitioners then go on to say in para 12: "Under oral instructions from the Secretary, Food and Supplies Department, the Director Food and Civil Supplies, and up to the District Food and supplies Controller, the Punjab Government has imposed restriction on inter State movement of foodgrains.
There are already restrictions on stock holding and dealer to dealer sale.
The petitioners have never violated any conditions of the licence except that they have been, in exercise of their fundamental rights, exporting foodgrains to various destination outside the State of Punjab. " In the case of M/s Sukhwinder Pal Bipan Kumar in support of the petition, there is an affidavit of one Raj Kumar, claiming to be a partner, who asserts that the allegations in paras 9 and 12 are 'correct to the best of my knowledge '.
To say the least, this is no affidavit at all.
Under order XIX, Rule 3, of the Code of Civil Procedure, 1908, it was incumbent upon the deponent to disclose the nature and source of his knowledge with sufficient particularity.
The allegations in the petition are, therefore, not supported by an affidavit as required by law.
That being so, the State Government was fully justified in answer, 'Denied.
There is no restriction on the movement of wheat '.
The Deputy Secretary in his counter affidavit has further denied that the impugned orders of suspension were passed on the direction of the State Government.
In our view, the allegations in the writ petitions are not sufficient to constitute an averment of mala fides so as to vitiate the impugned orders of suspension.
The Court would be justified in refusing to carry out investigation into allegations of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the petition.
The burden of establishing mala fides lies very heavily on the person who alleges it.
The petitioners who seek to invalidate the impugned orders of suspension must establish the charge of bad faith or bias or misuse by the Government of its powers.
The impugned orders of suspension ex facie show breaches of conditions Nos. 4, 8 and 10 of the licence by the petitioners.
The question whether or not, they committed the breaches is a matter for 41 inquiry by the licensing authorities under sub cl.
(1) of cl. 11 of the Order.
In the result, the petitions must fail and are dismissed with costs.
P.B.R. Petitions dismissed.
| IN-Abs | Clause 11 of the Punjab Foodgrains Dealers Licensing Price Control Order 1978 (as amended in 1980) empowers the licensing authority to cancel or suspend a licence if the licensee contravenes any of the terms and conditions of his licence or any provision of the order.
The first proviso to this clause enjoins on the authority to give to the licensee a reasonable opportunity of stating his case before cancelling or suspending his licence.
The second proviso provides that "the licensing authority may suspend a licence without giving a reasonable opportunity to the licensee of stating his case for a period not exceeding 90 days during the pendency or in contemplation of the proceedings for cancellation of his licence.
" The petitioners, whose licences had been suspended under clause 11, contended that the second proviso to clause 11(1) of the Order conferred on the licensing authority unguided, uncontrolled and arbitrary power to suspend a licence which infringed their fundamental right under Article 19(1)(g) of the Constitution and that conferral of such unguided power offended Article 14 of the Constitution and (2) that the suspension of the licence was mala fide and motivated because it was passed on extraneous considerations namely, to prevent them from exporting wheat from the State to other parts of the country in the course of inter state trade and commerce.
Dismissing the petitions, ^ HELD: The power conferred on the licensing authority under the second proviso to clause 11(1) of the Order is not of an excessive nature and beyond what is required in the interest of general public.
The power of suspension conferred by the second proviso to clause 11 is by way of an interim measure, pending an enquiry as to whether there was any breach which must result in cancellation of the licence.
The power of suspension is a necessary concomitant of the power to grant a privilege or a licence.
32 So long as the dealers complied with the conditions of licence and the provisions of the Order they are free to carry on their trade or business in foodgrains.
If they commit a breach they must face the consequences that their licence may be cancelled or suspended and also face further consequence of suspension of their licence during the pendency or in contemplation of the proceedings for such cancellation if the breach is of such a nature that it must result in the cancellation of a licence.
The power of suspension conferred under the second proviso is an important step taken by the Government to subserve the object of the legislation and in is public interest.
Nor could it to be said that it does not satisfy the test of reasonableness.
[37 A G] Nor again could it be said that there is warrant for the submission that the second proviso confers upon the licensing authority unguided, uncontrolled and uncanalised power to suspend a licence.
It does not suffer from the vice of arbitrariness and is, therefore, not violative of Article 14 of the Constitution.
[37 G] It cannot be said that licensing authority has an unrestrained power of suspension of licence because the suspension can only be for specified reasons which are spelt out in the second proviso.
The power of suspension is not exercisable unless there is a breach and the breach is of such a nature that it must entail cancellation of the licence.
The first proviso is in the nature of limitation on the power contained in clause 11(1) and the second proviso carves out an exception to the first proviso by dispensing with the requirement of affording a reasonable opportunity to the licensee in case of suspension of his licence during the pendency or in contemplation of the proceedings for cancellation.
The power of suspension during the pendency of an enquiry cannot be exercised unless there is contravention of any of the terms and conditions of the licence or any of the provisions of the Order.
Secondly, it provides for a reasonable safeguard in that it limits the period of suspension which would necessarily depend upon the nature of the breach which in no case can exceed 90 days.
Thirdly, as a check on improper exercise of power of suspension by the licensing authority an additional safeguard is provided by way of appeal to the Director of Food Supplies.
[38 E H] On the material on record there is nothing to show that the licensing authority acted with improper motives or was actuated with bias in directing the suspension of the licence held by the petitioners.
The affidavit filed by a partner of one of the petitioners does not fulfil the requirements of Order XIX rule 3 of the Code of Civil Procedure under which it is incumbent upon the deponent to disclose the nature and source of his knowledge with sufficient particularity.
The allegations in the writ petition are not sufficient to constitute an averment of mala fide so as to vitiate the orders of suspension.
The burden of establishing mala fides lies very heavily on the person who alleges it.
[39 E F]
|
172 of 1956.
Under Article 32 of the Constitution for a writ in the nature of Habeas Corpus.
section N.
Andely, amicus curiae, for the petitioner.
Porus A. Mehta, T. M. Sen and R. H. Dhebar, for the respondent.
November 1.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an application under article 32 of the Constitution for the issue of a writ in the nature of habeas corpus against the State of, Jammu and Kashmir by the petitioner who was under detention by virtue of an order dated the 5th September, 1956, issued by the Government of the State of Jammu and Kashmir under sub section (2) of sec tion 3 taken with sub section (1) of section 12 of Jammu and Kashmir Preventive Detention Act, 2011 (hereinafter referred to as the Act).
The petitioner was first placed under detention by virtue of an order passed by the District Magistrate, Jammu, under subsection (2) of section 3 of the Act on the 1st May, 1956, and that order was confirmed and continued on the 5th September, 1956, under sub section (1) of section 12 of the Act by the Government after taking the opinion of the Advisory Board.
The two orders of detention, one of the District Magistrate dated the 1st May, 1956, and the other of the Government dated the 5th September, 1956, recited that the petitioner is directed to be detained because it was, necessary to make such an order "with a view to preventing him 950 from acting in a manner prejudicial to the maintenance of supplies and services essential to the community".
The grounds of detention as communicated to the petitioner on the 31st May, 1956, by the District Magistrate, Jammu, are as follows: "1.
That you carried on smuggling of essential goods to Pakistan through the Ferozpur and Amritsar border, but since the tightening of said borders you have recently shifted your smuggling activities to Ranbirsinghpura Pakistan borders in the State of Jammu and Kashmir and are carrying on illicit smuggling of essential goods such as cloth, zari and mercury to Pakistan through this border (thus affecting the economic condition of the public in Kashmir State adversely).
That for the said purpose of smuggling of goods to Pakistan you went to village Darsoopura on 7th April, 1956, and contacted Ghulam Ahmed son of Suraj bin resident of Darsoopura Tehsil Ranbirsinghpura and one Ram Lal son of Frangi resident of Miran Sahib Tehsil Ranbirsinghpura and others who I similarly are addicted to carrying on such a smuggling business and with their aid made arrangements for export of Shaffon cloth worth Rs. 2,500 to Pakistan through Ranbirsinghpura Pakistan border.
That on 11 4 1956, you booked 3 bales of silk cloth through Messrs Jaigopal Rajkumar Shegal of Amritsar to Jammu Tawi and got these bales on address of yourself, and on the same day you got one package of Tila booked through section Kanti Lal Zarianwalla of Amritsar and got this package also addressed "To self" for Jammu Tawi.
That after booking these packages as aforesaid you came over to Jammu and waited for their arrival and contacted Ghulam Ahmed and Ram Lal the above mentioned persons.
That on the 15th April, 1956, you tried to get the transport receipt from the Punjab National.
Bank but did not succeed in doing so as it was a public holiday.
Meanwhile your activities leaked out and the goods 951 were seized by the Central Customs and Excise Department of India.
2.There are other facts also but those cannot be given as I consider their disclosure would be against the public interest.
That by resorting to the above activities you have been and are acting in a manner prejudicial to the maintenance of the supplies and services essential to the community".
It will be seen from the above grounds that the reason for the detention is the alleged "illicit smuggling of essential goods such as cloth, zari and mercury to Pakistan through the border, thereby affecting the economic condition of the public, in Kashmir State adversely".
From the particulars set out in paragraph 2 of the grounds, it appears that the cloth referred to in paragraph I is Shaffon cloth.
The High Court of Jammu and Kashmir, to whom a similar application was filed by this petitioner along with a number of others similarly detained for illicit smuggling of goods, has in its judgment dated the 21st June, 1956" held that Shaffon cloth is not within the category of an essential commodity as defined in the Essential Supplies (Temporary Powers) Ordinance of Jammu and Kashmir.
There is no indication in the High Court judgment whether zari is or is not an essential commodity in the same sense.
But in answer to a query from this Court, Shri Porus Mehta who appeared before us on behalf of the State of Jammu and Kashmir has stated, on instructions, that zari which is obviously a luxury article is not one of the commodities declared essential under the above Ordinance.
The High Court, when it dealt with the batch of applications, of which the application of the petitioner before us was one, set aside the detention of number of others on the ground that the smuggling attributed to the individuals concerned in those cases was not of essential goods.
So far as this petitioner is concerned the High Court held as follows: "The case of Dwarika Das Bhatia stands on s 952 different footing altogether.
The allegation against him is that he smuggled into Pakistan some goods such as cloth and zari along with a certain quantity of mercury.
Mercury is a non ferrous metal and according to the definition of an essential commodity given in the Essential Supplies (Temporary Powers) Ordinance, mercury is an essential commodity.
This being so, Dwarika Das Bhatia 's detention cannot be challenged".
The point raised before us is that since the detention is based on the assumption that Shaffon cloth and zari as well as mercury are all essential goods and since two out of the three categories of the goods with reference to the smuggling of which the detention has been directed, are found not to be essential goods, the entire order is illegal, although one of the items, viz., mercury is an essential commodity.
In support of this contention, the cases of this Court in Dr. Ram Krishan Bhardwaj vs The,, State of Delhi(1), and Shibban Lal Saksena vs The State of U. P. (2) are relied upon.
Learned counsel for the State of Jammu and Kashmir contends that the principle of these decisions has no application to the present case, and attempts to distinguish the same.
In order to understand the principle underlying these two cases, it is necessary to examine them in some detail.
In Dr. Ram Krishan Bhardwaj 's case (supra) the two points that were raised were (1) whether an order of detention is invalid if the grounds supplied in support thereof are vague, and (2) whether the vagueness of one or some of the various grounds vitiates the entire order.
The argument advanced in that case was based on the view adopted by this Court in the decision in Atma Ram Sridhar Vaidya 's case(3), viz., that the obligation cast on the detaining authority to supply grounds is for the purpose of enabling a detenue to make a fair representation to the authority concerned and to the Advisory Board, against the order of detention.
The argument was that in a (1) ; (2) ; (3)[1951] S C.R. 167.
953 case where one or more of the grounds are vague, the petitioner is handicapped in making an adequate representation as regards that ground and his representation even if effective in respect of the other grounds, may fail to carry conviction as regards the ground which is vague and that this might result in the detention being confirmed.
The Court stated that that argument was not without force and held as follows: "The question however is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed.
Preventive detention is a serious invasion of personal liberty and such meager safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. .
We are Of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of the privilege under clause (6) of article 22.
That not having been done in regard to the ground mentioned. . the petitioner 's detention cannot be held to be in accordance with the procedure established by law within the meaning of article 21".
Shibban Lal Saksena vs The State of U. P. (supra) is a case where the question arose in a different form.
The grounds of detention communicated to the detenue were of two fold character, i.e., fell under two different categories, viz., (1) prejudicial to maintenance of supplies essential to community, and (2) injurious to maintenance of public order.
When the matter was referred to the Advisory Board, it held that the first of the above grounds was not made out as a fact but upheld the order on the second ground.
The question before the court was whether this confirmation of the original order of detention, when one of the two grounds was found to be non existent by the Advisory Board, could be maintained.
Their Lordships dealt with the matter as follows: 124 954 "It has been repeatedly held by this court that the power to issue a detention order under section 3 of the Preventive Detention Act depends entirely upon the satisfaction of the appropriate authority specified in that section.
The sufficiency Of the grounds upon which such satisfaction purports to be based, provided they have a rational probative value and are not extraneous to the scope or purpose of the legislative provision cannot be challenged in a court of law, except on the ground of mala fides.
A Court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenue under section 7 of the Act." Posing the situation which arises in such cases where one of the grounds is found to be irrelevant or un.substantiated, the Court stated as follows: "The question is, whether in such circumstances the original order made under section 3(1) (a) of the Act can be allowed to stand.
The answer, in our opinion, can only be in the negative.
The detaining authority gave here two grounds for detaining the petitioner.
We can neither decide whether these grounds are good or bad nor can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made.
To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute.
In such cases, we think, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole.
This principle, which was recognised by the Federal Court in the case of Keshav Talpade vs The King Emperor(1), seems to us to be quite sound and applicable to the facts of this case".
(1) 955 In Keshav Talpade 's case(1) the learned Judges stated as follows: "If a detaining authority gives four reasons for detaining a man, without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons bad been before them".
The principle underlying all these decisions is this power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be based on a Dumber of grounds or for a variety of reasons all taken together, and if some out of them are found to be non existent or irrelevant, the very exercise of that power is bad.
That is so, because the matter being one for subjec tive satisfaction, it must be properly based.
on all the reasons on which it purports to be based.
If some ,out of them are found to be non existent or irrelevant, the Court cannot predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons.
To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the Court for the subjective satisfaction of the statutory authority.
In applying these principles, however, the Court must be satisfied that the vague or irrelevant grounds are such as , if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority.
It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid.
The Court while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders.
It is in the light of these principles that the validity of the impugned order has to be judged.
(1) 956 In this case, the order of detention is based on the ground that the petitioner was engaged in unlawful smuggling activities relating to three commodities, cloth, zari and mercury of which two are found not to be essential articles.
No material is placed before us enabling us to say that the smuggling attributed to the petitioner was substantially only of mercury and that the smuggling as regards the other two commodities was of an inconsequential nature.
On the other hand the fact that the particulars furnished to the detenue on the 31st May, 1956, relate only to cloth and zari (we understand that tila referred to in paragraph 3 is zari) indicates that probably the smuggling of these two items was not of an inconsequential nature.
We are, therefore, clearly of the opinion that the order of detention in this case is bad and must be quashed.
We have accordingly quashed the order and directed the release forthwith of the detenue on the conclusion of the hearing on the 29th October, 1956.
Petition allowed.
| IN-Abs | The petitioner was detained by virtue of an order of detention passed by the District Magistrate, Jammu, under section 3(2) of the Jammu and Kashmir Preventive Detention Act, 2011 and that order was confirmed and continued by an order passed by the Government of the State of Jammu and Kashmir under section 12(1) of the Act after taking the opinion of the Advisory Board.
The order recited that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community and was based on the ground of alleged illicit smuggling by the petitioner of essential goods such as shaff on cloth, zari and mercury to Pakistan.
It was found that shaffon cloth and zari were not essential goods.
It was not established that the smuggling attributed to the petitioner was substantially only of.
mercury or that the smuggling as regards shaffon cloth and zari was of an inconsequential nature.
Held, that the order was bad and must be quashed.
The sub jective satisfaction of the detaining authority must be properly based on all the reasons on which it purports to be based.
If some out of those reasons are found to be non existent or irrelevant, the Court cannot predicate what the subjective satisfaction of the authority would have been on the exclusion of those reasons.
To 949 uphold the order on the remaining reasons would be to substitute the objective standards of the Court for the subjective satisfaction of the authority.
The Court must, however, be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the authority.
Keshav Talpade vs The King Emperor ([1943] F.C.R. 88), Atma Ram Sridhar Vaidya 's case ([1951] S.C.R. 167), Dr. Ram Krishan Bhardwaj vs The State of Delhi ([1953] S.C.R. 708) and Shibban Lal Saksena vs The State of U.P. ([1954] S.C.R. 418), relied on.
|
N: Criminal Appeal No. 932 933 of 1981.
Appeals by special leave from the judgment and order dated the 23rd October, 1981 of the Allahabad High Court in CM.
5909 (W) of 1981 in CW No. 8918/81.
R.K. Bhatt for the Appellant.
Shaukat Hussain and Shakil Ahmed for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
: Heard counsel.
Special leave granted.
The respondents, who are detained under the provisions of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 filed Habeas Corpus petitions in the High Court of Allahabad challenging the orders of detention passed against them.
Those petitions were almost fully heard by a Division Bench on October 19 and 22, 1981.
The learned Judges, however, released the writ petitions from their list since the Court had Diwali 26 holidays from October 24 until November 2, 1981 and they were not likely to be available, perhaps as a Bench, for concluding the hearing of the writ petitions.
Another Division Bench took up the Writ Petitions for hearing on October 23 but they adjourned the petitions until the reopening of the Court on November 3.
Soon after the Division Bench rose, counsel for the respondents approached a learned Single Judge after Court hours and applied for bail.
It appears that the Deputy Government Advocate was available.
He was sent for and after hearing both the sides, the learned Judge granted bail to the respondents on the ground that the State Government had erred in forwarding the respondents ' representations to the Advisory Board without considering them for itself.
The writ petitions were taken up for hearing by another Division Bench on November 3, 1981.
They concluded the hearing on that date, reserved their judgment and allowed the respondents to continue on bail till November 10 which was fixed for judgment.
The judgment is not yet delivered.
The learned Judges directed: "It may however be inquired as to how file was sent before the learned single Judge for bail when there was no case fixed before him." These Special Leave Petitions are directed against the order passed by the learned Single Judge on October 23, 1981, releasing the respondents on bail "until the next date of hearing of the Habeas Corpus petitions.
" We are unable to appreciate how the learned Single Judge could release the respondents on bail when, in the first instance, the writ petitions filed by them were listed for hearing before a Division Bench.
Secondly, and that involves a question of principle, we are unable to see for what special reason the learned Judge thought it necessary to release the respondents on bail.
The order passed by the learned Judge does not show that there was any pressing or particular reason of a unique kind for which it was imperative to enlarge the respondents on bail.
If persons held in detention are released on bail in the manner done by the learned Judge, the very object and purpose of detention will be totally frustrated.
Grave illness or pressing and personal business may justify an order of release in detention cases for a short period suited to the exigencies of the particular occasion.
But a detenu cannot be released on bail as a matter of common practice, on considerations generally appli 27 cable to cases of punitive detention.
The learned Single Judge virtually took upon himself the decision of the writ petitions of merits.
He found, evidently on an on the spot argument, that the State Government had erred in not considering the representations of the respondents before forwarding them to the Advisory Board and released the respondents on bail as their further continuance in detention was "prima facie" vitiated.
In passing the order of bail, the learned Judge has sought the support of a decision of a Constitution Bench of this Court in State of Bihar vs Rambalak Singh and Others.
In that case, the State of Bihar appealed to this Court against an order of interim bail passed by the Patna High Court in a Habeas Corpus petition which was filed by the respondent to challenge an order of detention issued under Rule 30 of the Defence of India Rules, 1962.
It was held by this Court that though the High Court has jurisdiction to grant bail in Habeas Corpus petitions filed against orders of detention passed under rule 30, the exercise of the said jurisdiction is inevitably circumscribed by the considerations which are special to such proceedings and which have relevance to the object which it intended to be served by orders of detention passed under the said Rule.
If on proof of certain conditions or grounds it is open to the High Court to set aside the order of detention made under Rule 30 and direct the release of the detenu, then it cannot be held that in a proper case the High Court has no jurisdiction to make an interim order giving the detenu the relief which the High Court would be entitled to give him at the end of the proceedings.
The Court, however, hastened to emphasize: ". though we have no hesitation in affirming the jurisdiction of the High Court in granting interim relief by way of bail to a detenu who has been detained under Rule 30 of the Rules there are certain inexorable considerations which are relevant to proceedings of this character and which inevitably circumscribe the exercise of the jurisdiction of the High Court to pass interim orders granting bail to the detenu.
There is no doubt that the facts on which the subjective satisfaction of the detaining authority is based, are not justiciable, and so, it is not open to the High Court to enquire whether the impugned order of detention is justified on facts or not.
The jurisdiction of the High Court to grant relief to 28 the detenu in such proceedings is very narrow and very limited.
That being so, if the High Court takes the view that prima facie, the allegations made in the writ petition disclose a serious defect in the order of detention which would justify the release of the detenu, the wiser and the more sensible and reasonable course to adopt would invariably be to expedite the hearing of the writ petition and deal with the merits without any delay.
Take the case where mala fides are alleged in respect of an order of detention.
It is difficult, if not impossible, for the Court to come to any conclusion, even prima facie about the mala fides alleged, unless a return is filed by the State.
Just as it is not unlikely that the High Courts may come across cases where orders of detention are passed mala fides, it is also not unlikely that allegations of mala fides are made light heartedly or without justification; and so, judicial approach necessarily postulates that no conclusion can be reached, even prima facie, as to mala fides unless the State is given a chance to file its return and state its case in respect of the said allegations; and this emphasises the fact that even in regard to a challenge to the validity of an order of detention on the ground that it is passed mala fides it would not be safe, sound or reasonable to make an interim order on the prima facie provisional conclusion that there may be some substance in the allegations of mala fides.
What is true about mala fides is equally true about other infirmities on which an order of detention may be challenged by the detenu.
That is why the limitation on the jurisdiction of the Court to grant relief to the detenus who have been detained under R. 30 of the Rules, inevitably introduce a corresponding limitation on the power of the Court to grant interim bail.
" The Court, speaking through Gajendragadkar, C.J. added: "It is no doubt true that a detenu is detained without a trial; and so, the courts would inevitably be anxious to protect the individual liberty of the citizen on grounds which are justiciable and within the limits of their jurisdiction.
But in upholding the claim for individual liberty within the limits permitted by law, it would be unwise to ignore the object which the orders of detention are intended 29 to serve.
An unwise decision granting bail to a party may lead to consequences which are prejudicial to the interests of the community at large; and that is a factor which must be duly weighed by the High Court before it decides to grant bail to a detenu in such proceedings.
We are free to confess that we have not come across cases where bail has been granted in habeas corpus proceedings directed against orders of detention under R. 30 of the Rules, and we apprehend that the reluctance of the courts to pass orders of bail in such proceedings is obviously based on the fact that they are fully conscious of the difficulties legal and constitutional, and of the other risks involved in making such orders.
Attempts are always made by the courts to deal with such applications expeditiously; and in actual practice, it would be very difficult to come across a case where without a full enquiry and trial of the ground on which the order of detention is challenged by the detenu, it would be reasonably possible or permissible to the Court to grant bail on prima facie conclusion reached by it at an earlier stage of the proceedings.
If an order of bail is made by that Court without a full trial of the issues involved merely on prima facie opinion formed by the High Court, the said order would be open to the challenge that it is the result of improper exercise of jurisdiction.
It is essential to bear in mind the distinction between the existence of jurisdiction and its proper exercise.
Improper exercise of jurisdiction in such matters must necessarily be avoided by the courts in dealing with applications of this character.
" The learned Single Judge, with respect, has failed to appreciate the weight of these observations while passing the order of interim bail.
A Division Bench had heard the petitions for two days but did not think it fit or proper to grant interim relief to the detenus.
Another Division Bench was going to rehear the petitions after ten days.
It is not proper that, in between, the learned Single Judge should have taken upon himself the task of examining the merits of the matter in order to find whether there was a prima facie case for releasing the detenus on bail.
Shri Shaukat Husain, who appears on behalf of the respondents, has drawn our attention to an order passed by the Division 30 Bench itself on November 10, 1981 by which it has permitted the respondents to continue on bail until the delivery of the judgment by it in the writ petitions.
Learned counsel says that the special leave petitions filed by the State of Uttar Pradesh against the order passed by the learned Single Judge have become infructuous by reason of the order passed by the Division Bench.
We are unable to accept this submission because the primary order of bail under which the respondents are at large is the one passed by the learned Single Judge.
The Division Bench has allowed that order to remain in operation, only for the reason that counsel for the State was unable to say whether the Advisory Board had recommended the confirmation of detention or not.
The Division Bench postponed the delivery of the judgment for that reason and directed that the respondents, who are already on bail, will be allowed to continue on bail until further orders.
For reasons aforesaid, we set aside the order of bail and direct that the respondents shall be taken in custody forthwith.
We hope that the Division Bench which has already heard arguments in the Writ Petitions, will be able to deliver its judgment expeditiously, if it has not already done so.
The appeals will stand disposed of in terms of this judgment.
P.B.R. Appeal allowed.
| IN-Abs | After hearing the habeas corpus petitions of the respondents, who were detained under the provisions of the Maintenance of Supplies of Essential Commodities Act, 1980 the Division Bench of the High Court released the writ petitions from their list since the Court was to have holidays for over ten days immediately thereafter.
Another Division Bench, which took up the petitions for hearing, also adjourned the petitions until the reopening of the Court after holidays.
In the mean time a single Judge of the High Court, before whom the detenus made an application for bail, allowed their petitions on the ground that the Government had erred in forwarding their representations to the advisory board without considering them for itself.
On reopening of the Court, a Division Bench heard the habeas corpus petitions.
It however, allowed the detenus to be on bail till the judgment was pronounced.
In its petition for grant of special leave to appeal the State challenged the impugned order of the Single Judge releasing the detenus on bail "until the next date of hearing of the habeas corpus petitions".
Allowing the appeal ^ HELD: 1.
The single Judge erred in releasing the detenus on bail when their writ petitions were listed for hearing before a Division Bench.
Neither was there any pressing or particular reason of a unique kind such as grave illness or pressing and personal business justifying the order of release on bail for a short period.
The detenus cannot be released on bail as a matter of common practice on considerations generally applicable to cases of punitive detention.
[26 F H] In the instant case the single Judge took up on himself the decision on merits.
25 Although the Courts would be anxious to protect the individual liberty of the citizen on justiciable grounds and within the limits of their jurisdiction, it would be unwise to ignore the object which the orders of detention are intended to serve.
The reluctance of Courts to pass orders of bail in detention cases is based on the fact that they are fully conscious of the difficulties legal and constitutional and of the other risks involved in making such orders.
If an order of bail is made by the Court without a full trial of the issues involved merely on prima facie opinion formed by the High Court, such order would be open to challenge that it is the result of improper exercise of jurisdiction.
It is essential to bear in mind the distinction between the existence of jurisdiction and its proper exercise.
Improper exercise of jurisdiction in such matters must necessarily be avoided by the courts in dealing with applications of this character.
[29 A F] State of Bihar vs Rambalak Singh and others, applied.
There is no force in the argument of the detenus that by reason of the decision of the Division Bench, allowing the detenus to be on bail till the delivery of the judgment by it in their writ petitions, the special leave petition filed by the State had become infructuous because the primary order of bail was the one passed by the single Judge.
The Division Bench has allowed that order to remain in operation only because the counsel for the State was unable to say whether the Advisory Board had recommended the confirmation of detention or not.
The Division Bench postponed the delivery of the judgment for that reason and directed that the detenus would be allowed to continue on bail until further orders.
[30 A C]
|
ins Matters.
A. Movement by Road: (a) WP.
Nos.2907 2908,3234, 3238 39,3164,3254, 3630 31,3686, 3783, 3816, 4816, 4929 31, 4836 38, 4996 5001, 5051 54, 5089 93, 5136 46, 5247, 3160, 3634, 4494,4616,4967, 5362 71, 5416 20, 5447 50,5716 17, 5840,6015,6587 89 & 6609 14/81.
(b) WP.
5062,5157 58,5451 & 5615 17/81.
(c) WP Nos.
5097,5042, 5098, 5017, 5214 & 6135 36/81 & 7003/81.
(d) WP. Nos.3421, 3407, 3408 13, 3422, 3536, 3561 64, 5238,13824, 5466, 5544, 6009, 6130 31, 6572 74 & 6582 83/81.
(e) WP.
4904 4905, 5080, 5094, 5239 45, 5358 59, 5395, 5483, 5484 88, 5489 92, 5734 39, 6584 86 & 6817 21/81.
(f) WP.
Nos.4960 62, 4958 59, 5129 33, 5219 20, 5331 33, 5518 19, 5526, 5428 31 & 5527/81.
(g) WP.
4526, 4926, 4995, 5046, 5048 50, 5100, 5101, 5136 46,5402 11, 5436 38, 5560, 5520 21, 5562,5558, 5556, 5559,5550,5546 47, 5552, 5555, 5553 54,5511, 5482, 5618 19,5809 20,6132 33, 6244, 6273 75,6267 72, 5512 14, 5515,6570 and 5562/81, 7027 29 and 7032 34/81.
(h) WP.
Nos.5221,5380 83,5129 33,5421 22,5440, 5507 10, 5662, 5806 5807, 6245, 6246, 6265, 6398 and 6684/81.
1145 (i) WP.
3592, 3353, 5396, 6016, 6247 48, 6616, 6668 and 6798/81.
(j) WP.
Nos.5003, 4453, 4455 56,5346 48,4955,5082 89, 5577 80, 5581 and 5724/81.
(k) WP.
Nos.3489 and 4293/82.
(l) WP.
No. 4818/81.
(m) WP.
Nos.2916,2932,3242, 3297 3302,3334 43, 3475, 4098 4100, 4136, 4304, 4187, 4777, 5007 17,5027 34, 5352 55, 5473 79, 5604 5608, 5740 42, 5743 44, 5821, 6012 13 and 5583 92/81.
(n) WP Nos.
5391 and 5525/81.
(o) WP No. 5443/81.
(p) WP.
Nos. 5444,5663 and 6266/81.
(q) WP.
No. 5464/81.
(r) WP.
5451 and 5564 66/81.
(s) WP.
No. 5807/81.
(t) WP.
Nos.5571 75, 5622 29 and 6014/81.
(u) WP.
Nos.5718 19/81 and 6943/81.
(v) WP.
No. 5568 69/81.
B. Restriction on Quantum of Food Grains which can be held: (a) WP.
2932, 3776 3780, 4140 45, 4326 28, 4876 4902, 4670 78 and 5473 79/81.
(b) WP.
No. 5480/81.
(c) WP.
4955 56,5330,5392,3823 and 6278/81.
(d) WP.
Nos. 5529 30/81.
(e) WP.
Nos.5531 32/81.
1146 (f) WP.
5841 50/81.
(g) WP.
5656 58/81.
(Under Article 32 of the Constitution of India) Hari Sarup, M.N. Phadke, Soli J. Sorabjee, J.P. Goyal and C.M. Lodha, (M/s. B. Datta, R.A. Gupta, Miss Kamini Jaiswal, Rajiv Dutta, Manoj Swarup and Miss Lalita Kohli, R.S. Sharma, R.K. Jain, Pankaj Jain, P.K. Jain, K.K. Jain, K.B. Rohatgi, B.R. Kapur, B.S. Tawakley, S.R. Srivastava, N.N. Sharma, A.K. Goel, Mitter and Mitter and Co., S.K. Jain, Rajesh Jain, Mukul Mudgal, M. Qamaruddin, Mrs. M. Qamaruddin, Anis Suhrawardhy, A.P. Mohanty, K.K. Gupta, Ravi Prakash Gupta, C.K. Ratnaparkhi, S.C. Birla, M.C. Dhingra, and S.K. Gambhir for the appearing Petitioners.
G.N. Dikshit, O.P. Rana, Mrs. Shobha Dixit, R.N. Poddar, G. Gopalakrishan, A.V. Rangam, B.D. Sharma, D.P. Mohanty and A. Shroff for the Respondents.
The Judgment of the Court was delivered by SEN, J.
The issue in this and the connected 505 petitions under article 32 of the Constitution is of far reaching significance.
It raises questions of the highest importance as to the scope and extent of the executive power of the State under article 162 of the Constitution, in relation to regulation and control of trade and commerce in food stuffs.
It necessarily involves a claim by the petitioners who are wholesale dealers of foodgrains that the exercise of such governmental power conflicts with the rule of law and is in flagrant violation of the freedom of trade, commerce and intercourse guaranteed under article 301 of the Constitution and the fundamental right to carry on trade and business guaranteed under article 19 (1) (g) of the Constitution.
These petitions fall into two distinct and separate categories, one by the wholesale dealers of foodgrains from the Union Territory of Delhi and the neighbouring States of Punjab and Haryana, and the other by the wholesale dealers of foodgrains from the State of Uttar Pradesh.
1147 The short question that falls for consideration in some of the writ petitions by wholesale dealers of foodgrains from the Union Territory of Delhi and the State of Punjab and Haryana is whether the action of the State Government of Uttar Pradesh in setting up check posts on its borders and the stoppage and seizure of wheat in transit through the State of Uttar Pradesh during the course of inter State trade and commerce to various destinations in the States of Madhya Pradesh and Maharashtra at the check post at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh on the strength of its instructions conveyed by its teleprinter message dated March 31, 1981, was in violation of article 301 of the Constitution.
In a majority of the writ petitions by wholesale dealers from the State of Uttar Pradesh, two questions arise, (1) whether Notification No. P XXIX Food 5 5 (42)/80 dated April 21, 1981, issued by the State Government of Uttar Pradesh, in exercise of the powers conferred by section 3 read with section 5 of the (hereinafter referred to as the Act), by which cl.4 of the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978, has been amended, providing that no wholesale dealer, commission agent or retailer shall have in stock wheat more than 250 quintals, 250 quintals and 20 quintals respectively, at any time, Infringes the fundamental right to carry on trade or business guaranteed under article 19 (1) (g) and (2) whether the governmental instructions conveyed by its teleprinter message dated March 31, 1981, placing restrictions on movement of wheat by traders on private account from the State of Uttar Pradesh to various other States and on inter district movement of wheat within the State, were in breach of the fundamental right under article 19 (1) (g) read with article 301 of the Constitution.
The following are the facts and circumstances so far as necessary to show as to how the legal questions are presented.
It would be convenient first to deal with the writ petitions filed by the whole sale dealers of foodgrains from the Union Territory of Delhi and the States of Punjab and Haryana seeking a declaration that the impugned action of the State Government of Uttar Pradesh in setting up check posts on the borders of the State and directing seizure of wheat in transit through the State, on the strength of the impugned teleprinter message, conflicted with the guarantees of inter State trade and commerce dealt with by Art, 301 of the Constitution.
1148 Facts in all these cases are more or less similar.
The petitioners who are wholesale dealers of foodgrains from the Union Territory of Delhi and the States of Punjab and Haryana allege that between April 29 30, 1981, they, acting as commission agents, purchased wheat from the open market in Delhi and elsewhere and despatched the same by trucks to various destinations in the State of Maharashtra and to some places in the State of Madhya Pradesh.
According to them, the trucks laden with wheat were accompanied by relative bills, goods receipts, inter State transit passes etc.
, duly crossed the check post at Faridabad and were also allowed to cross the check post at Kotwan on the border between the Union Territory of Delhi and the State of Uttar Pradesh and were on their way to their respective destinations.
They allege that the Senior Marketing Inspector, Agra, intercepted the trucks in question at the check post at Saiyan on the border between the State of Uttar Pradesh and Madhya Pradesh between April 30, 1981, and May 2, 1981.
The seized trucks were brought back to the purchase point at Agra and the wheat was unloaded.
Thereupon, the petitioners rushed to Agra and made an application on May 4, 1981, under s.6A read with sections 3 and 7 of the Act before the Additional District Magistrate (Civil Supplies), Agra, for the release of the seized wheat.
In the said application, the petitioners, inter alia, claimed and unequivocally stated that there was no ban on export of wheat from the Union Territory of Delhi to other States, that the wheat in question was neither purchased at Agra, nor was it being transported from Agra to any other district in Uttar Pradesh, that Agra was a place in transit, and that the instructions of the State Government contained in the impugned teleprinter message dated March 31, 1981 did not constitute a validly notified order under sub section
(5) of section 3 of the Act.
The Chief Marketing Inspector, Agra, had in the meanwhile seized 42 trucks laden with wheat either at the check post at Saiyan or at Agra and lodged first information reports at the Saiyan police station or at the Civil Lines police station in respect of the consignments alleging that the movement of wheat was in contravention of the impugned teleprinter message and was therefore seized, and in three of them it was alleged that the wheat had been purchased at Agra.
On the report of the Chief Marketing Inspector, the Additional District Magistrate (Civil Supplies), Agra drew up proceedings under section 6A of the Act and directed the police to complete the investigation within 15 days.
1149 On May 23, 1981, the Additional District Magistrate (Civil Supplies), Agra under sub section
(2)(i) of section 6A of the Act passed interim orders for the sale of the seized wheat as it was subject to speedy and natural decay, at the request of the Senior Marketing Inspector, similar to the one reproduced below: These proceedings under s.6A of the started on the report of SMI Saiyan dated 30.4.1981 (Paper No. 1) whereby it was brought to the notice of this Court that truck nos. . were caught carrying 120 quintals. .of wheat respectively beyond Saiyan border outside the State in contravention of the orders issued by the Government vide telex No. 1061/29 Food 5 dated 31.3.1981 F.I.R. was lodged at P.S. Saiyan in respect of the above contravention.
Notice under section 6B of the EC Act was issued to the O.Ps. . who were driving the trucks at the time of search and seizure.
Replies were filed by the owners of the wheat contending that the said rules were not part of any Control Order under Section 3 of the EC Act nor they had any legal sanction for want of publication in the Official Gazette.
The O.Ps.
have pleaded that they were taking their goods in transit through Agra and in fact the movement of wheat so made by them was inter state movement which was not banned by the Central Government or State Government.
I heard the learned counsels on behalf of the O.Ps.
and the learned PO as well.
In these proceedings final orders cannot be passed at this stage as the matter is still under investigation.
PO directed to put up progress of investigation within 15 days from now.
In the meanwhile I order that the wheat seized by SMI Saiyan be got purchased at the Official Price so that the same does not get damaged.
The sale proceeds be got deposited in Government Treasury under proper Head of Account.
1150 This interim order is being passed under sub section
(2) (i) of s.6A of the .
File be put up after 15 days along with report of prosecuting office regarding progress of investigation.
Sd/ N.N. Varma Addl.
Collector, Agra 23.5.1981 The seized wheat has been purchased by the State Government on Government account at the procurement price and the sale proceeds credited into the Treasury.
The State Government has filed a counter affidavit of the Chief Marketing Officer, Lucknow, in all these cases as also the affidavits of the Senior Marketing Inspectors at Agra controverting the allegations made by the petitioners.
It is stated that the source of the power to effect the seizure was not the impugned teleprinter message, but the power of search and seizure conferred on an Enforcement Officer under cl. 6 of the U.P. Foodgrains Dealers (Licensing and Restriction on Hoarding) Order, 1976 and under cl.6 of the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978 (hereinafter called the 1976 Order and 1978 Order respectively), both of which were issued by the State Government, in exercise of the powers under section 3 of the Act, read with Government of India, Ministry of Agriculture (Department of Food) Notification No. G. S.R. 888 dated June 28, 1961, No. GSR 316 (E) dated June 20, 1972, No. GSR 452 (E) dated October 25, 1972, No. GSR 168 (E) dated March 13, 1973 and No. GSR 800 dated June 9, 1978 respectively, since it was of opinion that it was necessary or expedient so to do for securing the equitable distribution and availability of foodgrains at fair prices.
The State Government contends that the impugned teleprinter message dated March 31, 1981 was in the nature of an executive instruction issued by the State Government under its undoubted powers under article 162 of the Constitution for the due observance of the provisions of the two Control Orders.
It is said that no person can carry on business in foodgrains as a dealer or as a commission agent except under and in accordance with the terms and conditions of a valid licence issued in that behalf under cl. 4 of the 1976 Order.
It is also said that no wholesale dealer, commission agent or trader can have in stock more than 250 quintals, 250 quintals and 20 quintals respectively, at any time.
It is asserted that the State Govern 1151 ment has the right to set up check posts for the purpose of verification so that there is no contravention of the provisions of the two Control Orders, particularly with a view to ensure that excess quantity of wheat is not transported in violation of the 1978 Order to other districts or other States.
The State Government in the counter affidavit of the Chief Marketing Officer, Lucknow, specifically denies the allegations made by the petitioners that the 42 trucks laden with wheat seized at the check post at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh or at Agra were in transit during the course of inter State trade and commerce.
With regard to the seizure of the wheat, it is averred in para 13 of the counter affidavit: "The correct fact is that the authority on the bona fide apprehension that the wheat so moved actually was purchased from the State of Uttar Pradesh from nearby places and the same was being moved to other States on the garb of outside wheat.
It is submitted that such traders who are exporting wheat alleged to have purchased from places other than the State of Uttar Pradesh and were/are carrying the same to other States, have only to satisfy the authorities concerned of the bona fides of such transactions.
However there is no ban on such movement from one State to another.
" As regards the check posts, it is submitted that the State Government is committed to provide price support in wheat to farmers at Rs. 130 per quintal.
This commitment also involves purchase of wheat directly from the farmers without interference from traders/middlemen, who try to purchase wheat from the farmers at lower prices and sell the same at Government purchase centres with substantial profits.
Such transactions are effected in fictitious names.
This not only frustrates the procurement policy of the Government but also prejudicially and financially affects the producers ' interests.
In para 5 it is accordingly averred: "In order to curb the above tendencies and preventing the activity of traders/middlemen the State Government have provided a simple system of verifying all transactions by traders.
1152 This procedure involves getting all transactions of wheat verified by the Deputy Regional Marketing Officer indicating inter alia the name of the persons to whom the stocks are sold, their licence numbers etc.
and quantum of stocks sold, price paid etc.
This process will make it simultaneously very difficult for traders to buy at low price from farmers and resell at high prices at the Government purchase centres.
" As regards the impugned teleprinter message it was stated that it was issued by the State Government in order to sustain and maintain and maximise the procurement of wheat by introducing a system of verification at the check posts.
The State Government contests the right of the petitioners falling in the first category, that is, wholesale dealers of wheat from the Union Territory of Delhi and the States of Punjab and Haryana, to relief under article 32 of the Constitution who question the legality and propriety of the seizures.
It is a matter for investigation which is pending before the Additional District Magistrate (Civil Supplies), Agra and, according to it, the question cannot be decided without full investigation into facts.
In support of the writ petitions, learned counsel appearing for the petitioners have, in substance, urged three grounds.
(1) There was nothing to prevent the State Government from making a law placing reasonable restriction on the freedom to carry on any occupation, trade or business guaranteed under article 19(1) (g) read with article 19(6) of the Constitution, or on the freedom of trade, commerce and intercourse, throughout the territory of India, guaranteed under article 301 of the Constitution, but the restriction must be by "law" or by an "order having the force of law" and not by recourse to the executive authority of the State under article 162 of the Constitution, i.e., by an executive action.
(2) The seizure of the consignments of the wheat, while they were in transit in the course of inter State trade and commerce from the Union Territory of Delhi and the States of Punjab and Haryana to various destinations in the States of Maharashtra and Madhya Pradesh, was without the "authority of law" and in violation of article 300A of the Constitution.
The seizure of the wheat being wrongful, the petitioners were entitled to an appropriate writ, direction or order for the return of the seized wheat or the price thereof.
(3) The impugned teleprinter message of the State Government dated March 31, 1981 on the basis of which the seizures were effected, in truth and 1153 substance, had no legal sanction and cannot be construed to be a notified order within the meaning of sub section
(1) read with sub section
(5) of section 3 of the Act; it was nothing but an executive direction.
No executive action which operates to the prejudice of a citizen can be taken without the authority of law.
It was asserted that the seizures effected were in compliance of the instructions contained in the impugned teleprinter message and not for breach of the two Control Orders and therefore it was nothing but a "colourable exercise" of power.
The real purpose of the seizure was procurement of wheat in furtherance of the directives of the Central Government, without any legal sanction since the farmers were not willing to sell their wheat at the procurement price.
Learned counsel for the petitioners also challenge the action of the Additional District Magistrate (Civil Supplies) Agra in passing an interim order in terms of sub section (2) (i) of section 6A of the Act for the sale of the seized wheat on Government account and for the sale proceeds to be credited into the treasury in an appropriate Head of Account; it is urged that under sub section
(2) (ii) of section 6A of the Act there being no control price for wheat, the wheat should have been sold by public auction.
In reply, learned counsel for the State has repelled all these contentions.
It is submitted that the source of power to effect the seizure was not the impugned teleprinter message, but the two Control Orders issued under section 3 of the Act.
He asserted that the wheat in question was not being transported during the course of inter State trade and commerce from the Union Territory of Delhi and the States of Punjab and Haryana to various other States.
The wheat had in fact been purchased at Agra and was being lifted from the State of Uttar Pradesh and had, therefore, to be seized at the check post at Saiyan and at Agra.
He points out that under cl. 3 of the 1976 Order, no person can carry on business as a dealer or commission agent, except and in accordance with the terms and conditions of a licence issued in that behalf by the licensing authority.
According to him, the seized wheat had been purchased at Agra in the course of trade, and they were not isolated transactions and, therefore, the Delhi traders committed contravention of cl. 3 of the 1976 Order.
It is also pointed out that cl. 4 of the 1978 Order, as amended, provides that no person who is a wholesale dealer, commission agent or retailer shall have in stock wheat in quantities exceeding 250 quintals, 250 quintals and 20 quintals at a time.
It is further pointed out, cl. 14 of the 1976 Order, and cl. 6 1154 of the 1978 Order confer the power of search and seizure on an enforcement officer or the licensing authority or any other officer authorised by the Government in that behalf, and the expression "enforcement officer" defined in cl. 2 (e) of the former Order and cl. 2(d) of the latter, includes the Chief Marketing Inspector.
According to the learned counsel the Government instructions conveyed in the impugned teleprinter message is merely in the nature of an executive instruction for the enforcement of the two Control Orders.
In support of the contentions, he also relies on the executive power of the State under article 162 of the Constitution.
In the premises, the contention on behalf of the State is that the question whether the seized wheat was liable to be confiscated or not under section 6A of the Act, was a matter pending adjudication before the Additional District Magistrate (Civil Supplies) Agra.
That depends on whether or not there was contravention by the petitioners of any of the Order issued under section 3 of the Act and, therefore, cannot be determined without full investigation into the facts.
The Inter Zonal Wheat (Movement Control) Order, 1976, issued by the Central Government, in exercise of the powers conferred by section 3 of the Act has been rescinded with effect from April 13, 1977.
The result of this is that the whole country constitutes a single zone for free movement of wheat except in such States where an order is issued under section 3 read with section 5 of the Act, placing a ban on export of wheat such as in the State of Rajasthan.
Admittedly, the State Government of Uttar Pradesh has not issued any order under section 3 read with section 5 of the Act, placing a ban on export of wheat from the State or any restriction on inter district movement of wheat within the State.
The State Government does not contest this position and indeed, the Chief Marketing Officer in his counter affidavit states: "The State of Uttar Pradesh has not banned the movement of wheat outside the State or from one district to another district within the State.
It is submitted that such traders who are transporting wheat alleged to be purchased from a place other than the State of Uttar Pradesh and were/are carrying the same to other States other than Uttar Pradesh have only to satisfy the authorities concerned of the bona fides of the transactions.
However, there is no ban on such movement from one State to another." 1155 The impugned teleprinter message dated March 31, 1981 runs as follows: "For: Regional Food Control, Agra/Bareilly/Dehradun/Faizabad/Gorakhpur Jhansi/Haldwani/Kanpur/Meerut/Varanasi Lucknow (by Hand) From: Secretary (Food) Lucknow.
No. TP 1061/XXIX Food 5 Dated: Lucknow: March 31, 1981.
Refer Tel TP 712/XXIX Food 5 5(1)/81 of 9th March 1981 regarding renewal of and issue of new licences to dealers(,) Government committed to provide benefits of support price to producers hence to ensure that maximum quantity of wheat is purchased by agencies (.) Para (.) After careful consideration Government have decided that with effect from first April 1981 till thirtieth June 1981 no repeat no fresh licences are to be issued to any person who wish to deal in wheat, wheat products or both as wholesaler commission agent retailer (.) Para (.) Government have also decided that during April 1981 to June 1981 movement of wheat by traders on private account to outside district shall be regulated only on the endorsement of Deputy Regional Marketing Officer concerned and hitherto this power being exercised by Senior Marketing Inspector shall not repeat not be used by them (.) Para (.) At the same time easy availability of wheat in open markets is to be ensured(.) Keeping all the relevant factors in view endorsement by Dy.
R.M.O. should be made judiciously on genuine and bonafide grounds(.) Para(.) Dy.
RMO will send daily report to RFC of the cases in which such permission is granted or endorsement made(. ) RFC will compile and send weekly report to Government(.) Permission to be given very sparingly and general impression made should be that they will not gain by doing any trading in wheat(.) Visit Mandis regularly and check quantities lying in traders premises(.) Presence of large stocks with trade means staff 1156 is not during their job properly(.
) Inform all concerned immediately for strict compliance(.) Dated: Lucknow; March 31, 1981 Sd/ M. Subrahmanyam Secretary Food & Civil Supplies Sec.
5 U.P. Secretariat, Lucknow.
" There can be no doubt that the aforesaid teleprinter message was in the nature of executive instructions of the State Government to the Regional Food Controllers of the various regions to secure compliance with the orders.
It may be mentioned that the State Government was committed to provide price support in wheat to producers and hence to maximise procurement of wheat, issued instructions that no fresh licences till June 30, 1981 were to be granted to any person who wished to deal in wheat, wheat products, or both, as well as a wholesale dealer, commission agent or a retailer.
It further conveyed the policy decision of the Government that during April 1981 movement of wheat by traders on private account to outside districts shall be regulated only on the endorsement of the Deputy Marketing Officer concerned and not by the Senior Marketing Inspectors as hitherto before.
The Government also directed the Regional Food Controllers to ensure easy availability of wheat in open market.
As regards the making of endorsement, they were advised that the powers should be exercised with due circumspection.
They were also asked to visit the mandis and keep a constant vigil on the stocks lying with the traders.
There appears to be nothing unusual on the State Government issuing such executive instructions.
Even assuming that the impugned teleprinter message is not relatable to the two Control Orders, the State Government undoubtedly could, in exercise of the executive power of the State, introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check posts on the border and place restrictions on inter district movement of wheat by traders on private account within the State.
The executive power of a modern State is not capable of any precise definition.
In Ram Jawaya Kapur vs State of Punjab, Mukherjea, C.J., dealt with the scope of articles 73 and 162 of the Constitution.
The learned Chief Justice observed that neither of the two Articles contains any 1157 definition as to what the executive function is or gives an exhaustive enumeration of the activities which would legitimately come within its scope.
It was observed: "Ordinarily the executive power con notes the residue of governmental functions that remain after legislative and judicial functions are taken away".
It is neither necessary nor possible to give an exhaustive enumeration of the kinds and categories of executive functions which may comprise both the formulation of the policy as well as its execution.
In other words, the State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State.
So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed.
If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf.
Otherwise, the administration would come to a standstill.
In Ram Jawaya Kapoor 's case (supra) it was contended that the executive power of the State did not extend to the carrying on of trade of printing, publishing and selling of text books for schools unless such trade was authorised by law.
In repelling the contention, Mukherjea, C.J. speaking for the Court, observed : Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State.
The executive function comprises both of the determination of the policy as well as carrying it into execution.
This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.
The learned Chief Justice then went on to observe : The Indian Constitution is a written Constitution and even the legislature cannot override the fundamental rights 1158 guaranteed by it to the citizens.
Consequently, even if the acts of the executive are deemed to be sanctioned by the legislature, yet they can be declared to be void and in operative if they infringe any of the fundamental rights of the petitioners guaranteed under Part III of the Constitution.
On the other hand, even if the acts of the executive are illegal in the sense that they are not warranted by law, but no fundamental rights of the petitioners have been infringed thereby, the latter would obviously have no right to complain under article 32 of the Constitution though they may have remedies elsewhere if other heads of rights are infringed.
In Naraindas Indurkhya vs State of Madhya Pradesh & Ors Bhagwati, J., speaking for the Court, reiterated the principles laid down by Mukherjea, C.J. in Ram Jawaya Kapur 's case (supra) and held that the State Government could act in exercise of the executive power of the State under article 162 of the Constitution in relation to any matter with respect to which the State Legislature has power to make laws even if there was no legislation to support such executive action.
There is no denying the fact that the State Legislature is competent to enact a law on the subject covered by Entry 33, List III, which reads: 33.
Trade and commerce in, and the production, supply and distribution of, (b) foodstuffs, including edible oilseeds and oils.
The was enacted by Parliament in exercise of concurrent jurisdiction under Entry 33 List III of the Seventh Schedule to the Constitution as amended by the Constitution (Third Amendment) Act, 1954.
The exercise of such concurrent jurisdiction would not deprive the State legislature of its jurisdiction thereunder.
The State legislature, therefore, could still make a law on the subject regulating trade and commerce in, and the production, supply and distribution of 'foodstuffs ' and the only question that would arise is one of repugnancy dealt with in article 254 of the Constitution.
The executive power of the State being co extensive with its legislative power under Entry 33, List III, it relates to all matters covered by the subject 'foodstuffs ', 1159 trade and commerce in, and the production, supply and distribution thereof.
This is, of course, subject to the limitation contained in Proviso to article 162 which directs that in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof.
This leads us to another aspect of the problem of considerable difficulty and importance.
The subject 'search and seizure ', is a field which has not come before the court with considerable frequency, but this is a hard fact of life which the citizen does encounter very often.
The executive power of 'search and seizure ' is a necessary concomitant of a welfare State.
It tends to promote the well being of the nation.
Many questions arising in the field of search and seizure are factual in nature.
They involve varying degrees of difference among the infinitely diverse facts.
Every factual variation presents not only a new problem, but also a new constitutional question.
It is a limitless area in which different issues may arise with vast variations of facts which are involved in each individual case.
This is, indeed, a peculiar field in which the decisions of courts do not help in clarifying the law.
The decisions in the field are of little precedental value because, the more the cases that are decided, the more new issues arise, through possible factual variations.
The check posts and barriers on the borders of the State of Uttar Pradesh are set up under section 28 of the U.P. Sales Tax Act, 1948 and are designed and meant to prevent evasion of sales tax and other dues.
The constitutional validity of section 28 and its cognate provisions, sections 28A to 28C has, rightly, if we may say so, not been challenged before us.
From the point of view either of Entry 54, List II, or of article 301 of the Constitution, there is no question of any lack of competence in the State legislature to set up the checkposts and barriers on the State 's borders.
These provisions, read with the requirements of r. 83(4) of the U.P. Sales Tax Rules, 1948 require that the owner, driver or any other person in charge of the vehicle or vessel shall, in respect of such goods carried in the vehicle or vessel as are notified under sub section
(1) of section 28A, carry with him, a declaration in Form XXXI, a certificate in Form XXXII, a transit pass in Form XXXIV in duplicate, cash memo, bill of sale or challan and a trip sheet in triplicate.
The factual existence of these check 1160 posts or barriers on the State 's borders is not denied, nor their legality challenged.
It is not suggested that the setting up of these check posts is a restriction on the freedom of trade, commerce and intercourse guaranteed under article 301 of the Constitution, or is such as directly and immediately restricts or impedes the free flow or movement of goods.
It is also not suggested that these regulatory measures in setting up the check posts on the State 's borders are such as impede freedom of trade, commerce and intercourse.
Just as inter State trade and commerce must pay its way and be subject to taxation, persons engaged in such inter State trade or commerce are equally subject to all regulatory measures.
There is no reason why the check posts or barriers set up by the State Government under section 28 of the U.P. Sales Tax Act, 1948, cannot be utilised as a machinery for due observance of the laws, e.g. for verification and control of movement of wheat by traders on private account from the State of Uttar Pradesh to various other States.
The instructions conveyed by the State Government by the impugned teleprinter message dated March 31, 1981, were a direct sequel to the Centre 's directives contained in its earlier teleprinter message.
It was intended and meant to achieve three main objectives, namely, (1) to provide price support in wheat to purchasers with a view to sustain, maintain and maximise the procurement of wheat; (2) to prevent hoarding and blackmarketing; and (3) to provide for equitable distribution and availability of wheat at fair prices.
These directions were obviously meant to subserve the object of the legislation and were in public interest.
These cases were argued with much learning and resource particularly with reference to the rule of law and the consequent limitations on the executive power of the State under article 162 to 'trench ' upon the fundamental right to carry on trade or business guaranteed under article 19 (1) (g) and the freedom of trade, commerce and intercourse throughout the territory of India guaranteed under article 301 of the Constitution.
It necessarily involves a claim by the State that the measures taken by the State Government by the impugned teleprinter message were nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer, commission agent or a retailer is not transported to a place outside the State or from one district to another within the State and therefore were not a 'restriction ' on the fundamental right to carry on trade or business guaranteed under article 19 (1)(g) or on the freedom of trade, commerce and intercourse under article 301.
1161 The quintessence of our Constitution is the rule of law.
The State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts.
In State of Madhya Pradesh vs Thakur Bharat Singh, the Court repelled the contention that by virtue of article 162, the State or its officers may, in the exercise of executive authority, without any legislation in support thereof, infringe the rights of citizens merely because the legislature of the State has power to legislate in regard to the subject on which the executive order is issued.
It was observed: "Every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority.
" The same principle was reiterated by the Court in Satwant Singh Sawhney vs Dr. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors, and Smt.
Indira Nehru Gandhi vs Shri Raj Narain.
There can be no doubt that the , is a 'law ' within the meaning of article 302 of the Constitution imposing reasonable restrictions on the right to carry on trade and commerce as guaranteed by article 19(1)(g) and article 301 of the Constitution.
The object of the Act is to provide, in the interests of the general public, for the control, production, supply and distribution of, and trade and commerce in, certain essential commodities.
To appreciate the points involved, it is necessary to set out the material statutory provisions.
Sub section
(1) of section 3 of the Act provides as follows: "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.
1162 Sub section
(2) thereof provides that without prejudice to the generality of the powers conferred by sub section
(1) an order made thereunder may provide for any of the matters enumerated therein.
Sub section
(5) provides that any order made under this section shall in the case of an order of a general nature or affecting a class of persons, be notified in the Official Gazette.
By virtue of the delegation of powers under section 5 of the Act the State Government in relation to such matters and subject to such conditions as may be specified, may exercise the powers of the Central Government under section 3 Clause (j) of sub section
(2) of 3 provides that the Central Government or the State Government, as the case may be, may by order provide: "For any incidental and supplementary matters, including, in particular, the entry, search or examination of premises, aircraft, vessels, vehicles or other conveyance and animals, and the seizure by a person authorised to make such entry, search or examination. ' Sub sections
(1) and (2) of section 6A of the Act, insofar as material, provide as follows: "6A(1).
Where any essential commodity is seized in pursuance of an order made under section 3 in relation thereto, a report of seizure shall, without unreasonable delay, be made to the Collector of the district or the Presidency town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the Collector may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied that there has been a contravention of the order, may order confiscation of (a) the essential commodity so seized; 6A(2).
Where the Collector, on receiving a report of seizure or on inspection of any essential commodity under sub section
(1), is of the opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do, be may (i) order the same to be sold at the controlled price, if any, fixed for such essential commodity under this Act or under any other law for the time being in force; or 1163 (ii) where no such price is fixed, order the same to be sold by public auction: Provided that in case of foodgrains, the Collector may, for its equitable distribution and availability at fair prices, order the same to be sold through fair price shops at the price fixed by the Central Government or by the State Government, as the case may be, for the retail sale of such foodgrains to the public." Learned counsel for the State Government, in all fairness, does not assert that the impugned teleprinter message having regard to the requirements of sub section
(5), has the effect of a notified Order under section 3 of the Act placing a ban on export of wheat from the State or imposing a restriction on inter district movement of wheat.
It is submitted that it only conveyed the instructions of the State Government requiring the Regional Food Controllers to be more vigilant to secure due observance of the laws.
The question still remain whether the instructions conveyed by the teleprinter message had the force of law.
It is therefore to be considered whether the instructions conveyed by the State Government by the impugned teleprinter message were relatable to the two Control Orders and therefore could be considered to be 'law ' or an order having the force of law placing reasonable restriction on the freedom to carry on any occupation, trade or business guaranteed under article 19(1)(g) read with article 19(6) of the Constitution or on the freedom of trade, commerce and intercourse throughout the territory of India guaranteed under article 301 o the Constitution.
It is further to be considered whether the seizure of wheat in transit was with authority of law.
It is submitted that although the impugned teleprinter message dated March 31, 1981 was in the nature of executive instructions of the State Government to the Regional Food Controllers of the various regions to secure compliance with the two Control Orders, it had the force of law.
It is pointed out that under licence conditions Nos. 11, 12 and 13 of the licence issued in Form B under cl. 4 of the 1976 Order, a dealer is required to comply with any direction that may be given by the State Government in regard to purchase, sale or storage for sale of foodgrains, to furnish such information relating to his business as may be demanded of him and to carry out such instructions as may, from time to time, be given, 1164 by the State Government or the licensing authority, and to give all facilities at all reasonable times, to the enforcement officer or the licencing authority or any officer authorised by him or the State Government for the inspection of the stocks etc.
It is further pointed out that the State Government of Uttar Pradesh has by Notification No. P XXIX Food 5 5(42)/80 dated April 21, 1981, in exercise of the powers conferred by section 3 read with section 5 of the Act, with the prior concurrence of the Central Government, issued the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) (First Amendment) Order, 1981.
By cl. 2 thereof, a new cl. 4 has been substituted in the 1978 Order by which the stock limit of dealers in foodgrains has been re fixed, as it was of the opinion that it was necessary and expedient so to do for securing equitable distribution and availability of wheat at fair prices.
The new cl. 4 provides that no wholesale dealer, commission agent or retailer, shall have in stock, wheat more than 250 quintals, 250 quintals and 20 quintals respectively, at any time.
The re fixation of the stock limit of a wholesale dealers at 250 quintals, at any time, is to ensure that wholesale dealers in the State of Uttar Pradesh do not try to corner stocks of wheat for purposes of speculation.
The submission is that the State Government without placing any restriction on movement of wheat from the State of Uttar Pradesh to various other States, has virtually frozen the excess stock of wheat lying with wholesale dealers of foodgrains in the State.
There is, in our opinion, considerable force in these submissions.
The real question at issue is whether or not the seizure of wheat was with the authority of law.
The fundamental right to carry on trade or business guaranteed under article 19(1)(g) or the freedom of inter State trade, commerce and intercourse under article 301 of the Constitution, has its own limitations.
The liberty of an individual to do as he pleases is not absolute.
It must yield to the common good.
Absolute or unrestricted individual rights do not and cannot exist in any modern State.
There is no protection of the rights themselves unless there is a measure of control and regulation of the rights of each individual in the interests of all.
Whenever such a conflict comes before the Court, it is its duty to harmonise the exercise of the competing rights.
The Court must balance the individual 's rights of freedom of trade under article 19(1)(g) and the freedom of inter State trade and commerce under article 301 as against the national interest.
Such a limitation is inherent in the exercise of those rights.
1165 Under article 19(1)(g) of the Constitution, a citizen has the right to carry on any occupation, trade or business and the only restriction on this unfettered right is the authority of the State to make a law imposing reasonable restrictions under cl.
The principles underlying in cls.
(5) and (6) of article 19 are now well settled and ingrained in our legal system in a number of decisions of this Court, and it is not necessary to burden this judgment with citations.
The expression 'reasonable restriction ' signifies that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public.
The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable in all cases.
The restriction which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by cl.
(6) of article 19, it must be held to be wanting in that quality.
The nature of the right alleged to have been infringed is that wholesale dealers in foodgrains from the State of Uttar Pradesh or elsewhere are prevented from moving their stock of wheat to various other States or from one district to another without the transaction being verified and duly endorsed by the Deputy Marketing Officer or the Senior Marketing Officer concerned.
The other restriction on the enjoyment of their right placed by the impugned teleprinter message is that there should be physical verification at the checkposts on the State 's borders.
These steps were designed to prevent a price rise in wheat in the State of Uttar Pradesh and to prevent outflow of wheat from the State to various other States and from one district to another district within the State.
The whole object was to ensure that the wholesale dealers in foodgrains did not corner stocks of wheat for the purpose of speculation.
It cannot be said that they do not contain the quality of reasonableness or were not in the interests of the general public.
In judging the validity of these restrictions, the Court has to strike a proper balance between the freedom guaranteed under article 19(1)(g) and the social control permitted by article 19(6).
If, therefore, the seizure can be justified on the basis of any valid law, it cannot be held to be illegal.
This is equally true of article 301.
article 301 imposes a general limitation on all legislative 1166 power in order to secure that trade, commerce and intercourse throughout the territory of India shall be free.
Having placed a general limitation on the legislative powers of Parliament and the State Legislatures, article 302 relaxes that restriction in favour of Parliament by providing that authority may, by law, impose such restrictions on the freedom of trade, commerce and intercourse between one State and another and within any part of the territory of India in the public interest.
Likewise, article 304(b) provides that notwithstanding anything in article 301 or article 303, a legislature of a State may, by law, impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest, provided that no Bill or amendment for the purpose of cl.
(b) shall be introduced or moved in the legislature of a State without the previous sanction of the President.
Although article 301 guarantees that trade, commerce and intercourse throughout the country shall be free, the right to carry on inter State trade and commerce may be subject to reasonable restrictions in the interests of the general public.
The word 'free ' in article 301 does not mean freedom from laws or from regulations.
article 301 guarantees freedom of trade, commerce and intercourse throughout the country from any State barriers.
It declares that subject to the other provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free.
The whole object was to bring about the economic unity of the country under a federal structure, so that the people may feel that they are members of one nation.
One of the means to achieve this object is to guarantee to every citizen the freedom of movement and residence throughout the country.
That is achieved by article 19(1)(d) and (e).
No less important is the freedom of movement or passage of commodities from one part of the country to another.
The progress of the country as a whole also requires free flow of commerce and intercourse as between different parts, without any barrier.
This freedom of trade, commerce and intercourse throughout the country without any 'State barriers ' is not confined to inter State trade but also includes intra State trade as well.
In other words, subject to the provisions of Part XIII, no restrictions can be imposed upon the flow of trade, commerce and intercourse, not only between one State and another, but between any two points within the territory of India whether any State border has to be crossed or not.
It is now well settled that the regulatory measures or measures imposing compensatory taxes do not come within the purview of the 1167 restrictions contemplated by article 301.
The regulatory measures should, however, be such as do not impede the freedom of trade, commerce and intercourse.
It cannot be said that the instructions conveyed by the State Government by the impugned teleprinter message imposing the requirement for the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer or the physical verification of stocks of wheat during the course of transit, are a 'restriction ' on the freedom of trade, commerce and intercourse within the country, i.e, across the State or from one part of the State to another.
These are nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer, commission agent or a retailer is not transported to a place outside the State or from one district to another.
Even if these requirements are construed to be a 'restriction ' on the inter State or intra State trade, the limitation so imposed on the enjoyment of the right cannot be considered to be arbitrary or of an excessive nature.
Nor can it be said that such restrictions do not satisfy the test of reasonableness.
The question whether or not the seizure of the wheat was for contravention of any order issued under section 3 of the Act is pending investigation before the Additional District Magistrate (Civil Supplies), Agra.
For the establishment of their rights the petitioners have still to establish that the wheat in question was bought by them in open market in Delhi and elsewhere and was being merely transported through the State of Uttar Pradesh in the course of inter State trade and commerce.
If that be so, then there was no contravention of any order issued by the Central Government under section 3 or by the State Government under section 3 read with section 5 of the Act.
If, on the contrary, the wheat had been purchased by them at Agra or nearby places within the State of Uttar Pradesh, the question would arise whether such purchase, storage or sale of wheat was in contravention of any of the two Control Orders.
In case there was such contravention of any of the provisions of the two Control Orders, then there was undoubtedly the power of search and seizure.
The case of the State Government before us was that the source of power to effect the seizure was the two Control Orders.
It was asserted that the wheat was not being transported during the course of inter State trade and commerce from the Union Territory of Delhi to various other States, but had, in fact, been purchased at Agra and was being lifted from the State of Uttar Pradesh and had therefore to be seized at the check post at Saiyan and at Agra.
Under cl. 3 of 1976 Order, no person can carry on business as a 1168 dealer or commission agent except and in accordance with the terms and conditions of a licence issued in that behalf by the licensing authority.
The term 'dealer ' is defined in section 2(c) of the Order to mean a person engaged in the business of purchase, sale or storage for sale of foodgrains.
According to the State, the seized wheat had been purchased at Agra in the course of trade and they were not isolated transactions and, therefore, the Delhi traders committed contravention of cl. 3 of the 1976 Order.
14 thereof confers the power of search and seizure on an enforcement officer or the licensing authority or any other officer authorised by the State Government in that behalf.
The expression 'enforcement officer ' is defined in cl. 2(e) of that Order and it includes the Chief Marketing Officer and in that capacity the Chief Marketing Officer, having reason to believe that contravention of the provisions of the Order had been, was being, or was about to be committed, had the power to seize the trucks at the check post at Saiyan and effect the seizure of the trucks laden with wheat and bring them to the purchase point at Agra.
Furthermore, under cl. 4 of the 1978 Order, as amended, no person who is a wholesale dealer, commission agent or a retailer, shall have in stock wheat in quantities exceeding 250 quintals, 250 quintals and 20 quintals respectively at a time.
6 confers the power of search and seizure on an enforcement officer which term as defined in cl.
2(d) likewise includes the Chief Marketing Inspector, Under cl. 6(d), the Chief Marketing Inspector, as an enforcement officer, had the power to seize any article in respect of which he had reason to believe that a contravention of the Order had been, was being, or was about to be committed.
The fixation of the maximum limits of stocks of wheat at 250 quintals 250 quintals and 20 quintals respectively, which a wholesale dealer, commission agent or a retailer may hold, at any one time, has necessarily the effect of freezing the excess stock of wheat lying with such dealer.
This also results in preventing the movement of such excess stock of wheat from the State of Uttar Pradesh to various other States or from one district to another.
The excess stock of wheat lying with such dealer, that is, a wholesale dealer, commission agent or a retailer, in truth and substance, became their 'unlicensed stock '.
If really the Delhi traders had purchased the excess stock of wheat from wholesale dealers, commission agents or retailers in the State of Uttar Pradesh, as is alleged, it is possible to contend that there was a contravention of the provisions of cl. 4 of the 1978 Order.
The question whether the seizure was for any contravention of any Order issued under 1169 section 3 of the Act has to be determined by the Additional District Magistrate (Civil Supplies), Agra, on the evidence adduced by the parties before him.
The facts being controverted, the petitioners have no right to relief under article 32 of the Constitution.
Each of the petitioners has filed a sheaf of documents showing that the wheat had been purchased in the open market in Delhi and elsewhere, that the trucks laden with their wheat were accompanied by the relevant bills, goods receipts, inter State transit passes etc., that the trucks in question were allowed to cross the check posts at Kotwan on the border between the Union Territory of Delhi and the State of Uttar Pradesh.
but were seized either at the check posts at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh or at Agra, while they were in transit through the State of Uttar Pradesh.
It was also asserted that all the documents were seized and taken away by the Senior Marketing Inspector, and that he had given an acknowledgment of the same.
Learned counsel appearing for the State vehemently contends that these documents were not shown to the authorities concerned and it is for the petitioners to prove these documents before the Additional District Magistrate (Civil Supplies), Agra, in support of their claim We cannot act on the documents because the transactions are still to be proved.
It is asserted on behalf of the State Government that such documents could always be brought into existence, particularly when none of the transactions were effected through a Bank.
This Court cannot obviously pronounce upon the genuineness of the transactions or record any finding on the basis of the documents when the facts are in dispute.
There still remains the question whether the seizure of wheat amounts to deprivation of property without the authority of law.
article 300A provides that no person shall be deprived of his property save by authority of law.
The State Government cannot while taking recourse to the executive power of the State under article 162, deprive a person of his property.
Such power can be exercised only by authority of law and not by a mere executive fiat or order.
article 162, as is clear from the opening words, is subject to other provisions of the Constitution.
It is, therefore, necessarily subject to article 300A.
The word 'law ' in the context of article 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order; having the force of law, that is positive or State made law.
The decisions in Wazir Chand vs The State of Himachal 1170 Pradesh and Bishan Das and others vs The State of Punjab and others are an authority for the proposition that an illegal seizure amounts to deprivation of property without the authority of law.
In Wazir Chand 's case (supra), the police in India seized goods in possession of the petitioner in India at the instance of the police of the State of Jammu and Kashmir.
The seizure was admittedly not under the authority of law, inasmuch as it was not under the orders of any Magistrate; nor was it under sections 51, 96, 98 and 165 of the Code of Criminal Procedure, 1898, since no report of any offence committed by the petitioner was made to the police in India, and the Indian police were not authorised to make any investigation.
In those circumstances, the Court held that the seizure was not with the authority of law and amounted to an infringement of the fundamental right under article 31(1).
This view was reaffirmed in Bishan Das 's case (supra).
The effect of the Constitution (Fourth) Amendment Act, 1955, is that there can be no 'deprivation ' unless there is extinction of the right to property.
It is urged that the seizure of wheat was not with a view to extinction of the rights of the petitioners, but the property in the seized wheat was theirs.
No doubt, the wheat had to be sold, as it was subject to speedy and natural decay, but the petitioners are entitled to the sale proceeds, if ultimately it is found by the Additional District Magistrate (Civil Supplies), Agra, that there was no contravention by them of an order issued under section 3 of the Act.
It is not necessary for us to deal with the question whether an illegal seizure amounts to 'deprivation ' of property within the meaning of article 300A for purposes of this case, as the State Government does not dispute the right of the petitioners to the sale proceeds.
It is true that the seizure was with intent to confiscate under section 6A of the Act, but that would not make the seizure illegal, if, ultimately, it is found that there was contravention of an order issued under section 3 of the Act.
If the facts were not in controversy and if the petitioners were also able to prove that there was wrongful seizure of wheat by the State Government of Uttar Pradesh at the check post of Saiyan on the border, while in transit, in the course of inter State trade and commerce from the Union Territory of Delhi, perhaps, they would be entitled to the return of the seized wheat, or, in the alternative, 1171 to the payment of price thereof.
The State contests the right of the Court to investigate into the facts, particularly when the matter is a fact in issue in the aforesaid proceedings before the Additional District Magistrate (Civil Supplies), Agra.
Normally, it is not the function of this Court to investigate into facts in proceedings under article 32 of the Constitution when they are controverted with a view to discerning the truth.
The matter must, in a situation like this, be left to the fact finding body.
For the establishment of their right to relief under article 32, the petitioners must, in our opinion, establish the necessary fact before the said Additional District Magistrate in the proceedings under section 6A of the Act.
If they fail to get relief in such proceedings, their obvious remedy lies in a suit for damages for wrongful seizure.
The question that the seizures were in reality for procurement of wheat in furtherance of the directive of the Central Government, and not for breach of the two Control Orders and, therefore, were nothing but a 'colourable exercise of power ', is dependent on facts to be found on investigation.
Further, the question that there being no control price for wheat, the wheat should have been sold by public auction, is again a question that must be raised before the Additional District Magistrate (Civil Supplies), Agra, in the proceedings pending before him under section 6A of the Act.
Turning to the petitions under article 32 of the Constitution by wholesale dealers of foodgrains from the State of Uttar Pradesh, learned counsel appearing for these petitioners challenged the impugned teleprinter message dated March 31, 1981, and the Notification No. P. XXIX Food 5 5(42)/80 dated April 21, 1981, issued by the State Government of Uttar Pradesh, by which cl. 4 of the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978, has been amended, particularly on three grounds, namely, (1) the impugned notification fixing the maximum limit of wheat permitted to be possessed by a wholesale dealer at 250 quintals, at a time, is an unreasonable restriction on the freedom of trade guaranteed under article 19(1)(g) of the Constitution; (2) there is no distinction made between a wholesale dealer and a commission agent in as much as the maximum limit of wheat allowed to be possessed by them is the same, i.e., 250 quintals at a time and the fixation of such limit in the case of a wholesale dealer is arbitrary, irrational and irrelevant and thus violative of article 14 of the Constitution; and (3) the instructions conveyed by the State Government by its teleprinter message dated March 31, 1981, placing restrictions 1172 on movement of wheat by traders on private account from the State of Uttar Pradesh to various other States and on inter district movement of wheat within the State, were in breach of their fundamental right under article 19(1)(g) read with article 301 of the Constitution.
The first and second contentions may conveniently be dealt with together.
In order to appreciate these contentions, it is necessary to state a few facts: During the year 1979 80, the country was victim to a very serious drought which affected with Kharif as well as Rabi crops.
The Government of India, therefore, fixed a target of 9.5 million tonnes of wheat to be purchased in the summer months of 1981 for the national buffer stock.
It fixed the procurement price at Rs. 130 per quintal as against the support price of Rs. 127 per quintal recommended by the Agricultural Price Commission to provide a better incentive to the farmers.
The procurement was carried out as a measure of price support without any restriction on movement from one State to another.
However, some of the States were implementing local laws with regard to ensuring that the private trade adhered to the stock limit restrictions on them and did not try to corner stocks for speculation purposes.
The original target fixed for procurement was 9.5 million tonnes but at the end of June, only 6.5 million tonnes had been purchased, leaving a deficit of 3 million tonnes.
The result was that the Government of India was thus forced to buy 1.5 million tonnes of wheat in the world market.
The Government 's procurement drive was mainly frustrated by wholesale dealers of foodgrains cornering the stocks of wheat by paying a price higher than the procurement price to the farmers.
The imperatives of the situation demanded that the speculative tendencies of the trade were curbed by strictly enforcing the stock limits of traders.
Under original cl. 4 of the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978, a wholesale dealer, commission agent or a retailer could have in stock wheat not more than 750 quintals, 750 quintals and 100 quintals respectively, at any time.
In view of the worsening situation in the national buffer stock and in the light of the experience gained during the past few years, the State Government was of the opinion that it was necessary and expedient to re fix the stock limits of such dealers.
This was expected to maximise procurement of wheat to meet the requirement of public distribution, as well as, the buffer stock.
1173 It cannot be asserted that the restriction imposed by the State Government on wholesale dealers of wheat is either arbitrary or is of an excessive nature.
The fixation of the stock limit of wheat to be possessed by wholesale dealers, at any time, at 250 quintals is an important step taken by the State Government to obviate hoarding and black marketing in wheat which is in short supply.
It is hardly necessary to emphasise the extent and urgency of the evil sought to be remedied thereby.
Perhaps fixation of the minimum limit of wheat permitted to be possessed by a wholesale dealer at 250 quintals, at a time, is too low, but the restriction so imposed cannot be treated to be arbitrary or of an excessive nature, beyond what is required in the national interest.
It is a matter of common knowledge that wholesale dealers of foodgrains mainly operate in large cities and towns and have the means and capacity to manipulate the market by withholding stocks of a commodity.
There was need to check such speculative tendencies in the trade.
It was therefore felt expedient to re fix the stock limit of wheat for wholesale dealers at 250 quintals at a time, as in the case of a commission agent.
The underlying idea is that the wholesale dealers should be allowed to continue their trading activities within reasonable limits.
The fixation of stock limit at 250 quintals implies that wholesale dealers can have at any time, in stock, a wagon load of wheat.
In Krishan Lal Praveen Kumar & Ors. etc.
vs The State of Rajasthan, this Court has interpreted the words 'at any time ' as meaning 'at any given time '.
This means that a wholesale dealer should not have in stock more than 250 quintals at a time.
But there is nothing to prevent a wholesale dealer from entering into a series of transactions during the course of the day.
This Court in Krishan Lal Parveen Kumar 's case (supra) and Suraj Mal Kailash Chand & Ors.
vs Union of India & Anr., has upheld the validity of a similar notification dated March 23, 1981, issued by the State Government of Rajasthan in exercise of the powers conferred by cl. 18 of the Rajasthan Trade Articles (Licensing and Control) Order, 1980, fixing the maximum limit of wheat to be possessed by a dealer at any one time at 200 quintals, on the ground that it is a reasonable restriction by the State Government within the meaning of article 19(6) of the Constitution.
In view of these decisions, it is difficult to conceive as to how the contention based on article 19(1)(g) of the Constitution can survive.
1174 True it is, if the governmental action is arbitrary or there is no rational nexus to the object sought to be achieved it is liable to be struck down as violative of article 14 of the Constitution.
The State Government has adopted various measures in the interest of the general public for the control of production, supply and distribution of, and trade and commerce in, essential commodities.
To obviate hoarding and blackmarketing in foodstuffs, it has promulgated the Order.
It introduces a system of checks and balances to achieve the object of the legislation, i.e., to ensure equitable distribution and availability of essential commodities at fair prices.
It cannot be said that looking to the prevailing conditions, the imposition of such restrictions does not satisfy the test of reasonableness.
Nor can it be said that the fixation of such stock limit is arbitrary or irrational having no nexus to the object sought to be achieved and is, therefore, violative of article 14.
On the contrary, the limitation imposed fixing a stock limit for a wholesale dealer at 250 quintals is a reasonable restriction within the meaning of article 19(6) of the Constitution.
One further point requires to be noticed.
The contention that the action taken by the State Government in issuing the impugned teleprinter message amounts to an 'intrusion ' on the fundamental right to carry on trade or business under article 19(1)(g) or on the freedom of trade, commerce and intercourse under article 301 of the Constitution appears to be wholly misconceived.
As already stated the instructions conveyed by the State Government by the impugned teleprinter message imposing the requirement for the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer or the physical verification of stocks of wheat during the course of transit, are not a 'restriction ' on the fundamental right to carry on trade or business guaranteed under article 19(1)(g) or on the freedom of trade, commerce and intercourse under article 301.
These are nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer, commission agent or a retailer is not transported to a place outside the State or from one district to another.
Even if these requirements are considered to be a 'restriction ' on inter State or intra State trade, that is, across the State or from one part of the State to another, the limitation so imposed on the enjoyment of the right cannot be considered to be arbitrary or of an excessive nature and thus violative of article 19(1)(g) or article 301 of the Constitution.
The State Government in its return has stated that there is no ban on the export of wheat from the State of Uttar Pradesh to various other States or from one 1175 district to another within the State, subject to the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer concerned.
The petitioners who are wholesale dealers of foodgrains in the State of Uttar Pradesh are, therefore, free to carry on their business within the permissible limits, i.e., they may carry on their trade or business or enter into inter State or intra State transactions of wheat subject to the stock limit of 250 quintals at a time.
In the result, the writ petitions must fail and are dismissed.
The stay orders passed by the Court, from time to time, stand vacated.
Formal orders for vacating stay granted in those matters need not be issued.
There shall be no order as to costs.
S.R. Petitions dismissed.
| IN-Abs | In exercise of the powers vested under the Essential Commodities Act, 1951, the State Government of Uttar Pradesh issued two orders, namely (1) the Uttar Pradesh Food Grains Dealers (Licensing and Restriction on Hoarding) Order, 1976 and (2) the Uttar Pradesh Food Grains (Procurement and Regulation of Trade) Order 1978.
By its teleprinter message dated March 31, 1981 to all the Regional Food Controllers, the State Government issued certain further instructions for effective enforcement of the two Orders and in particular regulating the inter district and outside the State movement of wheat by traders on private account.
By a Notification No. P XXIX Food 5 5(42)/80 dated April 21,1981, clause (4) of the 1978 Order, was amended providing that no wholesale dealer, commission agent, or a retailer shall have in stock wheat more than 250 quintals, 250 quintals and 20 quintals respectively, at any time, since it was of opinion that it was necessary or expedient so to do for securing the equitable distribution and availability of foodgrains at fair prices.
Pursuant to the powers vested in them, the Senior Marketing Inspector and the Chief Marketing Inspector, Agra, intercepted and seized the trucks laden with wheat of the petitioners who are wholesale dealers of foodgrains from the Union Territory of Delhi and the States of Punjab and Haryana at the check post at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh, and after bringing them back to the purchase point at Agra unloaded the wheat from the said trucks.
While the petitioners moved an application for the release of the seized wheat before the Additional District Magistrate (Civil Supplies), Agra, the Marketing Inspectors not only lodged First Information 1138 Reports but obtained an interim order on May 23, 1981 for the sale of the seized wheat as it was subject to speedy and natural decay.
The seized wheat had been purchased by the State Government on Government account at the procurement price and the sale proceeds were credited into the treasury.
The petitioners challenged the teleprinter message dated March 31, 1981 and the Notification dated April 21, 1981 on the following grounds: (1) The Notification fixing the maximum limit of wheat permitted to be possessed by a wholesale dealer at 250 quintals, at a time, is an unreasonable restriction on the freedom of trader guaranteed under Article 19(1)(g) of the Constitution; (2) there is no distinction made between a wholesale dealer and a commission agent in as much as the maximum limit of wheat allowed to be possessed by them is the same, i.e., 250 quintals at a time and the fixation of such limit in the case of a wholesale dealer is arbitrary, irrational and irrelevant and thus violative of Article 14 of the Constitution; (3) the instructions conveyed by the State Government by its teleprinter message dated March 31, 1981, placing restrictions on movement of wheat by traders on private account from the State of U.P. to various other States and on inter district movement of wheat within the State, were violative of their fundamental rights under Article 19(1)(g) and Article 301 of the Constitution; (4) the seizure of the consignments of the wheat, while they were in transit in the course of inter State trade and commerce from the Union Territory of Delhi and the States of Punjab and Haryana to various destinations in the States of Maharashtra and Madhya Pradesh, was without "the authority of law" and in violation of Article 300A of the Constitution; (5) the restriction must be by "law" or by an "order" having the force of law and not by recourse to the executive authority of the State under Article 162 of the Constitution, that is, by an executive action.
The teleprinter message of the State Government dated March 31, 1981 on the basis of which the seizures were effected in truth and substance, had no legal sanction and cannot be construed to be a notified order within the meaning of sub section (1) read with sub section (5) of section 3 of the Essential Commodities Act; it was nothing but an executive direction.
No executive action which operates to the prejudice of the citizens can be taken without the authority of law.
The seizures effected were not in compliance with the instructions contained in the teleprinter message and not for breach of the two control Orders and, therefore, it was nothing but a "colourable exercise" of power.
The real purpose of the seizure was procurement of wheat in furtherance of the directives of the Central Government without any legal sanction, since the farmers were not willing to sell their wheat at the procurement price; and (6) under sub section 2(ii) of section 6A of the Act there being no control price for wheat, the wheat should have been sold by public auction by the Additional District Magistrate while passing an interim order.
Dismissing the petitions, the Court ^ HELD: 1:1.
The restriction imposed by the State Government on wholesale dealers of wheat is neither arbitrary nor is of an excessive nature beyond what is required in the national interest.
To check speculative tendencies of the wholesale traders and others who manipulate the market by withholding stocks of a commodity and to obviate blackmarketing, the stock limit of wheat was fixed for wholesale dealers at 250 quintals at a time, as in the case of a commission agent, the underlying idea being that the wholesale dealers should be allowed to 1139 continue their trading activities within reasonable limits.
The fixation of stock limit at 250 quintals implies that wholesale dealers can have at any time, in stock, a wagon load of wheat.
The words "at any time" mean "at any given time", which means that a wholesale dealer should not have in stock more than 250 quintals at a time.
But there is nothing to prevent a wholesale dealer from entering into a series of transaction during the course of the day.
[1173 A E] 1:2.
The State Government had adopted various measures in the interest of the general public for the control of production, supply and distribution of, and trade and commerce in, essential commodities.
The Order fixing a stock limit introduces a system of checks and balances to achieve the object of the legislation, that is, to ensure equitable distribution and availability of essential commodities at fair prices.
Looking to the prevailing conditions, the imposition of such restrictions satisfies the test of reasonableness.
The fixation of such stock limit is not arbitrary or irrational having no nexus to the object sought to be achieved and is, therefore, intra vires of Article 14.
The limitation imposed fixing a stock limit for a wholesale dealer at 250 quintals is also a reasonable restriction within the meaning of Article 19(6) of the Constitution.
[1174 A D] 2:1.
The teleprinter message No. PP 1061/XXIX.Food 5 dated 31st March, 1981 was in the nature of executive instruction of the State Government to the Regional Food Controllers of the various regions to be more vigilant and to secure due observance of the control orders.
[1156 B, E F, 1163 C] 2:2.
The instructions conveyed by the State Government by the impugned teleprinter message imposing the requirement for the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer or the physical verification of stocks of wheat during the course of transit, are not a 'restriction ' or an 'intrusion ' on the fundamental right to carry on trade or business guaranteed under Article 19(1)(g) or on the freedom of trade, commerce and intercourse under Article 301.
These are nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer, commission agent or a retailer is not transported to a place outside the State or from one district to another.
Even if these requirements are considered to be a 'restriction ' on inter State or intra State trade, that is, across the State or from one part of the State to another, the limitation so imposed on the enjoyment of the right cannot be considered to be arbitrary or of an excessive nature and thus violative of Article 19(1)(g) or Article 301 of the Constitution.
There being no ban on the export of wheat from the State of Uttar Pradesh to various other States or from one district to another within the State, subject to the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer concerned, the Petitioners who are wholesale dealers of foodgrains in the State of Uttar Pradesh are, therefore, free to carry on their business within the permissible limits, that is, they may carry on their trade or business or enter into inter State or intra State transactions of wheat subject to the stock limit of 250 quintals, at a time.
[1174 D H, 1175 A B] 2:3.
The teleprinter message dated March 31, 1981 was a direct sequel to the Centre 's directives contained in its earlier teleprinter message and intended or meant to achieve three main objectives, namely, (i) to provide price support in wheat to purchasers with a view to sustain, maintain and maximise the pro 1140 curement of wheat; (ii) to prevent hoarding and black marketing; and (iii) to provide for equitable distribution and availability of wheat at fair prices.
The directions were obviously meant to subserve the object of the legislation and were in public interest.
The State Government was committed to provide price support in wheat to producers and hence to maximise procurement of wheat, there is nothing unusual on the State Government issuing such executive instructions.
[1156 E F, 1160 D E] 2:4.
Even assuming that the impugned teleprinter message is not relatable to the control Orders, the State Government undoubtedly could, in exercise of the executive power of the State, introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check post on the border and place restrictions on inter district movement of wheat by traders on private account within the State.
[1156 E F] Ram Jawaya Kapur vs State of Punjab and Naraindas Indurkhya vs State of Madhya Pradesh & Ors., ; , explained and followed.
The State Legislature is competent to enact a law on the subject covered by Entry 33, List III, regulating trade and commerce in, and the production, and supply and distribution of "foodstuffs".
The was enacted by Parliament in exercise of concurrent jurisdiction under Entry 73, List II, of the Seventh Schedule to the Constitution as amended by the Constitution (Third Amendment) Act, 1954.
The exercise of such concurrent jurisdiction would not deprive the State Legislature of its jurisdiction thereunder.
The executive power of the State which is coextensive with the legislative power is subject to the limitation contained in Article 162 which directs that in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union of authorities thereof.
[1158 F H, 1159 A B] 3:2.
The State in exercise of its executive powers is charged with the duty and the responsibility of carrying on the general administration of the State.
So long as the State Government does not go against the provisions of the constitution of any law, the width and amplitude of its executive power cannot be circumscribed.
If there is no enactment covering a particular aspect, certainly the Government can carry on the administrative directions or instructions, until the legislature makes a law in that behalf.
Otherwise the administration would come to a standstill.
[1157 B C] 3:3.
The executive power of "search and seizure" is a necessary concomitant of a welfare State.
It tends to promote the well being of the nation.
Many questions arising in the field of search and seizure are factual in nature, involving varying degrees of difference among the infinitely diverse facts.
It is a limitless area where not only every factual variation presents a new constitutional question, but it is a peculiar field in which the decisions of courts do not help in clarifying the law.
The decisions in the field are of little precedental value, because the more the cases that are decided the more issues arise, through possible factual variation.
[1159 B E] 1141 4:1.
The quintessence of the Constitution is the rule of the law.
The State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts.
[1161 A] State of Madhya Pradesh vs Thakur Bharat Singh, ; , Satwant Singh Sawhney vs Dr. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors., at 542; Smt.
Indira Nehru Gandhi vs Shri Raj Narain, at 524, reiterated.
The is a "law" within the meaning of Article 302 of the Constitution imposing reasonable restrictions on the right to carry on trade and commerce as guaranteed by Article 19(1)(g) and Article 301 of the Constitution.
The object of the Act is to provide, in the interest of the general public for the control, production, supply and distribution of, and trade and commerce in, certain essential commodities.
[1161 D E] 5.
From the point of view either of Entry 54 List II or of Article 301 of the Constitution, the State Legislature is competent to set up the check posts and barriers on the State 's borders, designed and meant to prevent evasion of sales tax and other dues.
Just as inter State trade and commerce must pay its way and be subject to taxation, persons engaged in inter state trade or commerce are equally subject to all regulatory measures.
The check posts or barriers set up by the State Government under section 28 of the U.P. Sales Tax Act, 1948, which is legally accepted as valid and also considered not a restriction or impediment to the freedom of trade, commerce and intercourse granted under Article 301 of the Constitution, can certainly be utilised as a machinery for due observance of the laws, for example, for verification and control of movement of wheat by traders on private account from the State of Uttar Pradesh to various other States.
B D] 6:1.
The fundamental right to carry on trade or business guaranteed under Article 19(1)(g) or the freedom of inter State trade, commerce and intercourse under Article 301 of the Constitution, has its own limitations.
The liberty of an individual to do as he pleases is not absolute.
It must yield to the common good.
Absolute or unrestricted individual rights do not and cannot exist in any modern State.
There is no protection of the rights themselves unless there is a measure of control and regulation of the rights of each individual in the interests of all.
Whenever such a conflict comes before the Court, it is its duty to harmonise the exercise of the competing rights.
The Court must balance the individual 's rights of freedom of trade under Article 19(1)(g) and the freedom of inter State trade and commerce under Article 301 as against the national interest.
Such a limitation is inherent in the exercise of those rights.
[1164 E H] 6:2.
Under Article 19(1)(g) of the Constitution, a citizen has the right to carry on any occupation, trade or business and the only restriction on this unfettered right is the authority of the State to make a law imposing reasonable restrictions under clause (6).
[1165 A] 6:3.
The expression "reasonable restriction" signifies that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public.
The test of reasonableness, wherever prescribed, should be applied to each individual 1142 statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable in all cases.
The restriction which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1) (g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality.
[1165 B D] 6:4.
Several steps taken, in the instant case, like prevention of movement of stock of wheat to various other States, movement of wheat from one district to another within the State only after the verification of the transaction and due endorsement by the Deputy Marketing Officer or the Senior Marketing Officer concerned and also the physical verification at the check post on the State 's borders etc. were designed to prevent a price rise in wheat in the State of Uttar Pradesh and to prevent outflow of wheat from the State to various other States and from one district to another district within the State.
The whole object was to ensure that the wholesale dealers in foodgrains did not corner stocks of wheat for the purpose of speculation, and hence the steps taken were reasonable and in the interests of the general public.
If, therefore, the seizure can be justified on the basis of any valid law, it cannot be held to be illegal.
[1165 D H] 7:1.
Article 301 imposes a limitation on all legislative power in order to secure that trade, commerce and intercourse throughout the territory of India shall be free.
Although Article 301 guarantees that trade, commerce intercourse throughout the country shall be free, the right to carry on inter State trade and commerce may be subject to reasonable restrictions in the interests of the general public.
[1165 A, 1166 A, C] 7:2.
The word 'free ' in Article 301 does not mean freedom from laws or from regulations.
Article 301 guarantees freedom of trade, commerce and intercourse throughout the country from any State barriers.
The whole object was to bring about the economic unity of the country under a federal structure, so that the people may feel that they are members of one nation.
One of the means to achieve this object is to guarantee to every citizen in addition to the freedom of movement and residence throughout the country, which is achieved by Article 19(1)(d) and (e) is the freedom of movement or passage of commodities from one part of the country to another.
This freedom of trade, commerce and intercourse throughout the country without any "State barriers" is not confined to inter State trade but also including intra State trade as well.
In other words, subject to the provisions of Part XIII, no restrictions can be imposed upon the flow of trade, commerce and intercourse, not only between the State and another, but between any two points within the territory of India whether any State border has to be crossed or not.
[1166 D H] 7:3.
The regulatory measure or measures imposing compensatory taxes do not come within the purview of the restrictions contemplated by Article 301.
The regulatory measures should, however, be such as do not impede the freedom of trade, commerce and intercourse.
[1166 H, 1167 A] 8:1.
In view of the provisions of clause (3) of the 1976 Order read with clauses (4) & (6) of the 1978 Order, the validly seized excess stock of wheat lying with such dealer, that is, a wholesale dealer, commission agent or a retailer, in truth and substance, became their "unlicensed stock".
Here, if really the Delhi traders had purchased the excess stock of wheat from wholesale dealers, com 1143 mission agents or retailers in the State of Uttar Pradesh, as is alleged, it is possible to contend that there was a contravention of the provisions of clause (4) of the 1978 Order.
The question whether the seizure was for any contravention of any order issued under section 3 of the Act has to be determined by the Additional District Magistrates (Civil Supplies), Agra, on the evidence adduced by the parties before him.
The facts being controverted, the petitioners have no right to relief under Article 32 of the Constitution.
[1168 D H, 1169 A B] 8:2.
Supreme Court can neither act on documents which are yet to be proved nor can they pronounce upon the genuineness of the transactions covered by them or record any finding on the basis of the documents when the facts are in dispute.
[1169 E] 8:3.
Normally, it is not the function of Supreme Court to investigate into facts in proceedings under Article 32 of the Constitution when they are controverted with a view to discerning the truth.
The matter must, in a situation like this, be left to the fact finding body.
For the establishment of their right to relief under Article 32, the petitioners must establish the necessary facts before the said Additional District Magistrate in the proceedings under section 6A of the .
If they fail to get relief in such proceedings, their obvious remedy lies in a suit for damages for wrongful seizure.
[1171 A C] 9:1.
The State Government cannot while taking recourse to the executive power of the State under Article 162 of the Constitution deprive a person of his property.
Such power can be exercised only by authority of law and not by a mere executive fiat or order.
Article 162 being subject to other provisions of the Constitution, is necessarily subject to Article 300A. [1169 F G] Wazir Chand vs The State of Himachal Pradesh, ; ; Bishan Das and Others vs The State of Punjab and Others, ; , referred to.
The word 'law ' in the context of Article 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order, having the force of law, that is positive or State made law.
[1169 G H] 9:3.
The effect of the Constitution (Fourth) Amendment Act, 1955, is that there can be no 'deprivation ' unless there is extinction of the right to property.
Here, no doubt, the wheat had to be sold, as it was subject to speedy and natural decay, but the petitioners are entitled to the sale proceeds, if ultimately it is found by the Additional District Magistrate (Civil Supplies), Agra, that there was no contravention by them of an order issued under section 3 of the Act.
It is true that the seizure was with intent to confiscate under section 6A of the Act, but that would not make the seizure illegal, if, ultimately, it is found that there was contravention of an order issued under section 3 of the Act.
If the facts were not in controversy and if the petitioners were able to prove that there was wrongful seizure of wheat by the State Government of Uttar Pradesh at the check post of Saiyan on the border, while in transit, in the course of inter State trade and commerce from the Union Territory of Delhi, perhaps, they would be entitled to the return of the seized wheat, or, in the alternative, to the payment of price thereof.
[1170 D H, 1171 A] 1144 9:4.
The question that the seizures were in reality for procurement of wheat in furtherance of the directive of the Central Government, and not for breach of the two Control Orders and, therefore, were nothing but a 'colourable exercise of power ', is dependent on facts to be found on investigation.
Further, the question that there being no control price for wheat, the wheat should have been sold by public auction, is again a question that must be raised before the Additional District Magistrate (Civil Supplies), Agra, in the proceedings pending before him under section 6A of the Act.
[1171 C D]
|
tition (Criminal) Nos.
8333 and 8365 of 1981.
(Under article 32 of the Constitution of India) Bhim Singh and P.D. Sharma for the Petitioners.
Altaf Ahmad for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
The petitioners Ashok Kumar Binny and Hans Raj have been detained by the Government of Jammu and Kashmir under section 8 of the Jammu & Kashmir Public Safety Act, 1978.
They have filed these petitions for a writ in the nature of habeas corpus directing their release.
The petitioner Hans Raj was detained on 17th August, 1981 while the petitioner Ashok Kumar Binny was detained on 1st October, 1981.
It is pointed out that although their cases have been referred to the Advisory Board, the Advisory Board has not submitted its report yet to the Government, and as eight weeks from the date of detention have expired there has been a violation of sub section
(1) of section 16 of the Public Safety Act.
In the circumstances, it is urged, the further detention of the petitioners is invalid.
When these petitions were called on for hearing, Mr. Altaf Ahmed, appearing for the respondents, placed before us a wireless communication received by him from the State Government stating the Advisory Board was programmed to sit today and instructing him to seek adjournment in these cases.
We are unable to grant the adjournment because it seems to us that any proceeding now taken by the Advisory Board can be of no consequence in supporting the further detention of the petitioners.
The petitioners enjoy a fundamental right under Article 21 not to be deprived of their personal liberty except according to 144 procedure established by law.
In cases where the Government resorts to preventive detention, clauses (4) to (7) of Article 22 prescribe the conditions relating to preventive detention.
A perusal of these clauses will make it immediately apparent that the Constitution places the greatest emphasis on severely limiting the period of preventive detention and envisages time bound stages for the processing of a case as it reaches its determination.
The Jammu and Kashmir Public Safety Act contains provisions which specify the successive stages and also prescribe the period within which each stage must be completed.
Section 15 declares that after a detention order has been made the Government must, within four weeks from the date of the detention order, place before, the Advisory Board the grounds on which the order has been made, the representation made by the person effected by the order, and where the order has been made by an officer, also the report by such officer.
Thereafter, sub section
(1) of section 16 provides that the Advisory Board, after considering the material before it and such further material as it may deem necessary and after hearing the person concerned, shall "submit its report to the Government within eight weeks from the date of detention".
The obligation placed on the Advisory Board to submit its report within the prescribed period must be construed strictly inasmuch as the personal liberty of a person is involved and having regard to the emphasis which the Constitution has placed, and which emphasis is reflected in the Act, on the necessity of expeditiously determining whether the detention of the person concerned should be continued.
In the cases before us, it is clear that the period prescribed by sub section
(1) of section 16 of the Act for the submission of its report by the Advisory Board has already expired.
On that ground alone, it must be held that the further detention of the two petitioners is invalid.
We are supported in this view by Shri Mritunjoy Pramanik vs The State of West Bengal.
We allow these writ petitions and direct the State of Jammu and Kashmir and other respondents to release the petitioners 145 Ashok Kumar Binny and Hans Raj forthwith.
Immediately on their release, the Chief Secretary, State of Jammu and Kashmir, will intimate to this Court that their release has been effected.
N.K.A. Petitions allowed.
| IN-Abs | The petitioners were detained under the Jammu & Kashmir Public Safety Act 1978.
Their cases were referred to the Advisory Board, which did not submit its report yet to the Government, although eight weeks from the date of detention had already expired.
It was argued that there was a violation of sub section (1) of Section 16 of the Public Safety Act and therefore, further detention of the Petitioners was invalid.
Accepting the petitions it was, ^ HELD: (1) The petitioners enjoy a fundamental right under Article 21 of the Constitution not to be deprived of their personal liberty, except according to procedure established by law.
In cases where a Government resorts to preventive detention, Clauses (4) to (7) of Article 22 prescribe the conditions relating to preventive detention.
A perusal of these Clauses will make it immediately apparent that the constitution places the greatest emphasis on severely limiting the period of preventive detention and envisages time bound stages for the processing of a case as it reaches its determination.
The Jammu & Kashmir Public Safety Act contains provisions which specify the successive stages and also prescribe the period within which each stage must be completed [143 H, 144 A B] 2.
It is clear that the period prescribed by sub s (1) of section 16 of the Act for the submission of its report by the Advisory Board has already expired.
Sub section
(1) of section 16 provides that the Advisory Board, after considering the material before it and such further material as it may deem necessary and after hearing the person concerned, shall .
submit its report to the Government within eight weeks from the date of detention. ' The obligation placed on the Advisory Board to submit its report within the prescribed period must be construed strictly in as much as the personal liberty of a person is involved and having regard to the emphasis which the Constitution has placed, and which emphasis is reflected in the Act, on the necessity of expeditiously determining whether the detention of the person concerned should be continued.
[144 B F] 143 Shri Mritunjoy Pramanik vs The State of West Bengal, , referred to.
|
Civil Appeal No. 1472 of 1980.
Appeal by Special leave from the judgment and order dated the 1st February, 1980 of the Delhi High Court in Civil Revision Petition No. 122 of 1980.
Madan Bhatia, Rajiv Behl and Sushil Kumar for the Appellant.
L.M. Singhvi, L.R. Gupta M.V. Goswami and L.K. Pandey for the Respondent.
The Judgment of the Court was delivered by VARADARAJAN J.
This appeal by special leave is directed against the one word order dated 1.2.1980 of the learned Single Judge of the 55 Delhi High Court dismissing Civil Revision Petition No. 122 of 1980 in limine.
The tenants who were respondents in the Rent Control Eviction Petition, filed the Civil Revision Petition against the Rent Controller 's order dated 30.10.1979, declining to permit them to raise certain grounds of defence while granting leave to defend the eviction petition on certain other grounds.
Special leave to appeal against the order of the learned Single Judge of the High Court has been granted by this Court only on the question whether section 14A of the Delhi Rent Control Act, 1958 is applicable or not to the facts and circumstances of the case "in view of the later Circular of 1977".
The "later Circular of 1977" mentioned in the special leave granted by this Court on 5.8.1980 is the Office Memorandum dated 14.7.1977 of the Joint Secretary to the Government of India, Ministry of Works and Housing, Directorate of Estates, hereinafter referred to as the "second notification".
The same Joint Secretary to the Government of India in the same Ministry had issued the earlier Memorandum dated 9.9.1975, hereinafter referred to as the "first notification".
The respondent landlord filed the Petition for eviction of the appellants under section 14A read with section 25B of the Delhi Rent Control Act, 1958, hereinafter referred to as the "Act".
In the Eviction Petition the respondent had alleged that by virtue of his being a Government servant he has been allotted residential accommodation at No. 83 Lodhi Estate, New Delhi since November 1971.
Under the first notification he is required to vacate the Government accommodation and shift to his own house No. 11 B Maharani Bagh, New Delhi, which is now in the occupation of the appellants, and if he failed to do so he is to incur the obligation of paying rent/licence fee of Rs 1,448 per mensem on the ground that he owns a residential building in the Union Territory of Delhi and still continues to occupy Government accommodation.
The appellants have not vacated the premises occupied by them in spite of several assurances given by them since February 1976.
The respondent is paying a penal rent of Rs. 1,448 per mensem for the Government accommodation because he had not vacated that accommodation provided to him by the Government as a Government servant.
After presentation of the Eviction Petition and service of notice under section 25B of the Act, the appellants filed a Petition for grant of leave to defend the main Petition.
One of the objections disallowed, with which we are concerned in this appeal, is that in view of the second notification the respondent is not required to vacate the 56 Government accommodation now available to him and that he is, therefore, not entitled to evict the appellants under the provisions of section 14A of the Act.
The Civil Revision Petition filed by the appellants against the order of the Additional Rent Controller has been dismissed by the learned Single Judge of the High Court as mentioned above.
The appellants have, therefore, filed this appeal by special leave against that order.
We are concerned in this appeal with section 14A (1) of the Act, which reads thus: "14A (1) Where landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required, by, or in pursuance of, any general or special order made by that Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations, on the ground that he owns, in the Union territory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order to such landlord notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force in any contract (whether express or implied), custom or usage to the contrary, a right to recover immediately possession of any premises let out by him: Provided that nothing in this section shall be construed as conferring a right on a landlord owning, in the Union territory of Delhi, two or more dwelling houses, whether in his own name or in the name of his wife or dependent child, to recover the possession of more than one dwelling house and it shall be lawful for such landlord to indicate the dwelling house, possession of which he intends to recover. .
There is no dispute that the respondent is the owner of the premises in question, namely, 11 B Maharani Bagh, New Delhi, now occupied by the appellants on a rent of Rs. 2,100 per mensem and that he is at present in occupation of Government accommodation at No. 83 Lodhi Estate, New Delhi and is obliged to pay 57 penal rent/licence fee of Rs. 1,448 per mensem.
The relevant portion of the first notification reads thus: "That undersigned is directed to say that the question of allotment of Government residential accommodation to officers owing houses at or near the stations of their posting has been under consideration of Government for some time past.
It has now been decided, in supersession of all previous orders on the subject, as follows: (i) Those Government servants, who build houses in future at the place of their posting, within the limits of any local or adjoining municipality, whether with or without Government assistance, or who become owners of houses in future either in their own names or in the names of any members of their families shall be required to vacate Government accommodation in their occupation from the date their own houses are fit for occupation.
(ii) Those Government servants, who have already built houses at the place of their posting within the limits of any local or adjoining municipality, whether with or without Government assistance, or who own houses either in their own names or in the names of any members of their families shall be required to vacate the Government accommodation allotted to them, within three months from the 1st of October 1975.
If they do not vacate Government accommodation after that period, they would be charged licence fee at market rates.
(iii)Hence onward, no Government accommodation should be allotted to an officer owning a house at the place of his posting within the limits of any local or adjoining municipality.
A certificate shall be obtained from a prospective allottee that he has no house at the station of his posing within the limits of any local or adjoining municipality either in his own name or in name of any member of his family.
(iv) . . 58 (v) . . 2. . 3.
The Ministry of Home Affairs, etc.
are requested to bring the above decision of Government to the notice of all their attached and subordinate offices, and ensure that the decision is implemented in respect of different pools of Government residence under their control.
In so far as general pool accommodation is concerned, the Ministry of Home Affairs, etc., are requested to bring this to the notice of all Government Servants who are eligible for general pool accommodation as well as those who have already been allotted accommodation from the general pool, asking them by 15th October, 1975 to indicate whether they have their own houses as covered by these orders.
In case they have, a declaration may be obtained from them in the prescribed proforma and forwarded to the Directorate of Estate (Coordination I Section) by 15th November, 1975.
Other officers who do not own houses should also furnish a declaration to that effect.
All officials who have been allotted general pool accommodation may be advised that it is their responsibility to inform the Directorate of Estates, when they or any member of their families become owners of houses in future, within one month from the date of becoming such owners.
All officers eligible for general pool accommodation may also be warned that severe action will be taken against them in case they furnish any incorrect information".
In addition to this general first notification relating to Government accommodation in the occupation of Government employees there is a special order dated 22.1.1976 of the Assistant Director of Estates, New Delhi calling upon the respondent to vacate the Government accommodation No. 83 Lodhi Estate allotted to him since 31.12.1975, failing which he would be charged market rent with effect from 1.1.1976 at the rate fixed by Government from time to time and informing him that a bill at the market rate of licence fee for the said premises will follow.
59 In the affidavit filed in support of the Petition for grant of leave to defend the main Eviction Petition the appellants have stated that the respondent is occupying a huge, massive and palatial bungalow in the Lodhi Estate, New Delhi built on an area of about two acres and allotted to him by the Government and that whereas he is paying an alleged rent of Rs. 1,448 per mensem for that accommodation, he is getting a rent of Rs. 2,100 per mensem for his premises occupied by the appellants and he is thereby gaining a sum of Rs. 652 per mensem.
The appellants have further stated in that affidavit that there is a clear shift in the policy of the Government whereby Government accommodation is made available to even those employees who happen to have their own houses at Delhi and that Government have modified the notification relied upon by the respondent whereby house owing officials have become eligible for allotment of Government accommodation at the places of their posting with effect from 1.6.1977.
The notification said to modify the first notification is the second notification.
The relevant portion of that notification reads thus: "The undersigned is directed to say that the orders contained in this Ministry 's office Memorandum No. 12031 (1)/74 Pol.
II, dated 9.9.1975, as modified from time to time have been reconsidered.
Government has decided that the restrictions on allotment of accommodation to houses owning officers should be modified with effect from 1.6.1977, making house owning officers eligible for Government accommodation as communicated in this Ministry 's Office Memorandum of even number dated the 29th June, 1977.
It has also been decided that allotment of such accommodation to a house owning official will be on normal rent if the income from his own house does not exceed Rs. 1,000 p.m. or half the market rent if the income exceeds Rs. 1,000 p.m. but does not exceed Rs. 2,000 p.m. and on full market rent if the income is above Rs. 2,000 p.m.
Rent will be recovered on the same basis w.e.f.
1.6.1977 also from those house owing officials who are retaining Government accommodation on payment of market rents.
These decisions will apply equally whether the house is owned by the officer or his/her wife/husband or by his/her dependent children.
60 2. . 3.
Allotment of accommodation to house owning officers who have already vacated Government accommodation.
Such officers will be considered for allotment of accommodation in their turn on the basis of their priority date under the allotment rules.
No preference should be shown to them in the matter of allotment in consideration of the fact that they were earlier in occupation of Government accommodation and had vacated it in compliance with the earlier orders to which the officers are normally entitled without restriction of any locality or without any reference to the types of accommodation which the officers were occupying previously.
As usual, officers eligible for types V and above should also be considered for allotment in the types next below on the basis of their priority for such types.
After accepting initial allotment, they will be eligible for change in the normal manner in accordance with the allotment rules.
4. . 5. . 6.
In so for as the general pool is concerned officers who have already vacated Government accommodation may submit fresh applications for allotment of accommodation in the prescribed application form, indicating the details of the houses owned by them or their spouses or dependent children, alongwith documentary proof of the income they derive from the houses they own.
House owing officers, who are continuing in Government accommodation, should also furnish suitable documentary proof of the income they get from their private houses, to enable the Director of Estates to fix the licence fee recoverable from them w.e.f. 1.6.1977".
Mr. Madan Bhatia, learned counsel for the appellants, submitted that while under the first notification the respondent was required to vacate the Government accommodation within three 61 months from 1.10.1975 on pain of being liable to pay licence fee at the market rate if he failed to vacate within that time, Government employees like respondent have become eligible for Government accommodation under the second notification and are, therefore, not obliged to vacate the Government accommodation and that the respondent is, therefore, not entitled to seek eviction of the appellants from his premises under section 14A of the Act though he may file a Petition for eviction under section 14 (1) (e) of the Act which is a general provision applicable to all landlords who seek to evict their tenants on the ground that they require the premises for their own bonafide occupation.
Section 14 (1) (e) reads thus: "14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely : (a) . . (b) . . (c) . . (d) . . (e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation: Explanation For the purposes of this clause, "premises let for residential purposes" include any premises which having been let for use as a residence are, without the con 62 sent of the landlord, used incidentally for commercial or other purposes; . . " In support of the contention that in view of the second notification the respondent is not entitled to have recourse to the provisions of section 14A of the Act, Mr. Madan Bhatia relied upon the decision of this Court in Busching Schmitz Private Ltd. vs P.T. Menghani and Anr.
where the Court has observed at page 323 thus: "Supposing the landlord, after exploiting the easy process of section 14A, relets the premises for a higher rent; the social goal boomerangs because the tenant is ejected and the landlord does not occupy, as he would have been bound to do, if he had sought eviction for bona fide occupation under section 14 (1) (e).
Section 19 obligates the landlord in this behalf.
In literal terms, that section does not apply to eviction obtained under section 14A.
But the scheme of that section definitely contemplates a specific representation by the petitioner landlord to the Controller that because he has been ordered to vacate the premises where he is residing therefore, he requires immediate possession for his occupation. .
Once we grasp this cardinal point, the officer 's application for eviction under section 14A can be entertained only on his averment that he, having been asked to vacate, must get into possession of his own. .
The cause of action is not only the government order to vacate, but his consequential urgency to recover his own building." Mr. Madan Bhatia relied also on the decision of learned single Judge of the Delhi High Court in K.D. Singh vs Shri Hari Babu Kanwal, where the learned Judge has observed thus: "At the time when this application was brought in February 1977, the Circular of 9.9.1975 held the field.
Unfortunately, for the landlord this position under went change when the Central Government issued a revised Circular dated 14.7.1977 by which the orders contained in 63 the earlier circular dated 9.9.1975 were modified after reconsideration . .
A vital change thus took place by the Circular of 14.7.1977, namely, that there is no direction to a person who owns a house and who is in occupation of a residential premises allotted to him by the Central Government to vacate such residential accommodation. . .
Once therefore, the revised Circular of 14.7.1977 has come, the very basis on which the Eviction Application under s.14 A of Act was brought has ceased to exist and cannot avail him . .
It must be realised that s.14A was brought in only for a limited purpose to enable the Government servants in getting immediate possession of their house when they had been directed to vacate the Government accommodation.
The special legislation was made to serve special purpose in pursuance of the Circular of 9.9.1975.
Once that purpose has been modified and the Government has revised its decision and there is no direction to vacate such residential accommodation, it is impermissible in law to allow a Government servant to invoke s.14A and frustrate the beneficial Act of the Rent Control legislation like the Delhi Rent Control Act".
We do not agree with this view of the learned Judge.
It is seen from paragraph 3 of the Order of the Additional Rent Controller, which was sought to be revised by the High Court, that the respondent is paying a rent of Rs. 1,448 per mensem for the Government accommodation No. 83 Lodhi Estate, New Delhi.
In the reply affidavit filed in the Special Leave Petition the respondent has stated that he is liable to pay Rs. 1,543 per mensem for the Government accommodation as penal rent on account of his failure to vacate the same.
The respondent has produced in this Court a communication addressed to him by the Assistant Director of Estates, New Delhi saying that without prejudice to any other action which may be taken in respect of the Government accommodation which has been allotted to him, his liability will continue to increase to Rs. 2,898 per mensem and three times that rate on the expiry of 15 days from the date of service of orders of eviction under the till he vacates and restores the premises to the Central Public Works Department.
These facts and the liability of the 64 respondent to pay full market rent for the Government accommodation with effect from 1.6.1977 and the second notification in the light of his getting rental income exceeding Rs. 2,000 per mensem from his own premises show that the respondent has to incur certain obligations on his failure to vacate Government accommodation on the ground that he owns in the Union territory of Delhi a residential accommodation either in his own name or in the name of his wife or dependent child.
We do not find anything in the second notification taking away the obligation which has been imposed on the respondent by the first notification to vacate the Government accommodation within three months from the 1st of October 1975.
We are of the opinion that the second notification, without (taking away the obligation imposed by the first notification on Government employees owning houses in their own names or in the name of any other member of their families, within the limits of their place of posting, to vacate the Government accommodation within three months from the first of October 1975, has given an option to those employees to continue to occupy the Government accommodation subject to the obligation mentioned in the second notification, namely, that the house owning Government employee will have to pay normal rent for the Government accommodation if the income from his own house does not exceed Rs. 1,000 per mensem of half the market rent if the income from his own house exceeds Rs. 1,000 per mensem but does not exceed Rs. 2,000 per mensem and full market rent if the income from his house is above Rs. 2,000 per mensem with effect from 1.6.1977.
In the present case the market rent/licence fee which the respondent had to pay for the Government accommodation occupied by him on the date of institution of Eviction Petition was Rs. 1,448 per mensem and it had been increased to Rs. 1,543 per mensem as stated in the counter affidavit filed by the respondent in the Special Leave Petition and it has been further enhanced to Rs. 2,898 per mensem by the letter dated 17/18 7 1981 of the Assistant Director of Estates addressed to the respondent and referred to above.
The respondent has thus an option to continue to occupy the Government accommodation subject to the said obligation without vacating the Government accommodation within a period of three months from the Ist of October, 1975.
We are of the opinion that it is not open to the appellants to compel the respondent to exercise his option and continue to occupy the Government accommodation in order that they may continue to occupy the premises in question as the tenants.
Even apart from the first notification which is general in nature and has been modified by the 65 second notification as mentioned above, there is the special order dated 22.1.1976 which required the respondent to vacate the Government accommodation by 31.12.1975, failing which he is to pay market rent with effect from 1.1.1976 as mentioned above.
In these circumstances it is not possible for us to accept the argument of Mr. Madan Bhatia that the respondent is not entitled to have recourse to section 14A of the Act for seeking eviction of the appellants from the premises in question, having regard to first and second notifications and the special order dated 22.1.1976.
Dr. L.M. Singhvi, learned counsel for the respondent invited our attention to the decision of another learned Single Judge of the Delhi High Court in J.L. Paul vs Ranjit Singh (supra) where we find the following observations: "The last objection of the petitioner is that the notifications granting a right to the Government employee to seek eviction under Section 14A of the Act have been withdrawn, that this defence raises a triable issue and, therefore, the Controller ought to have granted leave to contest so that he may produce evidence on record in support of this part of his defence.
The right to claim eviction accrues to a landlord under section 14A of the Act and not under any notification issued by the Government.
The Government notification, general or special, only requires a landlord Government allottee to vacate the accommodation as he owns his house or pay penal rent.
The respondent submits that the general notification dated September 9, 1975 and the special order dated December 26, 1975 have never been withdrawn.
His contention is that there has been a notification about the rate of rent/licence fee to be paid by a Government employee, if he is also owner of his own house at the place of his posting and does not vacate allotted premises.
In short his contention is that right of eviction is available to a landlord allottee of Government accommodation if he fulfils the conditions mentioned in section 14A of the Act.
According to him there is modification that if the income of the landlord from his own house does not exceed Rs. 1,000 per month, he is liable to pay only the normal rent of the Government allotted accommodation, but if his income from his own house exceeds Rs. 1,000 and does not exceed Rs. 2,000 he is liable to pay half the market rent and in cases where his income from his own house is above 66 Rs. 2,000 per month, he is liable to pay full market rent.
The respondent contends that section 14A of the Act conferring upon a landlord/Government allottee (a right) to get his own vacated has never been repealed.
The learned counsel for the respondent further contends that mere assertion of the petitioner that the notifications have been withdrawn is vague and does not give him any right to leave to contest and lead any evidence. .If any notification has been withdrawn or cancelled, such an order must be in writing.
The petitioner/tenant in his application does not disclose any notification under which the Government notification requiring a landlord/Government employee to vacate has been withdrawn. . .
Thus the notification dated September 9, 1975 stands modified to the extent as to what rate of rent would be payable by the respondent Government allottee/landlord owning his own house if he retains the allotted premises, that is, if he fails to vacate the Government accommodation in pursuance of the general order dated September 9, 1975 and the special order dated December 26, 1975.
The income of the respondent from his own house, that is, suit property No. 164 Greater Kailash 1, New Delhi is Rs. 1,950 per month.
He is getting Rs. 850 per month from the petitioner occupying first floor and Rs. 1,100 per month from 'Escorts ' occupying the ground floor.
In accordance with the notification dated July 14, 1977, the respondent/landlord is thus liable to pay half the market rent from June 1, 1977 if he does not vacate the Government allotted accommodation.
In fact after the issue of notification dated July 14, 1977 the respondent has been directed to pay half the market rent by means of an order dated September 20, 1977 issued by the Directorate of Estates, Government of India with effect from June 1, 1977.
In short, it is certain that there is the general notification dated September 9, 1975 and the special order dated December 26, 1975 requiring the respondent/landlord to vacate the Government allotted residential accommodation or in default to pay half the market rent.
In other words he is to incur certain obligations, The liability is on account of the fact that he owns 67 the house in suit in the Union Territory of Delhi, his place of posting. . .
On December 12, 1979 Directorate of Estates was required to state whether the notification dated September 9, 1975 stands withdrawn or it was simply modified.
The Directorate of Estates in his letter dated December 14, 1979 informed that the Memorandum dated September 9, 1975 was not withdrawn but was only modified by the Memorandum dated July 14, 1977. . .
So if the two notifications dated September 9, 1975 and July 14, 1977 are read together, it appears that there is no cancellation of the earlier notification and that it is only a notification of the rate of rent payable by an allottee owning his own house.
Under this notification dated July 14, 1977 it is further provided that with effect from June 1, 1977 rent of allotted premises shall be recovered from the house owning officials retaining the premises at the rates mentioned therein.
The respondent is, therefore, liable to pay the rent accordingly and thus liable to incur obligation in default of vacating the premises. . .
The respondent satisfies the requirement of section 14A of the Act.
There is no defence available to the petitioner against the eviction application under section 14A of the Act". . .
In the present case also there is nothing on record to show that the obligation imposed upon respondent by the first notification to vacate the Government accommodation within three months from the Ist of October 1975 and by the special order dated 22.1.1976 by 31.12.1975, has been withdrawn.
The respondent can continue to 68 occupy the Government accommodation only subject to certain obligations.
We, therefore, hold that the respondent is entitled to have recourse to section 14A of the Act for evicting the appellants from the premises in question.
Accordingly the appeal fails and is dismissed with costs.
S.R. Appeal dismissed.
| IN-Abs | The respondent landlord filed a petition for eviction of the appellant, under section 14A read with section 25B of the Delhi Rent Control Act, 1958 on the ground of requirement for personal occupation, in view of the fact that he was forced to pay penal rent of Rs. 1,448 from his Government accommodation as per Government of India notification dated 9 9 1975 and the special order dated 22 1 1976 requiring him to vacate the Government accommodation by 31 12 1975.
After presentation of the eviction petition and service of notice under section 25B of the Act, the appellant filed a petition for grant of leave to defend the main petition and raised several objections in the written statement.
One such objection was that in view of the later circular of the Government dated 14 7 1977, the respondent was not required to vacate the Government accommodation and, therefore, he was not entitled to evict the appellants under the provisions of section 14A of the Delhi Rent Control Act.
The said objection having been disallowed by the Additional Rent Controller the appellant filed Civil Revision Petition before the Delhi High Court, which met with the same fate.
Hence the appeal against that order by special leave.
Dismissing the appeal, the Court ^ HELD: 1.
The respondent landlord is entitled to have recourse to section 14A of the Delhi Rent Control Act, 1958 for evicting the appellants from the premises in question.
[68 A B] 2.
The second notification dated 14 7 1977 of the Government, without taking away the obligation imposed by the first notification dated 9 9 75 on Government employees owning houses in their own names or in the name of any other member of their families, within the limits of their place of posting, vacate the Government accommodation within three months from 1st of October, 1975, has given an option to those employees to continue to occupy the Government accommodation subject to the obligation mentioned in the second notification, namely, that the house owning Government employee will have to pay normal rent for the Government accommodation if the income from his own house does not exceed Rs. 1,000 per mensem half the market rent if the 54 income from his own house exceeds Rs. 1,000 per mensem but does not exceed Rs. 2,000/ per mensem and full market rent if the income from his house is above Rs. 2,000 per mensem with effect from 1 6 1977.
[64 C E] 3.
In the present case, (i) even apart from the first notification dated 9 9 1975 which is general in nature and has been modified by the second notification dated 14 7 1977 there is the special order dated 22 1 1976 which required the respondent to vacate the Government accommodation by 31 12 1975, failing which he is to pay market rent with effect from 1 1 1976: (ii) the market rent/licence fee which the respondent had to pay for the Government accommodation on the date of institution of the Eviction Petition was Rs. 1,448 per mensem and it had been increased to Rs. 1,543 per mensem and further enhanced to Rs. 2,898 per mensem by the letter dated 17/18 7 1981 of the Assistant Director of Estates addressed to the respondent: (iii) there is nothing on record to show that the obligation imposed upon respondent by the first notification to vacate the Government accommodation within three months from 1st of October, 1975 and by the special order dated 22 1 1976 by 31st December, 1975 has been withdrawn; (iv) the respondent has an option to continue to occupy the Government accommodation subject to certain obligations contained in the two notifications without vacating the Government accommodation within a period of three months from 1st of October, 1975 and (v) it is not open to the appellants to compel the respondent to exercise his option and continue to occupy the Government accommodation in order that he may continue to occupy the premises in question as the tenant.
[64 E H, 65 A B] Busching Schmitz Private Ltd. vs P.T. Menghani and Anr., ; referred to.
K.D. Singh vs Shri Hari Babu Kanwal, , overruled.
J.L. Paul vs Ranjit Singh, , approved.
|
Civil Appeals Nos.
2197 2199 of 1969.
From the judgment and order dated the 16th February, 1965 of the Madras High Court in Civil Revision Petition Nos.
2399, 2400 & 2401 of 1961.
P. Govindan Nair, K. J. John and Mrs. Bady Krishnan for the Appellants .
M. Natesan, Mrs. J.Ramachandran and K. Ram Kumar for the Respondents.
The following Judgments were delivered: DESAI, J. Respondents in each of these appeals are the landlords of the land more particularly described in the three different petitions filed by them in the Court of the Revenue Divisional Officer, Namakkal in Tamil Nadu State seeking to evict tenants of 150 different parcels of land on the allegation that the concerned tenants were in arrears of rent for the years 1958 59, 1959 60 and 1960 61.
The tenants who are appellants in these three appeals appeared in the respective petitions and contested the same on diverse grounds but the only one now surviving at this stage is; whether in view of the language employed in section 3, 4(a) and (b) of the Madras (now Tamil Nadu) Cultivating Tenants Protection Act, 1955 ( 'Act for short), the Revenue Divisional officer erred in passing a composite order for payment of rent found to be in arrears within the time prescribed by him and on default, without any further proceeding, directing eviction of the tenants.
The respondents purchased the land cultivated by the tenants in each of the petitions under sale deeds Ext.
P 6 dated January 22, 1960 and Ext.
P 7 dated March 9, 1960, from the erstwhile owner of the land one Nachayammal.
Subsequently by the deed of assignment Ext.
P 5 dated 5th December, 1960, Nachayammal, the vendor of the respondents assigned the rent in arrears for the period 1958 59 and 1959 60 to the respondents.
By the time, action in each case was commenced, according to the respondents landlords rent for the year 1960 61 had become due and payable The respondents accordingly filed C.T.P.A. Nos. 1, 2 and 3 of 1961 against the respective tenants on January 2, 1951, for eviction of the tenants on the ground that they were in arrears of rent due and payable for the years 1958 59, 1959 60 and 1960 61.
The Revenue Divisional Officer overruled all the contentions of the appellants tenants in each case and held that the tenants were in arrears of rent for the aforementioned three years and that they were liable to pay the same.
It was further held that since by the deed of assignment, previous landlord assigned the arrears of rent for two years 1958 59 and 1959 60 in favour of the respondents, they were not only entitled to commence the action for recovery of arrears of rent due and payable to the previous landlord but they were also entitled to evict the tenants for failure to pay rent in arrears.
Having recorded these findings the Revenue Divisional Officer passed identical order in each case with variation in figures.
only one order may be extracted to focus the attention on the controversy now brought to this Court.
In C.T.P.A. No. 1/61 the following final order was made: "In view of my findings above I hold that the respondents are in arrears of rent to the extent of Rs. 2,850 for the years 1958 59, 1959 60 and 1960 61 to the petitioners.
I 151 direct under section 3, 4(a) that this amount be paid to the petitioners within six weeks from the date of this order failing which they shall be evicted from the suit lands.
" This order was made on November 6, 1961.
The tenants were, therefore, under an obligation to pay the arrears found due by December 18,1961, to qualify for the protection of the Act.
Admittedly the tenants did not deposit the arrears found due by the Revenue Divisional Officer but filed three Civil Revision Petitions on December 11, 1961 in the High Court.
While admitting the revision petitions on December 15, 1961, the High Court granted conditional stay directing that the rent found in arrears be deposited within the time set out in the order of the High Court.
A dispute appears to have been raised about the deposit made by the tenants whereupon the High Court on May 2, 1962, directed that an additional amount of Rs. 950 be deposited by the tenants within the time prescribed by it and it is conceded that the conditional orders have been fully complied with.
The most important contention that engaged the attention of the High Court at the hearing of the Revision Petitions was whether the Revenue Divisional Officer was in error in passing a composite order whereby he determined the amount of rent in arrears and after specifying the time within which the amount in arrears should be paid up, prescribed the consequences of failure to act within the prescribed time, namely, that the tenants would be evicted.
The High Court noticed some of its own conflicting decisions bearing on the topic but ultimately held that the view taken by Srinivasan, J. in Venkitaswami Naicker vs Ramaswami Naicker, in which it was held as under, was correct: "Having regard to the object of the enactment it is clear that the law empowers the Revenue Divisional Officer to grant a reasonable time to the tenant to pay the arrears in order to avoid eviction.
There may be a variety of circumstances by reason of which the tenant might find it difficult to comply with the direction to deposit the arrears by the date fixed.
If the date so fixed initially is to be an inflexible and unalterable date, it is bound to work considerable hardship upon the tenants.
It would be a mechanical application of the provision of the section for the purpose of eviction.
The object of the section is to avoid 152 eviction wherever possible and not insist upon eviction for such reasons as obtain in the case.
" Having noticed the law as indicated in the passage extracted, the High Court observed that the order made by the Revenue Divisional Officer was not one for eviction.
A further unqualified order has to be passed by the Revenue Divisional Officer directing the eviction But at a later stage in the judgment the High Court appears to have taken a somersault when it observed that in the case before it the High Court found nothing wrong in the order which the Revenue Divisional Officer had passed.
In other words, the composite order was held to be legal and once the revision petitions filed by the tenants were dismissed by the High Court, the order passed by the Revenue Divisional Officer would immediately come into operation.
With respect our task became none too easy to wade through the irreconcilably contradictory approach of the High Court.
Ultimately the High Court dismissed the three revision petitions.
Hence these three appeals by certificate.
The object behind enacting the Act clearly manifests itself by reference to its long title which reads: "An Act for the protection from eviction of cultivating tenants in certain areas in the State of Madras.
" It was a beneficient legislation for granting security or tenure to cultivating tenants of agricultural lands.
It is a well settled canon of construction that in construing the provisions of such enactments the court should adopt that construction which advances, fulfils and furthers the object of the Act rather than the one which would defeat the same and render the protection illusory.
It is not in dispute that the tenants in each of these appeals are cultivating tenants and the lands of which they are tenants are lands covered by the Act.
They are sought to be evicted on the only ground that they have committed default in payment of rent payable from year to year for a period of three years.
Mr. Natesan learned counsel who appeared for the respondents urged that if the Revenue Divisional Officer has a discretion to grant time to the defaulting tenant to repair the default, there would be nothing illegal in granting time and simultaneously providing for consequence of default.
This contention may be examined from three independent angles; 153 (1) Has Revenue Divisional Officer a discretion to grant time after being satisfied that a default is committed, to repair the default within the time considered reason able by him and so ordered by him ? (2) Has he a discretion to further extend the time if the defaulting tenant is unable to repair the default within the time fixed by him ? (3) What is the impact of answer of the aforementioned two questions on his jurisdiction to pass a composite order ? Section 3 and the relevant sub sections read as under: 3(1) Subject to the next succeeding sub sections, no cultivating tenant shall be evicted from his holding or any part thereof, by or at the instance of his landlord, whether in execution of a decree or order of a court or otherwise; X X X (4)(a) "Every landlord seeking to evict A cultivating tenant failing under sub section (2) shall, whether or not there is an order or decree of a court for the eviction of such cultivating tenant, make an application to the Revenue Divisional Officer and such application shall bear a Court fee stamp of one rupee." (4)(b) on receipt of such application, the Revenue Divisional Officer shall, after giving a reasonable opportunity to the landlord and the cultivating tenant to make their representations.
hold a summary enquiry into the matter and pass an order either allowing the application or dismissing it and in a case falling under clause (a) or clause (aa) of sub section (2) in which the tenant had not availed of the provisions contained in sub section (3), the Revenue Divisional Officer may allow the cultivating tenant such time as he considers just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant for depositing the arrears of rent payable under this Act inclusive of such costs as he may direct.
If the cultivating tenant deposits the sum as directed, he shall be deemed to have paid the rent under sub section 3(b).
154 If the cultivating tenant fails to deposit the sum as directed, the Revenue Divisional Officer shall pass an order for eviction.
" Section 3 of the Act places an embargo on the eviction of a cultivating tenant and the protection extends to rendering a decree or order of a court for eviction nugatory.
There is an enabling provision in sub section (4)(a) of section 3 which enables the landlord to seek eviction of a cultivating tenant on the ground which may be available to him under the Act, When such an application is made, clause (b) of sub section (4) prescribes the procedure to be followed by the Revenue Divisional Officer.
The Officer concerned has to, (i) give an opportunity both to the landlord and the cultivating tenant to make a representation; (ii) hold a summary enquiry into the matter to determine the rent in arrears.
After having determined the rent in arrears the Revenue Divisional Officer has to further enquire the relative circumstances of the landlord and the cultivating tenant and the circumstances which have a bearing on the issues are the circumstances relatable to the need of the landlord for rent and the present paying capacity of the tenant.
After taking into consideration the circumstances of both the landlord and the tenant thus ascertained the Revenue Divisional Officer has to decide what length of time has to be given to the tenant to deposit the rent found in arrears and at that stage the proceeding must stop.
It is something like a preliminary issue to be determined because after a finding is recorded that the tenant is in arrears and the amount of arrears is determined, the Revenue Divisional Officer is under a statutory obligation to grant time to deposit the arrears.
The section grants locus poenitentiae to a tenant who has committed default in payment of rent.
Granting of the time is not a concession dependent upon the sweet will of the Revenue Divisional Officer.
Granting time to deposit the arrears is statutory obligation cast on the Revenue Divisional Officer.
He has a discretion in determining the length of time and this discretion is to be exercised judicially based upon objective facts ascertained in the inquiry relatable to the circumstances of the landlord and the tenant.
In the context in which the expression 'relative circumstances of the landlord and the cultivating tenant is used clearly manifests the legislative intention that the circumstances of the landlord for recovering arrears of rent which may indicate his urgent need for the money or if the rent is in the crop share, the crop, and the relative circumstance of the tenant would be his present financial position to repair the default.
On both sides there can be number of circumstances one can envi 155 sage which, if properly brought to the notice of the Revenue Divisional Officer, would influence his judicial decision as to the length of time to be granted by him for the deposit of arrears.
Where the landlord is a big landlord to whom payment of rent by one tenant of a small amount would not make any difference and the tenant is a needy tenant who was so involved in such depressing circumstances that he could not pay even the small amount of rent in time and when such circumstances are judicially appraised, the Revenue Divisional Officer may shorten or lengthen the time to be given for depositing the amount so as to repair the default.
It is not open to the Revenue Divisional Officer to arbitrarily fix time.
His order fixing the time must show on the face of record that he made the necessary enquiry as to the relative circumstances of the landlord and the cultivating tenant, and after evaluating the circumstances placed before him by both the sides he would determine the length of time and the order fixing the time must at least give some indication as to what weighed with him in fixing the certain time which he fixed in a given case.
The proceedings before the Revenue Divisional Officer are judicial proceeding.
For the purpose of the proceedings under section 3 of the Act, the Revenue Divisional Officer is a Court as provided in section 6(b) of the Act and a revision petition would lie to the High Court against the order of the Revenue Divisional Officer.
If the proceedings are judicial and there is a lis between the parties, the rival contentions have to be properly adjudicated upon the evidence placed before the Court.
Before the Revenue Divisional Officer can make an order for eviction of a cultivating tenant he has, as a matter of 'statutory obligation, to determine the issue which arise in the case under sub section (4)(b) of section 3, record a finding on each of them and make a speaking order.
By the very language of sub section (4)(b) of section 3, the Revenue Divisional Officer has to grant time to the cultivating tenant to deposit the arrears found due by him and the length of time is to be relatable to the circumstances of the landlord and the cultivating tenant.
After determining the arrears and ascertaining the circumstances of landlord and tenant and fixing the length of time to pay the arrears, the proceeding at that stage must stop.
This is implicit in sub section (4)(b) of section 3.
The scheme of the Act is that merely on determination of rent in arrears the Revenue Divisional Officer is not to conclude that there is such default which has become irreparable and that he is 156 under an obligation to evict the tenant.
In fact, the statute grants locus poeniteniae to the tenant by making it obligatory upon the Revenue Divisional Officer to grant some time to the tenant to repair the default.
If after the time so granted expires and the tenant fails to comply with the order calling upon him to deposit the arrears there would be a default which may become irreparable and eviction may follow.
Till then there is no jurisdiction in the Revenue Divisional Officer to direct eviction.
In fact the High Court itself has taken this very view when it observed that the view taken by Srinivasan, J. was the correct one having regard to the avowed object of the Act, namely, preventing unreasonable eviction and affording protection to the tenants to retain the holdings so long as interests of the landlord in the matter of the prompt payment of rent are safeguarded.
At another stage, the High Court observed that the time that has to be given or allowed to the tenant to deposit the arrears is to be determined by considering what is just and reasonable having regard to the relative circumstances of both the parties and by its very nature this must be elastic and flexible and not fixed or final.
In other words, the High Court was of the opinion that the composite order is not contemplated by sub section (4)(b) of section 3.
If sub section (4)(b) of section 3 does not contemplate passing of a composite order, what is the correct procedure that must be followed in a proceeding under that sub section ? That is self evident from the language employed in that sub section.
After the application is received and the parties are summoned and representations are heard, the Court must determine whether the cultivating tenant is in arrears of rent.
If the answer is in the affirmative, it has to determine the arrears in terms of its money value.
Thereafter, the Revenue Divisional Officer must ascertain relative circumstances of the landlord and the tenant and as indicated hereinabove, these circumstances must be relatable to the need of the landlord for prompt payment and the present prevalent circumstances of the tenant relatable to his paying capacity.
Thousand and one circumstances can be envisaged which may have a bearing on this aspect.
After these circumstances are properly adjudicated and evaluated the Revenue Divisional Officer must fix time within which the tenant should pay the amount and repair the default.
It was seriously contended by Mr. Natesan as to what is there in the scheme of the Act and especially in the language of sub 157 section (4)(b) which would make it impermissible for the Revenue Divisional Officer simultaneously passing an order determining rent in arrears and directing that if the tenant fails to pay the amount within the time prescribed by the Court eviction shall follow as a matter of course.
If this construction of sub section (4)(b) as canvassed by Mr. Natesan is adopted the Revenue Divisional Officer would be denying to himself a more beneficial jurisdiction conferred upon him, namely, to extend the time for making the payment if an evaluation of circumstances so placed before him he is satisfied that a further extension is not only just but not to grant it would be harsh and unjust and would be defeating the object for which the Act was enacted.
An analogous provision may be noticed, It is a well accepted principle statutorily recognised in section 148 of the Code of Civil Procedure that where a period is fixed or granted by the court for doing any act prescribed or allowed by the Code, Court may in its discretion from time to time enlarge such period even though the period originally fixed or granted may expire.
If a Court in exercise of the jurisdiction can grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would inhere in its ambit the jurisdiction to extend time initially fixed by it.
Passing a composite order would be acting in a disregard of the jurisdiction in that while directing time simultaneously the court denies to itself the jurisdiction to extend time.
The principle of equity is that when some circumstances are to be taken into account for fixing a length of time within which a certain action is to be taken, the Court retains to itself the jurisdiction to re examine the alteration or modification of circumstances which may necessitated extension of time.
If the Court by its own act denies itself the jurisdiction to do so, it would be denying to itself the jurisdiction which in the absence of a negative provision, it undoubtedly enjoys.
Conditional orders, were held by this Court to be in terrorem, so that dilatory litigants might put themselves in order and avoid delay, but they do not completely estop a court from taking note of events and circumstances which happen within the time fixed.
In Mahant Ram Das vs Ganga Das, in the context of a failure to pay requisite court fee within the time allowed by the Court subject to the condition order that failure to pay would result in dismissal of the appeal, this Court observed as under: "How undesirable it is to fix time peremptorily for a 158 future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal.
These orders turn out, often enough to be expedient.
Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay.
They do not, however, completely, estop a court from taking note of events and circumstances which happen within the time fixed.
For example it cannot be said that, if the appellant had started with the full money order to be paid and came well it time but was set upon and robbed by thieves on the day previous, he could not ask for extension of time, or that the Court was powerless to extend it.
Such order are not like the law of the Medes and the Persians.
" The danger inherent in passing conditional orders becomes self evident because that by itself may result in taking away jurisdiction conferred on the court for just decision of the case The true purport of conditional order is that such orders merely create something like a guarantee or sanction for obedience of the courts order but would not take away the Court 's jurisdiction to act according to the mandate of the statute or on relevant equitable considerations if the statute does not deny such consideration.
In order to avoid subsequent controversy sub section (4)(b) envisages proceedings in two stages and that by itself inhibits passing of a conditional order.
It is, therefore, not possible to accept the construction canvassed for on behalf of the respondents.
As analysed the scheme of sub section (4)(b) of section 3 requires the Revenue Divisional Officer to determine, arrears, ascertain the exact amount payable by the tenant, fix the time for payment after taking into consideration the relevant circumstances of the landlord and the cultivating tenant and then stop there.
There is no power in the Revenue Divisional Officer at that stage to pass an order for eviction.
If the tenant deposits the amount or pays up the rent and repairs the default within the time fixed by the Revenue Divisional Officer, on an application of the tenant pointing out this fact, the original application of the landlord for eviction would have to be dismissed.
If on the other hand the landlord points out to the Revenue Divisional Officer that the cultivating tenant has failed 159 to comply with the order made by the Court and if after notice to the tenant and in the absence of a request for extension of time which again may be judicially examined, the default becomes wilful or contumacious.
It is at that stage and at that stage alone that the Revenue Divisional Officer enjoys jurisdiction to order eviction.
Such jurisdiction improperly exercised at an earlier stage would render the order without jurisdiction.
Surprisingly the High Court reached the same conclusion but failed to follow it.
In all the three cases the Revenue Divisional Officer determined the arrears of rent and gave six weeks ' time to pay the same.
Within the period of six weeks the cultivating tenants in each case approached the High Court and obtained conditional stay, the condition being to deposit the rent in arrears within the time prescribed by the High Court and these orders have been complied with.
If the Revenue Divisional Officer had not denied to himself the further jurisdiction to examine the situation as it emerged on the date of expiry of the period prescribed by him, it would have been brought to his notice that the eviction was unjustified in view of the orders made by the High Court.
But as the order became effective according to the Revenue Divisional Officer on the mere failure to deposit the arrears found due by him, the order of eviction without jurisdiction became effective.
The High Court held that there was no order of eviction but affirmed the order of the Revenue Divisional Officer as one for eviction.
The question then is: What should be my approach in these appeals ? Frankly speaking, on my finding that the latter part of the Revenue Divisional Officer 's order that 'in the event of failure to deposit the amount within the time prescribed eviction would follow, ' being without jurisdiction, I would be required to remand the matter to the Revenue Divisional Officer to proceed from that stage.
However, I cannot overlook the fact that the initial proceedings before the Revenue Divisional Officer started in 1961.
Two decades have rolled by.
The ground of eviction was a technical ground of default repaired by the orders of the High Court when the rent found in arrears was deposited.
The landlords have been paid, may be not specifically within the time prescribed by the Revenue Divisional Officer but within the time prescribed by the High Court.
It is not necessary to decide in this case whether the time prescribed by the Revenue Divisional Officer, if challenged in the superior court i.e. the High Court, the High Court would have jurisdiction to prescribe its own time calling upon the tenant to deposit the amount to repair the default.
That question be kept open but in the facts of this case the amount having been deposited 160 way back in 1961 62, it would be merely adding to the agony of the parties for a very technical consideration to remit the case to the Revenue Divisional Officer.
In the facts of this case it would be an idle formality to remit the case to the Revenue Divisional Officer for the additional reason that he will have to fix a fresh date for deposit of the amount and the amount has already been deposited 19 to 20 years back.
Having regard to all the circumstances of the case and the inevitable consequence flowing from the passage of time, I do not consider it just and proper to remit the case to the Revenue Divisional Officer.
In my opinion the tenants have qualified for the protection of the Act and they were not liable to be evicted.
Accordingly, all the three appeals are allowed and the order for eviction of the tenants in each case is set aside but in the circumstances of the case with no order as to costs.
KOSHAL, J. I have had the advantage of going through the judgment prepared by my learned brother, Desai, J., and find myself in agreement with him on the following points: (a) When the Revenue Divisional Officer (RDO for short) allows time to a cultivating tenant for depositing the arrears of rent in pursuance of the provisions of clause (b) of sub section (4) of section 3 of the Act, he cannot simultaneously pass a conditional order of eviction which is to take effect on a default to occur in future.
An order of that type can, in terms of this section, only be passed 'if the cultivating tenants fails to deposit the sum as directed '.
The orders of the RDO directing eviction and covered by these appeals were thus passed in contravention of the express provisions of the clause and are thus without jurisdiction.
(b) The orders of the RDO directing the deposit of rent having been actually complied with about a couple of decades back it is no use remitting the case to him and it would serve the ends of justice if we declare that the tenants are qualified for the protection envisaged by the Act against their eviction.
(c) All the three appeals merit acceptance and are allowed with no order as to costs, the order for eviction of the tenant in each case being set aside.
161 2.
I may, however, observe that it is wholly unnecessary for the decision of the appeals to determine the question as to whether it is incumbent on the RDO, while acting in pursuance of the provisions of clause (b) above mentioned, to grant time to a tenant who has been found by him to be in arrears of rent.
For one thing, that questions did not form the subject matter of argument on either side at the hearing of the appeals, the only point really canvassed before us being that when the RDO grants time to the tenant he cannot simultaneously pass an order of eviction which is to take effect in future and which he can pass only after the default in making the deposit is committed.
Secondly, that question does not arise in these appeals as in each of the appeals before us the RDO did grant time to the tenants concerned to deposit arrears of rent.
As it is, Desai, J. has arrived at a categorical conclusion that according to clause (b) aforesaid it is obligatory on the RDO to grant time to the tenant for depositing the arrears in all cases falling under clause (a) or clause (aa) of sub section (2) of section 3 of the Act in which the tenant has not availed of the provisions contained in subsection (3) of that section.
Being unable to subscribe to that conclusion I give below my reasons for holding a contrary opinion.
The relevant portion of section 3 is set out hereunder: "3(1) Subject to the next succeeding sub sections, no cultivating tenant shall be evicted from his holding or any part thereof, by or at the instance of his Landlord, whether in execution of a decree or order of a Court or otherwise (2) Subject to the next succeeding sub section, sub section (1) shall not apply to a cultivating tenant (a) who, in the areas where. . . . if in arrear at the commencement of this Act, with respect to the rent payable to the landlord, does not pay such rent within six weeks after such commencement or who in respect of rent payable to the landlord after the commencement of this Act, does not pay such rent within a month after such rent becomes due; or (aa) who, in the other areas of the State of Madras, if in arrear at the commencement of this Act, with respect to the rent payable to the landlord and accrued due subsequent to the 31st March 1954, 162 does not pay such rent within a month after such commencement, or who in respect of rent payable to the landlord after such commencement, does not pay such rent within a month after such rent becomes due; or (b) xx xx xx (c) xx xx xx (d) xx xx xx Explanation I xx xx xx Explanation II xx xx xx Explanation III xx xx xx Explanation IV xx xx xx "(3)(a) A cultivating tenant may deposit in Court the rent or, if the rent be payable in kind, its market value on the date of deposit, to the account of the landlord (i) in the case of rent accrued due subsequent to the 31st March 1954, within a month after the commencement of this Act; (ii) in the case of rent accrued due after the commencement of this Act, within a month after the date on which the rent accrued due.
"(b) The Court shall cause notice of the deposit to be issued to the landlord and determine, after a summary enquiry, whether the amount deposited represents the correct amount of rent due from the cultivating tenant.
If the Court finds that any further sum is due, it shall allow the cultivating tenant such time as it may consider just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant for depositing such further sum inclusive of such costs as the Court may allow.
If the Court adjudges that no further sum is due, or if the cultivating tenant deposits within the time allowed such further sum as is ordered by the Court, the cultivating tenant shall be deemed to have paid the rent within the period specified in the last foregoing sub section.
If, having to deposit a further sum, the cultivating tenant fails to do so within the time allowed by the Court, the landlord 163 may evict the cultivating tenant as provided in sub A section (4). "(c) xx xx xx Explanation I xx xx xx" "(4)(a) Every landlord seeking to evict a cultivating tenant falling under sub section (2) shall, whether or not there is an order or decree of a court for the eviction of such cultivating tenant, make an application to the Revenue Divisional officer and such application shall bear a court fee stamp of one rupee.
(b) on receipt of such application, the Revenue Divisional officer shall, after giving a reasonable opportunity to the landlord and the cultivating tenant to make their representations.
hold a summary enquiry into the matter and pass an order either allowing the application or dismissing it and in a case falling under clause (a) or clause (aa) of sub section (2) in which the tenant had not availed of the provisions contained in sub section (3), the Revenue Divisional officer may allow the cultivating tenant such time as he considers just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant for depositing the arrears of rent payable under this Act inclusive of such costs as the may direct.
If the cultivating tenant deposits the sum as directed, he shall be deemed to have paid the rent under sub section (3) (b).
If the cultivating tenant.
fails to deposit the sum as directed, the Revenue Divisional officer shall pass an order for eviction.
" An analysis of the section clearly leads to certain indisputable propositions.
Sub section (I) creates a bar against the eviction of a cultivating tenant from his holding or any part thereof, by or at the instance of this landlord, even though the latter seeks to do so in execution of a decree or order of a Court.
This bar is subject only to the provisions of sub section (2), (3) and (4).
Sub section (2) enacts an exception to sub section (I) and lays down inter alia that sub section (I) shall not apply to a cultivating tenant who conforms to the description in clause (a) or (aa) of sub section (2).
Both the clauses last mentioned cover tenants who are in arrears in regard to the payment of rent at the commencement of the Act or who fail to pay rent falling due after such commencement within a month 164 after its becoming due.
Sub section (3) enables a cultivating tenant to deposit arrears of rent in Court and further provides that after notice of such deposit has been given to the landlord, the Court would embark on a summary inquiry and then adjudge whether any further sum is due to the landlord.
If the Court finds that a further sum is due, "it shall allow the cultivating tenant such time as it may consider just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant for depositing such further sum inclusive of such costs as the Court may allow".
If the cultivating tenant fails to pay the sum determined by the Court to be due under sub section (3) the landlord "may" evict the cultivating tenant as provided in sub section (4).
Sub section (4) then states that a landlord seeking to evict a cultivating tenant falling under sub section (2) shall make an application to the RDO who shall, after giving a reasonable opportunity to the landlord and the cultivating tenant to make their representations, hold a summary inquiry into the matter and pass an order either allowing the application or dismissing it.
The sub section further provides that if the case falls under clause (a) or (aa) of sub section (2) in which the tenant has not avail of the provisions contained in subsection (3) the RDO may allow the cultivating tenant such time as he considers just and reasonable having regard. . 4.
Now as I read sub section (4), it gives the RDO power either to allow the application of the landlord or to dismiss it after he has held a summary enquiry into the matter.
If the application is allowed an order of eviction has to be passed.
If it is dismissed the proceedings again come to an end.
However, if the ground of eviction is non payment of rent, the RDO is closed with power to allow the cultivating tenant to deposit the arrears and costs as directed.
The power is discretionary and, while exercising the same, it is not incumbent on the RDO to grant time.
If the legislature intended to make it obligatory on the part of the RDo to fix a time for deposit of the arrears in all cases covered by clause (a) or clause (aa) of sub section (2) there is no reason why it should have used the word "may" in relation to the grant of time.
Support for this view is available in clause (b) of sub section (3) wherein, the legislature has directed: "If the Court finds that any sum is due it shall allow the cultivating tenant such time as it may consider just and reasonable. " (emphasis supplied) 165 In this situation it must be held that while the opportunity of depositing the arrears of rent cannot be denied to a cultivating tenant during the course of proceedings under sub section (3), the same is not available as of right under clause (b) of sub section 4.
The difference in the language used by the legislature is significant and not without purpose.
The intention of the legislature appears to be that normally a defaulting tenant must seek the help of the Court all by himself and that if he does so he must be protected; but that a defaulting tenant who waits for payment of rent till he is sought to be evicted by the landlord is not necessarily entitled to the same protection.
Circumstances may exist which may place him at par with a tenant covered by sub section (3) but then it may not necessarily be so.
That is why it is left to the discretion of the .
C RDo to grant time to the cultivating tenant or to deny him that opportunity.
An example of a case in which no time should be allowed would be that of a tenant who, although in affluent circumstances at all relevant point of time, has failed to make payment of rent year after year in spite of repeated demands from an otherwise indigent landlord and whose conduct is, therefore, contumacious calling for no sympathy or concession.
The extension to him of the same facility which is afforded to a willing tenant under sub section (3) would be uncalled for and in fact unjust.
Nor do I find why the word "may" occurring in clause (b) of sub section (4) be not given its ordinary meaning as denoting the conferment of a discretion on the RDo and be equated with "shall" so as to make it obligatory on him to grant time to the cultivating tenant.
Subject to the disagreement expressed by me above I concur with the judgment of Desai, J. MISRA, J.
| IN-Abs | The appellants in the appeals were cultivating tenants in occupation of different parcels of land which were owned by the respondents.
The respondents purchased these lands from the erstwhile owner, who also executed a deed of assignment assigning the rent in arrears of the tenants for the periods 1958 59 and 1959 60.
The respondents filed eviction petitions against the appellants for eviction on the ground that they were in arrears of rent due and payable for the years 1958 59, 1959 60 and 1960 61, which were contested on diverse grounds.
The Revenue Divisional Officer over ruled all the contentions of the tenants and held that the tenants were in arrears of rent for the aforementioned three years and were liable to pay the same.
He further held that since the previous landlord assigned the arrears of rent for the two years, 1958 59 and 1959 60, the respondents were not only entitled to commence action for recovery of arrears of rent due and payable to the previous landlord but they were also entitled to evict the tenants for failure to pay the rent in arrears.
The tenants were directed to pay the arrears within six weeks, failing which they were to be evicted.
In the Civil Revision Petitions by the tenants the High Court directed that the rent found in arrears be deposited, which order was complied with.
The High Court found that the Revenue Divisional Officer was in error in passing a composite order, whereby he determined the amount of arrears and after specifying the time within which the amount of arrears should be paid up prescribed the consequences of failure namely that the tenants should be evicted: nevertheless held that the orders made by the Revenue Divisional Officer were not one for eviction and dismissed the revision petitions.
In the appeals to this Court it was contended on behalf of the appellants that when the Revenue Divisional Officer grants time to the tenant to deposit the arrears of rent he cannot simultaneously pass an order of eviction which is to take effect future and such an order can be passed only after the default in making the deposit is committed.
On behalf of the respondents it was contended that the Revenue Divisional Officer has a discretion to grant time to the 147 defaulting tenant to repair the default, and therefore there would be nothing illegal in granting time and simultaneously providing for consequence of default.
Allowing the appeals ^ HELD: [By the Court] 1.
When the Revenue Divisional Officer allows time to a cultivating tenant for depositing the arrears of rent in pursuance of the provisions of clause (b) of sub section (4) of Section 3 of the Act, he cannot simultaneously pass a conditional order of eviction which is to take effect on a default to occur in future.
An order to evict can, in terms of the section, only be passed 'if the cultivating tenant fails to deposit the sum as directed '.
[160 E; 158 G 159 B] 2.
The orders of the Revenue Divisional Officer directing eviction, were passed in contravention of the express provision of clause (b) of sub section (4) of Section 3 of the Act and are therefore, without jurisdiction.
[160 F, C] 3.
The order of the Revenue 'Divisional Officer directing deposit of rent having been actually complied with about a couple of decades back it is no use remitting the case to him.
The ends of justice would be served if it is declared that the tenants are qualified for the protection envisaged by the Act against their eviction.
[160 G H, A B] [per D.A. Desai J.] 1.
Section 3 of the Act places an embargo on the eviction of a cultivating tenant and the protection extends to rendering a decree or order of a court for eviction nugatory.
An enabling provision in sub section (4)(a) of Section 3 enables the landlord to seek eviction of a cultivating tenant on grounds available to him under the Act.
[154 B] 2.
When an application for eviction is made, clause (b) of sub section (4) prescribes the procedure to be followed by the l Revenue Divisional Officer.
The officer has to, (i) give an opportunity both to the landlord and the cultivating tenant to make a representation, (ii) hold a summary enquiry into the matter to determine the rent in arrears.
After having determined the rent in arrears the Revenue Divisional Officer has to further enquire the relevant circumstances of the landlord and the cultivating tenant and the circumstances which have a bearing on the issues relatable to the need of the landlord for rent and the paying capacity of the tenant.
Thereafter the Revenue Divisional Officer has to decide what length of time has to be given to the tenant to deposit the rent found in arrears and at that stage the proceeding must stop.
It is something like a preliminary issue to be determined because after a finding is recorded that the tenant is in arrears and the amount of arrears is determined the Revenue Divisional Officer is under a statutory obligation to grant time to deposit arrears.
[154 C E] 3.
The section grants locus poenitentiae to a tenant who has committed default in payment of rent.
Granting of the time is not a concession dependent upon the sweet will of the Revenue Divisional Officer, it is a statutory obligation 148 cast on the Revenue Divisional Officer.
He has a discretion in determining the length of time and this discretion is to be exercised judicially based upon objective facts ascertained in the inquiry relatable to the circumstances of the landlord and the tenant.
[154 G] 4.
The proceedings before the Revenue Divisional Officer under section 3 of the Act are judicial proceedings.
The Revenue Divisional Officer is a Court a as provided in section 6(b) of the A ct and a revision petition lies to the High Court against his order.
[155 D] 5.
If the proceedings are judicial and there is a lis between the parties, the rival contentions have to be properly adjudicated upon the evidence placed before the Court.
Before the Revenue Divisional Officer can make an order for eviction of a cultivating tenant he has as a matter of statutory obligation to determine the issues which arise in the case under sub section (4)(b) of section 3, record a finding on each of them and make a speaking order.
The Revenue Divisional Officer has to grant time to the cultivating tenant to deposit the arrears found due by him and the length of time is to be relatable to the circumstances of the landlord and the cultivating tenant.
After determining the arrears and ascertaining the circumstances of the landlord and the tenant and fixing the length of time to pay the arrears the proceedings at that stage must stop.
This is implicit in sub section (4) (b) of section 3.
[155 E H] 6.
If a court in exercise of jurisdiction can grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would inhere in its ambit the jurisdiction to extend time initially fixed by it.
Passing a composite order would be acting in disregard of the jurisdiction in that while granting time simultaneously the court denies to itself the jurisdiction to extend time.
The principle of equity is that when some circumstances are to be taken into account for fixing a length of time within which a certain action is taken, the court retains to itself the jurisdiction to re examine the alteration or modification of circumstances which may necessitate extension of time.
If the Court by its own act denies itself the jurisdiction to do so, it would be denying to itself the jurisdiction which in the absence of a negative provision, it undoubtedly enjoys.
[157 D F] 7.
Conditional orders are in terrorem, so that dilatory litigants might put themselves in order and avoid delay, but they do not completely estop a court from taking note of events and circumstances which happen within the time fixed.
[157 G] 8.
The danger inherent in passing conditional orders is that it may result in taking away jurisdiction conferred on the court for just decision of the case The true purport of conditional order is that such orders merely create something like a guarantee or sanction for obedience of the court 's order but would not take away the court 's jurisdiction to act according to the mandate of the statute or on relevant equitable considerations if the statute does not deny such considerations.
[155 D E] Mahant Ram Das vs Ganga Das, ; , referred to.
149 [per Koshal & Misra JJ] 1.
Sub section (4) of section 3 gives the Revenue Divisional Officer power either to allow the application of the landlord or to dismiss it after he has held a summary enquiry into the matter.
If the application is allowed, an order of eviction has to be passed.
If it is dismissed the proceedings come to an end.
However, if the ground of eviction is non payment of rent, the Revenue Divisional Officer is clothed with power to allow the cultivating tenant to deposit the arrears and costs, as directed.
The power is discretionary and, while exercising the same, it is not incumbent or the Revenue Divisional Officer to grant time.
[164 E F] 2.
If the legislature intended to make it obligatory on the part of the Revenue Divisional Officer to fix a time for deposit of the arrears in all cases covered by clause (a) and clause (a) of sub section (2) there is no reason why it should have used the word 'may ' in relation to the grant of time.
Clause (b) of sub section (3) provides that "if the court finds that any sum is due it shall allow the cultivating tenant, just and reasonable time. " The difference in the language used by the legislature in clause (aa) of sub section (2) and in clause (b) of sub section (3) is significant and not without purpose.
The intention of the legislature appears to be that normally a defaulting tenant must seek the help of the court all by himself and that if he does so he must be protected but that a defaulting tenant who waits for payment of rent till he is sought to be evicted by the landlord is not necessarily entitled to the same protection.
[164 G 165 B] Circumstances may exist which may place him at par with a tenant covered by sub section (3) but then it may not necessarily be so.
That is why it is left to the discretion of the Revenue Divisional Officer to grant time to the cultivating tenant or to deny him that opportunity.
[165 C]
|
Civil Appeal No. 1003 of 1980.
Appeal by special leave from the judgment and order dated the 3rd March, 1980 of the Bombay High Court in Appeal No. 106 of 1980.
V.M. Tarkunde, P.H. Parekh and Miss Vineeta Caprihan for the Appellants.
K.K. Singhvi, Brij Bhushan, N.P. Mahindra and A.K. Gupta, for Respondents Nos. 1, 2, and 3.
V.B. Desai, R.H. Dhebar and R.N. Poddar for Respondent State.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
The second world war left in its wake conditions of scarcity of foodgrains and other essential commodities in different parts of the country.
To tide over that situation and with intent to ensure a fair and equitable distribution of the available supply of foodgrains etc.
, schemes of rationing of foodgrains were periodically introduced in the different States in the country.
74 In the State of Bombay, an informal (non statutory) scheme of rationing was introduced in November, 1957 and for administering the said scheme, an ad hoc Organisation was set up under the Controller of Foodgrains Distribution.
Since this Organisation (hereinafter referred to as CFD) was intended to be only a temporary and short term set up, no recruitment rules were framed for appointment to the various categories of posts created therein.
The CFD was manned principally by (1) personnel who had been working in the temporary Civil Supplies Department created during the second world war period and who were attending to certain residual duties concerned with the winding up of that department, (2) persons taken on deputation from other Government departments (3) retrenched former Civil Supply Department personnel, and (4) persons directly recruited to the CFD by the Controller of Foodgrains Distribution on temporary basis through the Employment Exchange.
Since no rules had been framed laying down the qualifications or method of recruitment to the various posts, the guiding factor which seems to have weighed with the authorities in effecting appointments in the CFD was the suitability of the person concerned to carry out the duties attached to a particular post irrespective of qualifications, age, etc.
Admittedly, amongst the persons appointed to the CFD, there were several non matriculates who were ineligible under the prevailing rules applicable to other Government Departments for regular appointment into the Government service in the clerical category and also quite a few persons who were over aged for being entertained in the Government service as on the dates of their ad hoc appointments into the CFD.
The principles to be observed for fixing the seniority of the personnel appointed to the CFD were laid down by the State Government by a Resolution dated April 1, 1963.
Under the said Resolution, the seniority of personnel in each category was to be determined with reference to the date of first appointment in the particular cadre in which they were initially appointed in the CFD.
In July 1965, the Government of India issued instructions to all the State Governments advising them to start statutory rationing schemes in metropolitan areas and big towns.
With a view to implement those instructions of the Central Government, the State Government of Maharashtra sanctioned on October 21, 1965 a skeleton staff for working out details and carrying out other preliminary work for the introduction of a scheme of statutory rationing in Greater Bombay.
75 Subsequently, by a Resolution dated February 11, 1966, the Government of Maharashtra announced its decision to introduce a statutory rationing scheme in Bombay and the Industrial Complex around it including some areas of Thana District and to set up an organisation under the Controller of Rationing, Bombay, for efficiently administering the said statutory scheme.
The strength and patten of the staff for the Bombay Rationing Organisation (for short, the BRO) which was newly created under the said Resolution was to be as shown in Annexure 'A ' appended to the Resolution.
The skeleton staff which had been already sanctioned for carrying out the preliminary work as per the prior Government Resolution dated October 21, 1965 was to be treated as belonging to the BRO.
The existing staff of the CFD consisting of 884 posts as shown in Annexure 'B ' to the aforesaid Resolution was to be merged into the new BRO with effect from March 1, 1966, excepting 9 posts of part time Mehtars, which were to be abolished with effect from the said date.
In addition, 2818 posts in 23 different categories were also created in the BRO as per the particulars shown in Annexure 'C ' to the aforesaid Resolution.
Out of these, 1220 newly created posts were in the category of Rationing Inspectors and 165 posts were of Senior Clerks.
Since it was considered necessary to have experienced staff for manning the higher posts in the new Organisation, it was decided to obtain the services of experienced hands from other departments on deputation.
Accordingly, the Chief Secretary to the Government of Maharashtra addressed a letter dated February 22, 1968 to all, Heads of Departments stating that huge staff was required for manning the posts in the newly created BRO, that for the higher posts of Assistant Rationing Officers/Inspecting Officers/Head Clerks and Rationing Officers/Senior Clerks, it was absolutely necessary to draw upon senior and experienced persons already working in other Government offices in Greater Bombay and hence the Government had decided that each department should immediately on receipt of the letter release the requisite number of persons under intimation to the Controller of Rationing, Bombay and instruct the persons concerned to report for duty to him.
It was further mentioned in the letter that for the posts of Assistant Rationing Officers, persons who had put in at least two years ' service in a scale comparable to the scale of Rs. 200 10 300 would be considered and that for the posts of Rationing Inspectors/Senior Clerks, Clerks who had put in at least two years ' service would be 76 considered.
In compliance with the directions contained in the said letter, a large number of personnel from different departments of the State Government of Maharashtra in the Greater Bombay area were sent over to the BRO on deputation and they were appointed to posts in different categories in the new Organisation (B.R.O.) Apparently for the reason that the number of persons so obtained on deputation was not adequate to fill up all the new posts in the BRO, some persons were also directly recruited into the said Organisation subsequent to March 1, 1966.
As an essential preliminary step for the integration of the former CFD personnel with the staff appointed in the BRO from other sources, the Controller of Rationing, Bombay published on 29.8.1966 a provisional Gradation List of the CFD personnel as on March 1, 1966.
Subsequently, on March 22, 1968, the Government of Maharashtra issued the "Bombay Rationing Organisation (Fixation of Seniority) Rules, 1968", laying down the principles to be applied for the fixation of seniority of the persons working in the BRO.
These rules were issued under the proviso to Article 309 of the Constitution and they were given retrospective effect from October 21, 1965 (the date of the Government Resolution sanctioning the skeleton staff for carrying out the preliminary work for introduction of the scheme of statutory rationing).
The personnel released from other departments of the State Government for work in the BRO, including retrenched or replaced Government servants who had not suffered any break in service before joining the BRO were designated under these Rules as "Released Government Servants".
Rule 4 which lays down the principles for fixation of seniority of persons in the cadre of Senior Clerks/Rationing Inspectors/Deputy Accountants is in the following terms: "Senior Clerks/Rationing Inspectors/Deputy Accountants.
(a) Seniority of a released Government Servant and a Merged Government Servant in the cadre of senior clerk, Rationing Inspector and Deputy Accountants, as also a person who was initially appointed as a clerk, or Typist or Clerk cum Typist in the Bombay Rationing Organisation and subsequently promoted in the said cadre shall be determined with reference to dates which shall be fixed after deducting two years from the length of continuous service, whether officiat 77 ing or permanent rendered by him in the cadre of clerks, typists, and clerk cum typist.
Illustration: Suppose there are three persons in the cadre of Senior Clerks/Rationing Inspectors and Deputy Accountants, 'A ' a released Government servant was holding the post of clerk continuously from 1st October 1960 prior to his release, 'B ' a merged Government Servant was holding the post of typist continuously from 1st May, 1958. 'C ' was appointed as a direct recruit to the post of clerk in the Bombay Rationing Organisation on 1st May, 1966 and was subsequently promoted as Senior Clerk on 22nd May, 1968.
The seniority amongst them will be fixed as under: ___________________________________________________________ Seniority Name Date of commence Deemed date of rank.
ment of continuous appointment for service as Clerk.
fixation of seniority.
___________________________________________________________ 1. 2.
___________________________________________________________ 1.
B 1.5.1958 1.5.1960 2.
A 1.10.1960 1.10.1962 3.
C 1.5.1966 1.5.1968 ___________________________________________________________ Provided that in the case of merged Government servant who was recruited to the post of Supply Inspector or Senior Clerk, by nomination, he shall take rank above a clerk in the former Foodgrains Distribution Scheme who was promoted to the cadre of Supply Inspector or Senior Clerk, in the former Foodgrains Distribution Scheme immediately, after him and if this be not the position, above the first person in the cadre of clerks belonging to that organisation who is posted in the cadre of Senior Clerks, Rationing Inspectors and Deputy Accountants on and after 1st March 1966.
78 Illustration: Suppose there are four persons in the cadre of Senior Clerks, Rationing Inspectors and Deputy Accountants.
All of them were in the Bombay Foodgrains Distribution Scheme. 'A ' was a clerk in the Scheme and he was promoted to the post of Supply Inspector with effect from 1st May 1960 and since then was continuously officiating in the post. 'B ' and 'C ' were recruited as Supply Inspectors by nomination and were officiating continuously in that post from 15th April, 1960 and 15th April, 1965.
None of the Clerks in that scheme was promoted after 'C ' till the merger of the staff in the Bombay Rationing Organisation.
'D ' was a Clerk and he was promoted as Senior Clerk with effect from 15th April 1966 i.e. after merger of the staff in the Bombay Rationing Organisation.
Their seniority amongst them will be as under: _____________________________________________ Seniority rank Name _____________________________________________ 1 B 2 A 3 C 4 D _________________________________________________ (b) Seniority of a Government servant appointed in the Bombay Rationing Organisation by direct requirement to the cadre of Senior Clerks, Rationing Inspectors and Deputy Accountants shall be fixed with reference to the dates of appointments to the posts in the said cadres: Illustration: Suppose there are three persons in the cadre of Senior Clerks, Rationing Inspectors and Deputy Accountants who were recruited to the cadre by nomination. 'A ' was recruited as Rationing Inspector from 24th February 1966. 'B ' was recruited as Senior Clerk from 15th March 1966.
'C ' was recruited as Deputy Accountant, from 28th 79 February, 1966.
The seniority amongst them will be fixed as under: ___________________________________________________________ Seniority Date of commencement rank.
Name of continuous service.
___________________________________________________________ 1. 2. 3.
___________________________________________________________ 1.
A 24.2.1966 2.
C 28.2.1966 3.
B 15.3.1966 ___________________________________________________________ (c) Seniority of Government servant in the cadre of Senior Clerks, Rationing Inspectors and Deputy Accountants fixed on the basis of the rules in (a) and (b) above, shall be merged and refixed with reference to the dates from which their seniority is determined according to the principles in the rules 4 (a) and 4 (b) above.
Illustration: Suppose there are 7 persons in the cadre of Senior Clerks, Rationing Inspectors, Deputy Accountants. 'A ' and 'B ' were Supply Inspectors directly recruited in the Bombay Foodgrains Distribution Scheme and were continuously officiating in those posts from 4th May, 1963 and 1st May 1963 respectively. 'C ' was a Clerk in the former Bombay Foodgrains Distribution Scheme from 1st September 1960.
He was promoted as Supply Inspector on 5th May, 1963.
'D ' was a Rationing Inspector directly recruited to it from 2nd February, 1966. 'E ' was a released Government servant holding the post of Clerk in the former office from 1st August 1960.
He was taken up as Senior Clerk from 2nd August, 1967, in the Bombay Rationing Organisation. 'F ' was a released Government servant holding the post of a clerk in his former office from 1st February, 1964.
He was taken up as Rationing Inspector on 1st August 1967. 'G ' was a released Government servant holding the post of a clerk in his former 80 office from 1st December 1964.
He was taken up as a clerk in Bombay Rationing Organisation subsequently he was promoted as Rationing Inspector from 1st April, 1967.
The seniority amongst them will be as under t ___________________________________________________________ Senio Name Mode Actual date DEEMED rity rank.
As Clerk As Sr.Cl.
/R.I./ Dy.
Acctt.
___________________________________________________________ 1. 2. 3.
4.(a) 4.(b) 5.
___________________________________________________________ 1.
E Promoted clerk 1.8.60 2.8.67 1.3.62 (released) 2.
B Direct S.I. 1.5.63 31.8.62 3.
A do 4.5.63 31.8.62 4.
C Promoted exhibit CFD Clerk 1.9.60 5.5.63 1.9.62 5.
F Promoted Clerk (released) 1.2.64 1.8.67 1.2.66 6.
D Direct Ration ing Inspector.
2.2.66 2.2.66 7.
G Released Clerk absorbed in Bombay Ration ing Area Or ganisation as Clerk and sub sequently pro moted as Rationing Inspector." 1.12.64 1.4.67 1.12.66 ___________________________________________________________ However, it was further provided under Rule 7 that "notwithstanding anything contained in the foregoing Rules: 81 (a) In case of Government servants released from one and the same office to join the Bombay Rationing organisation the seniority inter se in their former office shall not be disturbed; (b) in case of the merged Government servants, they shall be governed by the principles contained in the Government Resolution, Agriculture and Co operation Department No. EST 1060/40002/SlV, dated the 1st April 1963; and (c) in case of (i) those who were recruited directly in the former Bombay Foodgrains Distribution Scheme shall be governed by the principles contained in the Government Resolution No. Agriculture and Cooperation Department No. EST l 1060/40002/ SIV dated the 1st April, 1963; (ii) those who were drawn in the Bombay Foodgrains Distribution Scheme from one and the same Government office/Department shall take their rank according to seniority inter se in the office/department from which they were drawn.
Provided further where there is a clash of principles contained in the Government Resolution Agriculture and Cooperation Department No. EST 1060/40002/SIV, dated the 1st April, 1963 with the seniority inter se in the former Department the seniority inter se in the former Department shall prevail.
Illustration: 'A ' who started his career as Assistant in Revenue and Forests Department from 1st May 1962 was drawn in Bombay Foodgrains Distribution Scheme on 18th October, 1964 and was taken up as Inspecting officer, 'B ' an Assistant in Revenue and Forests Department working in that cadre continuously from 1st May, 1961 was released to join Bombay Rationing organisation on 22nd August, 1966 as Inspecting officer. 'C ' who started his career as Assistant in General Administration Department from 1st 82 April 1960 was drawn in Bombay Foodgrains Distribution Scheme on 18th May, 1965 as Inspecting officer. 'D ' as Assistant in General Administration Department working in that cadre continuously from 1st May, 1960 was released to join Bombay Rationing organisation on 1st July 1967 as Inspecting officer.
The seniority of these persons will be fixed as under: ____________________________________________________________ Senio Name Department Date of Date of Date of rity recruit joining in joining in rank ment as Bombay Bombay Asstt.
Food Rationing in the grains Organi present Distri sation Deptt.
bution Scheme.
___________________________________________________________ 1. 2.
____________________________________________________________ 1.
C. General Admn.
Department.
1.4.60 18.5.65 1.3.1966 2. D. General Admn.
Department.
1.5.60 1.7.67 3.
B. Revenue & Forests Department 1.5.61 22.8.1966 4.
A. Revenue & Forests Department 1.5.62 18.10.64 1.3.1966 (Date of merger) ____________________________________________________________ By State Government 's Resolution dated July 25, 1968, various posts that existed in the former CFD were equated with posts in the BRO in the manner indicated therein.
Items 9 to 11 in the Table appended to the said Resolution dealt with the posts of Deputy Chief Supply Inspectors, Supply Inspectors and Senior 83 Clerks, respectively in the CFD.
All those Three categories of posts were equated with the posts of Rationing Inspectors/Senior Clerks in the BRO on Rs. 160 10 220 EB 10 270 despite the fact that in the CFD the pay scale of the post of Deputy Chief Inspector was a higher post than that of Supply Inspectors and Senior Clerks and it carried a higher pay scale.
By a Resolution dated July 29, 1968, the State Government of Maharashtra promulgated the Recruitment Rules for non gazetted posts in the establishment of the BRO specifying also the method of appointment to the various posts in the said organisation.
Under these Rules, appointments to the category of Senior Clerks/Rationing Inspectors in the BRO were to be made either by promotion from among Clerks, Clerks typists, Typists etc., who had worked as such for not less than two years, or by transfer of General Duty Clerks from the Secretariat Departments and the offices of Heads of Departments with not less than two years of service in the cadre.
Obviously, the first of the two alternative methods aforementioned would get attracted only when persons already working in the BRO as Clerks were to be appointed as Senior Clerks/Rationing Inspectors.
The other alternative provided was to fill up the vacancy by transfer of Clerks working in the Secretariat Departments or in the offices of the Heads of Departments who possessed not less than two years of service.
On May 28, 1971, a Gradation List of Rationing Inspectors, Senior Clerks and Deputy Accountants working in the BRO as on April 1, 1968 was published by the Controller of Rationing.
It was expressly recited therein that the said List had been drawn up in accordance with the seniority principles enunciated in the Government Resolution dated March 22, 1968.
It was also stated that while preparing the said list, the inter se seniority of the ex CFD personnel had been kept in tact except in the case of those who had been working in the CFD on deputation from other Departments and offices in respect of whom the seniority had been fixed according to their position inter se in the respective former Departments and offices from which they had been drawn on deputation A specific direction was contained in paragraph 3 of the order that copies of the said order should be exhibited on the Notice Boards in the Head office of the BRO, all the Regional offices as well as in the Rationing offices, and the signatures of all the employees working in the respective offices should be taken in a separate copy 84 of the order which should be kept on the record of the respective offices.
It was further ordered that a report to the effect that the Gradation List had been brought to the notice of all the persons concerned should be forwarded to the Assistant Controller of Rationing, (EST), Head office in his personal name on or before June 10, 1971.
Subsequently, a final Gradation List as on April ], 1968 was also published with a similar direction for bringing it to the notice of all the persons borne on the establishment of the BRO.
Still later, on April 9, l 973, another provisional Gradation List of Rationing Inspectors, Senior Clerks and Deputy Accountants as on April 1, 1972 was published with a like direction that it should be brought to the notice of all the persons borne on their establishment.
By Resolution dated March 1, 1974, the Government of Maharashtra took note of the fact that during the course of the n previous few years a number of candidates who had not been selected by the Public Service Commission had come to be recruited temporarily to the posts of Clerks, Typists, Stenographers, Assistants, etc.
pending allotment of candidates selected by the Public Service Commission, and it was directed that since many of such temporary employees had put in several years of service, they may be retained in Government service without being replaced by candidates selected by the Public Service Commission, provided they fulfilled the following two conditions: "(1) The non P.S.C. persons concerned should have the minimum educational qualifications prescribed for the posts to which they were appointed.
(2) They were within the age limits prescribed for appointment to the respective posts held by them at the time of their initial appointment to such posts.
" It was also specified in the Resolution that the benefit of such retention in service would be applicable only to the non P.S.C. persons, who were recruited in various Government offices prior to January 1, 1971 and were in service on the date of issue of the said order.
Further, the Resolution contained a clear stipulation that the seniority of such non P.S.C. persons on whom the benefit of continuance of service was thereby conferred was to be fixed only with reference to the date of issuance of the said Resolution, with the 85 consequence that P. section C. selected candidates who were already A working in the various Departments or offices prior to the said date were all to be treated as seniors in relation to the non P.S.C. persons covered by the said Resolution.
On November 18, 1975, a provisional Gradation List of Rationing Inspectors, Senior Clerks and Deputy Accountants of the BRO as on April 1, 1974 was published on a combined application of the seniority principles laid down by the BRO in the Rules dated March 22, 1968 and those laid down in the Resolution dated March 1, 1974 concerning the non P.S.C. candidates who were granted the benefit of retention in service under the said Resolution.
A similar Gradation List of Assistant Rationing Officers/Junior Accountants of the BRO as on April 1, 1974 was also published by the Controller of Rationing on November 27, 1975.
On January 31, 1976, respondents Nos.
I to 22 herein who were directly recruited in the former CFD as Supply Inspectors and had been subsequently absorbed in the BRO in the category of Rationing Inspectors/Senior Clerks/Deputy Accountants, filed a Writ Petition under Article 226 of the Constitution in the High Court of Bombay Misc.
Petition No. 166176 challenging the legality and validity of the aforementioned two Gradation Lists dated November 18, 1975 and November 21, 1975.
The main contention put forward by them in the writ petition was that the impugned lists were violative of Articles 14 and 16 of the Constitution, inasmuch as, firstly, the State Government and the Controller had given a go by to the normal rule of fixation of seniority according to the date of appointment to the post, and secondly, unequals had been treated as equals while fixing the seniority inasmuch as the period of service rendered by the employees in the clerical cadre had been reckoned and equated with the service rendered in the Rationing Inspector 's cadre.
Another plea taken in the writ petition was that the seniority of the writ petitioners has been made to depend upon an uncertain factor, namely, the seniority of persons who get promoted to the cadre of Rationing Inspectors/Senior Clerks etc., from time to time and this rule which kept the question of seniority of employees in a state of flux for all time to come was grossly arbitrary and unreasonable.
Respondents I to 3 in the writ petition were the State of Maharashtra.
the Controller of Rationing and the Under Secretary to the Government of Maharashtra, Food & Supply Department, 86 respectively.
One hundred and sixty two employees working in the BRO in different categories of posts were impleaded as respondents Nos. 4 to 165 on the ground that they were likely to be affected in case the reliefs claimed by the writ petitioners were granted by the High Court.
The respondents raised a preliminary objection before the High Court the main attack levelled in the petition being against the validity of the Government Resolution dated March 22, 1968, the writ petition filed after the lapse of more than seven years since the passing of the impugned Resolution was liable to be dismissed on the ground of delay and laches.
It was pointed out that on the basis of the impugned Resolution, the provisional Gradation List had been published on May 28, 1971 showing the seniority of personnel in the BRO as on April l, 1968 and it had been specifically stated in the said gradation list that it had been drawn up on the basis of the principles laid down in the impugned Government Resolution dated March 22, 1968.
The said list had been circulated to all the offices attached to the BRO and signatures of all the personnel working in the different offices had been taken in token of their having seen the list.
The respondents stressed before the High Court the fact that even though objections had been invited against the provisional Gradation List, none of the petitioners had filed any objections.
Subsequently, a final Gradation List was published on November 23, 1972, which was also brought to the notice of the personnel working in the BRO.
Reliance was also placed by the respondents on the fact that the second provisional Gradation List based on the impugned Resolution of 1968 was published on April 9, 1973 showing the seniority of personnel working in The BRO as on April 1, 1972 and though writ petitioners 1 to 3 filed certain objections against the said list long after the date fixed for the receipt of such objections, no contention has been taken therein objecting to the seniority principles laid down in the Government Resolution of 1968.
The objections raised by writ petitioners 1 to 3 were rejected by the Controller of Rationing as per his communications dated December 6, 1973 and December 19, 1973.
Even thereafter, no steps were taken by the petitioners to challenge the validity of the principles laid down in the Government Resolution.
It was urged by the respondents before the High Court that in view of the aforesaid conduct of the petitioners, it was not legally open to them to raise a challenge against the said Resolution in the writ petition filed after eight years and thereby upset the seniority position of personnel which had become settled during the course of the period of eight years and disrupt rights 87 which have become vested in others by virtue of the various postings and promotions that have taken place in the Meantime.
On the merits, the respondents contended before the High Court that the BRO being a newly constituted organisation with its personnel drawn from different sources, it was perfectly open to the State Government to lay down the principles to be applied for the determination of inter se seniority of the members of the staff belonging to the different categories.
Since the new Department was to consist of "merged Government servants" who were absorbed from the CFD, "released Government servants" drawn on deputation from other departments and also direct recruits, it was necessary to evolve some fair and reasonable principle for the fixation of the inter se seniority of the integrated personnel in the different categories.
The respondents submitted before the High Court that viewed in the context of the relevant facts and circumstances, the principles laid down in the impugned Resolution were perfectly reasonable and that the challenge levelled by the petitioners against the said Resolution and the Gradation Lists dated November 18, 1975 and November 27, 1975 on the ground of alleged violation of Articles 14 and 16 of the Constitution was wholly devoid of merit.
The writ petition was heard by a learned Single Judge of the High Court and by judgment dated September 11, 1979, the petition was allowed and clauses (a) and (c) of rule 4 and the proviso to rule 7 of the impugned Government Resolution dated March 22, 1968 were struck down on the ground that they were violative of Articles 14 and 16 of the Constitution.
The Gradation Lists dated November 18, 1975 and November 27, 1975 were also quashed by the learned Judge, and the first respondent State of Maharashtra was directed to prepare a fresh seniority list without taking into consideration the aforesaid provisions of the impugned Government Resolution dated March 22, 1968 which had been struck down and to give consequential benefits to the writ petitioners, including increments, promotions etc.
The preliminary objection on the ground of laches and delay, raised by the respondents before the High Court, was over ruled by the learned Single Judge by stating, firstly, that the law with respect to laches did not lay down any obligation on the Court to refuse to grant reliefs merely because there was a lapse of time since the cause of action arose and since the challenge against the 88 Government Resolution was based on the contention that the fundamental rights of the petitioners under Articles 14 and 16 of the Constitution were violated, it was not open to the court to shut out the petitioners from putting forward their challenge against the rules on the ground of delay or laches since such course would tantamount to "condoning the continuance of invalid rules or statutes.
" The second reason stated by the learned Judge for overruling the preliminary objection was that beyond making a vague statement that the seniority list of November 23, 1972 showing the placement of the officers as on April 1, 1968 had been since followed and promotions made on that basis.
no factual data had been placed before the High Court by the respondents "to show the extent of such promotions and the manner in which the promotees would be affected if the relief was granted to the petitioners".
A further ground mentioned by the learned Judge for rejecting the preliminary objection put forward on the ground of delay is that by reason of the Resolution dated March 1, 1974 passed by the State Government directing that all temporary employees in the clerical cadre, who had been recruited prior to January 1, 1971 without insistence on the passing of the Public Service Commission examination, may be regularly absorbed in service with effect from March 1, 1974 subject to the conditions mentioned therein, the final Gradation List of personnel in the BRO published on November 23, 1972 has inevitably been upset and hence it cannot be said that any rights have accrued to such of the employees in the BRO who were assigned ranks above the writ petitioners in the impugned seniority list, so as to entitle them to put forward the objection based on laches and delay.
We may also briefly set out the reasons mentioned by the learned Judge in support of his conclusion that clauses (a) and (c) of rule 4 and proviso to rule 7 of the Government Resolution dated March 22, 1968 offend Articles 14 and 16 of the Constitution.
Firstly, it is stated by the learned Judge that since the petitioners had been directly recruited as Supply Inspectors in the former CFD, they were in the position of direct recruits to the cadre of Rationing Inspectors in the BRO and the provision contained in the impugned rules for assignment of deemed dates to the promotees coming from other departments on the basis of their continuous service in the clerical cadre minus two years is against "the normal rule which determines the seniority on the basis of the dates of appointment to the post".
According to the learned Judge, any 89 departure from the "normal rule" mentioned by him must be justified by rational, relevant and cogent reasons and since there was no material "to justify the enactment of the said abnormal rule for determining seniority" either in the impugned Resolution itself or in the return filed on behalf of the State, the provisions contained in the impugned rules had to be struck down on the ground of infringement of Articles 14 and 16 of the Constitution.
The second reason stated by the learned Judge is that there is an inherent fallacy in the attempt made by the impugned rules to equate the post of Supply Inspector in the CFD to the posts in clerical cadres in other departments and the impugned rules in so far as they provide for the fixation of inter se seniority of Rationing Inspectors/Senior Clerks/Deputy Accountants in the BRO by giving credit to the service rendered by the "released Government servants" in the clerical cadre in their parent departments subject to a deduction of two years therefrom is violative of Articles 14 and 16.
In the opinion of the learned Judge, it was not legally open to the Government, while laying down rules for fixation of seniority in the category of Rationing Inspectors/Senior Clerks, to make a provision for taking into consideration any service rendered by the deputationists in the lower post of Clerk and that by itself spells out discrimination.
The learned Judge has expressed the view that in treating a clerk with two years ' service on a par with the Supply Inspector of the CFD, the impugned Resolution has treated unequals as equals and thereby committed a clear breach of provisions of Articles 14 and 16 of the Constitution.
Lastly, it was held by the learned Judge that, since under the provisions of the impugned Resolution the deemed date of appointment of a promotee depends upon two factors, namely, his inter se seniority amongst the persons who have been promoted from his department and his continuous service in the clerical cadre minus two years, it is inevitable that whenever a person from some other department is taken on promotion to the BRO, the deemed date of appointment of persons drawn earlier from the same department is likely to get altered and since in consequence thereof the deemed dates of the direct recruits will also undergo a change, the seniority of the direct recruits is made dependant on uncertain events which has no reasonable nexus with the object and purpose of the rules and the rule has therefore to be struck down as arbitrary and violative of the principles of equality of opportunity enshrined in Articles 14 and 16 of the Constitution.
Twenty nine persons belonging to the category of "released Government servants" who are amongst the respondents in the writ 90 petition and whose seniority etc., were adversely affected by the decision rendered by the learned Single Judge, preferred a Letters Patent Appeal before a Division Bench of the High Court, but that appeal was dismissed in limine by the Division Bench, and hence they have filed this appeal in this Court after obtaining special leave.
After giving our anxious consideration to the arguments addressed by counsel appearing on both sides, we have unhesitatingly come to the conclusion that the view expressed by the High Court that clauses (a) and (c) of rule 4 and the proviso to rule 7 of the impugned Government Resolution dated March 22, 1968 are violative of the provisions of Articles 14 and 16 of the Constitution, is unsustainable in law and that the direction given by the High Court to the State Government to prepare a fresh seniority list without taking into consideration the aforesaid provisions of the impugned Government Resolution and to give to the writ petitioners consequential benefits, including promotions and the emoluments on the n basis of such revised seniority gradation list was not called for.
We are also of opinion that the High Court was wrong in over ruling the preliminary objection raised before it by the present appellants that the writ petition in so far it sought to challenge the legality of the Government Resolution dated March 22, 1968, was highly belated and was liable to be dismissed on the ground of laches and delay.
The challenge in the writ petition was directed mainly against the Government Resolution dated March 22, 1968, which laid down the principles for determining the inter se seniority of personnel appointed in the different categories of posts in the newly constituted BRO.
lt may be assumed that the principles enunciated in the said Resolution did not come to the knowledge of the petitioners and other employees of the BRO immediately after the Resolution was passed by the State Government.
But in implementation of those principles, a provisional gradation list of Rationing Inspectors/Senior Clerks/Deputy Accountants of the BRO as on April 1, 1968 was drawn up and issued by the Controller of Rationing on May 28, 1971.
Paragraph 3 of the order dated May 28, 1971 whereunder the said gradation list was issued contained a specific direction to all the Deputy Controllers of Rationing in the Head Office and also in the regions and to the Rationing offices, to exhibit one copy of the gradation list together with a copy of the said order whereunder the list was issued on their respective office Boards, use another copy for obtaining signatures of all the persons who were still borne 91 on the establishment of the BRO and keep the third copy for the office record.
It was directed in the same paragraph that "it should be seen that all the persons working in this organisation, including those on leave or under suspension or retired, are informed of their seniority and rank and their signatures obtained in token thereof".
In the absence of any acceptable evidence to the contrary, it is legitimate to presume that the said direction had been duly carried and that the provisional gradation list and the order dated May 28, 1971 had been duly brought to the notice of all personnel belonging to the concerned categories then working in the BRO.
It is important to notice that in the first paragraph of the aforesaid order dated May 28, 1971, it had been expressly mentioned that the provisional gradation list had been drawn up in accordance with the seniority principles enunciated in the Government Resolution dated March 22, 1968.
Paragraph 2 of the said order also contained a brief summary of the principles on which the gradation list had been drawn up.
In paragraph 5 of the order, it was stated that it was open to the persons whose names were included in the gradation list to make representations about the fixation of their seniority on or before June 21, 1971, and that representations received thereafter will not be entertained on any account.
It is to be remembered in this context that the BRO is a small organisation functioning only in the city of Bombay.
Since copies of the order dated May 28, 1971 and the provisional gradation list had been circulated in the Head office, the Regional offices and all the Rationing offices of the BRO and also shown individually to all the members of the staff working in the different offices, the writ petitioners must be taken to have become fully aware of the principles laid down in the Government Resolution dated March 22, 1968 at least when the provisional gradation list dated May 28, 1968 was so published and circulated.
None of the writ petitioners, however, preferred any objection against their ranking in the said provisional gradation list.
On November 23, 1972, a final gradation list of Rationing Inspectors/Senior Clerks/Dy.
Accountants of the BRO as on April 1, 1968 was published with directions for bringing the said list also to the notice of all the persons borne on the concerned categories of the organisation.
Even after the circulation of the said list, the writ petitioners did not file any objections against the ranking given to them in the said list, which was based on the principles enunciated in the Government Resolution dated March 22, 1968, nor did they take any steps whatever to challenge the constitutional validity of those principles, 92 Subsequently, another provisional gradation list of Rationing Inspectors/Senior Clerks/Dy.
Accountants as on April l, 1972 was published by the Controller of Rationing on April 9, 1973.
In that list also, it was expressly mentioned that it had been drawn up in accordance with the seniority principles enunciated in the Government Resolution dated March 22,1968.
This list was admittedly brought to the knowledge of the petitioners and the other personnel working in the concerned categories in the BRO.
In the order dated April 9, 1973, whereunder the said list was issued, it had been specified that representations against the seniority and ranking should be submitted to the Controller of Rationing on or before May 1, 1973 and that thereafter no representations would be entertained on any account.
The writ petitioners did not file any objections within the said period.
However, writ petitioners l to 3 submitted certain written representations to the Controller of Rationing in November, 1973, contending that the "deemed dates" assigned to them in the gradation list were incorrect.
Even in those representations, no objection was raised against the principles for determination of seniority enunciated in the Government Resolution of 1968, and there was no protest whatever against the provision made in the said Resolution for fixation of the seniority of "released Government servants" by giving them credit for the length of regular service put in by them as clerks in other departments minus two years.
The representations filed by petitioners I to 3 were rejected by the Con troller of Rationing by orders passed in December ]973, wherein it was stated that the seniority and ranking assigned to them in the provisional gradation list could not be altered in view of the pro visions contained in rule 4 (a) and the provision to rule 7 of the Rules laid down in the Government Resolution of 1968.
If the petitioners desired to challenge the constitutionality of Rules contained in the Government Resolution dated November 22, 1968, they should have woken up at least when they received the aforesaid replies from the Controller of Rationing and approached the Court for appropriate relief within a reasonable time thereafter.
No such action was taken by them and all that they did was merely to address some further representations to the Secretary, Food & Civil Supply Department reiterating the request made by them before the Cont roller of Rationing for alteration of their "deemed dates".
Writ petitioners l l and 12 are also seen to have submitted some belated representations against the provisional gradation list complaining that the "deemed dates" assigned to them were incorrect.
In those representations also, there was no protest or objection raised against 93 the principles laid down in the Government Resolution dated November 22, 1968.
On March l, 1974, the Government of Maharashtra passed a Resolution directing that non PSC persons who were employed in the Ministerial posts, namely, Clerks, Typists, Clerks typists, Steno typists and Stenographers in the Secretariat Departments and various Government offices in Greater Bombay, prior to January 1, 1971, and who were in the service of Government on the date of the issue of the said Order, should continue in Government service without being replaced by the candidates selected by the Maharashtra Public Service Commission, provided they possessed the minimum educational qualifications prescribed for the post to which they were appointed and they were also within the age limits prescribed for appointment to the respective posts held by them at the time of their initial appointment to such posts.
It was made very clear in paragraph 4 of the said order that the seniority of the non PSC persons on whom the benefit of permanent absorption in service was conferred thereunder was to be fixed only with reference to the date of the said order and that all the Public Service Commission selected candidates who were working in the various departments/offices prior to the date of the said Resolution would be treated as seniors in relation to the non PSC persons covered by the said order.
It is manifest that this order did not in any way affect the inter se seniority between the writ petitioners and the released government servants drafted to the BRO from other Government departments wherein they had been holding posts on a regular basis after having passed the Public Service Commission examination.
It is also worthy of note that the Government Resolution of 1974 was a general order applicable to all the non PSC personnel functioning on a temporary or ad hoc basis in the Secretariat as well as the various departments of the State Government and except as indicated above it did not have any special applicability to the BRO.
On November 18, 1975, another provisional gradation list of Rationing Inspectors/Senior Clerks/Deputy Accountants of the BRO as on April 1, 1974 was published by the Controller of Rationing.
Representations were filed by writ petitioners l to 3 objecting to the ranking assigned to them in the said provisional gradation list and it was only in those representations that an objection was specifically taken by them for the first time that the "released" personnel from other departments who had been appointed in the cadre of Rationing Inspectors in the BRO should not be assigned seniority over them 94 since those persons had been working in their parent departments only in the capacity of Clerks.
The representation of writ petitioner 1 was filed on December 3, 1975 while those of writ petitioners 2 and 3 on November 27, 1975 and December 9, 1975.
Shortly thereafter, the petitioners approached the High Court by filing the writ petition on January 31, 1976.
The view expressed by the learned single Judge of the High Court that a writ petition filed under Article 226 of the Constitution, seeking redress on the ground of alleged infringement of fundamental rights cannot be dismissed by the court on the ground of laches, under any circumstances, is inconsistent with the pronouncements of this Court on the subject and cannot be accepted as correct or sound.
In Tilokchand Motichand and Ors.
vs H.B. Munshi & Anr.,(1) this Court had occasion to deal with a contention that the right to move the Supreme Court under Article 32 of the Constitution, being a fundamental right, a writ petition filed in the Supreme Court under the said provision cannot be dismissed on the ground of delay or laches, since such a course would amount to a denial of a fundamental right.
Repelling the said argument, Mitter, J. Observed thus: "I cannot however find any merit in the contention that because there is an invasion of a fundamental right of a citizen he can be allowed to come to this Court, no matter how long after the infraction of his right he applies for relief. 'I he Constitution is silent on this point; nor is there any statue of limitation expressly applicable, but never the less, on grounds of public policy I would hold that this Court should not lend its aid to a litigant even under article 32 of the Constitution in case of a inordinate delay in asking for relief and the question of delay ought normally to be measured by the periods fixed for the institution of suits under the Limitation Acts.
The Limitation Acts do not in terms apply to claims against the State in respect of violation of fundamental rights.
A person complaining of infraction of any such rights has one of three courses open to him.
He can either 95 make an application under article 226 of the Constitution to a High Court or he can make an application to this Court under article 32 of the Constitution, or he can file a suit asking for appropriate reliefs.
The decisions of various High Courts in India have firmly laid down that in the matter of the issue of a writ under article 226 the courts have a discretion and may in suitable cases refuse to give relief to the person approaching it even though on the merits the applicant has a substantial complaint as regards violation of fundamental rights.
Although the Limitation Act does not apply, the courts have refused to give relief in cases of long or unreasonable delay.
As noted above in Bhailal Bhai 's case ; , it was observed that the "maximum period fixed by the legislature as the time with in which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under article 226 can be measured.
" on the question of delay, we see no reason to hold that a different test ought to be applied when a party comes to this Court under article 32 from one applicable to applications under article 226.
In my view, a claim based on the infraction of fundamental rights ought not to be entertained if made beyond the period fixed by the Limitation Act for the enforcement of the right by way of suit.
While not holding that the Limitation Act applies in terms, I am of the view that ordinarily the period fixed by the Limitation Act should be taken to be a true measure of the time within which a per son can be allowed to raise a plea successfully under article 32 of the Constitution.
" To the same effect are the following observations of Sikri, J. in his separate judgment in the same case: "A delay of 12 years or 6 would make a strange bed fellow with a direction or order or writ in the nature of mandamus, certiorari and prohibition.
Bearing in mind the history of these writs I cannot believe that the Constituent Assembly had the intention that five Judges of this Court should sit together to enforce a fundamental right at the instance of a person, who had without any reasonable explanation slept over his rights for 6 or 12 years.
The history of these writs both in England and the U.S.A. 96 convinces me that the underlying idea of the Constitution was to provide an expeditious and authoritative remedy against the introads of the State.
If a claim is barred under the Limitation Act, unless these are exceptional circumstances, prima facie it is a stale claim and should not be entertained by this Court.
But even if it is not barred under the Indian Limitation Act, it may not be entertained by this Court if on the facts of the case there is unreason able delay.
It is said that if this was the practice the guarantee of article 32 would be destroyed.
But the article no where says that a petition, howsoever late, should be entertained and a writ or order or direction granted, howsoever remote the date of infringement of the fundamental right.
In practice this Court has not been entertaining stale claims by persons who have slept over their rights.
" In Rabindra Nath Bose and Ors.
vs Union of India and Ors.
,(1) the identical question again came up to be considered by this Court, and Sikri, J. speaking on behalf of the Constitution Bench, said this: "But in so far as the attack is based on the 1952 Seniority rules, it must fail on another ground.
The ground being that this petition under article 32 of the Constitution has been brought about IS years after the 1952 Rules were promulgated and effect given to them in the Seniority List prepared on August I, 1953.
Learned Counsel for the petitioners says that this Court has no discretion and cannot dismiss the petition under article 32 on the ground that it has been brought after inordinate delay.
We are unable to accept this contention.
The learned Counsel for the petitioners strongly urges that the decision of this Court in M/s. Tilokchand Motichand 's (2) case needs review.
But after care fully considering the matter, we are of the view that no relief should be given to petitioners who, without any reasonable explanation, approach this Court under article 32 97 of the Constitution after inordinate delay.
The highest A Court in this land has been given original Jurisdiction to entertain petitions under article 32 of the Constitution.
It could not have been the intention that this Court would go into stale demands after a lapse of years.
It is said that article 32 is itself a guaranteed right.
So it is, but it does not follow from this that it was the intention of the constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay.
We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience.
It would be unjust to deprive the respondents of the rights which have accrued to them.
Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.
" The same position was reiterated by this Court in Malcom Lawrence Cecil D 'Souza vs Union of India and Ors.(l) and again in a very recent pronouncement of this Court in S section Moghe and Ors.
vs Union of India and ors.(2) We may usefully extract the following observations contained in paragraph 23 of the judgment of this Court in the last mentioned case: "At this stage, it will be convenient to first dispose of the contentions urged by the petitioners, against the validity of the promotions given to respondents 8 to 67 during the period between 1968 and 1975.
In our opinion, the challenge raised by the petitioners against these promotions is liable to be rejected on the preliminary ground that it is most highly belated.
No valid explanation is forthcoming from the petitioners as to why they did not approach this Court within a reasonable time after those promotions were made, in case they really did feel aggrieved by the said action of the Department This writ petition has been filed only in the year 1979, and after such a long lapse of time the petitioners cannot be permitted to assail 98 before this Court the promotions that were effected during the years 1968 to 1975.
A party seeking the intervention and aid of this Court under Article 32 of the Constitution for enforcement of his fundamental rights, should exercise due diligence and approach this Court within a reasonable time after the cause of action arises and if there has been undue delay or laches on his part, this Court has the undoubted discretion to deny him relief (see Rabindra Nath Bose vs Union of India,(1) The Government Resolution of March 22, 1968 must have come to the knowledge of the writ petitioners at least when the provisional seniority list dated May 28, 1971 was circulated amongst the staff of the BRO.
Thereafter, in November 1972, a final Gradation List of Rationing Inspectors/Senior Clerks/Deputy Accountants of the BRO as on April 1, 1968 had been published and the said list was circulated to all the members borne on the concerned categories of the organisation.
It was expressly stated in both the aforesaid lists that the ranking of personnel had been effected in accordance with the principles laid down in the Government Resolution dated March 22, 1968.
The writ petitioners did not file any objections against the provisional list despite representations having been invited, nor did they take any steps to question the validity of the final gradation list or the seniority principles laid down in the Government Resolution of 1968, on the basis of which the said list had been prepared.
Still later, in April 1973, another provisional Gradation List of personnel working in the aforesaid categories was published by the Controller of Rationing and the said list, which was also drawn up in accordance with the seniority principles enunciated in the Government Resolution of March 22, 1968, had been admittedly brought to the knowledge of the writ petitioners.
They did not file any objections against the said list within the time prescribed.
And what is more significant is that even in the earlier representations filed by writ petitioners 1 to 3, which they filed in November 1973, no objection or protest was raised by them against the principles for determination of seniority laid down in the Government Resolution of 1968.
The Controller of Rationing informed writ petitioners 1 to 3 in December 1973 itself that the representations stood rejected since the seniority and rank assigned to them in the pro 99 visional Gradation List were in strict conformity with the principles laid down in the Government Resolution of 1968.
Even there after, the petitioners did not wake up and it was only on January 31, 1976 that they approached the High Court by filing the present writ petition out of which this appeal has arisen seeking to quash the Government Resolution of 1968 and the Gradation Lists of November 18, 1975 and November 27, 1975.
The petitioners have not furnished any valid explanation whatever for the inordinate delay on their part in approaching the Court with the challenge against the seniority principles laid down in the Government Resolution of 1968.
As already indicated by us, the fact that the Government had subsequently passed a Resolution dated March l, 1974 directing the regularisation of the temporary appointments of non P.S.Cs.
clerical personnel working in Ministerial posts in the different Government Departments in Greater Bombay, has no relevancy at all in this context of dealing with the question of delay and laches on the part of the petitioners in taking steps to challenge against the Government Resolution of 1968.
The inter se seniority between the petitioners and the other personnel regularly absorbed in the BRO who have come over to the BRO as "released Government servants" is not in any way affected by the said Government Resolution of April 1, 1974, inasmuch as it has been expressly made clear therein that the temporary personnel who are entitled to the benefit of regularisation thereunder were to be assigned seniority only on the basis that regular appointments were effected on the date of issue of the said order.
The learned Single Judge of the High Court was, therefore, clearly in error in thinking that the passing of the Government Resolution of 1974 furnished a fresh cause of action for the petitioners for agitating their contentions regarding the invalidity of the Government Resolution of 1968.
We are unable to appreciate the further reason stated by the learned Single Judge, that the respondents had not placed on record any factual data to show the extent of promotions made on the basis of the seniority list of 1972 and the manner in which the promotees would be affected if the relief was granted to the writ petitioners, and the same we find to be is based on a totally incorrect approach.
It is to be noticed that there was no dispute before the High Court that from the date of publication of the provisional list of May 28, 1971, which was expressly based on the principles laid down in the Government Resolution of 1968, the seniority and rank of all the personnel in concerned categories had been fixed in accordance with the principles laid down in the impugned Resolu 100 tion.
In the counter affidavits filed in the High Court on behalf of the State Government and the Controller of Rationing as well as in the affidavits filed by the other respondents, it had been specifically averred that innumerable promotions had been made during the period of six years on the basis of seniority as fixed in accordance with the impugned rules and many officers had gone up by two or three stages as a result of such promotions.
Further, there is the clinching fact that the writ petitioners themselves had impleaded as many as 162 officers as respondents on the ground that they were all likely to be affected in case the reliefs claimed in the writ petition were granted.
In these circumstances, we consider that the High Court was wrong in over ruling the preliminary objection raised by the respondents before it, that the writ petition should be dismissed on the preliminary ground of delay and laches, inasmuch as it seeks to disrupt the vested rights regarding the seniority, rank and promotions which had accrued to a large number of respondents during the period of eight years that had intervened between the passing of the impugned Resolution and the institution of the writ petition.
We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 22, ]968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition in so far as it related to the prayer for quashing the said Government Resolution should have been dismissed.
On the merits also, we do not find any substance in the attack levelled by the petitioners against the legality and validity of the seniority principles laid down in the impugned Government Resolution of March 22, 1968.
We shall briefly indicate our reasons for reaching this conclusion.
The BRO was a totally new Department which was constituted on March 1, 1966 pursuant to the Government Resolution dated February 11, 1966.
Under the said Resolution, it was directed that the staff for manning the new organisation should consist of: (a) the skeleton staff already sanctioned under an earlier Government Resolution dated October 21, 1965 for carrying out the preliminary work in connection with the establishment of the new organisation (BRO); 101 (d) the existing staff under the Controller of Foodgarins distribution, Bombay, Consisting of 384 posts which were to be merged with a new Bombay Rationing office (BRO) with effect from March 1, 1956; (c) personnel drawn on deputation from other departments of the State Governments; and (d) persons directly recruited to the BRO.
Here is, therefore, a case where the staff for manning a new department has been drawn from four different sources.
In such a situation, it was inevitable that some reasonable principles had to be formulated for the determination of the inter se seniority of the personnel appointed to work in the different categories of posts in the new organisation.
The entire argument of the petitioners is based on an erroneous assumption that from the very inception they belonged to the BRO and had some vested rights with respect to seniority and rank in the said organisation.
The petitioners who were members of the staff of the CFD were taken into the BRO along with the skeleton staff appointed under the Government Resolution dated October 21, 1965 and the "released Government servants" etc., as part of the single scheme formulated by the Government for the constitution of a new department (BRO).
There is therefore, no substance in the contention advanced by the writ petitioners that they stood on a separate and superior footing for the purpose of seniority etc., in the new organisation.
In this connection, it is relevant to note that the writ petitioners were holding the posts of Supply Inspectors in the CFD only on the basis of appointments which were purely temporary.
They had not been recruited through the Public Service Commission but were given temporary appointments on the basis of recommendations made by the Employment Exchange and their services were terminable at any time without notice.
Thus the position that existed at the time of the formation of the BRO was that the writ petitioners were not holding any substantive or regular appointments in the CFD which itself was only a temporary Department.
In contrast, the deputationists who came over to the BRO as "released Government servants" were persons who had been holding for many years Ministerial posts in other Government departments on regular basis pursuant to their recruitment by the Public Service Commission.
Under the impugned seniority rules laid down by the Government Resolution dated March 22, 1968, a deputationist 102 (released Government servant) 'with two years ' regular service as Clerk in other Government departments has been equated with a Supply Inspector of the CFD and it is on this basis that the inter se seniority as between the erstwhile CFD personnel and the "released Government servants ' ' appointed to a post of Rationing Inspectors/Senior Clerks/Deputy Accountants in the BRO is to be reckoned.
In our opinion, the said equation cannot be regarded as arbitrary or unreasonable, especially when it is viewed in the context of the factual background that the Supply Inspectors in the CFD were merely temporary hands whose appointments were of a precarious nature and the functions and duties performed by them are not shown to have been substantially different from those discharged by the clerks in other Government departments.
The principle laid down in rule 4 (a) that the seniority of "released Government servants" and merged Government servants in the cadres of Senior Clerks, Rationing Inspectors and Deputy Accountants shall be determined with reference to dates which shall be fixed after deducting two years from the date of continuous service whether officiating or permanent rendered by him in the cadre of clerks, typists etc., appears to our minds to be perfectly just and unexceptionable in the circumstances of the case.
The reasons stated by the learned Single Judge of the High Court for declaring the aforesaid rule to be arbitrary and violative of Article 16 of the Constitution do not appeal to us as correct or sound.
Almost the entire reasoning of the learned Single Judge is based on an assumption that there is an invariable "normal rule" that seniority should be determined only on the basis of the respective dates of appointment to the post and that any departure from the said rule will be prima facie unreasonable and illegal.
The said assumption is devoid of any legal sanction.
We are unable to recognize the existence of any such rigid or inflexible rule.
It is open to the rule making authority to take a note of the relevant circumstances obtaining in relation to each department and determine with objectivity and fairness what rules should govern the inter se seniority and ranking of the personnel working in the concerned departments and the courts will only insist that the rules so formulated should be reasonable, just and equitable.
Judged by the said test of reasonableness and fairness, the action taken by the Government in equating the clerical personnel which had rendered two years regular service in other departments with the temporary Supply Inspectors of the CFD and in directing as per impugned rule 4 (a) that their inter se seniority shall be determined with reference to the length of service calculated on the basis of the said equation cannot be said to be in any 103 way discriminatory or illegal.
We are unable to accept as 14 correct the view expressed by the learned Single Judge of the High Court that "while fixing the Seniority in the higher post, it is not open to take into consideration any service rendered in the lower post and that by itself spells out discrimination " Firstly, it is not correct to regard the post of a regular clerk in the other departments as lower in grade in relation to that of a Supply Inspector in the CFD.
Further, in S.G Jaisinghani vs Union of India and O ors.,(1) this Court has pointed out that in the case of recruitment to a service from two different sources and the adjustment of seniority between them a preferential treatment of one source in relation to the other can legitimately be sustained on the basis of a valid classification, if the differences between the two sources has a reasonable relation to the nature of posts to which the recruitment is made.
In that case, this Court upheld the provision contained in the seniority rules of the Income tax Service, whereby a weightage was given to the promotees by providing that three years of outstanding work in Class II will be treated as equivalent to two years of probation in Class I (Grade II) Service.
We may also extract, with advantage, the following observations of Palekar, J., speaking on behalf of the Constitution Bench, in Bishan Sarup Gupta vs Union of India and ors.(2): "There is no question in this case of any discrimination being made in a service after officers from the sources have been brought in one cadre.
It is true that seniority is a vital element in the matter of promotion but that does not mean that allotment of seniority by rule, relative to recruitment, involves any classification for the purposes of promotion.
The argument that the promotees and direct recruits became one class immediately on entry and, there after, there could be no classification between them does not disclose the correct approach to the problem of fixing inter se seniority between them.
When recruits from two sources have come into a service it is essential to fix inter se seniority for a proper integration of the cadre.
Therefore, it is really a case of adjustment of seniority between the recruits and does not amount to making a classification after their absorption in one service.
" 104 A comparison of the pay scales of the Supply Inspectors in CFD with that of Clerks in the other departments shows that though the clerks started with a lower salary, their pay scale reached a much higher level than that of the Supply Inspectors It is also relevant to notice that the next promotion post available to the clerks in other Government departments from where they had gone on deputation to the BRO was that of Assistant or Head Clerk in the Grade of Rs. 200 450 or Rs. 200 300, while the next promotion post of Supply Inspector in the former CFD was that of an Assistant Zonal officer in the Grade of Rs. 200 300.
Further the post of Assistant ' to which the Clerks in other Government departments get a promotion has been declared to be equivalent to the post of Assistant Rationing officer in the BRO which is the post immediately above that of Rationing Inspector in the BRO.
When all these factors are taken into account, it becomes clear that the post of Supply Inspector in the CFD cannot be regarded as a post higher than or superior to that of clerk in the other Government Departments.
Hence, we do not find it possible to uphold the view expressed by the learned n Single Judge of the High Court that the seniority principle embodied in rule 4(a) treats unequals as equals and that it is, therefore, violative of Articles 14 and 16 of the Constitution.
When personnel drawn from different sources are being absorbed and integrated in a new department, it is primarily for the Government or the executive authority concerned to decide as a matter of policy how the equation of posts should be effected.
The courts will not interfere with such a decision unless it is shown to be arbitrary, unreasonable or unfair, and if no manifest unfairness or unreasonableness is made out, the court will not sit in appeal and examine the propriety or wisdom of the principle of equation of posts adopted by the Government.
In the instant case, we have already indicated our opinion that in equating the post of Supply Inspector in the CFD with that of Clerk with two years regular service in the other Government departments, no arbitrary or unreasonable treatment was involved.
Clause (c) of rule 4 which is the next provision that has been struck down by the High Court merely states that the seniority of Government servants in the cadre of Senior Clerks/Rationing Inspectors/Deputy Accountants shall be refixed in accordance with the principles laid down in clauses (a) and (b) of rule 4.
We have repelled the challenge against clause (a) of rule 4 and no challenge has 105 been raised by the petitioners before us against clause (b) of the said rule.
It must automatically follow that the aforesaid provision contained in clause (c) of rule 4 is perfectly valid and constitutional.
That takes us on to the proviso to rule 7 which is the only other provision struck down by the High Court.
Clause (a) of rule 7 lays down that in the case of Government servants taken into the BRO on release from one and the same office, their seniority inter se in their former office shall be maintained in the BRO.
Clause (b) is a similar provision relating to the "merged Government servants" (ex CFD personnel).
Clause (c) of rule 7 lays down that the inter se seniority of persons directly recruited in the former CFD organisation shall be governed by the principles set out in the Government Resolution dated April l, 1963.
It is further stated in the said clause that in regard to persons who were taken to the CFD from one and the same Government office/department, they shall take their rank according to their inter se seniority in the office/ department from which they were drawn.
Thereafter, follows the impugned proviso which lays down that where there is a clash of principles contained in the Government Resolution dated April 1, 1963 with the seniority inter se in the former department, the seniority inter se in the former Department shall prevail.
The principles for fixation of inter se seniority of personnel working in the CFD had been enunciated by the Government in the Resolution dated April 1, 1963.
What has done under the impugned proviso is only to state that with respect to persons who have been drafted into the CFD organisation from one and the same Government department on deputation basis, their inter se seniority in the former department shall not be disturbed and that to the said extent a deviation should be made from the principles laid down in the Government Resolution dated April 1, 1963.
We fail to see how the said direction contained in the impugned proviso for preservation of the inter se seniority of deputationists who have been drawn from one and the same Government department to serve the CFD can be said to be arbitrary or unreasonable.
It is a just and whole some principle commonly applied in such situations where persons from other departments are drafted to serve on deputation their inter se seniority in the parent department should be respected and preserved during the period of such deputation to the new department.
We, therefore, consider that the High Court was in error in striking down the proviso to rule 7 as being violative of Articles 14 and 16 of the Constitution.
106 It now only remains for us to examine whether there is substance in the contention put forward by the writ petitioners that even if the impugned seniority principles laid down in the Government Resolution dated March 22, 1968 are to be regarded as valid, the seniority lists dated November 18, 1975 and November 27, 1975 have not been drawn up in accordance with those principles.
The first point urged before us is that the effect of clause (b) of rule 7 is to make the provisions of clauses (a) and (b) of rule 4 inapplicable to merged government servants and to direct that the seniority of the merged Government servants should be determined only in accordance with the principles laid down in the Government Resolution dated April 1, 1963.
This argument is based on a total misconception of the scope and effect of rule 7 (b).
What that rule provides is only that as between the CFD personnel who have been absorbed in the BRO their inter se seniority reckoned on the basis of the principles contained in the Government Resolution dated April 1, 1963 shall be preserved.
In other words, the object and purpose of sub clause (b) is limited to the preservation and maintenance of the pre existing inter se seniority as between the CFD personnel even after their absorption in the BRO and the said provision does not in any way hamper the operation of the principles laid down in rule 4 for the fixation of the seniority of all the personnel including the merged Government servants in the respective categories in the BRO.
A careful reading of the provision of clause (c) and the illustrations given thereunder makes this position abundantly clear.
The aforesaid contention put forward on behalf of the writ petitioners will, therefore, stand rejected.
There is, however, some substance in the grievance put forward on behalf of the writ petitioners that in drawing up the impugned seniority lists in purported application of the principles laid down in clause (a) rule 4, many persons who were juniors to the writ petitioners in the category of Supply Inspectors in the CFD have ranked above the petitioners in the category of Inspectors / Senior Clerks/Deputy Accountants.
There are also instances where persons who were working in the CFD as clerks at the time of the merger and were appointed in the BRO as clerks but have been subsequently promoted in the BRO as Rationing Inspectors/Senior Clerks/Deputy Accountants have been shown in the gradation list as seniors in relation to the writ petitioners despite the fact that the writ petitioners were all along functioning as Supply Inspectors in the CFD by virtue of their having been recruited to the said cate 107 gory in that organisation.
We do not find anything in rule 4 (a) which warrants such an unfair treatment being meted out to persons like the petitioners who were directly recruited as Supply Inspectors in the CFD.
Rule 7 clearly lays down that the operation of clause (a) of rule 4 is subject to the limitation specified therein, namely, that in the case of merged Government servants their inter se seniority will be preserved in tact.
Hence, no person who was functioning as a junior in relation to the writ petitioners in the category of Supply Inspectors in the CFD can be assigned seniority or rank above the writ petitioners in the cadre of Rationing Inspectors/Senior Clerks/Deputy Accountants in the BRO.
Similarly, no person who has been taken into the BRO as a clerk from the CFD can under any circumstances be placed above the writ petitioners in the gradation list of Rationing Inspectors/Senior Clerks/Deputy Accountants of the BRO.
It is clear from the averments contained in the counter affidavit filed on behalf of the State Government that the aforesaid principle has been violated while preparing the two impugned gradation lists dated November 18, 1975 and November 27, 1975.
The explanation given in the counter affidavit for adopting the said course does not appear to us to be acceptable or sound.
It was pointed out by the counsel for the respondents (writ petitioners) that Exhibit 'A ' produced along with the counter affidavit of the first respondent herein shows that as many as 30 persons, who had joined the BRO as Clerks and were subsequently promoted as Rationing Inspectors, have been shown as seniors in relation to the writ petitioners in the gradation list dated November 18, 1975.
Similarly, Exhibit 'B ' gives the names and particulars of persons who were appointed as supply Inspectors in the CFD subsequent to the appointment of the petitioners, but who have nevertheless been shown in the impugned gradation list as seniors to the writ petitioners in the corresponding cadre in the BRO.
We have already made it clear that on a combined reading of rules 4 and 7 of the impugned seniority rules, the inter se seniority of the CFD personnel has to be strictly maintained in tact, and that no person who was junior in the CFD in the category of Supply Inspector can go above his senior in that (Organisation after being absorbed in the BRO, and also that no person who has been taken as a clerk in the BRO can go above persons absorbed therein in the category of Rationing Inspectors.
In the light of what we have said above, the impugned seniority lists in so far as they have been drawn up in devitation from the legal position explained above call for immediate revision.
We 108 would accordingly direct respondents 23 and 24 (State of Maharashtra and the Controller of Rationing, Bombay) to revise the two impugned seniority lists and refix the ranking assigned to the writ petitioners and others in the light of what we have said in this judgment.
In the result, this appeal is allowed and the judgments of the High Court are set aside.
The writ petition Misc.
Petition No. 166 of 1976 is allowed only to the limited extent of the aforesaid direction issued to respondents 23 and 24 for revision of the impugned seniority lists and it is dismissed in other respects.
The parties will bear their respective costs.
P.B.R. Appeal allowed.
| IN-Abs | To man the various posts in the newly established Bombay Rationing Organisation (BRO) the State Government sanctioned a skelton staff.
In addition to the sanctioned staff, the existing staff of the erstwhile adhoc organisation of Controller of Foodgrains (CFD) were taken into the BRO.
Since it was considered necessary to have experienced staff for manning higher posts in the new Organisation the Government borrowed the services of experienced hands from other departments.
Since, as work expanded, it was found that the number of persons brought on deputation to fill up all the new posts in the BRO were not enough, some persons were directly recruited into the BRO.
In 1968 the State Government issued, under the proviso to Article 309 of the Constitution, the Bombay Rationing Organisation (Fixation of Seniority) Rules, 1968 laying down the principles to be applied for the fixation of seniority of persons working in the BRO.
The rules were given retrospective effect from the date of the Government resolution sanctioning the skelton staff for introduction of statutory rationing.
Rule 4(a) provided that seniority of a released government servant and a merged government servant in the cadre of senior clerk etc.
, as also a person who was initially appointed as a clerk etc.
in the Bombay Rationing Organisation and subsequently promoted to the said cadre shall be determined with reference to the dates which shall be fixed after deducting two years from the length of continuous service.
Clause (c) of this rule provided that seniority of government servants in the cadre of senior clerks fixed on the basis of rules (a) and (b) of this rule shall be merged and refixed with reference to the dates from which their seniority is determined according to the principles in rules 4(a) and (b).
70 The proviso to rule 7 provided that where there is a clash of principles contained in the government resolution with the seniority inter se in the former department shall prevail.
Based on the principles laid down in 1968 Rules the Controller of Rationing had drawn up a gradation list of Rationing Inspectors, Senior Clerks and Deputy Accountants working in the BRO as on April 1, 1968.
The list was exhibited on the notice board of the head office of BRO, regional offices and Rationing Offices and was communicated to the individual members of the staff.
A final gradation list was thereafter drawn up as on April 1, 1968.
Some time later on April 9, 1973 another provisional gradation list as on April 1, 1972 was drawn up and published as before.
Since at that time there were many employees who were temporarily recruited pending allotment of candidates selected by the State Public Service Commission rules were relaxed and their appointments were regularised subject to the condition that seniority of such non P.S.C. candidates on whom the benefit of continuance of service was conferred was to be fixed only with reference to the date of issue of the resolution, as a result of which candidates selected by the Public Service Commission already working in the various departments were treated as seniors in relation to the non P.S.C. persons covered by the resolution.
A provisional gradation list as on April 1, 1974 was published following the seniority principles laid down by the BRO in 1968 and those laid down in the resolution concerning non P.S.C. candidates.
In January 1976, respondents 1 to 22 who were directly recruited in the former CFD but subsequently absorbed in the BRO challenged in a writ petition the validity of the two gradation lists contending that in preparing these lists the normal rule of fixation of seniority according to the date of appointment to the post was given a go by and that while fixing seniority unequals had been treated as equals in that the service rendered in the clerical cadre had been reckoned and equated with the service rendered in the Rationing Inspectors ' cadre.
The respondents raised a preliminary objection that the petition was barred by laches because though the gradation list had been circulated to all concerned in 1968 itself no objection had been raised and no effective steps had been taken by the petitioners to challenge the validity of the principles laid down in the government resolution and that after a lapse of 8 years it was not open to them to raise the challenge against the gradation list and try to unsettle a settled principle; (2) in view of the fact that persons from various departments had been recruited, it was necessary to evolve some fair and reasonable principles for the fixation of inter se seniority of the integrated personnel in the different categories.
A single Judge of the High Court struck down clauses (a) and (c) of rule 4 and the proviso to rule 7 of the government Order dated March 22, 1968 as 71 being violative of Articles 14 and 16 of the Constitution and directed the State Government to prepare fresh lists of seniority without taking into consideration the provisions struck down by him.
On the question of laches the Single Judge held that the law did not lay down any obligation on the Court to refuse to grant relief merely because there was a lapse of time but that since the cause of action arose and the challenge was based on infringement of Articles 14 and 16 of the Constitution, the Court could not shut out the petitioners on the ground of laches because such a course would amount to condoning the invalid rules.
The Division Bench dismissed in limine the appeal preferred by the respondents in the writ petition.
Allowing the appeal, ^ HELD: The High Court was wrong in holding that clauses (a) and (c) of rule 4 and the proviso to rule 7 of the government resolution dated March 22, 1968 are violative of Articles 14 and 16 of the constitution and in directing the State Government to prepare a fresh seniority list without taking into consideration these provisions.
[90 B C] Assuming that the principles for determining the inter se seniority of persons appointed in the different categories of the newly constituted BRO laid down in the government resolution of March 22, 1968 were not known to the members of the staff immediately after the resolution was passed by the State Government a Provisional Gradation List of Rationing Inspectors etc.
as on 1st April, 1968 was drawn up in implementation of these principles on 28th May 1971 and the said list was circulated to all the personnel working in the establishment of the BRO.
Neither after the publication of the provisional gradation list on May 28, 1971 which was followed up by the publication and circularisation of a final gradation list on November 23, 1972, nor even after the gradation list was revised and published on April 9, 1973, did the writ petitioners file any objections against their ranking in those gradation lists, within the time allowed.
[90 F H] Even in the belated representations filed by some of the writ petitioners no objection was raised against the principles for determination of seniority enunciated in the government resolution of 1968, nor was there any protest whatsoever against the provision made in the resolution for fixation of seniority of released government servants.
Nor again when their representations were rejected by the government did the petitioners challenge the constitutionality of the rules contained in the impugned resolution.
[92 D E] The government resolution in regard to the position of non P.S.C. candidates vis a vis the P.S.C. candidates did not in any way affect the inter se seniority between the petitioners and the released government servants drafted to the BRO because that resolution was a general order applicable to all the non P.S.C. personnel functioning on a temporary or ad hoc basis in the various departments of the State Government.
[93 E F] 72 There is no substance in the contention of the petitioners that they stood on a separate and superior footing for the purpose of seniority in the new organisation.
The staff in the new organisation was drawn from four different sources and this inevitably necessitated the formulation of reasonable principles for the determination of inter se seniority.
At the time of formation of the BRO the petitioners were not holding any substantive or regular appointments in the CFD which itself was a mere temporary department.
In contrast the deputationists (released government servants) were regular hands recruited by the Public Service Commission and they were holding posts on a substantive basis in other departments.
The principles of equation evolved for determining the inter se seniority could not be regarded as arbitrary or unreasonable viewed in the context that the CFD candidates were merely temporary hands in a temporary department.
[101 E H] It is not an invariable rule that seniority should be determined only on the basis of the respective dates of appointment to the post and that any departure from it would be unreasonable and illegal.
It is open to the rule making authority to take a note of the relevant circumstances obtaining in relation to each department and determine objectively the rules that should govern the inter se seniority and ranking.
Such rules should be reasonable, just and equitable.
[102 F G] In the instant case the action of the Government in determining the inter se seniority of clerical personnel under rule 4(a) cannot be said to be in any way discriminatory or illegal.
S.G. Jaisinghani vs Union of India & Ors., ; ; Bishan Sarup Gupta vs Union of India & Ors.
, ; at p. 114, referred to.
When personnel drawn from different sources were being absorbed and integrated in a new department it was primarily for the government to decide as a matter of policy how the equation of posts should be effected, Courts would not interfere with such a decision unless it is shown to be unreasonable or unfair.
[104 E] All that the proviso to rule 7 does is to state that in respect to persons drafted into the CFD from one and the same government department on deputation basis their inter se seniority in the former department should not be disturbed and to that extent a deviation should be made from the principles laid down in the government resolution of April 1, 1963.
This proviso contains a just and wholesome principle commonly applied in such situations and it cannot be said to be arbitrary or unreasonable.
The High Court was in error in striking down the rule as being violative of Articles 14 and 16 of the Constitution.
[105 E H] The object of clause (b) of rule 7 is limited to the preservation and maintenance of the pre existing inter se seniority as between CFD personnel even after their absorption in the BRO and this provision does not in any way hamper the operation of the principle laid down in rule 4 for the fixation of seniority of all the personnel including the merged government servants in the respective categories of BRO.
[106 D E] 73 The view of the single Judge that a petition under Article 226 seeking redress for alleged infringement of fundamental rights could not be dismissed on the ground of laches under any circumstances is inconsistent with the pronouncements of this Court on the subject.
The High Court was wrong in over ruling the preliminary objection based on delay and laches.
[94 B C] Tilokchand Motichand and Ors.
vs H.B. Munshi and Anr.
at pp.
805, 836, 853 855, Rabindra Nath Bose and Ors.
vs Union of India and Ors.
; at pp. 711 712; Malcom Lawrence Cecil D 'Souza vs Union of India and Ors.
at p. 602; S.S. Moghe and Ors.
vs Union of India and Ors.
; at p. 292, referred to.
The petitioners had ample opportunities to file their objections to the gradation list but they failed to avail those opportunities.
They had not furnished any valid explanation whatsoever for the inordinate delay on their part in approaching the Court with the challenge against the principles of seniority laid down in the resolution of 1968.
The single Judge was in error in thinking that the passing of the government resolution of 1974 furnished a fresh cause of action for the petitioners for agitating their contentions regarding the validity of the government resolution of 1968.
[99 B F]
|
Civil Appeal No. 1867 of 1970.
From the judgment and order dated the 18th February, 197() of the Gujarat High Court in Letters Patent Appeal No. 6/60.
section section Sheth, Ravinder Narain, J. B. Dadachanji, O.C. Mathur and Mrs. Anjali K. Verma for the Appellant.
Gautham Philip, P. H. Parekh and Mrs. Vineeta Sen Gupta for the Respondent.
The Judgment of the Court was delivered by MISRA, J.
The present appeal by certificate is directed against the judgment of the High Court of Gujarat at Ahmedabad in 169 Letters Patent Appeal No. 6 of 1966 dated the 18th of February, 1970 decreeing the suit for redemption.
The property in dispute, situated in Baroda City, originally belonged to Motibhai Bapubhai Shibandi Baxi (for short Motibhai).
He created a mortgage with possession of the disputed property in favour of one Nanaji Balwant Pilkhanewala (for short Nanaji) in 1871 for a sum of Rs. 800.
In 1890 a second mortgage was created in favour of the same mortgage and the amount secured by this second mortgage was Rs. 375.
Somewhere between 1890 and 1912 the original mortgagee Nanaji died leaving behind his two sons Hari and Purshottam as his heirs and legal representatives.
The two sons of Nanaji sold the entire mortgagee rights and interest to one Ganpatram Mugutram Vyas (for short Ganpatram) on 4th of July, 1912.
Ganpatram in his turn sold the mortgagee rights in a part of the mortgaged property, viz., common latrine, to one Vamanrao Laxmanrao Nirkhe (for short Vamanrao).
Ganpatram died and his son Chhotelal Ganpatram (for short Chhotelal) sold away his rights as a mortgagee in possession in respect of the rest of the properties which still remained with him, to Chhaganlal Keshavlal Mehta (for short Chhaganlal Mehta.) Mortgagor Motibhai.
also died leaving behind his son Chimanrai Motibhai Baxi (for short Chimanrai).
Chimanrai died leaving behind his widow Chhotiba and a daughter Taralaxmibai.
On September 12, 1950 Taralaxmi sold her right, title and interest in the suit property to one Shantilal Purshottamdas Dalia (for short Shantilal).
Later on Shantilal conveyed his right, title and interest in the property to the plaintiff, Narandas Haribhai Patel (for short Narandas).
It appears that during the life time of Chimanrai Ganpatram the mortgagee had sent a notice, Ext. 77, dated 15th of April, 1913 to Chimanrai informing him that the mortgaged property was in a dilapidated condition and required repairs.
He had already spent some amount towards repairs but still substantial repairs were needed and the same should be got done by him or he should pay the mortgage amount and redeem the property.
On receipt of this letter Chimanrai made the following endorsement: "During the lifetime of my father, I had become separated from him without taking any kind of the moveable or immovable property belonging to him and even 170 after his death, I have not taken any kind of his properties nor have I kept my right over the said properties and so I am not in any way responsible for your any transaction whatsoever in connection with his properties.
Be it known to you.
And while giving you a definite assurance to that effect I have made attestation on the aforesaid document in respect of purchase of the mortgagee 's rights, which may also be known to you." Long after the death of Chimanrai, Chhotelal, son of Ganpatram, gave a similar notice, Ext.
28, dated 6th of October, 1933 to Chhotiba, the widow of Chimanrai calling upon her to Redeem the mortgage in question.
On this notice similar endorsement on behalf of Chhotiba was made on 10th of October, 1933 by Lomeshprasad Hariprasad Desai (for short Lomeshprasad).
her daughter 's son, as had been made by Chimanrai earlier on the notice given by Ganpatram.
Yet another notice, Ext.
78 dated 21st of September, 1933 was sent by Chhotalal to Taralaxmibai, daughter of Chimanrai to the same effect.
In her reply, Ext.
73, dated 3rd of October, 1933 to the notice, Taralaxmibai stated inter alia that her father Chimanrai had foregone all rights whatsoever in the property of his father, Motibhai, during his lifetime and hence she had no concern with the property of Motibhai.
It was further stated that her own mother Chhotiba was alive (in October 1933) and, Therefore, she had no concern whatsoever with the property of Motibhai or the liabilities arising out of the dealings of Motibhai.
Narandas after the purchase of the mortgagor 's rights from Shantilal filed a suit for redemption impleading both the assignees For the mortgagee 's rights, Chhaganlal Keshavlal Mehta, as the 1st defendant, and Vamanrao Laxmanrao Nirkhe, as the 2nd defendant.
The claim was resisted by.
the 1st defendant on grounds that the plaintiff had no right to redeem inasmuch as his predecessor in interest, Chimanrai, his widow Chhotiba and his daughter Taralaxmibai on their own admission had no subsisting right, title and interest in the mortgaged property.
The plaintiff who is only a transferee from Taralaxmibai could not rank higher, that Ganpatram, the predecessor in interest of defendant No. 1 was not in possession of the property as a mortgagee but as an absolute owner thereof.
The defendant No. 1, who claims through Ganpatram 's son Chhotalal, was also an absolute owner and continued to remain in possession from 1933 34 as such.
As an abso 171 lute owner he carried out repairs to the mortgaged property.
He also obtained permission from the municipality and built the house afresh after incurring heavy expenditure and in doing so he had spent about Rs. 3374 2 0.
He also denied that Shantilal, purchaser of the equity of redemption was the plaintiff 's benamidar.
Indeed, the plaintiff had falsely created the evidence of benamidar to bring the present suit, and the suit was barred by limitation and estoppel.
In the alternative he pleaded that he should be paid the sum of Rs. 5099 2 0 if the plaintiff 's suit for redemption was to be decreed.
The trial court came to the conclusion that the plaintiff had no right to redeem the mortgaged property as he had failed to prove that he had purchased the property benami in the name of Shantilal and that afterwards Shantilal had passed deed of conveyance or mutation in his favour.
In view of this finding it was not necessary for the trial court to decide other issues but all the same the trial court recorded findings on the remaining issues also in order to complete the judgment.
It found that Chimanrai, Chhotiba or Taralaxmibai never relinquished their right, title and interest in the suit property, that the suit was within limitation, and that the suit was not barred by estoppel.
As regards the amount spent on repairs the court came to the conclusion that the defendant No. I had spent Rs. 3374 2 O and, therefore, if the plaintiff was to be allowed to redeem the property he would have to pay that amount in addition to the mortgage consideration.
The suit was dismissed by the trial court on the ground that the plaintiff had no right to redeem.
Feeling aggrieved the plaintiff went up in appeal, and the defendant No. 1 filed a cross objection against the finding that went against him.
The appeal and the cross objection were allowed by the Assistant Judge by his judgment dated 31st of March, 1956 on the finding that the plaintiff had purchased the equity of redemption benami in the name of Shantilal and that Shantilal had executed a deed of conveyance, Ext.
66, in favour of the plaintiff and, therefore, he was entitled to redeem the property.
He further found that the endorsements made by Chimanrai, his widow Chhotiba and his daughter Taralaxmibai did not amount to relinquishment of their right, title and interest in the property.
He set aside the decree of the trial court and remanded the case for deciding the remaining points after allowing the parties to lead fresh evidence on those issues.
The defendant No. I challenged the remand order by 172 filing an appeal in the High Court.
His complaint was against the direction given by the appellate court while remanding the case.
The High Court allowed the appeal in part and modified the direction of the lower appellate court asking the trial court to decide other issues afresh after allowing further evidence, except issues Nos. 1 and 4.
Consequent upon the order of remand the Joint Civil Judge, Jr. Division, decided other issues against the plaintiff.
He held that Chimanrai, his widow Chhotiba and his daughter Taralaxmibai had relinquished their right, title and interest in the suit property and, therefore.
Taralaxmibai had no subsisting interest or title to transfer to the plaintiff or his predecessor in interest.
He further held that the suit was barred by time and estoppel, and that defendant No. I had spent a substantial amount on repairs.
On these findings he again dismissed the suit by his judgment dated 21st of August, 1958.
The plaintiff again took up the matter in appeal, It appears that during the pendency of the appeal Vamanrao, defendant No. 2 died in August, 1958.
His heirs were, however, not brought on the record.
A question arose whether the appeal abated as a whole or only as against defendant No. 2.
The District Judge by his separate order dated 25th of September, 1959 held that the appeal abated only so far as defendant No. 2 was concerned but it could proceed as against the surviving defendant No. 1.
The appeal was eventually allowed by the Assistant Judge, Baroda against defendant No. 2 by his judgment dated 12th of November, 1959 holding that the appellant was entitled to redeem the mortgaged property on payment of Rs. 4724 2.0 on account of the mortgage money as well as the expenditure incurred by defendant No. 1 on repairs and that the suit was neither barred by time nor by estoppel.
The appeal was, however, dismissed as against defendant No. 2.
The defendant No. 1 challenged the judgment and decree of the Assistant Judge before the High Court and only two contentions were raised before it: (1) that the mortgage cannot be split up and must be treated as one and indivisible security and since the right to redeem against one of the two co mortgagees had become extinguished because of abatement of the suit against Vamanrao and his heirs, the suit against defendant No. 1, the other co mort 173 gagee, must be dismissed; and (2) that the suit was barred by estoppel inasmuch as Chimanrai, the heir of the original mortgagor and after him his widow Chhotiba and daughter Taralaxmibai having relinquished their right in the disputed property which she could have conveyed to Shantilal by sale.
Consequently, Shantilal in his turn could not pass a better title to the plaintiff.
In the result the plaintiff had no right to file the suit for redemption.
A learned Single Judge who heard the appeal repelled the first contention but accepted the second one.
Accordingly, he allowed the appeal and dismissed the plaintiff 's suit.
The plaintiff undaunted took up the matter in a Letters Patent Appeal and the defendant also filed a cross objection.
A Division Bench of the High Court allowed the appeal and decreed the suit reversing the finding of the learned Single Judge that the plaintiff had no right to sue.
The Division Bench, however, granted a certificate of fitness for appeal to this Court.
The learned counsel for the appellant was raised the same two contentions before us.
We take up the first point first.
The first contention is based on the principle of indivisibility of the mortgage.
Section 60 of the Transfer of Property Act deals with the rights and liabilities of a mortgagor.
It confers a right of redemption.
There is, however, a rider to the right of redemption in the section itself, which provides : "Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor." A perusal of this provision indicates that a co mortgagor cannot be permitted to redeem his own share of the mortgaged property only on payment of proportionate part of the amount remaining due.
In other words the integrity of the mortgage cannot be broken.
Order 34, rule I of the Code of Civil Procedure deals with the parties to suits for foreclosure, sale and redemption.
It provides: "Subject to the provisions of this Code, all persons having an interest either in the mortgage security or in the 174 right of redemption shall be joined as parties to any suit relating to the mortgage.
" It has already been pointed out that defendant No. 2 was the purchaser of mortgagee rights in respect of common latrine while defendant No. I is the purchaser of the mortgagee rights in respect of the remaining mortgaged property, viz., the houses.
When the plaintiff filed the suit he impleaded both the mortgagees as defendants Nos. 1 and 2.
Before the Assistant Judge a statement was made on behalf of the original plaintiff that he was prepared to pay the entire mortgage amount for redemption of the mortgaged property to the 1st defendant.
A similar statement was made by Mr. Oza, counsel for the plaintiff in the High Court who further stated that in no event hereafter would the plaintiff seek any relief against the property in possession of defendant No. 2, viz., the right to the common latrine in which mortgagee rights had been transferred to defendant No. 2 by Ganpatram.
Besides, the severance of the two properties by Ganpatram was recognised by the mortgagor and hence the severance was with the implied consent of the mortgagor.
It is a well recognised principle that even if all the mortgagees are not before the court in a suit filed by the mortgagor for redemption of the property, but the mortgagor is prepared to pay the entire amount due at the foot of the mortgage to such mortgagees as are before the court and gives up his right under the mortgage as against those mortgagees who are not before the court, the court can pass a decree for redemption directing that the entire mortgage amount should be paid to the mortgagees who are actually before the court.
This principle was recognised in a Full Bench decision in Motilal Yadav v Samal Bechar.(1) If one of the defendants in a suit dies and his heirs are not brought on record the suit certainly would abate as against that party.
The suit, however, could not abate as against the other surviving defendants.
A question may arise whether the suit is maintainable against the surviving defendants.
In the instant case the suit abated as against defendant No. 2 in respect of the common latrine.
But there is no difficulty in the suit proceeding against the surviving defendant No. 1 if the plaintiff is prepared to pay the entire mortgage consideration.
It may, however, be pointed out that defendant No. 2 never contested the suit.
He was impleaded as a party it was incumbent on the plaintiff to have impleaded all the mortgagees as a party.
But if the defendant did not contest the suit at any stage, 175 will he be a necessary party in an appeal ? A person may be A a necessary party in a suit but he 'may not be a necessary party in the appeal.
The Division Bench of the High Court was fully justified in holding that the suit against the surviving defendant No. I was maintainable despite the abatement of the suit against the 2nd defendant.
We fully endorse the view taken by the Division Bench of the High Court.
This takes us to the second point.
This contention is based on the aforesaid various endorsements made by Chimanrai.
his widow Chhotiba and his daughter Taralaxmibai on the notices sent by the mortgagee.
The question is whether these endorsements amount to relinquishment of their rights and interest so as to estop them from transferring the property in suit ? The notice by Ganpatram to Chimanrai and the notices by his son Chhotalal to Chhotiba and Taralaxmibai and their respective endorsements thereon have been referred to in the earlier part of the judgment.
Whether these endorsements amount to relinquishment of their rights and title and if so whether the same amounts to estoppel within the meaning of section 115 of the Evidence Act ? In our opinion the endorsements have to be read not in isolation but with reference to the notices sent.
So read, the endorsement only indicate that the heirs of the mortgagor were not prepared to bear the expenses on repairs of the mortgaged property.
The property cannot remain in vacuum even for a single moment.
It must vest in somebody.
Accordingly, after the death of Motibhai his property vested in his son who was the sole heir.
The endorsement of Chimanrai, his widow Chhotiba and daughter Taralaxmibai on the notices at the most would amount to an admission.
The contention raised on behalf of the defendant appellant is that he would not have purchased the mortgagee rights from Ganpatram if such a statement had not been made by Chimanrai, his widow Chhotiba and his daughter Taralaxmibai and, therefore, they would be estopped from taking up a different stand from the one taken by them earlier.
In substance, the question is whether the endorsements would amount to estoppel.
The difference between admission and estoppel is a marked one.
Admissions being declarations against an interest are good evidence but they are not conclusive and a party is always at liberty to withdraw admissions by proving that they are either mistaken or untrue.
But estoppel creates an absolute bar.
In this state of 176 the legal position, if the endorsement made by Chimanrai or by his widow, Chhotiba or his daughter Taralaxmibai amounts to an estoppel they or their transferees would be prevented from claiming the property.
It may be pointed out that estoppel deals with questions of facts and not of rights.
A man is not estopped from asserting a right which he had said that he will not assert.
It is also a well known principle that there can be no estoppel against a statute.
After the death of Motibhai his son Chimanrai succeeded in law.
To bring the case within the scope of estoppel as defined in section ] I 5 of the Evidence Act: t I ) there must be a representation by a person or his authorised agent to another in any form a declaration, act or omission; (2) the representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract; (3) the representation must have been meant to be relied upon; (4) there must have been belief on the part of the other party in its truth; (5) there must have been action on the faith of that declaration, act or omission, that is to say, the declaration, act or omission must have actually caused another to act on the faith of it, and to alter his former position to his prejudice or detriment; (6) the misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (7) the person claiming the benefit of an estoppel must show that he was not aware of the true state of things.
If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel; (8) only the person to whom representation was made or for whom it was designed can avail himself of it.
A person is entitled to plead estoppel in his own individual character and not as a representative of his assignee.
None of these conditions have been satisfied in the instant case, for example, no representation was made to defendant No. 1.
Therefore, he cannot plead estoppel.
Secondly, the representation was not regarding a fact but regarding a right of which defendant No. I or his predecessor in interest had full knowledge or could have known if he had cared to know.
It is difficult to say that defendant No. I has moved his position on account of the representation made by the mortgagor or his heirs or assignees.
On the facts and circumstances of this case it is not possible to hold that 177 ingredients of section 115 of the Evidence Act have been fulfilled.
The view taken by the Division Bench of the High Court is fully warranted by law.
For the foregoing discussion we find no force in this appeal.
It is accordingly dismissed with costs.
S.R. Appeal dismissed.
| IN-Abs | Motibhai created two mortgages in respect of the same property in the years 1871 and 1893 in favour of one Nanaji who died somewhere between 1 890 and 1912 leaving behind his two sons Hari and Purushottam as his heirs and legal representatives.
They both sold the entire mortgagee rights and interest to one Ganpatram on 4th July, 1912, who in his turn sold the mortgagee rights in a part of the mortgaged property, namely, common latrine to one Vamanrao.
Ganpatram died and his son Chhotalal sold away his rights as a mortgagee in possession in respect of the rest of the properties which still remained with him, to Chhaganlal Keshavlal Mehta, the appellant defendant No. 1.
Mortgagor Motibhai also died leaving behind his son Chimanrai.
Chimanrai died leaving behind his widow Chhotiba and a daughter Taralaxmibai.
On September 12, 1950 Taralaxmibai sold her right, title and interest in the suit property to one Shantilal who later on conveyed his right, title and interest in the property to the respondent plaintiff Narandas Haribhai Patel.
During the life time of Chimanrai, Ganpatram, the mortgagee had sent a notice, Exhibit 77 dated 15th April, 1913 informing him that the mortgaged property was in a dilapidated condition and required repairs.
He further called upon Chimanrai to pay the amount already spent by him towards the repairs to get further repairs done or in the alternative pay up the mortgage amount and redeem the property.
Chimanrai, denied his responsibility.
After the death of Chimanrai Chhotalal gave a similar notices, Exhibits 68 and 78, dated 21st of September, 1933 and 6th October 1933 to Taralaxmibai daughter of Chimanrai and to Chhotiba, the widow to the same effect.
Both Chhotiba and Taralaxmibai denied their liabilities.
Narandas after the purchase of the mortgagor 's rights from Shantilal filed a suit for redemption impleading both the assignees of the mortgagee 's rights, namely, Chhaganlal Keshavlal Mehta, the appellant as defendant No. I and Vamanrao as defendant No. 2.
The suit was dismissed by the trial court on the ground that the plaintiff had no right to redeem In this view of the matter it was not necessary to decide other issues but the trial court recorded findings on other issues also including the issue of estoppel.
The appeal and the cross objection filed by the parties were 167 allowed by the Assistant Judge holding that plaintiff had purchased the equity of redemption and so he was entitled to redeem and that the suit was not barred by estoppel.
He however remanded the case for deciding the remaining issues.
On remand the Joint Civil Judge held that Chimanrai, his widow Chhotiba and his daughter Taralaxmibai relinquished their right, title and interest in the suit property and, therefore, Taralaxmibai had no subsisting interest or title to transfer to the plaintiff or his predecessor in interest.
He further held that the suit was barred by time and estoppel, and that defendant No. 1 had spent a substantial amount on repairs.
On these findings the suit was dismissed once again.
During the pendency of the appeal by the respondent, Vamanrao died in August, 1958.
His heirs were, however, not brought on the record.
The appeal was allowed as against defendant No. I but dismissed as abated against defendant No. 2 and it was held that the respondent was entitled to redeem the mortgaged property on payment of the mortgaged money as well as the expenditure incurred on repairs, and that the suit was neither barred by time nor by estoppel.
On further appeal to the High Court a learned single Judge reversed the Judgment and decree of the lower appellate Court and dismissed the suit.
The respondent plaintiff took up the matter in the letters patent appeal and the appellant defendant No. 1 also filed a cross objection.
A Division Bench of the High Court allowed the appeal and decreed the suit reversing the finding of the learned Single Judge that the respondent plaintiff had no right to sue.
The Division Bench, however, granted a certificate of fitness of appeal to the Supreme Court.
Dismissing the appeal, the Court ^ HELD: 1.
Under section 60 of the Transfer of Property Act, a co mortgagor cannot be permitted to redeem his own share of the mortgaged property only on payment of proportionate part of the amount remaining due.
In other words, the integrity of the mortgage cannot be broken.
[173 G] 2.
It is, however, a well recognised principle that even if all the mortgagees are not before the court in a suit filed by the mortgagor for redemption of the property, but the mortgagor is prepared to pay the entire amount due at the foot of the mortgage to such mortgagees as are before the court and gives up his right under the mortgage as against those mortgagees who are not before the court, The court can pass a decree for redemption directing that the entire mortgage amount should be paid to the mortgagees who are actually before the court.
[174 D F] Motilal Yadav vs Samal Bechar , approved.
If one of the defendants in a suit dies and his heirs are not brought on record, the suit certainly would abate as against that party.
The suit, however, G could not abate as against the other surviving defendants.
A question may arise whether the suit is maintainable against the surviving defendants.
In the instant case, the Suit abated as against defendant No. 2 in respect of the common latrine.
But the suit may proceed against the surviving appellant defendant No. 1 if the respondent plaintiff is prepared to pay the entire mortgage consideration.
[174 F G] 3:2.
A person may be a necessary party in a suit but he may not be a necessary party in the appeal.
[175 A] 168 4:1.
To bring the case within the scope of estoppel as defined in section 115 of the Evidence Act: (i) there must be a representation by a person or his authorised agent to another in any form a declaration, act or omission; (ii) the representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract: (iii) the representation must have been meant to be relied upon; (iv) there must have been belief on the part of the other party in its truth; (v) there must have been action on the faith of that declaration, act or omission, that is lo say, the declaration, act or omission must have actually caused another to act on the faith of it, and to alter his former position to his prejudice or detriment; (vi) the mis representation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (vii) the person claiming the benefit of an estoppel must show that he was not aware of the true state of things.
If he was aware of the real state of affair or had means of knowledge, there can be no estoppel; (viii) only the person to whom representation was made or for whom it was designed can avail himself of it.
A person is entitled to plead estoppel in his own individual character and not as a representative of his assignee.
[176 C F] 4:2.
The difference between an admission and estoppel is a marked one.
Admissions being declarations against an interest are good evidence but they are not conclusive and a party is always at liberty to withdraw admissions by proving that they are either mistaken or untrue.
But estoppel creates an absolute bar.
Estoppel deals with questions of facts and not of rights.
A man is not estopped from asserting a right which he had said he would not assert It is also a well known principle that there can be no estoppel against a statute.
[175G, H 176 B] 4:3.
In the instant case (i) the ingredients of section 115 of the Evidence Act have not been fulfilled.
No representation was made to defendant No. 1, therefore, estoppel cannot be pleaded; (ii) the representation was not regarding a fact but regarding a right of which defendant No. I or his predecessor in interest had full knowledge or could have known if he had cared to know lt is difficult to say that defendant No. ] has moved his position on account of the representation made by The mortgagor or his heirs or assignees, [176 G H]
|
ivil Appeals Nos.
423 of 1979 & 2084 to 2090 of 1977.
Appeals by special leave from the judgment and order dated the 24th September, 1976 of the Patna High Court in C.W.J.C. Nos 1631, 1614, 1618, 1617, 1594, 1616, 1615 & 1593 of 1976 respectively.
P. R. Mridul, R. K Jain, B. P. Singh and Pankaj Kalra for the Appellant in CA.
423/79.
Soli J. Sorabjee, R. P. Singh and R.K. Jain for the Appellant in CA.
2085 of 1977.
M. C. Bhandare and R. P. Singh for the Appellant in CA.
2086/77.
D. P. Singh, R. K Jain and R. P. Singh for the Appellant in CA.
2089 2090/77.
D. Goburdhan and R. lV. Poddar for the Respondent.
180 The Judgment of the Court was delivered by MISRA, J.
These eight appeals by special leave raise a common question of law regarding the scope of order 41, rule 22 and order 41, rule 33 of the Code of Civil Procedure.
We, therefore, propose to dispose of these appeals by a common judgment.
Since these appeals raise similar questions, we will refer to the facts of civil appeal No. 2084 of 1977 only.
The appellant in this appeal is a land holder in terms of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act).
A notice under section 8(1) of the Act was issued to the petitioner calling upon him to submit return with all the particulars of the lands held by him.
The petitioner in response to the said notice filed his return.
On the basis of the verification report the Additional Collector came to the conclusion that the petitioner was entitled to five units and accordingly ordered for the publication of the draft statement under section 10 of the Act.
The petitioner was again served with a notice under section 10(2) of the Act.
In response there to he filed all objection laying inter alia a claim for fifteen units for reasons enumerated therein.
The Collector considered the objections filed by the petitioner and by his order dated 23rd of February, 1975 ordered allotment of twelve units to the petitioner.
The petitioner feeling aggrieved went up in appeal before the Commissioner of the Division.
The State of Bihar submitted to the order and did not go up in appeal.
Notices were issued to the respondents who, however, failed to appear on the date fixed.
The appeal was heard on 27th of April, 1976 and a final order was passed by the Commissioner on 14th of May. 1976.
He allowed the appeal and set aside the order of the Collector and remanded the case to him for disposal according to law.
It may be pointed out that the appellant had challenged the order of the Collector on various grounds.
He, however, did not challenge the finding recorded by the Collector regarding the units allowed to him.
The Commissioner, however, set aside the finding of the Collector even regarding the units allotted to the appellant in spite of the fact that no appeal had been filed by the State of Bihar before the Commissioner.
The appellant filed a petition under Article 226 of the Constitution to challenge the order of the Commissioner but the High Court dismissed the petition and confirmed the order of the Commissioner on the basis of the provisions of order 41 rule 22.
181 The sole contention raised on behalf of the appellants in the various appeals is that in the absence of any appeal or cross objection filed by the State of Bihar the Commissioner was not justified in reversing the finding in favour of the appellant 's namely, the finding on the question of allotment of units or regarding the classification of land.
This contention, as observed earlier, was raised before the High Court in the writ petition as well.
The High 1 Court, however, repelled the contention by applying the provisions of order 41, rule 22.
Reliance has also been placed by the State of Bihar on the provisions of order 41, rule 33 C.P.C. in support of the order of the Commissioner.
The High Court, however, did not rely upon order 41, rule 33 and rest content by relying on provision of order 41, rule 22, By rule 49 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963, order 41 of the Civil Procedure Code has been made applicable in disposing of the appeals under the Act.
We will first refer to the provisions of order 41, rule 22 Insofar as it is material for the purposes of this case, it reads: "22(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
" The first part of this rule authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the court below.
The first part thus authorises the respondent only to support the decree.
It does not authorise him to challenge the decree.
If he wants to challenge the decree, he has to take recourse to the second part, that is, he has to file a cross objection if he has not already filed an appeal against the decree.
Admittedly, the State of Bihar had neither filed any appeal nor cross objection.
Obviously, therefore, on the strength of the first part of sub clause (I) of rule 22 of order 41 the State of Bihar could only support the decree not only 182 on the grounds decided in its favour but also on the grounds decided against it.
The Commissioner however, has not aside the finding in favour of the appellant on the strength of order 41, rule 22(1).
In our opinion this he could not do.
The only other order on which the State cf Bihar could rely upon is order 41, rule 33 C.P.C.
The High Court did not consider the provisions of order 41, rule 33 as in its opinion the order of the Commissioner could be supported on the strength of order 41, rule 22.
In the view that we have taken regarding the applicability of order 41, rule 22 it becomes pertinent to consider the applicability of order 41, rule 33 of the Code of Civil Procedure.
Insofar as material, it reads: "33.
The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.
Illustration: A claims a sum of money as due to him from X or Y, and in a suit against both, obtains a decree against X. X appeals and A and Y are respondents.
The Appellate Court decides in favour of X. It has power to pass a degree against Y." This rule is widely expressed and it must be applied with great caution.
The object of this rule is to empower the Appellate Court to do complete justice between the parties.
Under this rule the Court has power to make a proper decree notwithstanding that the appeal is as to part only of the decree and such power may be exercised in favour of all or any of the parties even though they may not have filed an appeal or objection.
Reliance has been placed on Nirmala Balai Ghosh & Anr.
vs Balai Chand Ghose & Ors.(1) This Court dealing with the scope of order 41, rule 33, observed as follows: 183 "The rule is undoubtedly expressed in ter ns which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties.
Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by o. 41, r. 33 may properly be invoked.
The rule, however, does not confer an unrestricted right to re open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from.
" In the case cited above, there were two sets of defendants in the suit and in substance two decrees, though co related, were passed.
One of the decrees could stand apart from the other.
One set of defendants were two deities.
The suit was decreed against them.
They did not go up in appeal nor did they take part in the proceedings either before the High Court or before the Supreme Court, although they were impleded as respondents.
The other set of defendants, Nirmala, sought to invoke the powers of the Appellate Court under order 41, rule 33 to pass a decree in favour of a party not appealing so as to give the latter a benefit which she had not claimed.
In such a situation this Court observed: When a party allows a decree of the Court of First Instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate court under O. 41, r. 33, to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed.
Order 41, r. 33 is primarily intended to confer power upon the appellate court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders." 184 Counsel for the State of Bihar, on the other 'hand, referred to Giani Ram & Ors.
vs Ramiji Lal & Ors.(1) while construing the provisions of order 41, rule 33, this Court observed: ". the expression 'which ought to have been passed ' means 'what ought in law to have been passed '.
If the Appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the subordinate court, if may pass or make such further or other decree or order as the justice of the case may require " The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit.
As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross objection, it must be exercised with care and caution.
The rule does not confer an unrestricted right to re open decrees which have become final merely because the Appellate Court does not agree with the opinion of the court appealed from.
Ordinarily, the power conferred by this rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience.
While exercising the power under this rule the Court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz., the Law of the Limitation or the Law of Court Fees etc.
In these appeals the Collector on the basis of the material placed before him allowed certain units to the various appellants.
In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants.
The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under order 41, rule 33.
The Commissioner as well as the High Court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end 185 to that extent by not filing any appeal or cross objection within the period of limitation.
For the reasons given above all the appeals are allowed and the order of the High Court and that of the Commissioner is set aside insofar as it relates to finding of the Collector in favour of the appellants.
The remand order will, however, remain intact insofar as other points are concerned.
In the circumstances of the case, the parties shall bear their own costs.
S.R. Appeals allowed.
| IN-Abs | The appellant is a land owner in terms of the Bihar Land Reforms Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.
While considering the objection of the appellant in response to the notice issued under section 10(2) of the Act, the Collector, by his order dated 23rd of February, 1975 ordered allotment of twelve units of lands.
By Rule 49 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules.
1963, order XLI of the Civil Procedure Code has been made applicable in disposing of the appeals under the Act.
The appellant, feeling aggrieved by the Collector 's order went up in appeal before the Commissioner of the Division.
The respondent State submitted to the order, did not go in appeal and allowed the appeal to be decided ex parte.
The appellant, who challenged the order of the Collector on various grounds did not challenge the finding recorded by The Collector regarding The twelve units allotted to him as against fifteen prayed for.
The Commissioner heard the appeal on 27th of April, 1976, allowed the appeal by its order dated 14th of May, 1976, set aside the Collector 's order in toto and remanded the case to him for disposal according to law.
The appellant filed a Petition under Article 226 of the Constitution to challenge the order of the Commissioner but the High Court dismissed the petition and confirmed the order of the Commissioner on the basis of the provisions of order XLI, Rule 22.
Hence the appeals by special leave.
Allowing the appeals, the Court ^ HELD: 1.
The first part of Rule 22 of order XLI of the Civil Procedure Code authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the court below.
The first part thus authorises the respondent only to support the decree.
It does not authorise him to challenge the decree.
If he wants to challenge the decree, he has to take recourse to the second part, that is, he has to file a cross objection if he has not filed an appeal against the decree.
[181 G] In the instant case, admittedly the State of Bihar had neither filed any appeal or cross objection.
Obviously, therefore, on the strength of the first part of sub clause (1) of Rule 22 of order XLI, the State of Bihar could only support the decree not only on the grounds decided in its favour but also on the grounds 179 decided against it.
The Commissioner could not set aside the finding in favour A of the appellant on the strength of order XLI, Rule 22(1) C.P.C. [181 H 182A] 2:1.
The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under order XLI, Rule 33.
Rule 33 of order XLI Civil Procedure Code is widely expressed and it must be applied with caution.
The objects of this rule re: (i) to empower the Appellate Court to do complete justice between the parties.
Under this rule the Court has power to make a proper decree notwithstanding that the appeal is as to part only of the decree and such power may be exercised in favour of all or any of the parties even though they may not have filed an appeal or objection; (ii) to avoid contradictory and inconsistent decisions on the same questions in the same suit.
As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross objection, it must be exercised with care and caution.
[184 G, 182 G, 184 C] 2:2.
The rule does not confer an unrestricted right to re open decrees which have become final merely because the Appellate Court does not agree with the opinion of the court appealed from.
Ordinarily, the power conferred by this rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience.
While exercising the power under this rule the Court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz., the Law of Limitation or the Law of Court Fees etc.
[184D F] Nirmala Bala Ghose & Anr.
vs Balai Chand Ghose & Ors., ; and Giani Ram & Ors.
vs Ramji Lal & Ors., ; , followed.
|
Civil Appeal No. 495 of 1979.
Appeal by special leave from the judgment and order dated the 18th October, 1978 of the Delhi High Court in Civil Writ Petition No. 1292 of 1975.
R.R. Garg, U.R. Lalit and Randhir Jain for the Appellant.
M.C. Bhandare, S.A. Shroff, S.S. Shroff and Miss C.K Sachurita for Respondent No. 1.
The Judgment of the Court was delivered by BAHARUL ISLAM J.
This appeal by special leave is by the appellant, J.D. Jain.
who was a workman and whose services have been terminated by the management of the State Bank of India (hereinafter called the respondent).
230 2.
The material facts are these.
The appellant was working as a cashier in the Meerut City Branch of the State Bank of India.
On June 21, 1971, one Dishan Prakash Kansal ( 'Kansal ' for short) who had a Savings Bank account with the said branch of the State Bank came to the Bank to receive 3 his Pass Book.
On receipt of the Pass Book from the counter clerk, Kansal complained to Wadhera who was the Ledger keeper, that on February 8, 1971, he had withdrawn only Rs. 500 but a debit entry of Rs. 1,500 had been shown in the Pass Book.
Wadhera thereupon took Kansal to the the Supervisor, R.P. Gupta, before whom Kansal repeated his complaint.
Necessary documents pertaining to the said withdrawal were then examined and it was found that Kansal had given a 'letter of authority ' (which expression means, we are told, the withdrawal application form) to the appellant on February 8, 1971 authorising him to withdraw the amount from his account.
The letter of authority showed that it was for withdrawal of Rs. 1,500 though there appeared to be some interpolation suggesting that the figure of Rs. 500 had been altered to the figure of Rs. 1,500.
The matter was then brought to the notice of M. Ramzan, the Agent of the State Bank, before whom also Kansal is said to have repeated his complaint.
Eventually on September 18, 1972, a memorandum of charges was served on the appellant by the respondent stating, inter alia that in the letter of authority, the appellant altered in his own handwriting with different ink the amount of Rs. 500 to Rs. 1,500 and thus received Rs. 1,000 in excess, passing only Rs. 500 to the pass book holder, and that he subsequently, on June 24, 1971, deposited Rs 250 in the account of Kansal to liquidate a part or the amount misappropriated by him.
The appellant replied to the charges.
He denied the allegations.
Thereupon the respondent appointed one Rajendra Prasad as an Enquiry officer and a formal disciplinary enquiry was held against the appellant.
The Enquiry Officer submitted his report to the respondent on February 13, 1973.
The findings of the Enquiry officer were that The appellant had fraudulently altered the amount in the letter of authority given to him by Kansal, withdrew Rs. 1,500 from Kansal 's account and paid Rs. 500 only to Kansal and misappropriated Rs. 1000.
The disciplinary authority on receipt of the report of the Enquiry officer passed the following order (material portion only): 231 "2.
Although, the charges against you are of a serious nature which would, in normal course, warrant your dismissal from the service of the Bank, yet keeping in view your past record, I am inclined to take a lenient view in the matter.
Upon consideration of the matter, I have tentatively come to the decision that your misconduct be condoned and you be merely discharged of in terms of paragraphs 521 (5) (e) of the Sastry Award read with para graph 18.28 of the Desai Award and paragraph 1.1 of the Agreement dated the 31st March 1967 entered into between the Bank and the State Bank of India Staff Federation.
Before, however, I take a final decision in the matter I would like to give you a hearing as to why the proposed punishment should not be imposed upon you.
To enable you to do so, I enclose copies of the proceedings of the enquiry and findings of the Enquiry officer.
You may ask for a hearing or if you so prefer show cause in writing within one week of receipt by you thereof.
If you fail therein, I will conclude that you have no cause to show in this behalf.
" The appellant then submitted a representation to Shri V.B. Chadha, the Regional Manager of the State Bank of India on June 15, 1973.
Shri Chadha after perusing the representation of the appellant and hearing him in person, recommended that the proposed punishment should not be imposed upon the appellant, on the grounds that Kansal had not been examined as a witness and that there had been no written complaint against the appellant.
The respondent, however, did not accept the recommendation, and, by its memorandum of December 7, 1973, discharged the appellant from service with effect from the close of the business on December 22, 1973.
The appellant then having raised an industrial dispute, the Central Government, by its order dated January 17, 1975, referred the following issue to the Central Government Industrial Tribunal at Delhi for adjudication: "Is the management of State Bank of India justified in discharging from service Shri J.D. Jain, Cashier of Meerut Branch, with effect from 22nd December, 1973? If not to what relief is he entitled ?" 232 5.
Before the Tribunal, the appellant denied the charges, He inter alia, pleaded that as Kansal was not examined in the enquiry, there was no legal evidence before the inquiry officer for a finding that he was guilty.
The Tribunal framed the following two issues: "1.
Whether a proper and valid domestic enquiry was held by the Bank and its effect ? 2.
Is the management of State Bank of India justified in discharging from service Shri J.D. Jain, Cashier of Meerut Branch with effect from 22nd December, 1973 ? If not to what relief is he entitled ?" Before the Tribunal, the Management examined no witnesses but produced certain documents and relied on them.
The appellant also did not adduce any evidence.
On a perusal of the evidence recorded by the Enquiry officer, the Tribunal held that on the evidence before it, the appellant could not be held guilty as, according to it, in the absence of the evidence of Kansal, the evidence recorded was hearsay, with the result that it directed reinstatement of the appellant with full back wages from 22nd December, 1973.
The respondent moved the High Court under Article 226 and 227 of the Constitution of India for quashing the award of the Tribunal.
The High Court held that the charges against the appellant had been established and quashed the award of the Tribunal.
It is against this judgment of the High Court that the present appeal by special leave is directed.
Mr. R.K. Garg, learned counsel appearing for the appellant makes three submissions before us: (1) That the Tribunal exercised its powers under Section 11 A of the and the High , Court, exercising powers under Article 2261227 of the Constitution, had no jurisdiction to interfere with the award of the Tribunal; (2) The Tribunal in the perspective of the broad contours of the case rightly refused to rely on the evidence which was hearsay? Kansal not having been examined; 233 (3) Assuming the evidence could be relied on, the High Court committed error in not considering the receipt executed by Kansal showing payment of Rs. 1000 to Kansal and its judgment is vitiated.
In an application for a Writ of Certiorari under Article 226 of the Constitution for quashing an award of an Industrial Tribunal, the jurisdiction of the High Court is limited.
It can quash the award, inter alia, when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse.
In the case before us, according to the Tribunal, as Kansal was not examined, the evidence before it was hearsay and as such on the basis thereof the appellant could not be legally found guilty.
Before the Enquiry officer, the respondent examined the following witnesses: Gupta (Witness 1), Wadhera, the Ledger Keeper (Witness 2), Mahesh Chander who was incharge of Savings Bank account on 8.2.1971 (Witness 3), M. Ramzan, Agent of the Bank (Witness 4), Sarkar (Witness 5), and Bhardwaj (Witness 6).
Bhardwaj was a leader of the employees ' union of the respondent.
He did not support the case of the respondent.
The other witnesses supported the case of the respondent.
Witnesses Nos. 1, 2, 4 and 5 depose that a verbal complaint was made by Kansal in their presence to the effect that he had authorised the appellant to withdraw Rs. 500 which sum was paid to him, but the entries showed that Kansal had withdrawn Rs. 1,500.
Witnesses Vadhera, Ramzan and Sarkar also deposed that the appellant had confessed before them that he had made the alterations in the figure and in words of the sum.
The Tribunal after having made detailed references to the evidence of the above witnesses in fact found, "All that this evidence thus, proves is that a complaint was made by Shri Kansal and that the workmen confessed that he had altered the debit authority.
(emphasis added).
Curiously, however, it held, "This evidence, by no means prove that the workman altered the debit authority to defraud or that he actually defrauded or that he mis.
appropriated the amount of Rs. 1,000 after paying Rs. 500 only to Mr. Kansal from the amount of Rs. 1,500 withdrawn from the bank by him as it was not direct evidence but was in the nature of 234 hearsay evidence since it was learnt through the medium of a third person and that person was not available.
" It further held, "There can be no hesitation, therefore, that the enquiry officer relied on hearsay evidence in arriving at his findings and it vitiated the enquiry.
" It went on, "All this could be enough for raising a suspicion only.
In order to be called 'proved ' it needed evidence which was not there.
" It further observed, "But the question was whether it was done without the consent or knowledge of Mr. Kansal.
There was no evidence on the record to prove it.
The only person who could speak about it was Mr. Kansal.
He did not appear before the inquiry officer, therefore, there was no direct evidence that the change that was admittedly made by the workman in the debit authority was without Mr. Kansal 's consent or knowledge or that it was designed to defraud " (emphasis added) The positive findings of the Tribunal are: (i) Kansal made the complaint as alleged by the management.
(ii) The appellant confessed that he had made the alterations charged with, as alleged by the management, (iii) By implication it has also found that Rs. 1,000 in excess of the original amount of Rs. 500 was received by the appellant as a result of the alternations.
But it has held that as Kansal was not examined, fraud and misappropriation on the part of the appellant cannot be held to be proved, as the evidence was 'hearsay '.
The learned Tribunal, it appears, was obvious of the fact that it was examining the evidence in a domestic enquiry, and not the evidence in a criminal prosecution entailing conviction and sentence.
In a case like the one before us, three kinds of proceedings against the delinquent are possible .
(i) departmental proceedings and action, (ii) original prosecution for forgery and misappropriation, (iii) civil proceedings for, recovery of the amount alleged to be misappropriated.
235 The respondent herein adopted course (i) and instituted the domestic enquiry in which the principle applied by the Tribunal is not applicable; in such an enquiry guilt need not be established beyond reasonable doubt, proof of misconduct may be sufficient.
The learned Tribunal has committed another error in holding that the finding of the domestic enquiry was based on "hearsay" evidence.
The law is well settled that the strict rules of evidence are not applicable in a domestic enquiry.
This Court in the case of State of Haryana & Anr.
vs Rattan Singh held: "It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply.
All materials which are logically probative for a prudent mind are permissible.
There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.
The next question is, is the evidence in the domestic enquiry really hearsay, as held by the Tribunal ? The word 'hearsay ' is used in various senses.
Some times it means whatever a person is heard to say; some times it means whatever a person declares on information given by someone else.
(See Stephen on Law of Evidence).
The Privy Council it the case of Subramaniam v/s.
Public Prosecutor, observed: "Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay.
It is hearsay and inadmissible when the object of the evidence is to establish the truth of that is contained in the statement.
lt is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.
The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made." 236 11.
In the instant case, the alleged misconduct of the appellant was that he forged documents, withdrew Rs. 1,500.
1,000 in excess of the amount he was authorised to do and misappropriated the excess amount of Rs. 1,000.
With regard to the fact whether the appellant manipulated the documents, withdrew excess amount and misappropriated it, there is, of course, no direct evidence of any eye witness except the appellant 's 'confession ' referred to above.
The evidence on which reliance has been taken by the respondent is the confession and circumstantial evidence, namely, the authority letter containing the admitted interpolations by the appellant in his own handwriting in different ink, and the addition of the digit "I" before 500.
The evidence of Kansal would have been primary and material, if the fact in issue were whether Kansal authorised the appellant to make the alterations in the authority letter.
But Kansal 's complaint was to the contrary.
For the purpose of a departmental enquiry complaint certainly not frivolous, but substantiated by circumstantial evidence, is enough.
What the respondent sought to establish in the domestic enquiry was that Kansal had made a verbal complaint with regard to 1) the withdrawal of excess money by the appellant in presence of the four witnesses, namely, Wadhera, Gupta, Ramzan and Sarkar, aforesaid, against his advice.
On the complaint of Kansal, the evidence of these four witnesses is direct as the complaint is said to have been made by Kansal in their presence and hearing; it is therefore, not hearsay.
As the respondent has succeeded in proving that a come plaint was made by Kansal on the evidence of the above named four witnesses, the respondent has succeeded.
No rule of law enjoins that complaint has to be in writing as insisted by the Tribunal.
The learned Tribunal has committed yet another grevious error, in failing to appreciate the confessions made by the appellant "in the presence of witnesses and to the higher officer who appeared as witness" (as found by itself) namely, Wadhera, Ramzan, Gupta and Sarkar, aforesaid.
The confessions of the appellant before the said witnesses were to the effect that he had altered the amount in figure and words in his own hand.
The award of the Tribunal, therefore, has been vitiated by misconception of the law involved in the case.
The last submission of Mr. Garg that the judgment of the High Court had been vitiated as it had not taken into consideration the receipt executed by Kansal showing payment by the appellant of Rs. 1000 to the former is destructive of the appellant 's defence.
In 237 Our opinion, this payment on the contrary, proves the respondent 's case and destroys the appellant 's defence which was that he had withdrawn Rs. 1,500 as advised by Kansal and paid the full amount to Kansal.
In our opinion the High Court was fully in its jurisdiction in quashing the award of the Tribunal.
This appeal has no merit and is dismissed.
We, however, leave the parties to bear their own costs.
N.V.K. Appeal dismissed.
| IN-Abs | The Appellant was working as a Cashier in a Bank.
A depositor who had a Savings Bank Account with the Bank came to the Bank to receive his Pass Book.
On receipt of his Pass Book from the Counter Clerk he complained to the ledger keeper that, on a certain date he had withdrawn only Rs. 500 but a debit entry of Rs, 1,500 had been shown in the Pass Book.
The Ledger keeper took the depositor to the Supervisor and The Agent and his complaint was recorded.
When the documents pertaining to the withdrawal were examined it was found that the depositor had given a letter of authority to the appellant authorising withdrawal from his account.
The letter of authority showed that it was for withdrawal of Rs. 1500 though there appeared to be some interpolation suggesting that the figure of Rs. 500 had been altered lo the figure of Rs. 1500.
A memorandum of charge was served on the appellant by the Management respondent No. I and a disciplinary enquiry was held.
The Enquiry Officer submitted his report and his findings were that the appellant had fraudulently altered the amount in the letter of authority given by the depositor, withdrew Rs. 1500 from the depositor 's account and paid Rs. 500 only to the depositor and 228 misappropriated Rs. 1500.
In pursuance of the enquiry the appellant was discharged from service.
The appellant having raised an industrial dispute the matter was referred to the Industrial Tribunal.
Before the Tribunal the appellant denied the charges and pleaded that as the depositor was not examined in the disciplinary enquiry there was no legal evidence before the Enquiry officer for finding that he was guilty.
Before the Tribunal the Management examined no witnesses but produced documents and relied on them.
The Tribunal held that on the evidence before it the appellant could not be held guilty as in the absence of the evidence of the depositor, the evidence recorded was 'hearsay ' and directed reinstatement to the appellant with full back wages.
The respondent moved the High Court under Article 226 and 227 which held that the charge against the appellant had been established and quashed the award of the Tribunal.
In the appeal to this Court it was contended on behalf of the appellant: (1) that the Tribunal exercised its powers under Section 11 A of the and the High Court exercising powers under Article 226/227 had no jurisdiction to interfere with the award; (2) the Tribunal rightly refused to rely on the evidence which was hearsay; the depositor not having been examined, and (3) the High Court committed an error in not considering the receipt executed by the depositor showing payment of Rs. 1000 to the depositor.
Dismissing the appeal, ^ HELD: The award of the Tribunal is vitiated by misconception of the law involved.
It erred in holding that as Kansal (depositor) was not examined, fraud and misappropriation on the part of appellant cannot be held to be proved and in failing to appreciate the confession made by the appellant to the higher officer that he had altered the amount in figures and words in his own hand.
[236 G] 1.
In an application for a writ of certiorari under Article 226 for quashing the award of an Industrial Tribunal the jurisdiction of the High Court is limited.
It can quash the award when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse.
[233 B] In the instant case, three kinds of proceedings against the delinquent were possible: (i) departmental proceedings and action, (ii) Criminal prosecution for the alleged misappropriation of the amount, and (iii) civil proceedings for recovery of the amount alleged to be misappropriated.
The respondent adopted the first course and instituted the domestic enquiry.
In such an enquiry guilt need not be established beyond reasonable doubt; proof of misconduct may be sufficient.
[234 G 235 A] State of Haryana & Anr.
vs Rattan Singh , referred to 229 2.
The word 'hearsay ' is used in various senses.
Sometimes it means whatever a person declares on information given by someone else.
[235 E] In the instant case, the Tribunal after having made a detailed reference to the evidence of the witnesses found that a complaint was made by Kansal and that the appellant confessed that he had altered the debit authority, but held That as Kansal was not examined, this was not direct evidence but was of the nature of 'hearsay ' evidence, with regard to the fact whether the appellant manipulated the documents, withdrew the excess amount and misappropriated it, there is no direct evidence of any of the witnesses except the appellant 's confession.
The evidence on which reliance has been taken by the respondent is the confession and circumstantial evidence.
The evidence of Kansal would have been primary and material.
if the fact in issue were whether Kansal authorised the appellant to make the alterations in the authority letter.
But Kansal 's complaint was to the contrary.
No rule of law enjoins that a complaint has to be in writing as insisted by the Tribunal.
For the purpose of a departmental enquiry, complaint substantiated by circumstantial evidence is enough.
What the respondent sought to establish in the domestic enquiry was that Kansal had made a verbal complaint with regard to the withdrawal of excess money by the appellant.
On the factum of complaint of Kansal the evidence of these four witnessess is direct as the complaint is said to have been made by Kansal in their presence and hearing.
It is not therefore 'hearsay '.
The respondent has succeeded in proving that a complaint was made by Kansal on the evidence of these four witnesses.
[236 A E] Subramaniam v Public Prosecutor [1956]1 W.L.R. 965, referred to 3.
The receipt executed by Kansal showing payment by the appellant of Rs. 1000 to the former is destructive of the appellant 's defence and on the contrary proves the respondent 's case.
[236 H 237A]
|
Appeals Nos.
196 to 201 of 1953.
Appeals from the judgment and decrees of the Punjab High Court dated December 30, 1949, in Civil Regular Appeals Nos.
1567, 1568, 1569, 1570, 1573 an& 1574 of 1942 arising out of the decrees dated July 31, 1942, of the Court of the District Judge, Hoshiarpur in Appeals Nos.
104/35 of 1941 42,101/32 of 1941, 103/34 of 1941/42) 15/73 of 1941, 102/33 of 1941/42 and 120 of 1941 arising 'out of the decrees dated July 24, 1941, of the Court of Subordinate Judge, 4th Class, Kangra in Suits Nos.
544, 548, 545, 547, 546 and 549 of 1940.
Bang Beharilal and K. R. Chaudhury, for the appellant.
891 Ganpat Rai, for the respondent.
S.M. Sikri, Advocate General for Punjab, Jindra Lal and R. H. Dhebar, for the Intervener (State of Punjab).
October 23.
The Judgment of the Court was delivered by section K. DAS J.
These are six appeals by the plaintiff Raja Rajinder Chand, the superior landlord (alamalik) of Nadaun Jagir in the district of Kangra.
He brought six suits in the Court of the Subordinate Judge of Kangra for a declaration that he was the owner of all pine (chil pinus longifolia) trees standing on the lands of the defendants within the said Jagir and for a permanent injunction restraining the latter from interfering with his rights of ownership and extraction of resin from the said trees.
He also claimed specified sums as damages for the loss caused to him from the tapping of pine trees by different defendants from March 24, 1940, up to the date when the suits were brought.
The defendants, who are the adnamaliks (inferior landlords), pleaded that they were the owners in possession of the lands on which the trees stood, that the trees were their property, and that the plaintiff had no right to the trees nor had he ever exercised any right of possession over them.
Three questions arose for decision on the pleadings of the parties.
The first question was whether all pine trees standing on the lands in suit were the property of the plaintiff, i.e., the present appellant.
The second question was one of limitation, and the third question related to the quantum of damages claimed by the appellant.
The learned Subordinate Judge, who dealt with the suits in the first instance, held that the present appellant had failed to prove his ownership of the trees.
He further held that the suits were barred by time.
On the question of damages, he held that if the appellant 's claim to ownership of the trees were established, some of the defendants in four of the suits would be liable for small amounts of damages.
In view, how 892 ever, of his findings on the questions of ownership and limitation, lie dismissed the suits.
Raja Rajinder Chand then preferred appeals from the judgment and decrees of the learned Subordinate Judge, and the appeals were heard by the learned District Judge of Hoshiarpur.
The latter reversed the finding of the ,learned Subordinate Judge on the question of ownership and held that the present appellant had established his right to the trees in question.
He also reversed the finding of the learned Subordinate Judge on the question of limitation, but accepted his finding as to damages.
Accordingly, he allowed the appeals, set aside the judgment and decrees of the learned Subordinate Judge, and gave the appellant the declaration and order of injunction he had asked for, as also damages in four of the suits as assessed by the learned Subordinate Judge.
The defendants then preferred second appeals to the Punjab High Court.
On the main question as to whether the present appellant had been able to establish his right to the trees, the learned Judges of the High Court differed from the learned District Judge and, agreeing with the learned Subordinate Judge, held that the present appellant bad not been able to establish his right to the trees.
On the question of limitation, however, they agreed with the learned District Judge.
In view of their finding that the appellant bad failed to establish his right to the trees, the appeals were allowed and the suits brought by the appellant were dismissed.
The High Court gave a certificate that the cases fulfilled the requirements of sections 109(c) and 110 of the Code of Civil Procedure.
These six appeals have come to this Court on that certificate.
We have heard these appeals together, as the questions which arise are the same.
The present judgment will govern all the six appeals.
The short but important question which arises in these appeals is whether the present appellant has been able to establish his right to all pine (chil) trees standing on the suit lands of the defendants.
The question is of some importance, as it affects the rights of ala and adna maliks in Nadaun Jagir.
The res 893 pondents have not contested before us the correctness of the finding of two of the Courts below that the suits were not barred by time; therefore, the question of limitation is no longer a live question and need not be further referred to in this judgment.
Though the main question which arises in these six appeals is a short one, a satisfactory answer thereto requires an examination of the history of the creation of Nadaun Jagir, of the land revenue and revisional settlements made of the said Jagir from time to time, and of the various entries made in the record of rights prepared in the course of those settlements.
Before we advert to that history, it is necessary to indicate here the nature of the claim made by the present appellant.
The plaints of the six suits were very brief and did not give sufficient particulars of the claim made by the appellant.
We may take the plaint in Suit No. 544 of 1940 by way of an example; in para 1 it was stated that the land in question in that suit was in tappa Badhog and the appellant was the superior landlord thereof; then came para 2 which.
said "The land is situate in Nadaun Jagir.
All the pine trees standing on the aforesaid land belong to the plaintiff.
He alone enjoys benefit of those trees.
This has always been the practice throughout".
In a later statement of replication.
dated October 26, 1940, the plaintiff appellant gave some more particulars of his claim.
The learned Subordinate Judge, who tried the suits in the first instance, observed that the present appellant based his claim to ownership of the trees on three main grounds: first, on the ground that the land itself on which the trees stood belonged formerly to the ancestors of the present appellant (namely, the independent rulers of Kangra) and they gave the land to the ancestors of the adna maliks but retained their right of ownership in all pine trees; secondly, after the conquest of Kangra by the British, the rights of ownership in the pine trees belonged to the British Government and the rights were assigned to Raja Jodhbir Chand, the first grantee of Nadaun Jagir; and thirdly, the right of the appellant in the 894 trees had been "vouchsafed" by the entries made in the Wajib ul arz and recognised in several judicial decisions.
The Courts below considered the claim of the appellant on the aforesaid three grounds, and we propose to consider these grounds in the order in which we have stated them.
It is now necessary to advert to the history of the creation of Nadaun Jagir so far as it is relevant for considering the claim of the appellant on the first two grounds.
Admittedly, the suit lands lie in Badhog and Jasai tappas comprised within the Jagir of Nadaun in the district of Kangra.
The last independent ruler of Kangra was Raja Sansar Chand who died in the year 1824.
Raja Sansar Chand was a Katoch Rajput and had children from two women; one of them, who was a Katoch lady, was his properly married wife and Raja Sansar Chand bad a son by her, named Raja Anirudh Chand.
The other woman was of the Gaddi tribe and by her Raja Sansar Chand had a son, named Raja Jodhbir Chand.
The great antiquity of the Katoch royal line is undoubted, and the history of the Kangra State from the earliest times right up to its conquest by the Sikhs under Maharaja Ranjit Singh has been traced in the Kangra District Gazetteer (1924 25) at pp.
52 to 76.
We are not concerned with that history prior to the time of Raja Sansar Chand.
The Gazetteer states (p. 75) that Raja Sansar Chand was for 20 years the "lord paramount of the hills and even a formidable rival to Ranjit Singh himself; but his aggressive nature led him on in his bold designs and be fell at last a victim to his own violence".
With him the glory of the Katoch line passed away and what remained to his son Anirudh Chand was little more than a name.
Anirudh Chand was summoned several times to the Sikh camp and on the third occasion of his visit to that camp, be was met by a very unacceptable dein and Raja Sansar Chand had left two daughters, and Raja Dhian Singh of Jamun, one of the principal officers of Maharaja Ranjit Singh, asked one of the daughters to be given in marriage to his son, Hira Singh.
Anirudh Chand was afraid to refuse, though 895 in reality he regarded the alliance as an insult to his family honour; because by immemorial custom a Katoch Raja 's daughter may not marry any one of lower rank than her father, i.e., a Raja or an heirapparent.
Anirudh Chand was a Raja in his own right and the descendant of a long line of kings, while Dhian Singh was a Raja only by favour of his master.
Anirudh Chand prevaricated for some time; but he was determined to sacrifice everything rather than compromise the honour of his ancient line.
He secretly sent away his family and property across the Sutlej and on hearing that Maharaja Ranjit Singh had started from Lahore for Nadaun, he fled into British territory.
Maharaja Ranjit Singh came to Nadaun, and Jodhbir Chand gave his two sisters to the Maharaja.
Jodhbir Chand was then created a Raja, with Nadaun and the surrounding country as his Jagir.
Mian Fateh Chand, younger brother of Raja Sansar Chand, offered his granddaughter to Raja Hira Singh.
He was also rewarded with the gift of a Jagir known as the Rajgiri Jagir and received the rest of the State on lease on favourable terms.
His son, however, failed to pay the amount agreed upon.
The State was then annexed to the Sikh kingdom, and only the Rajgiri Jagir was reserved for the royal family.
Thus by 1827 28 Kangra had ceased to be an independent principality and was to all intents and purposes annexed to the Sikh kingdom, the son of Mian Fateh Chand and Raja Jodhbir Chand occupying merely the position of Jagirdars tinder the Sikhs, The present appellant, Raja Rajinder Chand, is a direct lineal descendant of Raja Jodhbir Chand, being fourth in the line of descent.
Then followed the Sikh wars and the establishment of British rule in Kangra.
The first Sikh war ended in March 1846, in the occupation of Lahore and the cession to the British Government of the Jullunder Doaba and the hills between the Sutlej and the Ravi.
In 1848, the second Sikh war began and Raja Parmudh Chand, one of the sons of Raja Anirudh Chand, raised the standard of rebellion in Kangra.
The rebellion however failed.
Meanwhile, Jodhbir Chand 896 remained conspicuous for his fidelity to the British Government; both in the Sikh war and in the Katoch insurrection he did good service to the British.
He obtained a Sanad from the British Government in 1846.
A copy of that Sanad was not available, but a copy of a Sanad granted on October 11, 1848, which renewed and clarified the earlier Sanad, was produced and exhibited on behalf of the present appellant.
We shall have occasion to refer to this Sanad in detail at a later stage.
Having thus indicated in brief the earlier history with regard to the creation of Nadaun Jagir in favour of Raja Jodhbir Chand, we now proceed to consider the first two grounds of the claim of the appellant.
The learned Judges of the High Court held, in agreement with the learned Subordinate Judge, that the present appellant could not claim the sovereign rights of Raja Sansar Chand who was an independent ruler of Kangra.
For this finding they gave two reasons; firstly, Raja Jodhbir Chand was an illegitimate son of Raja Sansar Chand and could not succeed to the rights of the Raja; secondly, whatever rights Raja Sansar Chand had as an independent ruler of Kangra came to an end (so far as his descendants were concerned) with the annexation of his territory by the Sikhs, and Raja Jodhbir Chand merely got an assignment of land revenue to the tune of Rs. 30,000 by the grant.
of Nadaun Jagir by Maharaja Ranjit Singh.
We accept these as good and convincing reasons for discountenancing the claim of the appellant that the sovereign rights of the independent rulers of Kangra in respect of all royal trees (including pine trees) within Nadaun Jagir had come down to him.
For the purposes of these cases we may accept the position, in support of which there is some historical material, that Raja Sansar Chand had a right to all royal trees including pine trees within his territory; but it is clear to us that neither Raja Jodhbir Chand nor the present appellant succeeded to the rights of the independent rulers of Kangra.
Raja Jodhbir Chand was a grantee under a grant first made by Maharaja Ranjit Singh and then by the British Gov 897 ernment.
The precise terms of the grant made by Maharaja Ranjit Singh are not known.
The terms of the grant made by the Governor General on October 11, 1848, are to be found in the Sanad of that date.
Therefore,, the position of the appellant cannot be any higher in law than that of Raja Jodhbir Chand and the claim of the appellant that he bad succeeded, to the rights of the independent rulers of Kangra is clearly unfounded.
Dealing with this part of the appellant 's claim, the learned District Judge, who found in favour of the appellant, relied on certain observations quoted at p. 365, and again at p. 378, of the Kangra District Gazetteer (1924 25), observations on which learned counsel for the appellant has also relied.
The observations are taken from Mr. Lyall 's Settlement Report.
Mr. Lyall said: "Under the Rajas (meaning the old Katoch rulers) the theory of property in land was that each Raja was the landlord of the whole of his raj or principality, not merely in the degree in which everywhere in India the State is, in one sense, the landlord, but in a clearer and stronger degree. . . . . . . . . . . .
Each principality was a single estate, divided for management into a certain number of circuits. . . . . . . . . . .
The waste lands, great or small, were the Raja 's waste, the arable lands were made up of the separate holdings of his tenants.
The rent due from the holder of each field was payable direct to the Raja, unless he remitted it as an act of favour to the holder, or assigned it in Jagir to a third party in lieu of pay, or as a subsistence allowance. . . . . . . . . . .
Every several interest in land, whether 'the right to cultivate certain fields, to graze exclusively certain plots of waste, work a water mill, set a net to catch game or hawks on a mountain, or put a fish weir in a stream, was held direct of the Raja as a separate holding or tenancy.
The incumbent or tenant at the 117 898 most called his interest a 'warisi ' or inheritance not 'maliki ' or lordship".
Mr. Lyall further observed that "all rights were supposed to come from the Raja; several rights, such as holdings of land, etc., from his grant; others, such as rights of common, from his sufferance".
At p. 377 of the Gazetteer a summary is given of the conditions of land tenure under the rule of the Katoch Rajas.
It is stated that there were two rights in the soil recognised under the Raja 's rule the paramount right of property which was vested in the Raja and the right of cultivation derived by grant from the Raja, which was vested in the cultivators.
The first right extended to the whole of the principality; the second primarily extended only to the plot specified in the grant, but carried with it further rights of common in adjacent waste.
It is then observed that this system of land tenure came down practically unchanged until the introduction of British rule, and though the period of Sikh dominion intervened, the Sikhs did not appear to have altered the system.
The learned District Judge relied on the aforesaid observations for his finding that the appellant had the ownership of all royal trees in accordance with the system of land tenure which prevailed during the time of the old Rajas.
In our view, the learned District Judge was in error with regard to this part of the claim of the appellant.
Mr. Lyall began his settlement work in 1865 and his report was dated July 30, 1872.
He continued and revised the earlier settlement work of Mr. Barnes.
It is worthy of note that neither Mr. Barnes nor Mr. Lyall undertook any actual settlement operations in Nadaun, though Mr. Lyall gathered very valuable historical data regarding the conditions of land tenure which prevailed in the district of Kangra under the old Katoch Rajas.
It is one thing to say that the system of land tenure prevailing under the old Katoch rulers continued in spite of the Sikh interregnums, but it is quite a different thing to say that Raja Jodhbir Chand, the grantee of a Jagir, succeeded to the rights of the in dependent Katoch rulers.
The rights of the last independent Katoch ruler, under the system of land 899 tenure which prevailed at the time, passed first to the Sikhs who became the rulers of Kangra and then to the British after the Sikh wars.
The learned District Judge failed to appreciate the distinction between the sovereign rights of an independent ruler and the rights of a grantee under a grant made by the sovereign ruler.
It is pertinent to quote here the following observations of Lord Dunedin in Vajesingji Joravarsingji vs Secretary of State for India(1): "When a territory is acquired by a sovereign State for the first time that is an act of State.
It matters not how the acquisition has been brought about.
It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler.
In all cases the result is the same.
Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised.
Such rights as he had under the rule of predecessors avail him nothing".
Mr. Douie in his Punjab Settlement Manual (1899) said (P. 69): "The Sikhs drove the hill Rajas of Kangra into exile or degraded them into mere Jagirdars, and the British Government when it took over the country did not restore them to their old position".
The question as to whether the sovereign ruler having a right in all royal trees made a grant of that right to Raja Jodhbir Chand or surrendered that right in favour of Raja Jodhbir Chand or any of his successors in interest is a different question which will depend on the terms of the grant or on other evidence showing that the right had been surrendered in favour of the appellant or his predecessors in interest.
That is a question which we shall presently discuss.
The learned District Judge was however wrong in thinking that, according to the system of land tenure which prevailed under the old Rajas or, under the Sikhs, Raja Jodhbir Chand got any right to all pine trees within Nadaun Jagir.
(1) [1924] L.R. 51.
I.A. 357, 360.
900 That brings us to the second ground and to a consideration of the terms of the Sanad dated October 11, 1848, on which also the appellant based his claim.
The Sanad was in these terms: "Fresh Sanad re: Settlement upon Raja Jodhbir Chand Katoch of the villages named hereinafter, situate in Taalluqa Nadaun, possessed by him.
Whereas the mountainous country together with the Doaba tract had come under the occupation of the British Company in pursuance of the treaty which took place between the British Government and the Sirkar of Lahore on March 9, 1846: The Jagir of Choru, Bara, etc., situate in the Ilaqa of Nadaun the name of each Tappa whereof together with the number of its villages and its Jama is given herein below and the total Jama whereof was Rs. 26,270/10/3 per annum approximately, i.e., as much of the Ilaqa of Nadaun as was in the possession of the said Raja at the time of the commencement of tumult of battle whether less or more than the present one, has been granted in perpetuity, generation after generation, to Raja Jodhbir Chand and his male legitimate, descendants who are not from the womb of a slave girl under the orders of the Most Generous Gracious, Exalted and Excellent Nawab Sir Henry Hardinge G.C.B. Governor General, ruler of the territory of India, communicated in writing in English bearing the signature of Mr. 'Edward, Deputy Chief Secretary to His Excellency, in reply to the Commissioner 's report No. 147, dated July 24, 1847, and also as contemplated in the previous order of the Nawab Governor General, dated August 7, 1846, subject to the following conditions: 1.
In no way shall criminal jurisdiction in respect of the said Ilaqa vest in the Raja Sahib.
The entire administration and power of hearing every sort of complaint between the Riaya (subjects) and the said Raja shall remain in the hands of the British Government 's officers.
The Raja Sahib shall not be at liberty to receive on any pretext Mahsul for any commodity from any I Mahajan and trader or from the Riaya 901 (subjects) by way of Zakat (octroi), or anything on account of excise and intoxicants.
He shall receive only revenue from the Riaya living in the villages of his Jagir according to the British Government 's rules of practice.
In case of contravention of the said rules of practice cash shall be fixed by the Government for the said Raja Sahib or his descendants.
After the death of the said Raja Sahib this Jagir shall be divided among his real sons according to the practice followed by Hindus.
It shall not devolve on his descendants from a slave girl.
It shall be essential for the Raja Sahib to construct at his own expense public roads, eleven cubits in width, in his Ilaqa.
It is proper for the Raja Sahib to be always ready to serve the Government wholeheartedly and to bear good moral character.
Hence it is obligatory on the said Raja Sahib not to set his foot on the borders of others beyond his own.
He should treat this Sanad as a Sanad absolute.
Previously on September 22, 1846, a Sanad was issued ' by the Exalted Henry Montgomery Colonel Lawrence from Simla without thorough enquiry and without the name of each village being entered therein.
In that Sanad the entire Jama is shown to be Rs. 32,000 approximately.
According to the statements of officials of the Raja Sahib the said Jama includes amounts on account of excise, Bhum Chari (cattle grazing) etc.
That was found to be wrong.
Now the present Sanad with the name of each Tappa and the number of villages and Jama thereof being entered in it is issued by this Court subject to the above mentioned conditions after an enquiry having been made and a report having been submitted to the Nawab Governor General".
Appended to the Sanad was a list of tappas and villages comprised within the Jagir of Nadaun.
The list also mentioned in the third column the amount of Jama for each tappa.
The question now is whether the aforesaid Sanad was a grant primarily of land revenue; or it made a grant of other royal rights including the right to all 902 pine trees which is the particular right under consideration in the six suits brought by the appellant.
It is, we think, well settled that the ordinary rule applicable to grants made by a subject does not apply to grants made by the sovereign authority; and grants made by the Sovereign are to be construed most favourably for the Sovereign.
This general rule, however, is capable of important relaxations in favour of the subject.
It is necessary to refer here to such only of those relaxations as have a bearing on the con struction of the document before us; thus, if the intention is obvious, a fair and liberal interpretation must be given to the grant to enable it to take effect; and the operative part, if plainly expressed, may take effect notwithstanding qualifications in the recitals.
In cases where the grant is for valuable consideration, it is construed in favour of the grantee, for the honour of the Sovereign; and where two constructions are possible, one valid and the other void that which is valid ought to be preferred, for the honour of the Sovereign ought to be more regarded than the Sovereign 's profit (see para 670 at p. 315 of Halsbury 's Laws of England, Vol.
VII, section 12, Simonds Ed.).
It is worthy of note that so far as the lands in possession of tenants or subjects were concerned, the Sanad did not grant any right other than the right to receive revenue; condition No., 2 of the Sanad made it quite clear that the grantee would receive only revenue from the subjects living in the villages of his Jagir according to the British Government 's rules of practice, and that the grantee was not at liberty to receive on any pretext "mahsul" for any commodity from any Mahajan or trader or any octroi, etc.
from any of the subjects.
If the 'intention was to grant the right to pine tree standing on the lands of the subjects, one would expect it to be mentioned in condition No. 2.
The mention of the Jama in the Sanad is also significant.
In the earlier Sanad the entire Jama was shown to be Rs. 32,000, because according to the statements of the officials of the Raja Sahib, the said Jama included amounts received on account of cattle grazing, etc.
; that was found to be wrong and 903 the correct Jama was found to be Rs. 26,270 10 3.
The Sanad concluded with these words: "Now the present Sanad with the name of each tappa and the number of villages and Jama thereof being entered in it is issued subject to the above mentioned.
conditions, etc.
" In the recital portion of the Sanad also it was stated that the Jagir of certain tappas, together with the number of villages comprised within the tappas and the Jama mentioned in the list, the total Jama being Rs. 26,270 10 3, was granted to Raja Jodhbir Chand.
The other conditions subject to which the grant was made showed that no sovereign rights were granted to the Jagirdar.
In para 69 at p. 96 of his report MrLyall gave a list of the principal Jagirs of Kangra and stated that Raja Jodhbir Chand had a Jama or revenue demand of Rs. 36,079 in perpetuity; he said"Out of the total jama, Rs. 6,079 are the assessment of assigned Khalsa lands which the Raja pays to Government as nazarana; Rs. 33,000 is the value of the grant, but the Raja puts his collection at Rs. 30,000 only, exclusive of Khalsa tikas".
The 'aforesaid remarks, made not very long after the grant, also support the view that the grant was primarily an assignment of land revenue and whatever other rights might have been included, the right to all pine trees on cultivated lands of the subjects was not within the grant.
We agree therefore with the High Court that on a true and proper construction of the Sanad, it is impossible to spell out of its terms a grant in favour of Raja Jodhbir Chand of the right to all pine trees on cultivated and proprietary lands.
We proceed now to examine the third ground of the claim of the appellant, viz., that part of his claim which is based on the entries in the Wajib ul arz of 1892 93 (exhibit P 5), 1899 1900 (exhibit P 6) and 1910 1915 (exhibit P 4) and other connected documents.
This part of the claim of the appellant has been the most controversial and difficult to determine.
The learned Subordinate Judge expressed the view that the aforesaid entries did not help the appellant, because they related to pine trees standing either on 904 uncultivated waste lands or nautor (recently reclaimed) lands and not to such trees on proprietary and cultivated lands.
The learned District Judge held on appeal that in the Wajib ul arz of 1892 93 (exhibit P 5) all pine (chil) trees were held to be the property of Government; this led to a dispute between the Raja and Government, and in the Wajib ul arz of 1899 1900 (exhibit P 6) and subsequent documents, an entry was made in favour of the Raja showing that Government had relinquished or surrendered their right to the Raja.
He did not agree with the learned Subordinate Judge that the entries related to pine trees standing on waste or reclaimed lands only.
The learned Judge who delivered the leading judgment of the High Court gave and considered a long string Of quotations from many documents and then came to the conclusion that the authority of the Wajib ul arz entries was open to doubt and the Raja had failed to make out his claim; the learned Judge did not clearly find however if the entries related to waste and re claimed lands only.
Learned counsel for the appellant has very strongly submitted before its that the view of the learned District Judge was correct and should have been accepted by the High Court; learned counsel for the respondents has argued, on the contrary, that the trial Judge and the learned Judges of the High Court came to a definite finding, which he has characterised as a finding of fact, with regard.
to the Wajib ul arz entries and this Court should not go behind that finding.
We do not think that these appeals can be disposed of on the short ground that this Court does not normally go behind a concurrent finding of fact.
Indeed, in respect of the Wajib ul arze entries, there is no concurrent finding in these cases; the trial Judge thought that the entries related to waste and recently reclaimed lands, whereas the High Court doubted the very authority of the entries.
Moreover, the question whether from the Wajib ul arz entries an inference of surrender or relinquishment of a sovereign right by Government can be properly drawn is not a pure question of fact, depending as it does on the 905 true scope and legal effect of those entries.
We cannot, by resorting to a short cut as it were, relieve ourselves of the task of examining the Wajib ul arz entries and considering their true scope and legal effect.
We have already referred to Mr. Barnes ' Settlement (1850 52) and pointed out that he did not undertake any actual settlement operations in Nadaun.
The next person who dealt with the settlement of Kangra was Mr. Lyall, afterwards Sir James Lyall, Lt. Governor of the Punjab.
He began his work in 1865 and wrote his report in 1872.
He also did not undertake any settlement of Nadaun.
Anderson was the next person who dealt with the settlement of Kangra.
By Notification No. 25 dated January 26 1888 a general re assessment of the land revenue of Kangra district was ordered and by Notification No. 26 of the same date a preparation of the record of rights in the Jagirs of Guler, Siba and Nadaun was undertaken.
Mr. O 'Brien undertook the settlement, but died on November 28, 1893 and it was left to Mr. Anderson to write the report.
It may be stated here that Mr. Anderson wrote two reports: one was the Forest Settlement Report of 1887 and the other was the Revised Settlement Report of Kangra of 1897.
On April 27, 1910 two other notifications were published, directing a revision of the existing record of rights in Dera and Hamirpur Tehsils (Nadaun being within Hamirpur Tehsil).
As a result, Messrs Middleton and Shuttleworth undertook a revisional settlement, which was the Settlement of 1910 15.
We have in these cases to deal with the entries made in O 'Brien 's Settlement (1892 93), Anderson 's Settlement (18991900), and the Settlement of Messrs Middleton and Shuttleworth (1910 15).
Before dealing with the actual entries made, it is necessary to refer to a few more matters arising out of the settlement operations of Messrs Barnes and Lyall.
The expressions 'ala malik ' and 'adna malik ' have been used often in the course of this litigation.
What do those expressions mean? In Mr. Douie 's Punjab Settlement Manual (1930 edition) it is stated 118 906 in para 143: "Where the proprietary right is divided the superior owner is known in settlement literature as ala malik or talukdar, and the inferior owner as adna malik. . . . . .
In cases of divided ownership the proprietary profits are shared between the two classes who have an interest in the soil".
How this distinction arose, so far as the record of rights in the Jagirs are concerned, appears from para 105 at p. 60 of Mr. Anderson 's report.
Mr. Anderson said: "The first great question for decision was the status of the Raja and of the people with respect to the land, which was actually in the occupancy of the people, and next with respect to the land not in their actual occupancy, but over which they were accustomed to graze and to do certain other acts.
Mr. O 'Brien decided that the Raja was superior proprietor or Talukdar of all lands in his Jagir, and the occupants were constituted inferior proprietors of their own holdings and of the waste land comprised within their holdings as will be shown hereafter; be never fully considered the rights in waste outside holdings.
The general grounds fir the decision may be gathered from Mr. Lyall 's Settlement Report and from the orders on the Siba Summary Settlement Report, but I quote at length the principles on which Mr. O 'Brien determined the status of occupants of land, not merely because it is necessary to explain here the action that he took, but also in order that the Civil Courts which have to decide questions as to proprietary rights may know on what grounds the present record was based".
Mr. Anderson then quoted the following extract from Mr. O 'Brien 's assessment report to explain the position: "In places where the possession of the original occupants of land was undisturbed, they were classed as inferior proprietors; but where they had acquired their first possession on land already cultivated at a recent date, or where the cultivators had admitted the Raja 's title to proprietorship during the preparation and attestation of the Jamabandis, they were 907 recorded as tenants with or without right of occupancy as the circumstances of the case suggested. . . . . . . . . . . . . .
In deciding the question old possession was respected.
Where the ryots had been proved to be in undisturbed pos session of the soil they have been recorded as inferior proprietors".
The same principles were followed in Nadaun: long possession with or without a patta or lease from the Raja was the test for recording the ryot as an inferior proprietor (adna malik).
Bearing in mind the aforesaid distinction between ala malik and adna malik, we proceed now to examine the actual entries made in the Wajib ul arz of 1892 93 (exhibit P 5), of 1899 1900 (exhibit P 6) and of 1910 15 (exhibit P 4).
In exhibit P 5 the relevant entry in para 11 was: "The owners shall, however, have no right to pine trees.
They can neither cut them nor get the same without permission, for it has been laid down in the Forest Settlement Reports that the Raja Sahib gave leases to reclaim such lands whereon the Government jungles, i.e., the ' Government pine trees exist.
For this reason, the Government maintained their right to the pine trees.
(see para.
78 of the English report regarding jungles,.)".
In exhibit P 6 the relevant entry was "Except the chil (pine) trees all the trees situated in the Khata of any person in the Tikas of the Jagir are the property of the owner of the Khata.
The chil trees growing in such Khatas in the Tikas of the Jagir are the property of Raja Sahib".
In exhibit P 4 the entry was "Excepting the pine trees all the trees standing in the Khata of any person in the Tikas of the Jagir save those proprietary lands the trees whereof have been held belonging to the Government during the recent Settlement and which have been mentioned above are the property of the owner of the Khata.
In the Tika 's of Jagir.
all the pine trees of such Khatas excepting those standing on such proprietary lands, and which have been held to be the property 908 of the Government during the recent settlement and mention whereof has been made above are the property of Raja Sahib.
" The question before us is as ' to the true scope and legal effect of these entries.
Do they establish a grant of the right to chil trees or, what is the same thing, a surrender of that right, in favour of the Raja by Government? In these cases we are not concerned with trees on public waste lands, nor with forest trees; and as the High Court has pointed out, we do not know if the lands in suit were initially private waste or recently reclaimed lands.
The Jamabandis show that they are proprietary and cultivated lands of adna maliks.
Therefore, the question before us is the right to chil trees on proprietary and cultivated lands in possession of adna maliks.
It is not disputed that under section 31 of the Punjab Land Revenue Act, 1887, Wajib ul arz is a part of the record of rights, and entries made therein in accordance with law and the provisions of Ch.
IV of the Act and the rules thereunder, shall be presumed to be true (vide section 44).
The Wajib ul arz or village administration paper is a record of existing customs regarding rights and liabilities in the estate; it is not to be used for the creation of new rights or liabilities.
(see para 295 of the Punjab Settlement Manual, pp. 146 147,1930 ed.).
In appendix VIII of the Settlement Manual, Section E, are contained instructions with regard to the Wajib ul arz and instruction No. 2 states: "The statement shall not contain entries relating to matters regulated by law, nor shall customs contrary to justice, equity or good conscience, or which have been declared to be void by any competent authority, be entered in it.
Subject to these restrictions, the statement should contain information on so many of the following matters as are pertinent to the estate: . . . . . . . . . . (h)The rights of cultivators of all classes not expressly provided for by law (for instance, rights to 909 trees or manure, and the right to plant trees) and their customary liabilities other than rent.
. . . . . . . . (j)The rights of Government to any nazul property,, forests, unclaimed, unoccupied, deserted, or waste lands, quarries, ruins or objects of antiquarian interest, spontaneous products, and other accessory interest in land included within the boundaries of the estate.
. . . . . . . . . . (1) Any other important usage affecting the rights of landowners, cultivators or other persons interested in the estate, not being a usage relating to succession and transfer of landed property".
In the cases before us, the appellant did not base his claim on custom, though referring to his right be said in his plaint "this has been the practice throughout".
What he really meant by "practice" was the land system prevailing under the old independent Katoch rulers.
We have already held that the appellant did not get the sovereign right of the independent Katoch rulers; nor did the grant made in 1848 give him any right to the royal trees.
The entry in the Wajib ul arz of 1892 93 (exhibit P 5) is not really in his favour; it states that trees of every kind shall be considered to be the property of the owners (adna maliks), but the owners shall have no right to pine trees; for this last part of the entry which is somewhat contradictory of the earlier part, a reference is made to para 78 of Anderson 's Forest Settlement Report as authority for it.
That paragraph, however, stated in clear terms "No orders have been passed by main regard to trees on fields, as the present enquiry extended only to the waste land".
It is obvious that the entry in the Wajib ul arz of 1892 93 went much beyond what was stated in para 78 of Mr. Anderson 's report, and so far as the right to pine trees on proprietary and cultivated lands was concerned, the statement made a confusion between Government jungles, recently reclaimed land and proprietary land, On its own showing, the entry was 910 not the statement of an existing custom, because it referred to para 78 of the Forest Settlement Report; far less did it show any surrender or relinquishment of a sovereign right by Government in favour of the Raja.
Indeed, it is difficult to understand how the surrender or relinquishment of such a right can be the subject of a village custom or can be within the scope of an entry in the Wajib ul arz.
The original grant in favour of Raja Jodhbir Chand was by means of a Sanad, and one would expect any additional grant or surrender to be embodied in a similar document.
At any rate, if the intention of Government was to surrender a sovereign right in favour of the Raja, one would expect such intention to be expressed in unambiguous language.
In Khalsa villages, Government did surrender their right to trees on Shamilat lands of adna maliks on the authority of letter No. 347 of January 6, 1867.
Taking the most favourable view for the appellant, the entries in the Wajib ul arz in these cases can be said to express the views of certain revenue authorities as to the rights of the Raja or the intention of Government; but the views of the revenue authorities as to the effect or construction of a grant or the intention of Government in respect of a grant, do not conclude the matter or bind the civil Courts.
(See Rajah Venkata Narasimha Appa Row Bahadur vs Rajah Narayya Appa Row Bahadur(1)).
The same comments apply to the Wajib ul arz of 1899 1900 (exhibit P 6) and of 1910 15 (exhibit P 4).
They no doubt say that the pine trees on the lands comprised within the Khatas of adna maliks are the property of the Raja Sahib.
None of them indicate, however, on what basis the right to chil trees on proprietary and cultivated lands of the adna maliks is to be held the property of the Raja Sahib.
If the revenue authorities made the entries on the basis of the land system of the old Katoch rulers or on the basis of the Sanad of 1848, they were clearly wrong.
If, however, there was a surrender by Government of the right in favour of the Raja, one would expect it to be mentioned unambiguously in the entries; one (1) [1879] L.R. 7 I.A. 38, 48.
911 would further expect the same to be mentioned in the Jamabandis (Exs. D 7 and D 8) of the adna maliks.
The Jamabandis do not, however, show any restriction on the rights of adna maliks with regard to the trees on their lands.
A reference may be made here to another document (exhibit D 2) which is an extract of the Wajib ul arz (para 12) of '1892 93, dealing with the rights of ala maliks and adna maliks.
The entry shows that the Raja Sahib was to get 15 per cent.
on the net revenue in respect of the entire land owned by the adna maliks as talukdari dues which had been fixed: the talukdari dues were fixed to compensate the Raja Sahib for all sorts of dues, such as banwaziri, domiana, etc.
It is improbable that after the fixation of such talukdari dues, a grant of a further right in respect of chil trees on the lands of adna maliks will be made but will not be specifically mentioned in para 12 of the Wajib ul arz, which dealt particularly with the rights of ala and adna maliks.
Learned counsel for the appellant drew our attention to exhibit D 6, an extract of para 11 of the Wajib ul arz, of 1914 15, at the bottom of which there is a note that the Zamindars (adna maliks) were present and every paragraph had been read out to them and the same were correct.
The argument before us is that the adna maliks ad mitted the Wajib ul arz of 1914 15 to be correct.
We cannot accept that argument; firstly, we do not think that the endorsement at the bottom of exhibit D 6 is an admission by adna maliks of the correctness of the entries made in other paragraphs of the Wajib ul arz, as for example, para 10 (exhibit P 4) which related to the rights of Government in respect of the nazul lands, etc.
Secondly, even if the endorsement amounts to such an admission as is contended for by learned counsel for the appellant, we do not think that it is conclusive or decisive of the right which the appellant is claiming.
exhibit P 2 dated May 27,1886, showed that even so far back as at that date, sonic of the adnamaliks had complained that the Raja 's men had cut and taken away some chil trees on their lands.
It is quite improbable that after such a complaint the adna maliks would admit the right of the ala malik 912 to chil trees on their lands.
In para.
296 of the Punjab Settlement Manual, Mr. Douie observed that the Wajib ul arz in the first regular settlements was sometimes a formidable document, but its real value as evidence of village custom was not always proportionate to its length.
He 'A quoted with approval the observations of Sir Arthur Brandreth to the following effect: "Some few points have been ascertained in each case, but in general the villagers did not know their customs very well, and when they put their seals to the paper, no doubt they thought it very grand, though they did not know what it was about, as they could little understand the language.
The rules are of two sorts; one, the rules laid down by Government, or points on which the whole pargana have the same custom, and, secondly, the special customs of the particular manor; these together take up a great number of pages, and the villagers are confused by the long code of rules, and merely say 'yes, yes ' and put their seals to.
the paper, hoping it is nothing very dreadful.
" A large number of decisions in which entries of the Wajib ul arz or the Riwaji i am and the value to be given to them were considered, have been cited before us.
In some of them, entries in the Wajib ul arz were accepted as correct and in others they were not so accepted, notwithstanding the statutory presumption attaching to the entries under section 44 of the Punjab Land Revenue Act, 1887.
We do not think that any useful purpose will be served by examining those decisions in detail.
The legal position is clear enough.
As was observed by the Privy Council in Dakas Khan vs Ghulam Kasim Khan(1), the Wajib ul arz, though it does not create a title, gives rise to a presumption in its support which prevails unless the presumption is property displaced It is also true that the Wajib ul arz being part of a revenue record is of greater authority than a Riwaji i am which is of general application and which is not drawn up in respect of individual villages (Gurbakhsh Singh vs Mst.
Partapo(1)).
Whether the statutory presumption (1) A.I.R. 1918 P.C. 4.
(2) Lah.
913 attaching to an entry in the Wajib ul arz has been properly displaced or not must depend on the facts of each case.
In the cases under our consideration, we hold, for the reasons already given by us, that the entries in the Wajib ul arz with regard to the right of the Raja in respect of chil trees standing on cultivated and proprietary lands of the adna maliks, do not and cannot show any existing custom of the village, the right being a sovereign right; nor do they show in unambiguous terms that the sovereign right was surrendered or relinquished in favour of the Raja.
In our view, it would be an unwarranted stretching of the presumption to hold that the entries in the Wajib ul arz make out a grant of a sovereign right in favour of the Raja; to do so would be to hold that the Wajib ul arz creates a title in favour of the Raja which it obviously cannot.
It is necessary to state here that in the Wajib ul arz of 1899 1900 (exhibit P 6) there was a reference to certain orders contained in letter No. 1353 dated March 11, 1897, from the Senior Secretary of the Financial Commissioner.
This Wajib ul arz also showed that certain amendments were made on May 26, 1914, by an order of Mr. Shuttleworth, the then Settlement Officer.
There is a further note that the amendment was cancelled on January 23, 1917.
In the High Court judgment there is a reference to the notes mentioned above and the learned Judge who gave the leading judgment observed that the aforesaid notes showed that the state of affairs prevailing at that time was some what confused and fluid.
It is probable that each revenue officer was expressing his own opinion about the matter.
An attempt was made in the High Court to get some of the unpublished original documents of Government to clarify the entries in the Wajib ul arz.
The Government of the Punjab, however, claimed privilege in respect of those documents, which claim was upheld in the High Court.
We have re examined that claim, and though the State was not a party to this litigation, we heard the learned Advocate General for the State. 914 We found the claim to be valid under the law as it stands at present.
We have assumed that the entries in the Wajib ul arz of 1899 1900 and of 1910 15 related to cultivated and proprietary lands of adna maliks, though they were entered in a paragraph which dealt with the rights of Government in respect of ownership of the nazul lands, jungles, unclaimed property, etc.
Even on that assumption, we have come to the conclusion that the entries in the Wajib ul arz do not establish the claim of the appellant that there was a surrender or relinquishment of a sovereign right in favour of his predecessor.
It remains now to notice ' some other evidence on the record.
Learned counsel for the appellant has referred us to several judgments, Exs.
P 9, P 7, P 8 and P 4 (wrongly marked as exhibit P 6).
Referring to these judgments, the learned trial Judge said that it was not clear whether those judgments related to lands which were private waste or nautor (reclaimed) lands.
Apart, however, from that difficulty, we are of the view that, the judgments do not advance the case of the appellant any further.
They proceeded primarily on the entries in the Wajib ul arz, the effect of which entries we have already considered at great length.
Admittedly, no plea of res judicata arose on these judgments, and they were merely evidence of an assertion and determination of a similar claim made by the Raja in respect of other lands within the Jagir.
As to the oral evidence in the case, none of the Courts below placed any great reliance on it.
The learned Subordinate Judge did not accept the oral evidence given on behalf of the appellant; the learned District Judge, referring to the oral evidence of the respondents, said that he could not accept that evidence in preference to the overwhelming historical and documentary evidence led by the appellant.
With regard to the appellant 's witnesses he seemed to think that some of them at least were reliable.
The learned Judges of the High Court did not refer to the oral evidence except for a slight reference to the state 915 ment of Salig Ram, the Raja 's attorney, who appears to have stated that the Raja got his rights in 1893 94; how the Raja got his rights then was not explained.
Learned counsel for the appellant has referred us to the evidence of one Babu Kailash Chander (witness No. 2 for the appellant), who was a Forest Range Officer.
This gentleman said that the trees standing on the land belonging to the landlords were exclu sively owned by the Raja Sahib.
In cross examination he admitted that he had no knowledge of the trees in suit nor did he know on which lands the trees were standing.
He admitted that he knew nothing about the rights of the Jagirdar and the landlords inter se with regard to the lands in dispute.
It is obvious that such evidence does not prove the case of the appellant.
Had the Raja been in possession of the pine trees for such a long time as he now claims, one would expect him to produce some documents showing his income, etc.
from the trees.
No such documents were produced.
For these reasons, we hold that the appellant has failed to establish his claim to the pine trees, and the decision of the High Court is correct.
The appeals fail and are dismissed.
In the circumstances of these cases, where much of the doubt as respects the right claimed arose out of the entries made in the Wajibul arz, the High Court properly directed that there would be no order for costs either in the High Court or in the Courts below.
We think that that order was correct, and we also pass no order as to costs of the hearing in this Court.
Appeals dismissed.
| IN-Abs | The appellant as the proprietor of Nada un Jagir sued to establish his title to chil (pine) trees standing on lands within the Jagir but belonging to the respondents, on the ground that the trees belonged to him as ala malik (superior landlords and not to the respondents who were only adna maliks (inferior landlords).
The Jagir originally formed part of the territory belonging to the rulers of Kangra who were Sovereigns entitled to the chil trees.
In 1827.
28 Maharaja Ranjit Singh conquered the territory and granted Nadaun as Jagir to Raja Jodhbir Chand who was the illegitimate son of Raja Sansar Chand, the last independent ruler of Kangra.
In 1846 as a result of the first Sikh War the territory came under the dominion of the British,.
who granted a Sanad in favour of Raja Jodhbir Chand in recognition of his services.
After the second Sikh War, the British granted a fresh Sanad in respect of the Jagir of Nadaun in 1848.
Subsequent to the grant, there were settlements in 1892 93 (O 'Brien 's Settlement), 1899 1900 (Anderson 's Settlement) and 1910 1915 (Settlement of Messrs Middleton and Shuttleworth), and there were some entries in the Wajib ul arz supporting the title of the Raja to the chil trees.
The appellant who is a direct lineal descendant of Raja Jodhbir Chand claimed title to the trees, firstly, as the representative of the independent Kangra rulers, secondly, on the basis of the grant given by the British Government and, thirdly,on the strength of the entries in the Wajib ul arz.
Held:(1) The Sovereign right of the independent Kangra rulers Lo chil trees passed by conquest to the Sikh rulers and subsequently to the British; Raja Jodhbir Chand was only a Jagirdar under the Sikhs and the British, and the appellant could not therefore lay claim to the chil trees on the basis of the Sovereign right of the in.
dependent rulers.
(2)The grant of 1848 on its true construction was primarily an assignment of land revenue and whatever other rights might have been included, the right to all chil trees on the proprietary and cultivated lands of the respondents was not within the grant.
890 It is well settled that the general rule is that grants made by the Sovereign are to be construed most favourably for the Sovereign; but if the intention is obvious, a fair and liberal interpretation must be given to the grant to enable it to take effect, and the operative part, if plainly expressed, must take effect notwithstanding qualifications in the recitals.
In cases where the grant is for valuable consideration it is construed in favour of the grantee, for the honour of the Sovereign, and where two constructions are possible, one valid and the other void, that which is valid ought to be preferred, for, the honour of the Sovereign ought to be more regarded than the Sovereign 's profit.
(3)Wajib ul arz or village administration paper is a record of existing rights not expressly provided for by law and of customs and usage regarding the rights and liabilities in the estate, and though under section 44 of the Punjab Land Revenue Act, 1887, it is presumed to be true, it is not to be used for the creation of new rights and liabilities.
Entries in the wajib ul arz with regard to the right of the Raja in respect of chil trees standing on the cultivated and proprietary lands of the adna maliks, did not show any existing custom or usage, of the village, the right being a Sovereign right, and the appellant could not rely on the said entries as evidence of a grant or surrender or relinquishment of a Sovereign right by Government in his favour.
The expressions "ala malik" and "adna malik" explained in the context of the Settlement reports relating to Nadaun Jagir.
Venkata Narasimha Appa Bow Bahadur vs Rajah Narayya Appa Bow Bahadur ([1879] L.R. 7 I.A. 38), Dakas Khan vs Ghulam Kasim Khan (A.I.R. and Gurbakhsh Singh vs Mst.
Partapo ([1921] I.L.R. , referred to.
|
Civil Appeal No. 854 of 1971.
Appeal by Special leave from the judgment and order dated the 6th November, 1970 of the Andhra Pradesh High Court in S.A. Nos. 719 and 826 of ]967 T. section Krishnamoorti Iyer Mrs. J. Ramachandran and K. Ram Kumar for the Appellant.
P. Govindan Nair and G. Narasimhulu for Respondent No. 1.
A. V. Rangam for Respondents 2(c) & (e).
B. Parthasarthi for Respondent No. 3.
The Judgment of the Court was delivered by 240 BALAKRISHNA ERADI, J.
This appeal by special leave is directed against a judgment of the High Court of Andhra Pradesh in two connected Second Appeals Second Appeal Nos. 719 and 826 of 1967.
Those Second Appeals arose out of a suit filed by the appellant herein for setting aside the summary order passed in E.A. No. 90 of 1958 in E.P. 7 of 1956 in O.S. No. 26 of 1952 on the file of the Sub Court, Anantapur, and for recovery of possession of plaint 'C ' Schedule property or, in the alternative, for partition and recovery of one half of the property described in the plaint 'B ' Schedule.
The plaint 'C ' Schedule plot is a southern portion of the property described in the 'B ' Schedule.
The plaint 'B ' Schedule property consisting of 1 acre and 90 cents of land together with two houses situated therein belonged to one Allabaksh.
He was adjudged an insolvent and the official Receiver sold a half right in the said property to one Moola Narayanaswamy under Exh.
A 3 dated December 6, 1939.
The remaining half interest in the property belonging to Allabakash was also subsequently brought to sale by the official Receiver and one J. Narasimhulu became the purchaser.
A 27 dated January 5, 1945 is the sale certificate issued in his favour.
The resultant position was that the 'B ' Schedule property came to be owned in undivided half shares by Moola Narayanaswamy and J. Narasimhulu.
Subsequently, Narasimhulu transferred his interest in the property in favour of the plaintiff for a consideration of Rs. 4,000 under Exh.
A l dated May 10, 1948.
The plaintiff is the daughter of Moola Narayanaswamy.
One Nagappa (first defendant) obtained a simple money decree against Moola Narayanaswamy in O.S .
26152 on the file of the Subordinate Judge 's Court, Anantapur, and in execution thereof, he attached and brought to sale in court auction the two houses described in the plaint 'B Schedule property.
In the said court auction, the first defendant purchased the plaint 'B ' Schedule property for Rs. 2,050 and in enforcement of the sale certificate, he obtained delivery of possession of the two houses.
Since the judgment debtor, Narayanaswamy, was entitled to only a half interest in the property, the plaintiff filed E.A. No. 90/58 in the Executing Court under order 21, Rule 100 C.P.C, asserting her independent rights to the southern half of the property and praying for redelivery of the said portion in her favour.
That petition was dismissed by the Sub Court, Anantapur, by order dated March 11, 1960, and hence.
the plaintiff brought the suit out of which this appeal has 241 arisen for setting aside the said summary order and for recovery of possession of the southern portion of the property which is described in the plaint 'C ' Schedule.
During the pendency of the suit, the first defendant sold the northern half of the property in favour of the 7th defendant as per Exh.
B 14 dated March 21, 1961.
Later, the first defendant transferred the southern half of the property to the 8th defendant under the sale deed (Exh. B 15) dated June 19, 1961.
Reference has been made to the fact that the two sales effected by the official Receiver in favour of Narayanaswamy and Narasimhulu were in respect of unspecified half shares in the plaint 'B ' Schedule property.
The basis on which the plaintiff rested her claim for recovery of possession of the southern half of the property was that a partition had been effected between herself and the heirs of Narayanaswamy in 1952 and the 'C ' Schedule property had been allotted to her share at the said partition.
Defendants 2 to 6, who are the legal heirs of deceased Narayanaswamy, did not contest the o suit.
However, the first defendant, who was the main contesting defendant in the trial court, denied that any such partition had taken place.
put forward the case that in effecting the purchase of the balance undivided half interest in the property, when it was brought to sale by the official Receiver on November 28, 1944, Narasimhulu was acting as a benamidar for Moola Narayanaswamy and that the ownership in respect of the said half interest also became vested in Narayanaswamy himself.
It was further contended that the transfer by Narasimhulu in favour of the plaintiff was also a benami transaction for the benefit of Narayanaswamy and hence, the entire property I ad been validly purchased by him at the court sale held in execution of the money decree obtained by him against 1 Narayanaswamy in O.S. 26 of 1952 of the Subordinate Court, Anantapur.
The two main issues that arose for determination by the trial court (court of the Munsif Magistrate, Tadpatri) were (a) whether the transactions of purchase of the half share in the plaint 'B ' Schedule property by Narasimhulu at the court auction sale and the subsequent transfer of the same by Narasimhulu to the plaintiff were benami for the benefit of Narayanaswamy and (b) whether there was a subsequent partition of the property at which the plaintiff was allotted the southern half (plaint 'C ' Schedule property).
On on a consideration of the evidence adduced in the case, the trial court found that there was no, foundation whatever for the plea of 242 benami put forward by the first defendant, that the plaintiff was the owner of a half share in the plaint 'B ' Schedule property and that her interest could in no way be effected by the court sale held in execution of the money decree obtained by the first defendant against Narayanaswamy.
The learned Munsif further held that the plaintiff had not succeeded in establishing her case that there had been a partition of the property by metes and bounds, at which the southern half of the property, namely, the plaint 'C ' Schedule plot had been allotted to her share.
In view of the aforesaid findings, the trial court set aside the summary order passed in E.A. 90/58 in E.P. 7/56 in O.S. 26/52 of the Subordinate Court, Anantapur, and passed a preliminary decree for partition of the plaint 'B ' Schedule property by metes and bounds into two equal shares and for allotment and delivery of one such share to the plaintiff.
The first defendant carried the matter in appeal before the District Court, Anantapur (A.S. 173/56) reiterating his contention that the purchase of the half interest in the plaint 'B ' Schedule property by Narasimhulu and the subsequent sale by him to the plaintiff were benami transactions.
The plaintiff filed a memorandum of cross.
Objections questioning the correctness of the finding entered against by the Munsif that the plea of partition put forward by her had not been proved and praying that in place of decree for partition granted to her by the Munsif, she may be allowed to recover possession of the plaint 'C ' Schedule property after upholding her prayer regarding the partition.
After a detailed consideration of the oral and documentary evidence adduced in the case, the learned Additional District Judge, who heard the appeal, upheld the finding of the trial court that the first defendant had totally failed to establish the case put forward by him that the auction purchase effected by Narasimhulu and the subsequent transfer of the property by Narasimhulu to the plaintiff were both benami transactions intended for the benefit of Moola Narayanaswamy.
It was further held by the learned Additional District Judge that subsequent to the purchase of the half interest in the 'B ' Schedule property by the plaintiff, there had been a partition between her and the other heirs of Narayanaswamy in 1952, as pleaded by the plaintiff, and the plaint 'C ' Schedule property had been allotted to the plaintiff 's share at that partition.
In the light of the aforesaid findings, the appeal filed by the first defendant was dismissed by the learned Additional District Judge, the cross objections filed by the plaintiff were allowed and in modi 243 fication of the decree of the trial court, the plaintiff was granted a decree for recovery of possession of the plaint 'C ' Schedule property.
Against the aforesaid judgment of the Additional District Judge, Anantapur, the first defendant and the 8th defendant filed two separate Second Appeals before the High Court of Andhra Pradesh.
The two questions raised in those appeals were (a) whether the purchase of the property by the plaintiff was benami for Narayanaswamy and (b) whether a partition of the plaint 'B Schedule property had taken place as between the plaintiff and the heirs of Narayanaswamy, at which the plaintiff got the southern half thereof.
A learned Single Judge of the High Court disposed of the two Second Appeals by a common judgment, wherein he has discussed at great length the oral and documentary evidence and entered findings of his own on the two questions aforementioned.
The learned Judge found that there was no force in the contention put forward by the first defendant that the half interest in plaint 'B ' Schedule property was purchased at the court auction sale by Narasimhulu benami for Narayanaswamy.
He also rejected the further plea put forward by the first defendant that the subsequent transfer of the property by Narasimhulu to the plaintiff was also a benami transaction.
In consequence, the Second Appeal filed by the first defendant was dismissed, On the second question aforesaid, the learned Judge differed from the finding of the Additional District Judge and held that the plaintiff had failed to establish that a partition of the property had been effected as between herself and the legal heirs of Narayanaswamy at which the 'C ' Schedule property had been allotted to her share.
The learned Judge then proceeded to hold that the fact that the first defendant sold to the 7th defendant a specified portion in the north did not necessarily create any right in the 7th defendant to the particular properly and hence this was a case where a partition of the property should be effected between the plaintiff on the one hand and the defendants 7th and 8th on the C ' other.
In view of the said findings, the Second Appeal filed by the 8th defendant was allowed by the learned Judge and the suit was remanded to the trial court for effecting a partition of the plaint 'B ' Schedule property between the plaintiff, the 7th defendant and the 8th defendant.
It is against the said decision of the High Court that the 7th defendant has filed this appeal after obtaining special leave from this Court.
244 Two main contentions were advanced by the learned counsel on behalf of the appellant.
Firstly, it was urged that the High Court has acted illegally and in clear violation of the limitations imposed by Section 100 C.P.C. in interfering with the finding entered by the Additional District Judge on the question as to whether or not there had been a partition between certain parties which is a pure question of fact.
The second contention advanced on behalf of the appellant is that the High Court has committed a grievous error in omitting to notice that the 7th defendant had not been even impleaded as a party in the Second Appeal (S.A. 826/67) filed by the 8th defendant, and that while showing the plaintiff as the sole respondent in that Second Appeal a categorical statement had been made in the memorandum of the Second Appeal that "the other parties in the courts below are not necessary parties to this appeal".
It was, therefore, contended by the appellant that the High Court has acted wholly illegally in recording a finding adverse to the 7th defendant and directing a partition of the entire 'B ' Schedule.
property in spite of the fact that the northern plot had been sold to the 7th defendant by deceased Narayanaswamy.
After hearing counsel appearing on both sides, we have unhesitatingly come to the conclusion that both the aforesaid contentions advanced on behalf of the appellant have to be upheld.
The finding entered by the Additional District Judge that a partition had taken place between the plaintiff and the other legal heirs of Narayanaswamy in 1952, and as a result thereof the southern portion of the 'B ' Schedule property (plaint 'C ' Schedule property) had been allotted to the plaintiff 's share was based on a detailed consideration of the legal evidence available on the record.
It was not open to the High Court to reappreciate the said evidence and substitute its own conclusions in place of those entered by the lower courts while exercising the jurisdiction conferred by Section 100 C.P.C.
The learned counsel appearing on both sides have taken us through the relevant portions of the evidence having a bearing on the plea of partition, and we are satisfied that the finding entered by the Additional District Judge cannot be said to be unreasonable or perverse.
No question of law whatever was agitated before the High Court.
In the circumstances, there was no justification at all for the High Court to interfere with the finding of fact entered by the Additional District Judge that there had been a partition between the plaintiff and the legal heirs of Narayanaswamy in 1952 at which the plaint 'C ' Schedule property had been allotted to the share of the plaintiff.
245 In this view, it is unnecessary for us to go into the merits of the second contention advanced on behalf of the appellant.
In the light of the foregoing discussion, we allow this appeal, set aside the decision of the High Court and restore the judgment and decree of the Additional District Judge, permitting the plaintiff to recover possession of the plaint 'C ' Schedule property.
We make it clear that we are expressing no opinion on the question relating to the rights inter se as between the defendants 7th and 8th in respect of the remaining portion of plaint 'B ' Schedule property, and the said matter is left to open.
The parties will bear the respective costs in this appeal.
S.R. Appeal allowed.
| IN-Abs | In the insolvency proceedings half the property of one Allabaksh was sold by the official Receiver to Moola Narayanaswamy in 1939 and the other half to Narasimhulu in 1945.
Subsequently Narasimhulu transferred his interest in the property in favour of the daughter of Moola Naraynaswamy for a consideration of Rs. 4,000 under Exh.
A 1 dated May 10, 1948.
One Nagappa obtained a simple money decree against Moola Narayanaswamy in O.S. 26/1952 on the file of Sub Judge Anantapur and in execution thereof, he attached and bright to sale in court auction two houses including the house purchased by the daughter of Moola Nalayanaswamy.
In the said court auction, Nagappa purchased the two houses for a sum of Rs. 2050 and in enforcement of the sale certificate, he obtained delivery of possession of the two houses.
Since the application No. E.A. 90/58 filed by the daughter of Narayanaswamy in the Executing Court under order XXI, Rule 100 C.P.C. asserting her independent right was dismissed, she filed a suit to set aside the said summary order and for recovery of possession of the property which is described in her plaint 'C ' Schedule as falling to her share arising out of a partition effected in 1952.
During the pendency of the suit, Nagappa sold the northern half of the property in favour of Mahboob Saheb, the appellant herein, on March 21, 1961 and later, the southern half of the property to N. Subbarayan Chowdhary, respondent No. 1 herein, on June 19, 1961.
Nagappa contested the suit on the ground that Narasimhulu was all along acting as a benamidar for Narayanaswamy, when he purchased the half share in court auction in 1944 45 and again transferred the said share in favour of Narayanaswamy 's daughter benami for Narayanaswamy and as such the sale by the court in his favour was valid.
The Trial Court disbelieved the plea of benami taken by Nagappa, found that the plaintiff was the owner of a half share in her own right, and that there was no partition by metes and bounds of the entire property brought to sale, by court auction.
The Trial Court, therefore, set aside the summary order passed in E.A. 90/58 in E.P. 7/56 in OS.
26/52 of the Sub Judge, Anantapur and a preliminary decree for partition of the 'B ' Scheduled property by metes and bounds into the equal shares and for allotment and delivery of one such share to the plaintiff.
239 Nagappa 's appeal before the District Court (A.S. 173/66) was dismissed and A the objections of the plaintiff were allowed, and accepting the plea of partition the District Court granted a decree for recovery of possession of the plaint 'C ' Schedule.
In further second appeals, the High Court dismissed Nagappa 's appeal on the plea of benami but reversed the findings of the District Court as to the question of partition pleaded by the plaintiff.
Allowing The appeal of the 8th defendant (Respondent No. I herein) the High Court held that it was a case where a partition of the property should be effected between the plaintiff on the one hand and the appellant and respondent No. 1 herein on the other.
Hence the appeal by special leave by 7th defendant Mahboob Saheb.
Allowing the appeal and leaving the question relating to the rights inter se as between appellant and respondent No. 1 open, the Court ^ HELD: 1.
It was not open to the High Court to reappreciate the evidence and substitute its own conclusions in place of those entered by the lower court, while exercising the jurisdiction conferred by section 100 C.P.C.
The finding entered by the Additional District Judge that a partition had taken place between the plaintiff and the other legal heirs of Narayanaswamy in 1952, and as a result thereof the southern portion of the 'B ' Schedule property (plaint 'C ' Schedule property) had been allotted to the plaintiff 's share was based on a detailed consideration of the legal evidence available on the record.
The relevant portions of the evidence having a bearing on the plea of partition make it clear that the finding entered by the Additional District Judge cannot be said to be unreasonable or perverse.
No question of law whatever was agitated before the High Court.
In the circumstances, there was no justification for the High Court to interfere with the finding of fact entered by the Additional District Judge.
[244F; E, G H ]
|
ivil Appeal Nos.
2085 of 1978 and 7 8 of 1979.
Appeals by special leave from the Judgment and Order dated 18.5.1977 of the Allahabad High Court in C.M.W. Nos.
5061/73, 5063/73 and 5080/73.
G.C. Lal, D.B. Vohra and O.P. Tewari for the Appellants in all the Appeals.
Probir Mitra for R.1 in CAs.
2085/78, 8/79 and RR 1 2 in CA 7/79.
G.N. Dixit, and Sobha Dikshit for RR.
2 to 4 in CA 2085/78 RR 2 4 in CA 8/79 and RR 3&5 in CA 7/79.
E.C. Aggarwala for R.4 in CA 7/79 and R. 3 in CA 8/79.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
The above appeals arise out of land acquisition proceedings and involve similar questions of fact and the same 48 question of law.
This common judgment, therefore, will dispose of all the three appeals.
It will be sufficient if we refer to the material facts of Civil Appeal No. 2085 of 1978 only. 2.
The land involved, belonged to one Imam Khan as an occupancy tenant.
Before the partition of India, he migrated to Pakistan, whereafter his rights in the lands were declared evacuee property.
Subsequently, in pursuance of a notification issued under Section 12 of the , the Central Government acquired the lessee rights.
As a result of the notification, these rights vested in the Central Government free from all encumbrances.
The Central Government thereafter sold these rights by auctions in August/September 1962.
The first Respondent purchased a plot of land for a sum of Rs. 21,700.
He deposited the entire amount with the Managing Officer, Evacuee Property, Agra.
A sale certificate was issued to him on September 12, 1962.
It appears that one Ramlal Lamba was in the possessi on of the land in question.
He was asked by the Managing Officer, Evacuee Property, to vacate the land, and deliver possession to the first respondent.
Instead of delivering possession of the land to the first respondent Lamba, filed a Writ Petition under Article 226 of the Constitution in the Punjab High Court at Delhi.
The Writ Petition was dismissed on 4.12.69.
He then filed an appeal which was also dismissed on 2.2.70.
He then filed a suit in the Court of the Munsiff Agra, for restraining the Managing Officer, Evacuee Property, from interfering in his possession.
Thus the first respondent could not get possession of the land.
After the auction sale, the State of U. P. (Respondent No. 2 herein) filed a suit under Section 171 of U. P. Tenancy Act, 1939 (hereinafter 'the Tenancy Act ') against the Custodian of the Evacuee Property, and the four auction purchasers including the first respondent, for possession.
This suit was dismissed by the Assistant Collector, Ist Class, on 24.3.69 on the ground that it was not maintainable.
An appeal was filed.
This was also dismissed on 24.10.70.
Thus before the petitioner could obtain possession of the land, the Collector of Agra (Respondent No.3 herein) issued a notification under Section 4 of the Land Acquisition Act (hereinafter 'the Act ') on March 1, 1970, notifying that the plots in dispute (and several other plots) were intended to be acquired by the State Government for construction of residential houses for the members of the General Servants Co operative Housing Society Ltd., Agra, the appellant 49 before us.
The first respondent did not have any knowledge or information of the said notification under Section 4 of the Act and so he did not, as he could not, file any objection under section 5A of the Act.
The notification under section 4 was followed by a notification under section 6 of the Act on May 4, 1973.
After the said notifications, proceedings relating to determination of compensation for the lands were started.
In that connection the first Respondent was served with a notice under section 9(3) of the Act, calling upon him to prefer his claim for compensation.
Thereupon the first Respondent filed objections, but before the objections were disposed of he filed a writ petition before the High Court of Allahabad.
The High Court allowed the writ petition and struck down the notification dated 5th May 1973, under Section 6 of the Act.
The High Court held that as the acquisition was made by the State Government for the benefit of a Co operative Society, it could do so only after complying with the provisions of Chapter VII of the Act, and the Land Acquisition (Companies) Rules, 1963 (hereinafter called 'the rules '), but as the State Government did not do so, there was a breach of the principle of natural justice.
Repelling the argument of the appellant to the contrary, the High Court also held that the first respondent was a 'person interested ' within the meaning of section 3 (b) of the Act.
Respondents No. 2, 3 and 4 who are co respondents appearing through Mr. Dikshit before us have supported the case of the appellant.
The first question for determination is whether the first respondent is not a 'person interested ' within the meaning of section 3(b) of the L.A. Act and as such he had no locus standi to file the writ petition before the High Court, as contended by the appellant.
Section 3 (b) of the Act is in the following terms (material portions only): "3.
In this Act, unless there is something repugnant in the subject or context: (a). . . (b) the expression "person interested" includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land." 50 In support of the argument the appellant refers to section 45 (f) and section 180 of the Tenancy Act, 1939.
Clause (f) of section 45 provides that the interest of the tenant shall be extinguished where the tenant has been deprived of possession and his right to recover possession is barred by limitation.
The limitation provided is for a period of twelve years, for a suit for ejectment of a person occupying the land without title and for damages if the land is contiguous to any other land lawfully occupied by such other person (a) if such person has, at the commencement of the Tenancy Act, occupied the land for more than six years, the period runs from the time the land holders first knew of the unauthorised occupation.
In any other case the period of limitation is six years.
This point which has been urged for the first time before us is a mixed question of fact and law.
It does not appear to have been taken before the High Court.
A mixed question of law and fact needing investigation into facts cannot be allowed to be urged for the first time in an appeal by special leave under article 136 of the Constitution.
It is true that admittedly the first respondent was out of possession at the relevant time but there is no evidence before us to show whether or not the land in question was contiguous to any other land occupied by the person who is in possession and that his possession had been lawful.
We are therefore not in a position to accept the submission of the appellant that the first respondent 's claim was barred by limitation.
On the contrary there is ample evidence before us to show that the first respondent had interest in the land in question.
We come to this conclusion from the following circumstances: (I) A sale certificate had been issued to the first respondent after the purchase of the land in auction sale held in 1962; (2) the Collector, Agra, knew that the first respondent had purchased the land in auction, for he had himself filed a suit for ejectment from the land in question under section 171 of the Tenancy Act against the first respondent, and that the suit was dismissed by the Assistant Collector Ist Class, on 24th March, 1969; the appeal preferred against the said order had also been dismissed by the Commissioner on the 27th of October, 1970; (3) the Collector issued notice under section 9 (3) of the Act calling upon the first respondent to prefer his claim, if any for compensation of the land acquired.
(This amounts to an admission of the first respondent 's interest in the land by the Collector) and (4) that in the counter affidavit filed by the Collector, in reply to the affidavit filed by the first respondent before the High Court 51 the claim of the petitioner to get compensation for the rights acquired by the Government was not denied by the appellant.
We therefore agree with the High Court that the first respondent was a 'person interested ' within the meaning of clause (b) of section 3 of the Act.
The next point urged before us by the appellants is that the first respondent in fact filed objection which was inquired into and he was given an opportunity of being heard.
The High Court, therefore, it is contended, was not right in holding that there was a breach of the principle of natural justice.
In our opinion, the real question, as urged by the first respondent, is not whether there has been any violation of any principle of natural justice but whether Rule 4 of the Rules has been complied with by the Collector.
Sub section (1) of Section 4 of the Act provides that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose a notification to that effect shall be published in the official gazette and that he shall also cause a public notice of the substance of the notification to be given at convenient places in the said locality.
Section 5A of the Act provides that any person interested in any land which has been notified under sub section (1) of section 4, as being needed or likely to be needed for a public purpose or for a Company may, within thirty days (twenty one days according to the U.P. amendment) after the issue of the notification object to the acquisition of the land or of any land in the locality as the case may be.
Under section 3 (e), the expression 'Company ', inter alia, includes a society registered under the and a registered society within the meaning of the or any other law relating to co operative society for the time being in force in any State.
The appellant The General Govt.
Servants Co operative Housing Society Ltd., Agra, is a Company.
The appellant has not contended to the contrary.
It is also not disputed that when land is acquired for the purpose of a company, of the Act is attracted and the provisions of that chapter have to be followed.
Rule 4 of the Rules which is material and falls for our interpretation runs thus: "4.
Appropriate Government to be satisfied with regard to certain matters before initiating acquisition proceedings. (1) Whenever a Company makes an application to the appro 52 priate Government for acquisition of any land, that Government shall direct the Collector to submit a report to it on the following matters, namely: (i) that the Company has made its best endeavour to find out lands in the locality suitable for the purpose of the acquisition; (ii) that the Company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed; (iii) that the land proposed to be acquired is suitable for the purpose; (iv) that the area of land proposed to be acquired is not excessive; (v) that the Company is in a position to utilise land expeditiously; and (vi) where the land proposed to be acquired is good agricultural land, that no alternative suitable site can be found so as to avoid acquisition of that land.
(2) The Collector shall, after giving the Company a reasonable opportunity to make any representation in this behalf, hold an enquiry into the matters referred to in sub rule (1) and while holding such enquiry he shall, (i) in any case where the land proposed to be acquired is agricultural land, consult the Senior Agricultural Officer of the district whether or not such land is good agricultural land ; (ii) determine, having regard to the provisions of sections 23 and 24 of the Act, the approximate amount of compensation likely to be payable in respect of the land which in the opinion of the Collector, should be acquired for the Company ; and (iii) ascertain whether the Company offered a reasonable price (not being less than the compensation so determined), to the persons interested in the land proposed to be acquired.
Explanation : For the purpose of this rule "good agricultural land" means any land which, considering the level of agricultural production and the crop pattern of the area in which 53 it is situated, is of average or above average productivity and includes a garden or grove land.
(3) As soon as may be after holding the enquiry under sub rule (2), the Collector shall submit a report to the appropriate Government and a copy of the same shall be forwarded by that Government to the Committee.
(4) No declaration shall be made by the appropriate Government under section 6 of the Act unless (i) the appropriate Government has consulted the Committee and has considered the report submitted under this rule and the report, if any submitted under section 5A of the Act; and (ii) the agreement under section 41 of the Act has been executed by the Company. ' Sub rule (1) requires the Government to direct the Collector to submit a report to it on the matters enumerated in clauses (i) to (vi) of the sub rule (1) which is for the benefit of the Company.
The purpose is to avoid acquisition of land not suitable for a Company.
Clause (ii) of sub rule (1) requires that the Company has to make all reasonable efforts to get such lands by negotiation with the person interested therein on payment of reasonable prices and that such efforts have failed.
The purpose of clause (ii) seems to be to avoid unnecessary land acquisition proceedings and payment of exorbitant prices.
The purpose of clauses (iii), (iv) and (v) is obvious.
The purpose of clause (vi) is to avoid acquisition of good agricultural land, when other alternative land is available for the purpose.
Subrule 2 of rule 4 requires the Collector to give reasonable opportunity to the Company so that the Collector may hold an inquiry into the matters referred in sub rule (1).
The Collector has to comply with Clauses (i), (ii) and (iii) of sub rule 2 during the course of the inquiry under sub rule (1).
The Collector under sub rule 3 then has to send a copy of his report of the inquiry to the appropriate Government and a copy of the report has to be forwarded by the Government to the Land Acquisition Committee constituted under Rule 3 for the purpose of advising the Government in relation to acquisition of land under Part VII of the Act, the duty of the Committee being to advise the Government on all matters relating to or arising out of acquisition of land under Part VII of the Act (Sub rule (5) of Rule 3).
No declaration shall be made by the 54 appropriate Government under section 6 of the Act unless the Committee has been consulted by the Government and has considered the report submitted by the Collector under section 5A of the Act.
In addition, under clause (ii) of sub rule (4) of rule 4, the Company has to execute an agreement under section 41 of the Act.
The above consideration shows that rule 4 is mandatory; its compliance is no idle formality, unless the directions enjoined by rule 4 are complied with, the notification under section 6 will be invalid.
A consideration of rule 4 also shows that its compliance precedes the notification under section 4 as well as compliance of section 6 of the Act.
In the instant case, as stated earlier, the first respondent on receipt of the notice under section 9(3) of the Act submitted a representation.
After the representation, a brief written note of the arguments was also supplied (Annexure 6).
The first respondent 's objections, inter alia against the acquisition of the land were: (1) that the land being that of the Government cannot be legally acquired ; (2) that the land or lessee rights having been once acquired by the Central Government under the provisions of the , it cannot be acquired by the State Government ; and (3) that the proceedings for the acquisition of the land for the appellant were illegal as the mandatory procedure for acquisition of land for private companies has not been followed.
It was also stated in the representation that no efforts to purchase the rights of the first respondent by negotiation were made.
The inquiry report submitted by Collector does not show that he applied his mind to the provisions of rule 4 as stated above, or to the objections of the first respondent.
In fact there was no report under rule 4.
The report that was submitted was one under section 5A of the Act.
We have examined this aspect of the matter to see that although the enquiry was belated and not in accordance with law, there has been no failure of justice.
In our opinion there has been failure of justice.
Agreeing with the finding of the High Court, although for different reasons, we hold that the notification under section 6 is invalid for non compliance of rule 4 of the Rules.
As a result we dismiss the appeals with costs.
P.B.R. Appeals dismissed.
| IN-Abs | The land in dispute originally belonged to a person who had migrated to Pakistan.
After acquiring the lessee rights in the land under section 12 of the the Central Government sold these rights by auction.
The first respondent purchased a plot of land and a sale certificate was issued to him.
The respondent, however could not get possession of the land as a result of litigation resorted to by the person in possession of the land.
In the meantime the State Government filed a suit against the Custodian of Evacuee Property and the auction purchasers for possession; but the suit and later appeal were dismissed.
Before the respondent obtained possession of the land a notification under section 4 of the Land Acquisition Act was issued seeking to acquire the land for construction of residential houses for the members of the appellant society.
Having had no knowledge of the notification the respondent did not file any objection under section 5A. After the issue of notification under section 6 of the Act proceedings relating to determination of compensation for the lands were started.
A notice was served on the respondent under section 9(3) of the Act calling upon him to prefer his claim for compensation.
Allowing the respondent 's petition impugning the action of the Government the High Court held that the State Government could acquire the land only after complying with the provisions of Chapter VII of the Act and the Land Acquisition (Companies) Rules, 1963 and this not having been done there was a breach of the principle of natural justice and that secondly the respondent was a "person interested" within the meaning of section 3(b) of the Act.
On the question whether the respondent was a 'person interested ' and whether the notification issued under section 6 was valid.
^ HELD: The expression "person interested" is defined in section 3(b) as including all persons claiming an interest in compensation to be made on account of acquisition of land under the Act.
That the first respondent had interest in the land in question is warranted by the following circumstances: (i) a sale certificate had been issued to him after he purchased the land in auction sale; (ii) the Collector knew that he had purchased the land for he had himself filed a suit for ejectment against him from the land and that the suit was dismissed and the appeal against that order was also dismissed; (iii) the Collector called upon the respondent to prefer his claim under section 9(3) of the Act which showed that 47 the Collector had admitted the first respondent 's interest in the land; and (iv) before the High Court the Collector had not denied the respondent 's right to compensation.
Therefore, the first respondent was a "person interested" within the meaning of section 3(b).
[50 F H] 2.
The notification under section 6 is invalid for non compliance with rule 4 of the Rules.
[54 G] The appellant society is a "company" within the meaning of section 3(e) of the Act.
When the land was acquired for the purpose of a company, Part VII of the Act is attracted and the provisions of that Chapter have to be followed.
Rule 4 is mandatory and unless the directions enjoined by this rule are complied with the notification under section 6 would be invalid.
Its compliance precedes the notification under section 4 as well as compliance of section 6 of the Act.
[51 F G] In the instant case on receipt of the notice under section 9(3) the respondent objected to the acquisition on the grounds that the land or lessee rights having been acquired by the Central Government under the provisions of the could not be acquired by the State Government, and that the mandatory procedure for acquisition of land for private companies had not been followed.
No inquiry report had been submitted by the Collector.
The report submitted was under section 5A and not under rule 4.
There had therefore been a failure of justice.
[54 C F] 3.
The appellant 's contention that the first respondent 's claim was barred by limitation under sections 45(f) and 180 of the Tenancy Act, has no force because there is no evidence to show that the requirements of the section have been satisfied.
That apart, this is a mixed question of fact and law requiring investigation into facts.
Since it had not been taken before the High Court but sought to be urged for the first time in this Court, it cannot be allowed to be urged in an appeal by special leave under Article 136 of the Constitution.
[50 C D]
|
Civil Appeal Nos.
1144 1145 of 1969.
From the judgment and decree dated the 5th March, 1964 of the Madhya Pradesh High Court in First Appeal No. 14 of S.S. Ray, G.S. Solanki, section Kachwah and K.J. John for the Appellant in C.A. 1144/69 and for Respondent Nos. 2 and 3 in C.A. 1145/69.
G. L. Sanghi.
A.G. Ratnaparkhi and K.K. Gupta, for the Appellant in C.A. 1145/69 and for Respondent No. 2 in C.A. 1144 of 1969.
191 V.S. Desai and Dr. Y.S. Chitale.
Rameshwar Nath, K.A. Chitale and Mrs. section Ramachandran for Respondent No. 1 in both the Appeals.
The Judgment of the Court was delivered by DESAI, J.
What constitutes part performance within the meaning of the expression in Section 53 A of the Transfer of Property Act ( 'Act ' for short) so as to clothe a mortgagee in possession with the title of ownership which would defeat the suit of the erstwhile mortgagor for redemption, is the question canvassed in these two appeals by common certificate.
Facts first Sardar Govindrao Mahadik original plaintiff 1 (now deceased prosecuting these appeals through his legal representatives) and Gyarsilal original plaintiff 2 (appellant 2) filed Civil Suit No. 14151 in the Court of the District Judge, Indore, for redemption of a mortgage in respect of house No. 41 more particularly described in plaint paragraph 1, dated February 22, 1951.
A loan of Rs. 10,000 was secured by the mortgage.
The mortgage was mortgage with possession.
Plaintiff I was the mortgagor and the sole defendant Devi Sahai was the mortgagee.
Plaintiff 2 is a purchaser of the mortgaged property from plaintiff I under a registered sale deed exhibit P I, dated October 14, 1950.
Plaintiff I will be referred to as mortgagor Defendant Devi Sahai as a mortgagee and plaintiff 2 Gyarsilal as subsequent purchaser in this judgment.
Even though the mortgage was mortgage with possession, it was not a usufructuory mortgage but an anomalous mortgage in that the mortgagor had agreed to pay interest at the rate of 12% and the mortgagee was liable to account for the income of the property earned as rent and if the mortgagee himself occupied the same he was bound to account for the rent at the rate of Rs. 515 per annum.
Mortgagor served notice dated October 5, 1945, calling upon the mortgagee to render true and full account of the mortgage transaction.
The mortgagee failed to comply with the notice.
Subsequently it appears that there were some negotiations between the mortgagor and the mortgagee which according to the mortgagee, culminated in a sale of the mortgaged property in favour of mortgagee for Rs. 50,000.
Account of the mortgage transaction was made and the consideration of 192 Rs. 50,000 for the sale of the house which would mean sale of equity of redemption was worked out as under: Rs. 25,000 Principal mortgage money plus the amount found due as interest on taking accounts of mortgage.
Rs. 17,735 Given credit for the amounts taken from time to time by the mortgagor from the mortgagee s for domestic expenses.
This is disputed as incorrect and it was suggested that the entry be read as amount retained to pay off other creditors of the mortgagor.
Rs. 1,000 Taken in advance for purchasing stamps and incurring registration expenses.
Rs. 6,265 To be paid in cash at the time of registration before the Sub Registrar.
Rs. 50,000 Requisite stamps were purchased and the draft sale deed was drawn up on October 10, 1950, but it was never registered.
On October 14, 1950, Ist plaintiff mortgagor sold the suit house by a .
registered sale deed to plaintiff 2 Gyarsilal for Rs. 50,000 with an agreement for resale.
Thereafter the mortgagor and the subsequent purchaser as plaintiffs 1 and 2 respectively filed a suit on February 22, 1951 against mortgagee defendant Devi Sahai for taking accounts of the mortgage transaction and for a decree for redemption.
The mortgagee Devi Sahai defended the suit on diverse grounds but the principal and the only defence canvassed was one under section 53A of the Act, namely, that even though the sale deed purporting to sell equity of redemption having not been registered would not clothe the mortgagee with title of owner to the mortgaged property, yet he could defend his possession as transferee owner under the doctrine of part performance in as much as not only is the mortgagee in possession in part performance of the contract of sale but has continued in possession in part perfor 193 mance of the contract and has done several acts unequivocally referable or attributable to the contract and that the mortgage as transferee has not only performed but is willing to perform his part of the contract and, therefore, the mortgagor is debarred from enforcing against the mortgagee any right in respect of the mortgaged property.
As a necessary corollary, it was also contended that plaintiff 2 has acquired no right, title or interest in the mortgaged property under the alleged sale deed dated October 14, 1950, in view of the fact that the transferor, viz., original mortgagor had no subsisting title to the property on the date of the sale which he could have transferred to the 2nd plaintiff.
Arising from the pleadings of the parties, trial court framed five issues.
The trial court held that plaintiff I executed a sale deed of the mortgaged property in favour of the defendant mortgagee but as the sale deed was not registered the transaction of sale is riot complete on the issue of protection of section 53A claimed by the defendant mortgagee the trial court held against him.
It was held that the mortgage being mortgage with possession, continued possession of the mortgagee after the date of the contract dated October 10, 1950, would not be in part performance of the con tract.
The trial court further held that no payment was made could remotely be said to be in part performance of the contract.
With regard to the payment of Rs. 1,000 for purchase of stamps and expenses of registration, it was held that the same was paid before the execution of the contract, and therefore, could not be said to be in furtherance of the contract.
On these findings the trial court held that section 53A of the Act was not attracted and the mortgage was accordingly held to be subsisting and a preliminary decree for taking accounts was passed.
A Commissioner was appointed for taking accounts.
Defendant mortgagee Devi Sahai preferred Civil First Appeal No. 14/66 to the Indore Bench of the Madhya Pradesh High Court.
When this appeal was pending, appellant Motilal in cognate Civil No 1145/69 applied under order 22, rule 10, Code of Civil Procedure, for being joined as a party to the appeal claiming that under s the sale certificate dated March 25, 1953, issued by the Additional City Civil Judge First Class, Indore, he had purchased the equity of redemption in respect of the mortgaged property and that he has a subsisting interest in the property involved in the dispute and, therefore, he would contest the rights of the plaintiffs as well as of the mortgagee defendant to claim any right, title or interest in the 194 property.
In his application Motilal alleged that he had filed Civil Suit No. 243/47 dated November 3,1947 for recovering a certain amount against the 1st plaintiff mortgagor and had secured attachment before judgment of the mortgaged property on November 6, 1947.
His suit was decreed to the extent of Rs. 2500 by the trial court.
He filed execution application No. 216/51 and in this proceeding the mortgaged property was sold subject to mortgage and he purchased the same for Rs. 300.
The auction sale was confirmed on September 25, 1953.
It may also be mentioned that the mortgagor 1st plaintiff had preferred appeal against the decree of the trial court and the appellate court by its judgment dated March 27, 1953, allowed the appeal and dismissed the suit of Motilal in entirety.
Against the appellate decree Motilal filed Second Appeal No. 78/53 in the High Court and by its judgment dated September 4, 1958, Motilal 's claim to the tune of Rs. 500 against the Ist plaintiff mortgagor along with proportionate interest and costs was decreed.
The application of Motilal for being impleaded as a party was contested by the Ist and the 2nd plaintiffs as well as by the defendant mortgagee.
The High Court allowed the application of Motilal for being joined as party to the appeal and examined the contentions advanced on his behalf on merits.
The only contention canvassed by the mortgagee in his appeal in the High Court was that he is entitled to the protection conferred by Section 53A of the Act.
In order to attract section 53A it was urged that Rs. 1,000 advanced to mortgagor for purchase of stamps etc.
was in furtherance of the contract.
The only such act pleaded was payment of Rs. 1,000 and no other act or circumstance was relied upon.
The High Court was of the opinion that original mortgagee Devi Sahai was entitled to the benefit of the doctrine of part performance as against the Ist plaintiff mortgagor Govindrao Mahadik and his subsequent transferee Gyarsilal because he was in possession and continued to be in possession and paid Rs. 1,000 in furtherance of the contract.
While so holding the High Court imposed a condition that the mortgagee must pay or deposit in the court an amount of Rs. 24,000 with interest at the rate of 4% per annum from the date of delivery of possession to him as vendee till the date of payment or deposit on the footing that was the balance consideration promised but not paid by the mortgagee.
The deposit was directed to be made in the trial court within three months from the date of the judgment of the High Court for payment to the 2nd respondent which would enable 195 the mortgagee to retain possession of the mortgaged property.
The High Court gave a further direction that if the payment or deposit as directed in the judgment was not made, the appeal of the mortgagee would stand dismissed and if the amount directed in the judgment of the High Court was paid or deposited in the trial court within the stipulated time the appeal of the mortgagee would stand allowed and in that event the suit of the mortgagor would stand dismissed.
In respect of Motilal 's claim the High Court directed that in either event he shall be entitled to recover the balance of his decretal amount and interest at the rate of 4% per annum from the date of the auction sale till the date of realisation and to the extent of that amount there shall be a charge on the mortgaged property enforceable at the instance of Motilal.
In the circumstances of the case the High Court did not award costs to either side.
Both the original plaintiffs and Motilal made separate applications for certificate under Article 133 (l) (a) and (b) of the Constitution which were granted.
Hence these two appeals.
The Appeal (CA 1144/69) preferred by the original plaintiffs plaintiff 1 being the mortgagor, may be dealt with first.
In this appeal Ist defendant (mortgagee) seeks to non suit the plaintiff on the only ground that he is entitled to the benefit of equitable doctrine of part performance as enacted in section 53A of the Act.
According to the defendant mortgagee the mortgagor agreed to sell the mortgaged property to the mortgagee for consideration of Rs. 50,000 made up in the manner set out in the sale deed exhibit 1 dated October 10, 1950 and pursuant to the agreement he has given Rs. 1,000 being part of the consideration for purchasing stamps and for expenses of registration and after stamps were purchased, sale deed exhibit 1 was drawn up and executed and since then he being in possession retained the same as a vendee and accordingly he is entitled to the protection of section 53A of the Act.
This necessitates focussing of the attention on the requirements what constitutes part performance as enacted in section 53A.
Even though at the hearing of the appeals what was the state of law prior to the introduction of section 53A in the Act by the Transfer of Property (Amendment) Act, 1929, was canvassed at length, we would like to steer clear of this confusing mass of legal squabble and, proceed to analyse the contents of section 53A, subsequently referring to legislative cum legal history so far as it is 196 relevant for interpretation of the section.
Section 53A reads as under: "53A. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part there of, or the transferee being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract and the transferee has performed or is willing to perform his part of the contract.
then, not withstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force the transferor or any per son claiming under him shall be debarred from enforcing against the transferred and persons claiming under him any right in respect of the property of which the transferee has taken or continues in possession, other than a right expressly provided by the terms of the contract; Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
" In order to qualify for the protection conferred by the equitable doctrine of part performance as enacted in section 53A, the following facts will have to be established: (1) That the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; (2) That the transferee has in part performance of the contract taken possession of the property or any part thereof.
Or the transferee.
being already in possession, 197 continues in possession in part performance of the contract: (3) That the transferee has done some act in furtherance of the contract: and (4) That the transferee has already or is willing to perform his part of the contract." (see Nathulal vs Phool Chand.
There was no dispute that the aforementioned conditions have to be satisfied to make good the defence of part performance.
The controversy is on their application to the facts of the case.
The High Court which accepted the defence of part performance as canvassed on behalf of the mortgagee who claimed to have purchased the property under a sale deed Ext.
D 1 dated October 10, 1950, found that payment of Rs. 1,000 for purchase of stamps was an unequivocal act in furtherance of the contract.
The defendant mortgagee did not invite the High Court to consider any other act as having been done by him under the contract or furtherance of the contract, or unequivocally referable to the contract.
However, when the matter was heard in this Court, Mr. V section Desai, learned counsel appearing for the respondent mortgagee urged the following acts as having been done by the mortgagee in furtherance of the contract which would constitute part performance; (a) payment of Rs. 1,000 as agreed to under the contract for purchase of stamps for drawing up and registering the sale deed; (b) discharge of a debt of Rs. 541 which was included in the amount of Rs. 17,735 retained by the mortgagee from the total consideration payable for discharging other debts; (c) mortgagee agreed to discharge the mortgage subsisting on the property in his favour on settlement of accounts; 198 (d) all dues owed by the mortgagor to the mortgagee may have to be taken as cleared on completion of the (e) nature and character of possession changed as recited in the contract; A few more circumstances were relied upon to show that the mortgagee was willing to perform his part of the contract and the omissions pointed out are not fatal to his case.
They are: (f) failure to offer the amount agreed to be paid before the Registrar and/or not discharging debts agreed to be discharged as having been given credit in the consideration for the sale would not detract from part performance because they have to be evaluated in the facts and circumstances of the case; (g) conduct of the 1st plaintiff mortgagor in executing and registering a sale deed in respect of the mortgaged property in favour of the 2nd plaintiff Gyarsilal and thereby frustrating the contract of sale in favour of the defendant mortgagee evidence that the 1st plaintiff mortgagor was aware of the contract in favour of the defendant mortgagee and he was retaining possession in furtherance of the contract: (h) defendant mortgagee made all attempts to get the deed registered by approaching the Sub Registrar; (i) the defendant mortgagee initiated criminal proceedings against the 1st plaintiff mortgagor for misusing the stamp papers.
Ordinarily this Court would be loath to examine contentions of facts based on evaluation of evidence advanced for the first time before this Court without any attempt at inviting the adjudication of the same by the High Court.
However, as all the contentions arise from the record and proceedings, we propose to examine them on merits more so because we do not propose to rest this judgment on a technical around and also because we are inclined to reverse the decision of The High Court which is in favour of 1st defendant mortgagee.
199 Section 4 of the Statute of Frauds, 1677 of United Kingdom provided that no person shall be charged upon any contract for sale of lands or any interest in land etc.
unless the agreement or some memorandum or some note thereof shall be in writing and signed by the party to be charged thereunder or some other person there unto by him lawfully authorised.
This provision has been substantially re enacted in section 40 (i) of the Law of Property Act, 1925 with this departure that sub section 2 specifically provides that the substantive provision in sub section I does not effect the law relating to part performance or sales by the court.
As no action could be brought on oral agreement the doctrine of part performance was devised by the Chancery Court with a view to mitigating the hardship arising out of an advantage taken by a person under an oral contract and failure to enforce it would permit such person to retain the undeserved advantage by the Equity Court enforcing the contract.
The situation must be such that not to enforce the contract in face of the defence of Statute of Frauds after taking advantage of oral contract would perpetuate the fraud which the statute sought to prevent The party who altered its position under the contract must have done some act under the contract and it would amount to fraud in the opposite party to take advantage of the contract not being in writing.
Such a situation arose where one of the parties to the oral agreement altered its position and when specific performance was sought after taking advantage under oral contract, set up the defence available under the Statute of Frauds.
The Chancery Court while granting relief of specific performance wanted to be wholly satisfied that the pleaded oral contract exists and is established to its utmost satisfaction and in order to ascertain the existence of the oral contract before granting a relief of specific performance the court wanted to be satisfied that some such act has been done which would be unequivocally referable to the oral contract as would prove the existence beyond suspicion, meaning part performance of the contract.
The departure under our law is that when giving its statutory form in section 53A of the Act the existence of a written contract has been made sine qua non and simultaneously the statute also insists upon proof of some act having been done in furtherance of the contract.
The act relied upon as evidencing part performance must be of such nature and character that its existence would establish the contract and its implantation.
Each and every act subsequent to contract by itself may not be sufficient to establish part performance.
The act must be of such a character as being 200 One unequivocally referable to the contract and having been per.
formed in performance of the contract.
In Lady Thynne vs Earl of Glengall it was observed that: "part performance to take the case out of the Statute of Frauds, always supposes a completed agreement.
There can be no part performance where there is no completed agreement in existence.
It must be obligatory, and what is done must be under the terms of the agreement and by force of the agreement.
" This approach would necessitate that the act relied upon as being in the part performance of the contract was such as by its own force would show the very same contract as is alleged by the person seeking the protection of part performance.
In the fact situation as it unfolds itself in this case, continued possession of the mortgagee hardly offers any clue to the question of part performance.
Defendant mortgagee was in possession of the mortgaged property.
Therefore, physical possession having not changed hands, it would be for the mortgagee to show that he continued to retain possession in part performance of the contract and has done some act in furtherance of the contract.
Where physical and actual possession was already with the person claiming the benefit of the doctrine of part performance its continued retention by itself without anything more would hardly be indicative of an act unequivocally referable to part performance of the contract.
He must further establish that he has done some act in furtherance of the contract.
This was not disputed and, therefore, the mortgagee defendant urged before the High Court and reiterated before us that, payment of Rs. 1,000 inter alia to the Ist plaintiff mortgagor for purchase of stamps and for expenses incidental to registration was an act unequivocally done in furtherance of the contract.
Before evaluating the submission a few relevant facts may be noticed.
By letter Ext.
P 3 dated October 9, 1950, Ist plaintiff wrote to defendant mortgagee portion of which may be extracted as it has some bearing on the question under consideration: ".
It is requested that we have entered into a contract with you for the sale condition of our house No. 12 situated in Kalai Mohalla.
Therefore to buy stamps etc.
for the sale you should pay Rs. 1,000 (Rupees one thousand 201 only) to our Mukhtiar Shri Madhavraoji Vishnu Joshi, 82, Ada Bazar, Indorewale, I agree for the same and shall deduct the amount at the time of registration." Pursuant to this letter defendant mortgagee paid Rs. 700 to the Muktiar and an endorsement to that effect is found as Ext.
On the next day that is October 10, 1950, a further amount of Rs. 300 was given and stamps were purchased and on the same day sale deed Ext.
1 was drawn up.
While reciting the consideration for the sale deed a credit was given for Rs. 1,000 paid by the mortgagee for purchase of stamp.
So far there is no dispute.
The grievance is that according to the Ist plaintiff mortgagor he had agreed to sell the house to the mortgagee but the sale was to be a conditional sale with a right to repurchase and that was agreed to between the parties.
Subsequently when the sale deed Ext.
D 1 was drawn up he found that it was an absolute sale in breach of the agreement and therefore he did not complete the transaction and sold the house subsequently on October 14, 1950 to the 2nd plaintiff, under Ext.
P 1 which is a conditional sale with a right to repurchase.
It would thus transpire that payment of Rs. 1,000 consisting of two separate payments one of Rs. 700 on October 9, 1950, and an amount of Rs. 300 on October 10, 1950, by the defendant mortgagee to Ist plaintiff mortgagor for purchasing stamps for execution of a sale deed is not in dispute.
What is in dispute is whether the payment was made towards some contract anterior to the letter Ext.
P 3 dated October 9,195, or it was in pursuance to the contract dated October 10, 1950, as reflected in the unregistered sale deed.
In this connection the stand taken by the mortgagee defendant is both equivocal and fluctuating.
In the written statement filed on his behalf on April 10, 1951, there is no specific, clear and unambiguous plea of part performance.
Under the heading 'additional plea ' in para 9 it is contended that the sale deed having been executed in favour of the mortgagee in settlement of mortgage transaction mutually between the parties and that the mortgaged property has been given to the mortgagee as an owner, the mortgage transaction does not subsist in law.
This has been understood to mean a plea for the protection of the doctrine of part performance.
Be that as it may, it is not suggested that there was any oral contract anterior to the one as found in the unregistered sale deed Ext.
Nor is there any suggestion of any draft agreement prior to the drawing up of the sale deed Ext.
What transpires from 202 the diverse recital is that there was some oral discussion between the parties prior to the letter Ext.
P 3 dated October 9, 1950, at which the understanding was that there was to be a conditional sale with a right of repurchase by the mortgagor and that becomes evident from the recital in Ext.
P 3, "sale condition" which is contemporaneous evidence having its intrinsic worth and a stamp of truthfulness because at that time no dispute had arisen and the mortgagor was seeking tc work out and implement the agreement by seeking a loan of Rs. 1,000 for purchase of stamps and for expenses incidental to registration so as to complete the transaction.
But there was no written contract.
It must be stated that there was dispute about the nature of transaction is also borne out by the parol evidence.
Mortgagee Devi Sahai DW 1 has deposed in para 6 that mortgagor in Chit exhibit P. 3 proposed a conditional sale to which he did not agree whereupon mortgagor agreed to give absolute sale.
This establishes that there was a dispute as to the nature of the transaction.
Section 53A postulates a written contract from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
There was no concluded contract prior to Ext.
The only written contract which is relied on is the unregistered sale deed exhibit D l of October 10, 1950.
On the admission of the mortgagee himself it is crystal clear that out of Rs. 1,000 an amount of Rs. 700 was paid on October 9, 1950, and that was prior to the agreement.
As for the payment of Rs. 300 it is not specifically claimed that was payment in furtherance of the contract.
In any event, stamps were purchased prior to the drawing up of Ext.
D l which is the contract relied upon for the purposes of section 53A.
And it must be shown that the act has been done in furtherance of the contract, i.e. subsequent to the contract or at best simultaneously with the contract but un equivocally attributable or referable to the contract.
It must follow that acts anterior to and done previous to the agreement cannot be presumed to be done in pursuance of it and cannot, therefore, be considered as acts of part performance (See Whiteread vs Brockhunt quoted by White and Tudor, leading cases on Equity at p. 416).
The High Court while evaluating the probative value of the circumstances of payment of Rs. 1,000 started on a wrong premise when it observed that the act envisaged by the phrase in furtherance of the contract" in section 53A should be in pursuance of the contract and not that it should either precede or follow the 203 agreement or the contract.
If a written contract is a sine qua non for seeking coverage of the umbrella of the equitable doctrine of part performance any act preceding the contract could conceivably never be in furtherance of that contract which was yet to materialise.
Negotiations for a contract and a concluded contract stand apart from each other.
Anything at the negotiating stage cannot be claimed as contract unless the contract is concluded between the parties, i.e. the parties are ad idem.
Coupled with this is the further requirement that it should be a written contract in that the contract which would purport to transfer for consideration the immovable property must be by writing and the writing must be such that the necessary ingredients constitute the transfer can be ascertained with reasonable certainty.
The High Court overlooking the very important fact situation that the only contract relied upon by the mortgagee defendant was one contained in the unregistered sale deed Ext.
D 1 dated October 10, 1950, committed an error in holding that the payment of Rs. 1,000 prior to October 10, 1950 would undoubtedly be an act in pursuance of the contract which is evidenced by the writing Ext.
D 1 duly signed by the Ist respondent.
This approach overlooks a vital dispute between the parties and the High Court could not have utilised this circumstance without resolving the dispute in as much as unquestionably there were some negotiations between the parties either on October 9, 1950, or some time prior thereto but there was no concluded contract because the very letter Ext.
P 3 which the Ist plaintiff mortgagor sought a loan of Rs. 1,000 for purchasing the stamps etc.
was pursuant to a conditional sale and that is totally denied and repudiated by the mortgagee as shown hereinabove.
Accordingly when the amount of Rs. 1,000 was paid it was the stage of negotiations and not a concluded contract.
And when the contract was drawn up as evidenced by Ext.
D 1 being the unregistered sale deed dated October 10, 1950, the parties were not ad idem.
because the mortgagor declined to agree to registration of the sale deed as it was contrary to the understanding arrived at between the parties though no doubt he had executed the sale deed.
The contention therefore that the amount of Rs. 1,000 was paid in furtherance of the contract does not bear scrutiny.
However, assuming that the finding of fact recorded by the High Court that the amount of Rs. 1,000 was paid in furtherance of the contract, is a finding of fact recorded on appreciation and evaluation of evidence and ordinarily not interfered with by this Court unless shown to be perverse, the alternative contention that 204 payment of part or even whole of the consideration could not be said to be in furtherance of the contract and, therefore, not sufficient to constitute part performance, may now be examined.
How far payment of part or even whole of the consideration would constitute part performance so as to take the case out of section 4 of the Statute of Frauds may now be examined with reference first to the English decisions because section 53A enacts with some modification the English equitable doctrine of part performance.
In order to mitigate the hardship arising out of the rigorous provisions of the Statute of Frauds equitable doctrine of part performance was divised by the Court of Chancery.
Commenting upon section 4 of the Statute of Frauds 1677, Lord Redesdale observed in Foxcroft vs Lester,(l) (quoted in White & Tudor 's Leading cases on Equity, 8th Edn., p. 413) as under: "The Statute of Frauds says that no action or suit shall be maintained on an agreement relating to lands, which is not in writing, signed by the party to be charged with it; and yet the Court is in the daily habit of relieving, where the party seeking relief has been put into a situation which makes it against conscience in the other party to insist on the want of writing so signed, as a bar to his relief.
The first case (apparently) of this kind was Foxcroft vs Lyster (1), which was decided on a principle acted upon in Courts of law, but not applicable to the particular case.
It was against conscience to suffer the party who had entered and expended his money on the faith of a parol agreement to be treated as a trespasser, and the other party to enjoy the advantage of the money he had laid out.
" The question often arises whether payment of part or even whole of the consideration can be unequivocally attributed to the contract.
At 416 the authors observe : "Payment of part or even of all the purchase money will not be considered an act of part performance to take 205 a parol contract out of the Statute of Frauds.
Nor will payment of the auction duty.
" The payment of a part or even a whole of the consideration was not treated unequivocal act of part performance because it was believed that money can be repaid or can be reclaimed and, therefore, it is not an unequivocal act evidencing an act in furtherance of the contract (See Hanbury & Maudsley, Modern Quity, 10th Edn., p. 37).
Similarly, Story 's Equity Jurisprudence 14th Edn., para 1045, p. 424, neatly sets out the history of the approach to payment of money as evidence of part performance.
It may be extracted: ".
It seems formerly to have been thought that a deposit, or security, or payment of the purchase money, or of a part of it, or at least of a considerable part of it, was such a part performance as took the case out of the statute.
But that doctrine was open to much controversy, and is now finally overthrown Indeed the distinction taken in some of the cases between the payment of a small part and the payment of a considerable part of the purchase money seems quite too refined and subtle, for independently of the difficulty of saying what shall be deemed a small and what a considerable part of the purchase money, each must, upon principle, stand upon the same reason, namely, that it is a part performance in both cases, or not in either.
One ground why part payment is not now deemed a part performance, sufficient to take a case out of the statute, is that the money can be recovered back again at law, and therefore the case admits of full and direct compensation." Equity by G.M. Keeton and L.A. Sheridan, 2nd Edn., p. 366 sets out chronologically the approach of the Court to payment of money as evidencing part performance.
Attitude to the payment of money as an act of part performance had varied from time to time.
In Elizabeth Meddison vs John Alderson,(1) Lord Selborne, L.C. pointed out: ". the payment of money is an equivocal act not (in 206 itself) unless connection is established by parol testimony indicative of a contract consisting of land." In Snell 's principles of Equity, 20th Edn., p. 587, under the heading 'Insufficient Acts to bring the case out of the doctrine of part performance ', it is noted that payment of a part of the purchase money, or even apparently the whole, is not sufficient for part performance of a contract for the sale of land for the payment of money is an equivocal act (not in itself), until the connection is established by parol testimony, indicative of a contract concerning land.
Maddison vs Alderson is relied upon in support of this statement.
A few cases to which our attention was drawn may now be referred to.
In Clinan and Anr.
vs Cooke and Ors.
,(1) Cooke inserted an advertisement in the public papers inviting offers to let a piece and parcel of land for the period set out in the advertisement.
In response to this advertisement the plaintiffs applied to Edmund Meagher to whom the application was to be addressed and entered into a treaty with him for lease of land.
A memorandum of agreement was entered into between the parties and the intending tenant deposited 50 guineas which the advertiser received in consideration of the lease on the recommendation of Meagher who also appeared to have received a sum of 20 guineas from the plaintiffs for which no receipt was given Subsequently Mr. Cooke refused to perform the agreement and he granted a new term of lease to the defendants who entered into the same with the knowledge of the agreement with the plaintiffs.
An action was brought by the plain tiffs for specific performance.
Declining to grant that relief Lord Redesdale held as under: "But I think this is not a case in which part performance appears.
The only circumstance that can be considered as amounting to part performance is the payment of the sum of fifty guineas to Mr. Cooke.
It has always been considered that the payment of money is not to be deemed part performance to take a case out of the statute.
" In Maddison 's case Earl of Selborne, L.C. in unequivocal terms observed that it may be taken as new settled that part payment of purchase money is not enough, and judges of high authority 207 have said the same even of payment in full.
Clinan vs Cooke, (supra) Hughes vs Morris(1) and Britain vs Rossiter(2) were relied upon in support of this.
Again at p. 484 Lord O 'Hagan taking note of the conflict of decisions pertinently observed as under: "I confess I have found it hard to follow the reasoning of the judges in some of the cases to which the Lord Chancellor has referred to reconcile the rulings, in others of them and to regard as entirely satisfactory the state of the law in which the taking of possession or receipts of rent is dealt with as an act of part performance, and the giving and acceptance of any amount of purchase money, confessedly in pursuance and affirmance of a contract of sale, is not.
As to some of the judgments prompted no doubt by a desire to defeat fraud and accomplish justice, I am inclined to concur with the present Master of the Rolls in Britain vs Rossiter (1), when he called them" bold decisions.
" It may be noted that in that case an intestate induced a woman to serve him as his house keeper without wages for many years and to give up other prospects of establishment in life by a verbal promise to make a will leaving her a life estate in land and afterwards signed a will, not duly attested, by which he left her the life estate.
lt was contended on behalf of the woman who worked as house keeper that she had wholly performed her part by serving the intestate as house keeper till the intestate 's death without wages yet the Court in its equity jurisdiction declined to hold such an act as referable to any contract and was not such a part performance as to take the case out of the operation of section 4 of the Statute of Frauds.
This case is being referred to show how firstly established and entrenched the view was that payment is not enough.
Offer to work without wages was treated as evidencing some payment not enough to sustain the plea of part performance.
The equity should take such a view of human service and sacrifice is difficult to appreciate.
Modern notions of equity, fairplay and just approach would stand rudely shaken by the view taken in that case & and quoting the case is not to be interpreted to mean sharing the view.
208 In Chaproniere vs Lambert,(1) the Court of Appeal reinforced the view which held the field till then that the mere payment of rent is not such part performance to take the case out of the statute and even payment of whole of the purchase money has been held not to be sufficient to take the case out of the statute.
In so doing it reiterated the view taken in Muddison vs Anderson, (supra).
In Enland the law took a sharp U turn in Steadman vs Steadman,(2) Lord Simon of Claisdale under the heading 'Payment of money ' observed as under: "It has sometimes been said that payment of money can never be a sufficient act of part performance to raise the required equity in favour of the plaintiff or, more narrowly, that payment of part or even the whole of the purchase price for an interest in land is not a sufficient act of part performance.
But neither of the reasons put forward for the rule justifies it as framed so absolutely.
The first was that a plaintiff seeking to enforce an oral agreement to which the statute relates needs the aid of equity; and equity would not lend its aid if there was an adequate remedy at law.
It was argued that a payment could be recovered at law, so there was no call for the intervention of equity.
But the payee might not be able to re pay the money (he might have gone bankrupt), or the land might have a particular significance for the plaintiff (of the equitable order for specific delivery of a chattel of particular value to the owner: (Duke of Somerset vs Cookson) or it might have greatly risen in value since the payment, or money may have lost some of its value.
So, it was sought to justify the rule, alternatively, on the ground that payment of money is always an equivocal act, it need not imply a pre existing contract, but is equally consistent with many other hypotheses.
This may be so in many cases, but it is not so in all cases.
Oral testimony may not be given to connect the payment with a contract; but circumstances established by admissible evidence (other acts of part performance, for case, for example, what was said (i.e. done) in the magistrates ' court in part 209 performance of the agreement makes it plain that the payment of the 108 was also in part performance of the agreement and not a spontaneous act of generosity or discharge of a legal obligation or attributable to any other hypothesis.
" To some extent, therefore the statement of law in Maddison 's case that it may be taken as well settled that payment of part of purchase money or even the whole of the consideration is not sufficient act of part performance can be taken to have been shaken considerably from its foundation.
While text book writers and English decisions may shed some light to illuminate the blurred areas as to whether part payment of purchase money or even the whole of the consideration would not be sufficient act of part performance, it is necessary that this aspect may be examined in the background of statutory requirement as enacted in section 53A.
To qualify for the protection of the doctrine of part performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by r it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
These are pre requisites to invoke the equitable doctrine of part performance.
After establishing the aforementioned circumstances it must be further shown that a transferee had in part performance of the contract either taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract.
The acts claimed to be in part performance must be unequivocally referable to the pre existing contract and the acts of part performance must unequivocally point in the direction of the existence of contract and evidencing implementation or performance of contract.
There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of tho contract and must be unequivocally referable to the contract.
When series of acts are done in part performance, one such may be payment of consideration.
Any one act by itself may or may not be of such a conclusive nature as to conclude the point one way or the other but when taken with many others payment of part of the consideration or the whole of the consideration may as well be shown to be in furtherance of contract.
The correct approach would be what Lord Reid said in Steadman 's case 210 that one must not first took at the oral contract and then see whether the alleged acts of part performance are consistent with it.
One must first look at the alleged acts of part performance and see whether they prove that there must have been a contract and it is only if they do so prove that one can bring in the oral contract.
This view may not be wholly applicable to the situation in India because an oral contract is not envisaged by section 53A.
Even for invoking the equitable doctrine of part performance there has to be a contract in writing from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
Therefore, the correct view in India would be, look at that writing that is offered as a contract for transfer for consideration of any immovable property and then examine the acts said to have been done in furtherance of the contract and find out whether there is a real nexus between the contract and the acts pleaded as in part performance so that to refuse relief would be perpetuating the fraud of the party who after having taken advantage or benefit of the contract backs out and pleads non registration as defence, a defence analogous to section 4 of the Statute of Frauds.
We may recall here that the acts preliminary to the contract would be hardly of any assistance in ascertaining whether they were in furtherance of the contract.
Anything done in furtherance of the contract postulates the pre existing contract and the acts done in furtherance thereof.
Therefore, the acts interior to the contract or merely incidental to the contract would hardly provide any evidence of part performance.
The contention of Mr. Desai that payment of Rs. 1,000 for purchase of stamps in an act of part performance unequivocally attributable to the contract dated October 10, 1950, cannot be accepted for two reasons, one being that Rs. 700 out of the amount of Rs. 1,000 was paid on October 9, 1950, that is prior to the date of contract.
Then there is a serious dispute as to the nature of contract which was negotiated on October 9, 1950, the day on which payment of Rs. 700 was made.
Mortgagor was insisting upon a conditional sale and defendant mortgagee declined to accept the conditional sale and that is borne out by his evidence also.
There was thus no concluded contract on October 9, 1950, and, therefore, the payment of Rs. 700 out of Rs. 1,000 in any case could not be said to be part performance and the same reasons would mutatis mutandis apply to the payment of Rs. 300 also.
In the facts of this case this payment would not be an act of part performance.
In 211 our opinion, therefore, the High Court recorded an utterly unsustainable finding without minutely examining the relevant evidence coupled with the requirements of law and erred in holding that the payment of Rs. 1,000 was in furtherance of the contract.
We would also add that in the facts and circumstances of the case payment of Rs. 1,000 was not such an act of part performance which would help defendant mortgagee in any manner.
Mr. Desai next contended that the mortgagee discharged a debt of Rs. 541 which was included in the amount of Rs. 17,735 retained by the mortgagee from the total consideration payable for discharging other debts and that this payment was in furtherance of the contract.
This contention is being put forward for the first time in this Court and should be negatived on that account alone.
Even apart from this there is no sufficient evidence to uphold this contention.
In fact, the defendant mortgagee himself has to some extent prevaricated on the question of retention of Rs. 17,735 out of the total consideration for the sale transaction agreed at Rs. 50,000.
Consideration of Rs. 50,000 was made up, inter alia, by retaining Rs. 17,735 in discharge of debts owed by mortgagor to mortgagee by borrowing loans on different occasions for domestic expenses.
It is so stated in Ext.
D l which had been extracted earlier.
Mortgagee in his evidence gave a go bye to this recital and deposed that the amount of Rs, 17,735 from the total consideration payable by him was retained by the mortgagee for payment of other creditors of the mortgagor.
Even apart from this he has not stated a word that out of the amount of Rs. 17,735 he paid Rs. 541 to any particular creditor.
In his written statement he has stated that the amount of Rs. 17,735 was kept in deposit for payment to other creditor of the mortgagor.
One such creditor was to be paid a sum of Rs. 541.
This creditor is none other than the mortgagee himself.
This would mean that he himself was creditor to whom he paid Rs. 541.
Assuming that he could have reimbursed himself, there is nothing to show that he gave a discharge or that he gave credit in his books of accounts.
Further, there is no statement in his evidence to that effect.
That aspect was never canvassed before the trial court as well as the High Court and we find no material evidence to substantiate this contention.
The contention, has, therefore, to be negatived.
The third act of part performance pleaded on behalf of the mortgagee is that the mortgagee agreed to discharge the mortgage 212 subsisting on the property in his favour on settlement of accounts.
The mortgage deed admittedly was not returned to the mortgagor even after the mortgagor executed Ext.
D 1 the sale deed which was not ultimately registered.
But that is not enough.
The mortgage admitted in his evidence that even after Ext.
D 1 was executed he maintained the accounts of mortgage and in that account he debited Rs. 1,000 paid to the mortgagor for purchase of stamps.
Could it be said that he had discharged or agreed to discharge the mortgage subsisting on the property? There is however a piece of evidence which completely belies the claim and demonstrably establishes that mortgagee never claimed to regard himself as owner from October 10, 1950 the date of contract but till a later date continued to regard himself as a mortgagee with subsisting mortgage.
Mortgagee made an application on June 23, 1952 nearly two years after the contract of sale in the execution proceedings filed by Motilal seeking to bring mortgage property to court auction for realising his decretal amount, which decree he had obtained against the mortgagor.
In this application dated June 23, 1952 mortgagee has stated that till that date Rs. 27792/2/3 were due under the mortgage from the mortgagor and that fact must be noted in the sale proclamation and thereafter property should be sold.
Now if on October 10, 1950 accounts were made, mortgage was satisfied and mortgage debt was discharged, how is it that on June 23, 1952 he retained the mortgage account, worked out the amount due and sought its mention in the sale proclamation.
This conduct of mortgagee is sufficient to negative this contention.
In any event mere oral agreement to discharge a mortgage could hardly be said to be an act of part performance unless in fact such an act was done and that could have been only done by a discharged mortgage deed being returned to the mortgagor.
The next act of part performance pleaded by the mortgagee is that all dues owed by the mortgagor to the mortgagee have be taken as cleared on completion of the contract Now, even here his stand is equivocal.
In the written statement it was stated that at the time of filing the written statement a sum of Rs. 29,000 was found to be due from the mortgagor.
If on October 10, 1950, all accounts were made up, how could he continue a mortgage account which mortgage according to him came to be satisfied when he took the sale deed and continued in possession in part performance of the contract ? Therefore, the submission is without merits.
213 The next act of part performance pleaded by the mortgagee is that the nature and character of possession changed as recited in the contract.
Mortgagee was in possession as mortgagee.
Now according to him since the date of execution of the sale deed the nature of possession changed.
For this he relies upon a statement in the sale deed Ext.
D 1 wherein it is stated that he is being put in possession as owner.
This mere recital is hardly indicative of the change in the nature of possession.
There is no evidence to show that he moved the authorities that he would be liable to pay taxes as owner.
There is no overt act on his part to so assert possession as owner.
A mere recital in the disputed sale deed is of dubious evidentary value and when it would be pointed out that he was never willing to perform his part of the contract which is a pre requisite for claiming protection of the doctrine of part performance it will be shown that he believed himself to be a mortgagee and acted as such even at a date much later than October 10, 1950, from which date he claims to be the owner.
Induction into possession of an immovable property for the first time subsequent to the contract touching the property, may be decisive of the plea of part performance.
Mere possession ceases to be of assistance when as in this case the person claiming benefit of part performance is already in possession, prior to the contract and continues to retain possession.
However a reference to a statement of law in Halsbury 's Laws of England, 3rd Edition, Vol.
36, para 418 would be instructive.
It reads as under: "Where possession is given to a "tenant" before a tenancy agreement has been concluded and the possession is retained after the conclusion of the agreement, the possession, if unequivocally referable to the agreement, is a sufficient part performance but subject to this, acts done prior to, or preparatory to, the contract will not suffice.
" If a person claiming benefit of part performance is inducted into possession for the first time pursuant to the contract it would be strong evidence of the contract and possession changing hands pursuant to the contract.
in Hedson vs Heuland (1) it was held that although the entry into possession was antecedent to the contract, yet the subsequent continuance in possession being, under the circumstances, unequivocally referable to the contract, constituted a 214 part performance sufficient to take the case out of the Statute of Frauds.
In Nathulal 's case, the fact that Nathulal parted with possession after receiving part payment of the sale consideration was held sufficient to constitute part performance.
This Court observed that j,, part performance of contract Phoolchand has taken possession of the property and he had in pursuance thereof paid a part of the consideration and thereby the first three conditions tor making good the defence of part performance had been satisfactorily shown to exist.
But greater emphasis was laid on the decision of Somnath Iyer, Acting C.J. in Babu Murlidhar vs Soudagar Mohammad Abdul Bashir and Anr.
(1) In that case an unregistered agreement of sale executed by the mortgagor in favour of the mortgagee in possession recited that after the date of the agreement the mortgagee who had been in possession as such would become the owner of the property and that he could get his name mutated into mutation register of the municipality and in implementation of this agreement of sale, the mortgagor himself made an application for mutation to the municipal authorities and the name of the mortgagee was mutated as owner of the property, it was held sufficient to clothe the mortgagee with the protection of section 53A in a suit for redemption of the mortgage and the mortgagor 's suit was dismissed.
The Court attached considerable importance to the provision in the unregistered agreement for mutation in favour of the mortgagee as owner and the subsequent conduct of the mortgagor in making an application for mutation was held to be the clearest indication which is essential for invoking the doctrine of part performance.
The decision can be said to depend more or less on the facts of the case.
However in this connection a reference was also made to Thota China Subba Rao and Ors.
vs Matapelli Raju and Ors(2) That decision is hardly of any importance because an extreme contention was advanced on behalf of the mortgagee resisting a suit for redemption that he continued to be in possession in part performance of the agreement which argument was repelled by the Court on the observation that the mortgagee had never been in possession and the contention that he was always in constructive possession could hardly assist him.
215 In Jahangir Begum vs Gulam Ali Ahmed,(1) the Court after holding that the defendant was in possession and had put up a structure on it, came to the conclusion that he was not entitled to the benefit of doctrine of part performance because he was already in possession before the contract to transfer the property, relied upon by him, was entered into, and, therefore, it was obligatory upon him to show that he had done some act in furtherance of the contract in order to constitute a part performance of the contract.
In Kukali vs Basantilal(2) the facts found were that A mortgaged with possession his house with B. Subsequently A sold the house to in consideration of the mortgage debt and the amount spent by A on improvements and repairs of the house.
The deed was not registered.
Subsequently A sold the same property to under a registered sale deed.
sued for redemption.
relied on the equitable doctrine of part performance in defence.
Negativing the defence of part performance the Court held that as was already in possession as a mortgagee, unless he shows that he did some act in furtherance of the contract, over and above being in possession, mere continuance in possession would not constitute part performance.
The case is very near to the facts disclosed in the case under discussion.
There is an understandable and noteworthy difference in the probative value of entering into possession for the first time and continuing in possession with a claim of change in character.
Where person claiming benefit of part performance of a contract was already in possession prior to the contract, the court would expect something independent of the mere retention of possession to evidence part performance.
Therefore mere retention of possession is not discharged, could hardly be said to be an act in part performance unequivocally referable to the contract of sale.
Section 53A requires that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of the contract.
And if it is shown that he was not ready and willing to perform his part of the contract he will not qualify for the protection of the doctrine of part performance.
Reverting to the consideration recited in Ext.
D l the sale deed, even according to the mortgagee it was agreed that he had retained an amount of Rs. 17,735 out of the total consideration of Rs. 50,000 for payment to the other creditors of the mortgagor.
Barring a 216 claim made in the written statement that he paid himself Rs. 541 which was included in the amount of Rs. 17,735 which allegation itself is unconvincing, there has not been the slightest attempt on his part to pay up any of the creditors of the mortgagor.
There is nothing to show that he had the list of all the creditors of the mortgagor or that he made any attempt to procure the list or that he issued a public notice inviting the creditors of the mortgagor to claim payment from him to the extent of the consideration retained by him.
Not a single creditor has been paid is an admitted position.
But the more inequitous conduct of the mortgagee is that he had not made the slightest attempt to contact any of the creditors of the mortgagor or to pay even the smallest sum.
There is no such statement in the written statement but even in his evidence at the trial he has not been able to show that he has paid any creditor or made any attempt to pay any of the creditors including those whose names were admittedly known to him such as Ramkaran Ghasilal, Kajodimal, Motilal Bhagirath and Kanhaiyalal Chagganlal.
Further shifting stand of mortgagee to suit his convenience is discernible here.
In Ext.
D 1, the entry of Rs. 17,735 is described as 'have been taken from you from time to time for domestic expenses '.
In his evidence mortgagee states that this recital is incorrect and the correct position according to him is that the amount of Rs. 17,735 from total consideration payable by him was retained to pay to other creditors of mortgagor.
According to him the only amount due to him from mortgagor outside the mortgage transaction was a debt of Rs. 541 only.
Mortgagee neither paid himself nor other creditors and thereby did not perform his part of the contract.
He even did not pay a small decretal amount of Rs. 500 plus interest and costs to Motilal in 1952 but allowed the property to be sold.
Coupled with this is the fact according to the recital in Ext.
D 1 he had agreed to pay the balance of the consideration of Rs 6265 to the mortgagor at the time of registration of the sale deed.
Now, undoubtedly the mortgagor did not agree to get the sale deed registered because there was a dispute between the parties as to the nature of the transaction.
But the defendant mortgagee made unilateral attempt to get the sale deed registered by offering it for registration.
Thus while attempting to complete his title both legally and even in equity he was under an obligation to pay Rs 6265 to the mortgagor.
This liability is not disputed yet in this behalf he has not stated anything in his examination in chief that he made any attempt to pay that amount to the mortgagor.
Add to this his failure to return the discharged mortgage deed and his further averment that he used to maintain the mortgage account 217 even after October 10, 1950.
All this would conclusively show A that the mortgagor himself was not willing to perform his part of the contract.
In this view of the matter Mr. Desai 's contention that failure to pay the amount agreed to be paid before the Registrar and/or not discharging debts agreed to be discharged as having been given credit in the consideration for the sale would not detract from part performance because they have to be evaluated in the facts and circumstances of the case cannot be upheld.
It was next contended on behalf of the mortgagee that the conduct of the 1st plaintiff mortgagor in executing and registering a sale deed in respect of the mortgaged property in favour of 2nd plaintiff Gyarsilal and thereby frustrating the contract of sale in favour of the defendant mortgagee evidence that the Ist plaintiff was aware of the contract in favour of the defendant mortgagee and he was retaining possession in furtherance of the contract.
The submission does not constitute any independent act on the part of mortgagee but it is merely another facet of the fact of permission being retained by the defendant mortgagee.
Retention of possession is of no consequence in this case because the mortgage was not discharged and was subsisting and the mortgage being a mortgage with possession the mortgagee was entitled to retain possession.
The fact that immediately a sale deed was executed in favour of 2nd plaintiff by Ist plaintiff would show that he was unwilling to accept the contract as offered by the mortgagee.
The subsequent purchaser Gyarsilal has taken a conditional sale and this reinforce the stand of the mortgagor.
The existence of the dispute about the nature of the transaction, namely, according to the mortgagor he wanted an absolute sale and this dispute between the parties as on October 10, 1950, is not in dispute.
Therefore the conduct of the mortgagor is consistent with this case.
It was next contended that defendant mortgagee made all attempts to get the deed registered by approaching the Sub Registrar, and that the defendant mortgagee initiated criminal proceedings against the Ist plaintiff mortgagor for misusing the stamp papers need not detain us, as they have no probative value.
Having, therefore, examined all the contentions canvassed on behalf of the mortgagee we unhesitatingly reach the conclusion that the mortgagee has failed to prove that he did any act in furtherance of the contract, continued retention of possession being a circumstance of neutral character in the facts and circumstances of 218 the case and it being further established to our satisfaction that the mortgagee was not willing to perform his part of the contract, it is clear that the mortgagee is not entitled to the benefit of the equitable doctrine of Part Performance.
On the conclusions hereby indicated the appeal preferred by the plaintiffs (CA 1144/69) must be allowed and the judgment of the High Court has to be set aside and the one rendered by the trial court is restored with costs throughout.
That takes us to the second appeal preferred by Motilal being CA 1145/69.
First a synopsis of the facts relevant to the dispute raised by appellant Motilal.
Motilal filed Civil Suit No. 243/47 on November 3, 1947, for recovering his debt from mortgagor Govindrao Mahadik.
In this suit he obtained attachment before judgment of the suit property on November 6, 1947.
The suit of Motilal ended in a decree in the amount of Rs. 2,500 on March 15, 1951.
On March 27, 1951, execution application No 216 of 1951 was made by Motilal.
On April 3, 1951, the executing court made an order that as the suit property of the judgment debtor has already been attached by an order of attachment before judgment, steps should be taken for drawing up a proclamation of sale under order XXI, rule 66, Code of Civil Procedure.
The Court directed auction sale of the suit property to be held on December 9, 1951.
It appears that the auction sale was stayed.
There was some default on the part of the judgment debtor to comply with the conditional stay order and on his failure auction sale was directed to be held on March 23, 1952.
After correcting the amount due on the mortgage of mortgagee in the proclamation of sale, a fresh auction was held on August 23, 1952.
In the meantime, in the absence of any bidder at the auction Motilal the decree holder himself obtained permission of the court to bid at the auction and his bid in the amount of Rs. 300 was accepted and the sale in favour of Motilal was confirmed on September 23, 1952.
In the mean time mortgagor Govindrao Mahadik the judg ment debtor in Motilal 's suit filed Regular Appeal No. 125/51 which was allowed by the Additional District Judge as per his judgment dated March 27, 1953 and thereby the suit of Motilal was dismissed in entirety.
Motilal preferred Second Appeal No. 78/53 in the High Court of Madhya Bharat and by its judgment dated September 1, 1958, Motilal 's appeal was allowed and a decree in 219 his favour in the amount of Rs. 500 with interest and proportionate costs was passed.
Motilal made an application on April 2, 1962 purporting to be under order XXII, rule 10 of the Code of Civil Procedure alleging that he came to know about the suit filed by the mortgagor for redemption of the mortgage in December, 1961 and as the decision in the suit is likely to have an impact on his rights and that as he is the purchaser of the equity of redemption, the mortgagor and the subsequent purchaser from the mortgagor cannot now maintain the action for redemption of the suit property and he should be substituted in place of the plaintiffs and be permitted to prosecute; the suit for redemption against mortgagee.
This application was contested on behalf of the parties to the suit.
The High Court was not fully satisfied about the explanation of delay in making the application by Motilal and was not even inclined to accept the suggestion that he became aware of the suit in 1961 and that on the ground of gross delay the application was liable to be dismissed.
The High Court ultimately made on order as under: "Therefore, although ordinarily we might not be inclined to allow Motilal 's request to be impleaded in this Court at the appellate stage, we are of opinion that it would be desirable to have final decision about the various points of dispute between all the parties in order to avoid further unnecessary litigation.
From this point of view only, we would allow Motilal to be impleaded in the present litigation by addition of his name, and not by allowing him to replace both the plaintiffs." Having thus directed Motilal to be impleaded as a party respondent, the High Court proceeded to ascertain, evaluate and adjudicate the right claimed by Motilal and ultimately held that in any event the auction purchaser Motilal shall be entitled to recover the balance of his decretal amount and interest at the rate of 4% per annum from the date of his auction sale till the date of realisation or deposit as the case may be either from the appellant or from the mortgagor or subsequent purchaser, as the case may be, and that there shall be a charge on the suit property for the aforementioned amount which shall be enforceable at the 220 instance of Motilal by a sale of the property, Motilal was held disentitled to costs on account of the delay in filing the application.
Mr. Ray, learned counsel for the Ist plaintiff mortgagor contended that the High Court was in error in allowing the application of Motilal to be impleaded as a party because according to Mr. Ray Motilal could not be said to be claiming under the mortgagor and that, therefore, he could not maintain the application under order XXII, rule 10, Code of Civil Procedure.
Rule 10 of order XXII, provides for continuance by or against a person of any action who acquires any interest either by assignment, creation or devolution during the pendency of suit, with the leave of the court.
In ascertaining whether Motilal can maintain the application his averments in the application will have to be taken as the basis for invoking the Court 's jurisdiction under order XXII, rule 10.
The question that will have to be posed would be whether Motilal acquired any interest by assignment, creation or devolution during the pendency of the suit and would, therefore, be entitled to continue the suit.
The suit is primarily a suit for redemption of mortgage.
A suit for redemption of mortgage can be brought by a person holding the equity of redemption.
Motilal contends that the suit property was sold at a court auction with subsisting mortgage thereon and the right, title and interest of the mortgagor was sold at the court auction and on the sale being confirmed and the sale certificate being issued he acquired the interest either by assignment or devolution of the original mortgagor.
Now this assertion is controverted on behalf of the original mortgagor and the subsequent purchaser contending that much before the confirmation of the sale on September 23, 1952, the subsequent purchaser had purchased the equity of redemption by the sale deed Ext.
P 1 dated October 17, 1950, and that the original mortgagor had no subsisting right, title and interest in the suit property on August 23, 1952, being the date of the sale in favour of Motilal.
This was countered on behalf of Motilal by his learned counsel Mr. G.L. Sanghi asserting that Motilal had obtained an attachment before judgment of the suit property by order dated November 6, 1947, and that this was subsisting till March 5, 1951, when the trial court decreed the suit of Motilal against the mortgagor in the amount of Rs. 2500 and till the application for execution was filed on March 27, 1951, and no reattachment was necessary.
These facts are incontrovertible but one aspect of law has to be examined as to what is 221 the effect of the judgment of The appellate court in the appeal filed by original mortgagor Govindrao Mahadik, the decree obtained by Motilal, to wit, the appeal was allowed and Motilal 's suit was dismissed on March 27, 1953.
Between March 27, 1953, till the High Court allowed the appeal of Motilal on September 4, 1958, there was no subsisting attachment but it must be recalled that by September 23, 1952, the sale was confirmed and the sale certificate was issued on March 25, 1953, that the two days before the appeal of mortgagor preferred against the decree obtained by Motilal was allowed on March 27, 1953.
The averments of Motilal in his own application would prima facie be sufficient to sustain an application under order XXII, rule 10.
The question whether he has acquired an interest or not in the property either by assignment or devolution which is the subject matter of dispute in this appeal would have to be answered on merits but the narration of chronological events as delineated hereinabove would clearly show that Motilal has more than a mere semblance of title which this Court will have to investigate.
And even if stricto sensu the application would not fall under order XXII, rule 10, CPC, yet section 146 of the Code of Civil Procedure would certainly enable Motilal to maintain the application (See Smt.
Saila Bala Desai vs Smt.
Nirmala Sundai Dassai and another, at 1291, referred to with approval in Shew Bux Mohata & Ors.
vs Bengal Breweries Ltd & Ors.
Undoubtedly the High Court was reluctant to overlook the gross delay in preferring the application but even after this reluctance the High Court having granted the application, we would consider it imprudent to reject the application on the ground of delay.
Once Motilal becomes a party, two contentions advanced on his behalf will have to examined: (a) has he become, under the sale certificate obtained by him, a purchaser of equity of redemption so as to dissentitle the original mortgagor from bringing the present action; (b) What is the effect of the attachment before judgment secured by him on November 6, 1947, on the sale of equity of redeption in favour of the subsequent purcharser under the sale deed Ext.
P 1 dated October 14, 1950.
Looking to the proclamation of sale it is crystal clear that the property was sold subject to subsisting mortgage in favour of Devi 222 Sahai, mortgagee.
At a court auction what is sold is the right, title and interest of the judgment debtor.
The judgment debtor in the decree obtained by Motilal was original mortgagor Sardar Govindrao Mahadik.
Subject to other conditions, his right, title and interest would be one of a mortgagor, that is the right to redeem the mortgage style as equity of redemption.
According to Motilal this equity of redemption was sold at the court auction and it was purchased by him.
Subject to the decision on the second contention so as to the effect of attachment before judgment, there is no substance in this contention because much before even the proclamation of sale was issued the equity of redemption held by the mortgagor was sold by him under sale deed Ext.
P l dated October 14.
1950, in favour of 2nd plaintiff Gyarsilal.
Therefore, even on the date of the decree as also on the date of filing of the execution application mortgagor had no subsisting interest in the property which could be sold at the court auction.
On this short ground it can be held that Motilal did not acquire under the sale certificate equity of redemption of the mortgagee.
But Mr. Sanghi, learned counsel for Motilal contended that the transfer in favour of subsequent purchaser under the sale deed Ext.
P.1, dated October 14, 1950, by the mortgagor is void against Motilal because in the suit filed by Motilal he had obtained an order of attachment before judgment of the suit property and this attachment before judgment would cover the right, title and interest of the mortgagor defendants in that suit and that any private sale inter vivos of the attached property would under section 64 of the Code of Civil Procedure be void against the attaching creditor.
Proceeding further along this line it was contended that as a corollary if the sale in favour of subsequent purchaser is void against Motilal then the equity of redemption continued to remain vested in the original mortgagor and at the court auction the same was sold and purchaged by Motilal.
This necessitates examination of the effect of an order of attachment before judgment in a suit.
Order XXXVIII, rule 5, enables the Court to levy attachment before judgment at the instance of a plaintiff if the conditions therein prescribed are satisfied.
What is the nature of attachment levied in this case is not made known save and except saying that the suit property was attached and the sale proclamation mentioned therein the subsisting mortgage.
Taking the best view in favour of Motilal, 223 One can say that what was attached was the equity of redemption.
The attachment was levied and continued to subsist till the date of the decree.
It would, therefore, not be necessary to reattach the property.
What is the effect of attachment before judgment ? Attachment before judgment is levied where the court on an application of the plaintiff is satisfied that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him (a) is about to dispose of the whole or any part of his property.
Or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court.
The sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree if made would be satisfied.
It is a sort of a guarantee against decree becoming infructuous for want of property available from which the plaintiff can satisfy the decree.
The provision in section 64 of the Code of Civil Procedure provides that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other monies contrary to.
such attachment, shall be void as against all claims enforceable under the attachment.
What is claimed enforceable is the claim for which the decree is made.
Motilal 's suit was for a money claim.
It finally ended in a decree for Rs. 500 by High Court and in between the 1st appellate court had dismissed Motilal 's suit in entirety.
There is nothing to show that the attachment which would come to an end on the suit being dismissed would get revived if a second appeal is filed which ultimately succeeds.
In fact, a dismissal of the suit may terminate the attachment and the same would not be revived even if the suit is restored and this becomes manifestly clear from the newly added provision in sub rule (2) of rule 11 A of order XXXIII, C.P.C. which provides that attachment before judgment in a suit which is dismissed for default shall not be revived merely because by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored.
As a corollary it would appear that if attachment before judgment is obtained in a suit which ends in a decree but if in appeal the decree is set aside the attachment of necessity must fail.
There should be no difficulty in reaching this conclusion.
The question, however, is what happens if at an intermediate state pursuant to the decree of the trial court the attached pro 224 perty is sold at a court auction ? How would the rights and obligations of the auction purchaser be adversely affected if the appeal is allowed and the suit is dismissed ? ordinarily where the appeal is preferred an attempt should be made to obtain stay of the execution of the decree of the trial court.
However, it is notorious that the appellate court is loath or reluctant to grant stay of a money decree and the judgment debtor may not be in a position to deposit the decretal amount and in this situation more often the execution proceeds and before the appeal is disposed of an equity in favour of a third person as auction purchaser who purchases the property at a court auction may come into existence.
If afterwards the appeal is allowed and the suit is dismissed, would the auction purchaser be adversely affected ? The emerging situation in this case clearly demonstrates the dilemma.
Ordinarily, if the aution purchaser is an outsider or a stranger and if the execution of the decree was not stayed of which he may have assured himself by appropriate enquiry, the court auction held and sale confirmed and resultant sale certificate having been issued would protect him even if the decree in execution of which the auction sale has been held is set aside.
This proceeds on the footing that the equity in favour of the stranger should be protected and the situation is occasionally reached on account of default on the part of the judgment debtor not obtaining stay of the execution of the decree during the pendency of the appeal.
But what happens if the auction purchaser is the decree holder himself ? In our opinion, the situation would materially alter and this decree holder auction purchaser should not be entitled to any protection.
At any rate when he proceeds with the execution he is aware of the fact that an appeal against the original decree is pending.
He is aware of the fact that the resultant situa may emerge where the appeal may be allowed and the decree which he seeks to execute may be set aside.
He cannot force the pace by executing the decree taking advantage of the economic disability of a judgment debtor in a money decree and make the situation irreversible to the utter disadvantage of the judgment debtor who wins the battle and loses the war.
Therefore, where the auction purchaser is none other than the decree holder who by pointing out that there is no bidder at the auction, for a nominal sum purchases the property, to wit, in this case for a final decree for Rs. 500, Motilal purchased the property for Rs. 300, an atrocious situation, and yet by a technicality he wants to protect himself.
To such an 225 auction purchaser who is not a stranger and who is none other than the decree holder, the court should not lend its assistance.
The view which we are taking is not unknown and to some extent it will be borne out by the observations of this Court in Janak Raj vs Gurdial Singh and Anr.
This Court made a pertinent observation which may be extracted: "The policy of the legislature seems to to be that unless a stranger auction purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified." Viewed from this angle, the order of the High Court that the auction purchaser decree holder Motilal would be entitled to recover the decretal amount of Rs. 500 with interest at the rate of 4% per annum and proportionate costs could be styled as manifestly equitable.
However the Court cannot overlook the conduct of the mortgagor Govindrao Mahadik, his subsequent purchaser Gyarsilal and even the original mortgagee Devi Sahai in not paying a small debt and allowing the property to be auctioned and forcing Motilal to the logical end of litigation and yet without the slightest recompense to go on investing into this bottomless pit of unending litigation.
And at best his attachment before judgment is a security that his decree would be satisfied from the property attached and sale to the extent of recovery of decretal amount from attached property would be, against attaching creditor void.
If we assure him payment of decretal amount and costs the sale in his favour is of no significance.
The logical course for us would have been to leave Motilal to his own remedy which we consider inequitous in the facts and circumstances of this case.
The order made by the High Court would hardly provide him Rs. 1,500 to recover which he must have spent at the inflated rate of litigation costs.
In our opinion, while not granting the substantial relief claimed by Motilal and looking to the conduct of all the parties, we direct that Motilal should be paid Rs. 7,500 inclusive of decretal amount, interest, proportionate costs and costs of the litigation till today, and for this amount there will be a charge on this property to be cleared by 226 Govindro Mahadik at the time of redemption of the property which amount will have to be paid by Gyarasilal 's heirs in view of the sale deed in favour of Gyarsilal.
Accordingly, Civil Appeal No. 1144/69 filed by Govindrao Mahadik is allowed and the judgment and decree of the High Court are set aside and those of the trial court are restored with costs throughout.
Civil Appeal No. 1145/69 preferred by Motilal is disposed of in accordance with direction herein above indicated with no order as to costs.
CMP 9004/80 and CMP 10593/80 for substitution are allowed.
P.B.R. Appeals allowed.
| IN-Abs | The appellant mortgagor took a loan by mortgaging his house property to the respondent mortgagee.
The mortgage was a mortgage with possession.
According to the mortgagee sometime thereafter the mortgagor agreed to sell the property to him and that pursuant to this agreement requisite stamps were purchased and a draft sale deed was drawn up.
The sale deed was however not registered.
A few days later the mortgagor sold the property to another person and the mortgagor and the subsequent purchaser filed a suit against the mortgagee for a decree for redemption.
In the written statement the mortgagee claimed that even though the sale deed was not registered, since he was in possession of the property in part performance of the contract of sale and continued to be in possession and did several acts attributable to the contract, the mortgagor was debarred from enforcing any right against him in respect of the property.
It was also claimed that since the mortgagor himself had no subsisting title to the property on the date of sale, he could not have transferred the property to the subsequent purchaser.
The trial court held that though the sale deed was executed but since it was not registered the transaction of sale was not complete.
The Court further held that benefit of section 53 A is not available to the mortgagor defendant because the mortgage being a mortgage with possession, continued possession of the mortgagee after the date of contract would not be in part performance of the contract, and also the payment made for the purchase of stamps and for expenses of registration could not be said to be in furtherance of the contract because that amount was paid before the execution of the contract.
In the mortgagee 's appeal the High Court held that he was entitled to the benefit of section 53A against the mortgagor and the subsequent purchaser for the reason that he was in possession of the property and paid Rs. 1000 in furtherance of the contract.
The appellant in Civil Appeal No. 1145 of 1969 filed a suit against the mortgagor for recovery of a debt owed to him and obtained attachment of the 187 suit property before judgment.
The suit eventually ended in a decree in his favour, In the auction of the suit property since there were no bidders the decree holder 's bid was accepted with the permission of the Court.
The High Court allowed the decree holder to be impleaded as a respondent in the mortgagee 's appeal which was then pending in the High Court.
It was contended on behalf the mortgagor that the decree holder could not maintain an application under order XXII, Rule 10 of the Code of Civil Procedure because he could not be said to be claiming under the mortgagor.
(Rule 10 of order XXII CPC provides for continuance of any action by or against a person who acquires any interest either by assignment, creation or devolution during the pendency of the suit with the leave of the Court.) ^ HELD: To qualify for the protection of the doctrine of part performance it must be shown that there is a contract to transfer immovable property for consideration and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
After establishing these circumstances, it must be further shown that a transferee had in part performance of the contract either taken possession of the property or any part thereof or the transferee being already in possession, continued in possession in part performance of the contract and had done some act in furtherance of the contract.
The acts claimed to be in part performance must be unequivocally referable to the pre existing contract and the acts of part performance must unequivocally point in the direction of the existence of contract and evidencing implementation or performance of contract.
There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract.
When series of acts are done in part performance one such may be payment of consideration.
Any one act by itself may or may not be of such a conclusive nature as to conclude the point one way or the other but when taken with many others, payment or part of the consideration or the whole of the consideration may as well be shown to be in furtherance of the contract.
[209 D H] The view of the House of Lords that one must not first look at the oral contract and then see whether the alleged acts of part performance are consistent with it but that one must look at the alleged acts of part performance and see whether they prove that there must have been a contract and that it is only if they do so prove that one can bring in the oral contract may not be wholly applicable to the situation in India because an oral contract is not envisaged by section 53A.
Even for invoking the equitable doctrine of part performance there has to be a contract in writing from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
The correct view would be to look at that writing that is offered as a contract for transfer for consideration of any immovable property, examine the acts said to have been done in furtherance of the contract and find out wether there is a real nexus between the contract and the acts pleaded as in part performance so that to refuse relief would be perpetuating the fraud of the party who, after having taken advantage or benefit of the contract, backs out and pleads non registration as defence.
[210A D] Foxcroft vs Lester, 2 Vern.
P. 456; Elizabeth Meddison vs John Alderson, Lord Selborne ; Clinan & Anr.
vs Cooke & Ors.
1775 1802 188 All.
E.R. (Reprint) 16; Chapronierse vs Lambert 1916 17 All.
E.R. (Reprint) 1889; Steadman vs Steadman [1974] 2 All.
E.R. 977, referred to.
In short, acts preliminary to the contract would be hardly of any assistance in ascertaining whether they were in furtherance of the contract.
Anything done in furtherance of the contract postulates the pre existing contract and the acts done in furtherance thereof.
Therefore, the acts anterior to the contract or merely identical to the contract would hardly provide any evidence of part performance [210 E] Although the mortgagee 's claim regarding payment of Rs. 1000 to the mortgagor for the purchase of stamps and for expenses incidential to registration was not in dispute, there is no evidence on record to show that there was an oral contract anterior to the unregistered sale deed, nor was there a draft agreement prior to the drawing up of the sale deed.
Out of the sum of Rs. 1000 a sum of Rs. 700 was paid prior to the agreement.
It was not subsequently claimed that the balance of Rs. 300 was paid in furtherance of the contract.
The High Court was in error in holding that the act envisaged by the phrase "in furtherance of the contract" should be in pursuance of the contract and not that it should either precede or follow the agreement or the contract.
If a written contract is a sine qua non for the application of the equitable doctrine of part performance any act preceding the contract could never be in furtherance of that contract which was yet to materialise.
Negotiations for a contract and a concluded contract stand apart from each other.
Anything at the negotiating stage cannot be claimed as a contract unless the contract is concluded between the parties, that is the parties are ad idem.
The contract should be a written contract from which the necessary ingredients constituting the transfer could be ascertained with reasonable certainty.
[203 A B] There is no material on record to substantiate the mortgagee 's claim that out of the total consideration payable to the mortgagor he had retained in deposit with him a sum of Rs. 17000 odd for being paid to other creditors of the mortgagee and that out of this amount a sum of Rs. 541 due to him had been adjusted.
Assuming that he could reimburse himself there is no evidence to show that he gave discharge or gave credit in his books of account to this sum.
Also there is nothing to show that the mortgagor had in his possession a list of the mortgagees creditors or that he had made any attempt to procure the list or that he issued a public notice inviting the creditors of the mortgagor to claim payment from him to the extent of the consideration retained by him.
Neither did he pay any creditor nor did he make any attempt to pay any creditor including those whose names were known to him.
[211 G] Induction into possession of an immovable property for the first time subsequent to the contract touching the property, may be decisive of the plea of part performance.
But mere possession ceases to be of assistance when the person claiming benefit of part performance is already in possession prior to the contract and continues to retain possession.
There is an understandable and noteworthy difference in the probative value of entering into possession for the first time and continuing in possession coupled with a claim of change in character.
Where a person claiming benefit of part performance of a contract was already in posses 189 sion prior to the contract, the Court would expect something independent of the mere retention of possession to evidence part performance.
Mere retention of possession, quite legal and valid, if mortgage with possession is not discharged, could hardly be said to be an act in part performance unequivocally referable to the contract of sale.
[213 D E, 215 E F] In the instant case retention of possession is of no consequence because the mortgage was not discharged and was subsisting and the mortgage being a mortgage with possession, the mortgagee was entitled to retain possession.
The fact that immediately a sale deed was executed in favour of the subsequent purchaser by the mortgagor would show that he was not willing to accept the contract as offered by the mortgagor.
The subsequent purchaser had taken a conditional sale and this reinforces the stand of the mortgagor.
The existence of the dispute, about the nature of the transaction, is not in dispute.
Therefore the conduct of the mortgagor is consistent with his case.
[217 D F] The mortgagee had failed to prove that he did any act in furtherance of the contract, continued retention of possession being a circumstance of neutral character in the facts and circumstances of the case and it being further established that the mortgagee was not willing to perform his part of the contract, he is not entitled to the benefit of the equitable doctrine of part performance.
[217 H] (2) A perusal at the chronological events of the case would clearly show that the decree holder had more than a mere semblance of title.
Even if the application would not fall under order 22 Rule 10 CPC.
section 146 of the Code enables him to maintain the application.
Saila Bala Desai vs Smt.
Numala Sundari Dassi and another; , at 1291, referred to.
[221 D E] The decree holder did not acquire under the sale certificate the equity of redemption of the mortgage.
The suit property was sold subject to subsisting mortgage in favour of the mortgagee.
At a Court auction what is sold is right, title and interest of the judgment debtor who in this case was the mortgagor.
Subject to other conditions, his right is the right to redeem the mortgage.
Much before the proclamation of sale was issued the equity of redemption held by the mortgagor was sold by him to the subsequent purchaser.
Therefore, even on the date of decree as also on the date of filing of the execution application the mortgagor had no subsisting interest in the property which could be sold at the Court auction.
[222 A B] The object behind the order levying an attachment before judgment is to give an assurance to the plaintiff that his decree, if made, would be satisfied.
Where an attachment has been made, any private transfer or delivery of the property attached would be void as against all claims enforceable under the attachment.
What is claimed enforceable is claim for which the decree is made.
A dismissal of the suit may terminate the attachment and would not be revived even if the suit is restored As a corollary, if attachment before judgment is obtained in a suit which ends in a decree but if in appeal the decree is set aside, the attachment of necessity must fall.
It at an intermediate stage pursuant to the decree of the trial Court the attached property is sold at a Court auction and where an appeal is preferred, an attempt should be made to obtain stay of the execution of the decree of the trial court.
If the execution proceeds and the property is 190 sold at a court auction before the appeal is disposed of, the equity in favour of a person as a auction purchaser may come into existence.
In such a case if the auction purchaser is an outsider and if the execution of the decree was not stayed, the auction purchaser would be protected even if the decree in execution of which the auction sale had been held is set aside because the equity in favour of the stranger should be protected.
[223 C E] If on the other hand the auction purchaser is the decree holder himself, he should not be entitled to any protection because when he proceeds with the execution he was aware that an appeal against the original decree was pending and that if the appeal was allowed the decree which he sought to execute might be set aside.
He could force the place by executing the decree, taking advantage of the economic disability of the judgment debtor in a money decree by making the situation irreversible.
Therefore, where the auction purchaser was none other than the decree holder who purchased the property for a meagre sum, this results in an atrocious situation, but yet by a technicality he wants to protect himself.
To such an auction purchaser, who is not a stranger and who is none other than the decree holder, the Court should not lend its assistance.
[224 G H] Janak Raj vs Gurdial Singh & Anr. ; at 86, followed.
In the instant case the High Court was right in holding that the auction purchaser decree holder was entitled to recover only the decretal amount and proportionate costs.
[225 D] But yet the conduct of the mortgagor, the subsequent purchaser and the mortgagee in not paying a small debt and allowing the property to be auctioned and forcing the decree holder to fight a never ending litigation was iniquitous in the facts and circumstances of this case.
Taking into consideration the conduct of the parties the decree holder should be paid a sum of Rs. 7,000 inclusive of decretal amount, interest, proportionate costs and costs of litigation so far.
[225 E F]
|
Civil Appeal No. 966 of 1976.
(Appeal by special leave from the judgment and order dated the 6th February, 1976 of the Delhi High Court in S.A.O. No. 148 of 1975) Vinoo Bhagat for the Appellant.
G. D. Gupta for the Respondent (Not Present) The Order of the Court was delivered by KOSHAL, J. The short point arising for determination in this appeal concerns the validity of a notice served by the landlady appellant on the tenant respondent and purporting to be one issued in accordance with the provisions contained in clause (a) of sub section (1) of section 14 of the Delhi Rent Control Act (hereinafter called the Act), and we may at the very outset reproduce the relevant provisions of that section: "14(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: (a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in section 106 of the ; 14(2) No order for the recovery of possession of any premises shall be made on the ground specified in clause 45 (a) of the proviso to sub section (1), if the tenant makes payment or deposit as required by section 15: Provided that no tenant shall be entitled to the benefit under this sub section, if having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months.
The tenant respondent has remained absent and unrepresented at the hearing and we have had the advantage of being addressed by Mr. Vinoo Bhagat, learned counsel for the appellant only.
It was not disputed before the High Court that in an earlier proceeding the tenant had taken advantage of the provisions contained in sub section (2) of section 14 of the Act, that he committed another default in the payment of rent which covered the period from 1.6.1973 to 30.11.1973 and that it was then that a notice dated 14.12.1973 was served on him.
The notice stated: "Your contractual tenancy in respect of House No. A 54 (double storey) Kalkaji, New Delhi 19 had already been terminated whereafter you are a statutory tenant liable to pay damages for use and occupation at the rate of Rs. 15/ (Rupees fifteen per month) to me.
That you have not paid the said damages after May, 1973.
In case you do not clear the arrears upto date within two months from the date of this notice, I shall be compelled to issue instructions to my legal adviser to file an application for your eviction . . " No attempt to pay the rent was made inspite of the notice till the end of February, 1974.
Although thereafter rent was remitted to the landlady through money orders but she refused to accept the same and made an application to the Controller for eviction of the tenant on the sole ground of a second default in the payment of rent.
Both the Controller and the Tribunal in the appeal held that the notice was a valid one and that the expression "damages for use and occupation" contained therein meant nothing more or less than rent.
In a second appeal, a learned Single Judge differed from the Courts below and was of the opinion that the word 'rent ' and the said expression could not be taken to be 46 synonymous and that there was no demand of rent in the notice in question which did not, therefore, satisfy the requirements of the provisions contained in clause (a) above extracted.
It is the judgment of the learned Single Judge which is assailed in the present appeal.
After hearing Mr. Vinoo Bhagat, learned counsel for the appellant, we are of the opinion that the learned Single Judge has taken an unnecessarily hypertechnical view of the contents of the notice.
It is significant that the notice specifically stated that on account of the termination of the tenancy by an earlier notice the tenant had become what is popularly known as a statutory tenant and it was in this context that a claim was made for damages for use and occupation at a rate equivalent to the agreed rent.
We are of the opinion that in the circumstances of the case the demand so made could not be construed as anything but a demand for rent.
Consequently the notice must be held to satisfy the requirements of clause (a) of sub section (1) of Section 14 of the Act.
For the reasons stated above, we accept the appeal, set aside the impugned judgment and restore the orders of the Controller and the Tribunal.
The case is remitted for further proceedings to the Controller who shall dispose of it within three months from the receipt of records from this Court.
No costs.
P.B.R. Appeal allowed.
| IN-Abs | When a tenant has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which the notice of demand for the arrears of rent has been served on him by the landlord proviso (a) to section 14(1) empowers the Controller to make an order for the recovery of possession of the premises.
The proviso to section 14(2) states that no tenant shall be entitled to the benefit under the sub section if having obtained such benefit once in respect of any premises he again makes a default in the payment of rent of those premises for three consecutive months.
On 14th December, 1973, the land lady appellant issued a notice to the tenant stating that he had not paid the damages after May 1973 and called upon him to pay the arrears within two months from the date of notice.
The tenant remitted the rent to the land lady by money order towards the end of February 1974 but she refused to accept the same.
On the land lady 's application the Controller, and the Tribunal in appeal, held that the notice was valid and that the expression "damages for the use and occupation" meant nothing more nor less than rent.
But the High Court on appeal held that the term "rent" and "damages for use and occupation" could not be taken to be synonymous terms and that the notice issued by the land lady did not satisfy the requirements of clause (a) of the proviso to section 14(1) of the Act in that it did not demand rent from the tenant.
Allowing the appeal and remitting the case to the Court below ^ HELD: The notice issued by the land lady satisfies the requirements of clause (a) of the proviso to section 14(1).
[46 D] The High Court has taken an unnecessarily hypertechnical view of the contents of the notice which specifically stated that on account of the termination of the tenancy by an earlier notice the tenant had become a statutory tenant and it was in this context that a claim was made for damages for use and occupation at a rate equivalent to the agreed rent.
The demand so made could not be construed as anything but a demand for rent.
[46 B C] 44
|
ition Nos. 5670 and 6216 of 1980.
(Under Article 32 of the Constitution) Mrs. K. Hingorani, Mr. Hingorani, Mukul Mudgal and Damodar Prakash for the Petitioners.
K G. Bhagat and D. Goburdhan for the Respondent.
Miss A. Subhashini for the Union of India.
The Order of the Court was delivered by, BHAGWATI, J.
The question which arises before us for consideration is whether certain documents called for by the Court by its order dated 16th February, 1981 are liable to be produced by the State or their production is barred under some provision of law.
The documents called for are set out in the order dated 16th February, 1981 and they are as follows: 1.
the CID report submitted by L.V. Singh, DIG, CID Anti Dacoity) on December 9, 1980; 2.
the CID reports on all the 24 cases submitted by L.V. Singh and his associates between January 10 and January 20, 1981; 3.
the letters number 4/R dated 3rd January, 1981 and number 20/R dated 7th January 1981 from L.V. Singh to the IG, Police; 4.
the files containing all correspondence and notings exchanged between L.V. Singh, DIG and M.K. Jha, Additional IG, regarding the CID inquiry into the blindings, and 5.
the file (presently in the office of the IG, S.K. Chatterjee containing the reports submitted by Inspector and Sub Inspector of CID to Gajendra Narain, DIG, Bhagalpur on 18th July or thereabouts and his letter to K.D. Singh, SP, CID, Patna which has the hand written observations of M.K. Jha.
The State has objected to the production of these documents on the ground that they are protected from disclosure under Sections 162 and 172 of the Code of Criminal Procedure 1973 and the petitioners are not entitled to see them or to make any use of them in the present 150 proceeding.
This contention raises a question of some importance and it has been debated with great fervour on both sides but we do not think it presents any serious difficulty in its resolution, if we have regard to the terms of Sections 162 and 172 of the Criminal Procedure Code on which reliance has been placed on behalf of the State.
We will first consider the question in regard to the reports submitted by Sh.
L.V. Singh, Deputy Inspector General CID (Anti Dacoity) on 9th December, 1980 and the reports submitted by him and his associates Sh.
R.R. Prasad, S.P. (Anti Dacoity) and Smt.
Manjuri Jaurahar, S.P. (Anti Dacoity) between 10th and 20th January, 1981.
These reports have been handed over to us for our perusal by Mr. K.G.Bhagat learned advocate appearing on behalf of the State and it is clear from these reports, and that has also been stated before us on behalf of the State, that by an order dated 28 29th November, 1980 made by the State Government under Section 3 of the Indian , Sh.
L.V. Singh was directed by the State Government to investigate into 24 cases of blinding of under trial prisoners and it was in discharge of this official duty entrusted to him that he with the assistance of his associates Sh.
R.R. Prasad and Smt.
Manjuri Jaurahar investigated these cases and made these reports.
These reports set out the conclusions reached by him as a result of his investigation into these cases.
The question is whether the production of these reports is hit by Sections 162 and 172 of the Criminal Procedure Code.
It may be pointed out that these are the only provisions of law under which the State resists production of these reports.
The State has not claimed privilege in regard to these reports under Section 123 or Section 124 of the Indian Evidence Act.
All that is necessary therefore is to examine the applicability of Sections 162 and 172 of the Criminal Procedure Code in the present case.
Before we refer to the provisions of Sections 162 and 172 of the Criminal Procedure Code, it would be convenient to set out briefly a few relevant provisions of that Code.
Section 2 is the definition Section and clause (g) of that Section defines 'Inquiry ' to mean "every inquiry other than a trial conducted under this Code by a Magistrate or Court".
Clause (h) of Section 2 gives the definition of 'investigation ' and it says that investigation includes "all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf".
Section (4) provides: 151 "4 (1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into, trying or otherwise dealing with such offences.
It is apparent from this Section that the provisions of the Criminal Procedure Code are applicable where an offence under the Indian Penal Code or under any other law is being investigated, inquired into tried or otherwise dealt with.
Then we come straight to Section 162 which occurs in chapter XII dealing with the powers of the Police to investigate into offences.
That Section, so far as material, reads as under: "162 (1) No statement made by any person to a police officer in the course of an investigation under this chapter, shall, if reduced to writing be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the ; and when any part of such statement is so used, any part thereof may also be used in the re examination of such witness, but for the purpose only of explaining any matter referred to in his cross examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of claues(1) 152 of section 32 of the , or to affect the provisions of section 27 of that Act.
" It bars the use of any statement made before a police officer in the course of an investigation under chapter XII, whether recorded in a police diary or otherwise, but by the express terms of the Section this bar is applicable only where such statement is sought, to be used 'at any inquiry or trial in respect of any offence under investigation at the time when such statement was made '.
If the statement made before a police officer in the course of an investigation under chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made, the bar of Section 162 would not be attracted.
This section has been enacted for the benefit of the accused, as pointed out by this Court in Tehsildar Singh and Another vs The State of Uttar Pradesh(1) it is intended "to protect the accused against the user of statements of witnesses made before the police during investigation, at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence." This Court, in Tehsildar Singh 's case approved the following observations of Braund, J. in Emperor vs Aftab Mohd. Khan(2) "As it seems to us it is to protect accused persons from being prejudiced by statements made to police officers who by reason of the fact that an investigation is known to be on foot at the time the statement is made, may be in a position to influence the maker of it, and, on the other hand, to protect accused persons from the prejudice at the hands of persons who in the knowledge that an investigation has already started, are prepared to tell untruths." and expressed its agreement with the view taken by the Division Bench of the Nagpur High Court in Baliram Tikaram Marathe vs Emperor(3) that "the object of the section is to protect the accused both against overzealous police officers and untruthful witnesses.
" Protection against the use of statement made before police during investigation is, therefore, granted to the accused by providing that such statement shall not be allowed to be used except for the limited purpose set out in the proviso to the section, at any inquiry or trial in respect of the offence which was under in 153 vestigation at the time when such statement was made.
But this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar.
It has no application, for example in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the .
There are a number of decisions of various High Courts which have taken this view and amongst them may be mentioned the decision of Jaganmohan Reddy J. in Malakalaya Surya Rao vs Janakamma(1) The present proceeding before us is a writ petition under Article 32 of the Constitution filed by the petitioners for enforcing their Fundamental Rights under Article 21 and it is neither an "inquiry" nor a "trial" in respect of any offence and hence it is difficult to see how section 162 can be invoked by the State in the present case.
The procedure to be followed in a writ petition under Article 32 of the Constitution is prescribed in order XXXV of the Supreme Court Rules, 1966, and sub rule (9) of Rule 10 lays down that at the hearing of the rule nisi, if the court is of the opinion that an opportunity be given to the parties to establish their respective cause by leading further evidence the court may take such evidence or cause such evidence to be taken in such manner as it may deem fit and proper and obviously the reception of such evidence will be governed by the provisions of the .
It is obvious, therefore, that even a statement made before a police officer during investigation can be produced and used in evidence in a writ petition under Article 32 provided it is relevant under the and section 162 cannot be urged as a bar against its production or use.
The reports submitted by Shri L.V. Singh setting forth the result of his investigation cannot, in the circumstances, be shut out from being produced and considered in evidence under section 162, even if they refer to any statements made before him and his associates during investigation, provided they are otherwise relevant under some provision of the .
We now turn to section 172 which is the other section relied upon by the State.
That section reads as follows: "172.
Diary of proceedings in investigation (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investi 154 gation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court; but, if they are used by the police officer who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the (1 of 1872) shall apply.
The first question which arises for consideration under this section is whether the reports made by Shri L.V. Singh as a result of the investigation carried out by him and his associates could be said to form part of case diary within the meaning of this section.
The argument of Mrs. Hingorani and Dr. Chitale was that these reports did not form part of case diary as contemplated in this section, since the investigation which was carried out by Shri L.V. Singh was pursuant to a direction given to him by the State Government under section, 3 of the Indian , and it was not an investigation under Chapter XII of the Criminal Procedure Code which alone would attract the applicability of section 172.
Mrs. Hingorani sought to support this proposition by relying upon the decision of this Court in State of Bihar vs J.A.C. Saldhana(1) Mr. K.G. Bhagat, learned counsel appearing on behalf of the State however, submitted that even though Shri L.V. Singh carried out the investigation under the direction given by the State Government in exercise of the power conferred under section 3 of the Indian , the investigation carried out by him was one under Chapter XII and section 172 was therefore applicable in respect of the reports made by him setting out the result of the investigation.
He conceded that it was undoubtedly laid down by this Court in State of Bihar vs J.A.C. Saldhana (supra) that the State Government has power to direct investigation or further investigation under section 3 of the 155 Indian , but contended that it was equally clear from the decision in that case that "power to direct investigation or further investigation is entirely different from the method and procedure of investigation and the competence of the person who investigates." He urged that section 36 of the Criminal Procedure Code provides that police officers superior in rank to an officer in charge of a police station may exercise the same powers throughout the local area to which they are appointed as may be exercised by such officer within the limits of his station and Shri L.V. Singh being the Deputy Inspector General of Police, was superior in rank to an officer incharge of a police station and was, therefore, competent to investigate the offences arising from the blinding of the under trial prisoners and the State Government acted within its powers under section 3 of the Indian in directing Shri L.V. Singh to investigate into these offences.
But, "the method and procedure of investigation" was to be the same as that prescribed for investigation by an officer in charge of a police station under Chapter XII and therefore the investigation made by Shri L.V. Singh was an investigation under that Chapter so as to bring in the applicability of section 172.
These rival contentions raise two interesting questions, first, whether an investigation carried out by a superior officer by virtue of a direction given to him by the State Government under section 3 of the Indian is an investigation under Chapter XII so as to attract the applicability of section 172 to a diary maintained by him in the course of such investigation and secondly, whether the report made by such officer as a result of the investigation carried out by him forms part of case diary within the meaning of section 172.
We do not, however think it necessary to enter upon a consideration of these two questions and we shall assume for the purpose of our discussion that Mr. K.G. Bhagat, learned counsel appearing on behalf of the State, is right in his submission in regard to both these questions and that the reports made by Shri L.V. Singh setting out the result of his investigation form part of case diary so as to invite the applicability of section 172.
But, even if that be so, the question is whether these reports are protected from disclosure under section 172 and that depends upon a consideration of the terms of this section.
The object of section 172 in providing for the maintenance of a diary of his proceedings by the police officer making an investigation under Chapter XII has been admirably stated by Edge, C.J. in Queen Empress vs Mannu(1) in the following words: 156 "The early stages of the investigation which follows on the commission of a crime must necessarily in the vast majority of cases be left to the police, and until the honesty, the capacity, the discretion and the judgment of the police can be thoroughly trusted, it is necessary, for the protection of the public against criminals, for the vindication of the law and for the protection of those who are charged with having committed a criminal offence that the Magistrate or Judge before whom the case is for investigation or for trial should have the means of ascertaining what was the information, true, false, or misleading which was obtained from day to day by the police officer who was investigating the case and what such police officer acted.
" The criminal court holding an inquiry or trial of a case is therefore empowered by sub section (2) of section 172 to send for the police diary of the case and the criminal court can use such dairy, not as evidence in the case, but to aid it in such inquiry or trial.
But, by reason of sub section (3) of section 172, merely because the case, diary is referred to by criminal court, neither the accused nor his agents are entitled to call for such diary nor are they entitled to see it.
If however the case diary is used by the police officer who has made it to refresh his memory or if the criminal court uses it for the purpose of contradicting such police officer in the inquiry or trial, the provisions of section 161 or section 145, as the case may be, of the would apply and the accused would be entitled to see the particular entry in the case diary which has been referred to so far either of these purposes and so much of the diary as in the opinion of the Court is necessary to a full understanding of the particular entry so used.
It will thus be seen that the bar against production and use of case diary enacted in section 172 is intended to operate only in an inquiry or trial, for an offence and even this bar is a limited bar, because in an inquiry or trial, the bar does not operate if the case dairy is used by the police officer for refreshing his memory or the criminal court uses it for the purpose of contradicting such police officer.
This bar can obviously have no application where a case diary is sought to be produced and used in evidence in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and particularly when the party calling for the case diary is neither an accused nor his agent in respect of the offence to which the case diary relates.
Now plainly and unquestionably the present writ petition which has been filed under Article 32 of the Constitution to enforce the fundamental right guaranteed under Article 32 is neither an 'inquiry ' nor a 'trial ' for an offence 157 nor is this Court hearing the writ petition a criminal court nor are the petitioners, accused or their agents so far as the offences arising out of their blinding are concerned.
Therefore, even if the reports submitted by Shri L. V. Singh as a result of his investigation could be said to form part of 'case diary ', it is difficult to see how their production and use in the present writ petition under Article 32 of the Constitution could be said to be barred under section 172.
Realising this difficulty created in his way by the specific language of section 172, Mr. K.G. Bhagat, learned advocate appearing on behalf of the State, made a valiant attempt to invoke the principle behind section 172 for the purpose of excluding the reports of investigation submitted by Sh.
L.V. Singh.
He contended that if, under the terms of section 172, the accused in an inquiry or trial is not entitled to call for the case diary or to look at it, save for a limited purpose, it is difficult to believe that the Legislature could have ever intended that the complainant or a third party should be entitled to call for or look at the case diary in some other proceeding, for that would jeopardise the secrecy of investigation and defeat the object and purpose of section 172 and therefore, applying the principle of that section, we should hold that the case diary is totally protected from disclosure and even the complainant or a third party cannot call for it or look at in a civil proceeding.
This contention is in our opinion wholly unfounded.
It is based on what may be called an appeal to the spirit of section 172 which is totally impermissible under any recognised canon of construction.
Either production and use of case diary in a proceeding is barred under the terms of section 172 or it is not it is difficult to see how it can be said to be barred on an extended or analogical application of the principle supposed to be underlying that section, if it is not covered by its express terms.
It must be remembered that we have adopted the adversary system of justice and in order that truth may emerge from the clash between contesting parties under this system, it is necessary that all facts relevant to the inquiry must be brought before the Court and no relevant fact must be shut out, for otherwise the Court may get a distorted or incomplete picture of the facts and that might result in miscarriage of justice.
To quote the words of the Supreme Court of United States in United States vs Nixon(1) "The need to develop all relevant fact in the adversary system is both fundamental and comprehensive.
The ends of . justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.
The very integrity 158 of the judicial system and public confidence in the system depend on full disclosure of all the facts within the frame work of the rules of evidence.
", it is imperative to the proper functioning of the judicial process and satisfactory and certain ascertainment of truth that all relevant facts must be made available to the Court.
But the law may, in exceptional cases, in order to protect more weighty, compelling and competing interests, provide that a particular piece of evidence, though relevant, shall not be liable to be produced or called in evidence.
Such exceptions are to be found, inter alia in sections 122, 123, 124, 126 and 129 of the and sections 162 and 172 of the Criminal Procedure Code.
But being exceptions to the legitimate demand for reception of all relevant evidence in the interest of justice, they must be strictly interpreted and not expansively construed, "for they are in derogation of the search for truth".
It would not, therefore, be right to extend the prohibition of section 172 to cases not falling strictly within the terms of the section, by appealing to what may be regarded as the principle or spirit of the section.
That is a feeble reed which cannot sustain the argument of the learned advocate appearing on behalf of the State.
It would in fact be inconsistent with the Constitutional commitment of this Court to the rule of law.
That takes us to the question whether the reports made by Sh.
L.V. Singh as a result of the investigation carried by him and his associates are relevant under any provision of the so as to be liable to be produced and received in evidence.
It is necessary, in order to answer this question, to consider what is the nature of the proceeding before us and what are the issues which arise in it.
The proceeding is a writ petition under Article 32 for enforcing the fundamental right of the petitioners enshrined in Article 21.
The petitioners complain that after arrest, whilst under police custody, they were blinded by the members of the police force, acting not in their private capacity, but as police officials and their fundamental right to life guaranteed under Article 21 was therefore violated and for this violation, the State is liable to pay compensation to them.
The learned Attorney General who at one stage appeared on behalf of the State at the hearing of the writ petition contended that the inquiry upon which the Court was embarking in order to find out whether or not the petitioners were blinded by the police officials whilst in police custody was irrelevant, since, in his submission, even if the petitioners were so blinded, the State was not liable to pay compensation to the petitioners first, because the state was not constitutionally or legally responsible for the acts of the police officers outside the scope of 159 their power or authority and the blindings of the under trial prisoners effected by the police could not therefore be said to constitute violation of their fundamental right under Article 21 by the State and secondly, even if there was violation of the fundamental right of the petitioners under Article 21 by reason of the blindings effected by the police officials, there was, on a true construction of that Article, no liability on the State to pay compensation to the petitioners.
The attempt of the learned Attorney General in advancing this contention was obviously to preempt the inquiry which was being made by this Court, so that the Court may not proceed to probe further in the matter.
But we do not think we can accede to this contention of the learned Attorney General.
The two questions raised by the learned Attorney General are undoubtedly important but the arguments urged by him in regard to these two questions are not prima facie so strong and appealing as to persuade us to decide them as preliminary objections without first inquiring into the facts.
Some serious doubts arise when we consider the argument of the learned Attorney General.
If an officer of the State acting in his official capacity threatens to deprive a person of his life or personal liberty without the authority of law, can such person not approach the Court for injuncting the State from such officer in violation of his fundamental right under Article 21 ? Can the State urge in defence in such a case that it is not infringing the fundamental right of the petitioner under Article 21, because the officer who is threatening to do so is acting outside the law and therefore beyond the scope of his authority and hence the State is not responsible for his action ? Would this not make a mockery of Article 21 and reduce it to nullity, a mere rope of sand, for, on this view, if the officer is acting according to law there would ex concession is be no breach of Article 21 and if he is acting without the authority of law, the State would be able to contend that it is not responsible for his action and therefore there is no violation of Article 21.
So also if there is any threatened invasion by the State of the Fundamental Right guaranteed under Article 21, the petitioner who is aggrieved can move the Court under Article 32 for a writ injuncting such threatened invasion and if there is any continuing action of the State which is violative of the Fundamental Right under Article 21, the petitioner can approach the court under Article 32 and ask for a writ striking down the continuance of such action, but where the action taken by the State has already resulted in breach of the Fundamental Right under Article 21 by deprivation of some limb of the petitioner, would the petitioner have no remedy under Article 32 for breach of the Fundamental Right guaranteed to him ? 160 Would the court permit itself to become helpless spectator of the violation of the Fundamental Right of the petitioner by the State and tell the petitioner that though the Constitution has guaranteed the Fundamental Right to him and has also given him the Fundamental Right of moving the court for enforcement of his Fundamental Right, the court cannot give him any relief.
These are some of the doubts which arise in our mind even in a prima facie consideration of the contention of the learned Attorney General and we do not, therefore, think it would be right to entertain this contention as a preliminary objection without inquiring into the facts of the case.
If we look at the averments made in the writ petition, it is obvious that the petitioners cannot succeed in claiming relief under Article 32 unless they establish that their Fundamental Right under Article 21 was violated and in order to establish such violation, they must show that they were blinded by the police officials at the time of arrest or whilst in police custody.
This is the foundational fact which must be established before the petitioners can claim relief under Article 32 and logically therefore the first issue to which we must address ourselves is whether this foundational fact is shown to exist by the petitioners.
It is only if the petitioners can establish that they were blinded by the members of the police force at the time of arrest or whilst in police custody that the other questions raised by the learned Attorney General would arise for consideration and it would be wholly academic to consider them if the petitioners fail to establish this foundational fact.
We are, therefore, of the view, as at present advised, that we should first inquire whether the petitioners were blinded by the police officials at the time of arrest or after arrest, whilst in police custody, and it is in the context of this inquiry that we must consider whether the reports made by Sh.
L.V. Singh are relevant under the so as to be receivable in evidence.
We may at this stage refer to one other contention raised by Mr. K.G. Bhagat on behalf of the State that if the Court proceeds to hold an inquiry and comes to the conclusion that the petitioners were blinded by the members of the police force at the time of arrest or whilst in police custody, it would be tantamount to adjudicating upon the guilt of the police officers without their being parties to the present writ petition and that would be grossly unfair and hence this inquiry should not be held by the Court until the investigation is completed and the guilt or innocence of the police officers is established.
We cannot accept this contention of Mr. K.G. Bhagat.
When the Court trying the writ petition proceeds to inquire into the issue whether the petitioners were blinded by police officials at the time of arrest or whilst in police custody, it does so, 161 not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation.
The nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the with petition on this issue cannot have any relevance much less any binding effect, in any criminal proceeding which may be taken against a particular police officer.
A situation of this kind sometimes arises when a claim for compensation for accident caused by negligent driving of a motor vehicle is made in a civil Court or Tribunal and in such a proceeding, it has to be determined by the Court, for the purpose of awarding compensation to the claimant, whether the driver of the motor vehicle was negligent in driving, even though a criminal case for rash and negligent driving may be pending against the driver.
The pendency of a criminal proceeding cannot be urged as a bar against the Court trying a civil proceeding or a writ petition where a similar issue is involved.
The two are entirely distinct and separate proceedings and neither is a bar against the other.
It may be that in a given case, if the investigation is still proceeding, the Court may defer the inquiry before it until the investigation is completed or if the Court considers it necessary in the interests of Justice, it may postpone its inquiry even until after the prosecution following upon the investigation is terminated, but that is a matter entirely for the exercise of the discretion of the Court and there is no bar precluding the Court from proceeding with the inquiry before it merely because the investigation or prosecution is pending.
It is clear from the aforesaid discussion that the fact in issue in the inquiry before the Court in the present writ petition is whether the petitioners were blinded by the members of the police force at the time of the arrest or whilst in police custody.
Now in order to determine whether the reports made by Shah L.V. Singh as a result of the investigation carried out by him and his associates are relevant, it is necessary to consider whether they have any bearing on the fact in issue required to be decided by the Court.
It is common ground that Sh.
L.V. Singh was directed by the State Government under Section 3 of the Indian to investigate into twenty four cases of blinding of under trial prisoners where allegations were made by the undertrial prisoners and First Information Reports were lodged that they were blinded by the police officers whilst in police custody.
L.V. Singh through his associates carried out this inves 162 tigation and submitted his reports in the discharge of the official duty entrusted to him by the State Government.
These reports clearly relate to the issue as to how, in what manner and by whom the twenty four undertrial prisoners were blinded, for that is the matter which Shri L.V. Singh was directed, by the State Government to investigate.
If that be so, it is difficult to see how the State can resist the production of these reports and their use as evidence in the present proceeding.
These reports are clearly relevant under section 35 of the which reads as follows: "35.
An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.
" These reports are part of official record and they relate to the fact in issue as to how, and by whom the twenty four under trial prisoners were blinded and they are admittedly made by Sh.
L.V. Singh, a public servant, in the discharge of his official duty and hence they are plainly and indubitably covered by Section 35.
The language of section 35 is so clear that it is not necessary to refer to any decided cases on the interpretation of that section, but we may cite two decisions to illustrate the applicability of this section in the present case.
The first is the decision of this Court in Kanwar Lal Gupta vs Amar Nath Chawla(1).
There the question was whether reports made by officers of the CID (Special Branch) relating to public meetings covered by them at the time of the election were relevant under section 35 and this Court held that they were, on the ground that they were" made by public servants in discharge of their official duty and they were relevant under the first part of section 35 of the Evidence Act, since they contained statement showing what were the public meetings held by the first respondent. "This Court in fact followed an earlier decision of the Court in P.C.P. Reddiar vs
section Perumal(2)also in Jagdat vs Sheopal(3) Wazirhasan J. Held that the result of an inquiry by a Kanungo under section 202 of the Code of Criminal Procedure 1898 embodied in the report is an entry in a public record stating a fact in issue and made by a public servant in the discharge of his official duties and the report is therefore admis 163 sible in evidence under section 35.
We find that a similar view was taken by a Division Bench of the Nagpur High Court in Chandulal vs Pushkar Rai(1) where the learned Judges held that repots made by Revenue Officers, though not regarded as having judicial authority where they express opinions on the private rights of the parties are relevant under section 35 as reports made by public officers in the discharge of their official duties, in so far as they supply information of official proceedings and historical facts.
The Calcutta High Court also held in Lionell Edwerds Limited vs State of West Bengal(1) that official correspondence from the Forest officer to his superior, the conservator of Forests, carried on by the Forest Officer in the discharge of his official duty would be admissible in evidence under section 35.
There is therefore no doubt in our mind that the reports made by Sh.
L.V. Singh setting forth the result of the investigation carried on by him and his associates are clearly relevant under section 35 since they relate to a fact in issue and are made by a public servant in the discharge of his official duty.
It is indeed difficult to see how in a writ petition against the State Government where the complaint is that the police officials of the State Government blinded the petitioners at the time of arrest or whilst in police custody, the State Government can resist production of a report in regard to the truth or otherwise of the complaint, made by a highly placed officer persuant to the direction issued by the State Government.
We are clearly of the view that the reports made by Shri L.V. Singh as a result of the investigation carried out by him and his associates are relevant under section 35 and they are liable to be produced by the State Government and used in evidence in the present writ petition.
Of course, what evidentially value must attach to the statements contained in these reports is a matter which would have to be decided by the Court after considering these reports.
It may ultimately be found that these reports have not much evidentially value and even if they contain any statements adverse to the State Government it may possible for the State Government to dispute their correctness or to explain them away, but it cannot be said that these reports are not relevant.
These reports must therefore be produced by the State and taken on record of the present writ petition.
We may point out that though in our order dated 16th February 1981, we have referred to these reports as having been made by Shri L.V. Singh and his associates between January 10 and January 20, 1981, it seems that there has been some error on our part in mentioning the outer date as January 20, 1981, 164 for we find that some of these reports were submitted by Shri L.V. Singh even after January 20, 1981 and the last of them was submitted on 27th January 1981.
All these reports including the report submitted on 9th December, 1980 must therefore be filed by the State and taken as forming part of the record to be considered by the Court in deciding the question at issue between the parties.
What we have said above must apply equally in regard to the correspondence and notings referred to as items three and four in the Order dated 16th February 1981 made by us.
These notings and correspondence would throw light on the extent of involvement, whether by acts of commission or acts of omission, of the State in the blinding episode and having been made by Shri L.V. Singh and Shri M.K. Jha in discharge of their officials duties, they are clearly relevant under section 35 and they must therefore be produced and taken on record in the writ petition, so also the reports submitted by Inspector and Sub Inspector of CID to Gajendra Narain, DIG, Bhagalpur on 18th July and his letter to Shri K.D. Singh, Superintendent of Police, CID, Patna containing hand written endorsement of Shri M.K. Jha must for the same reasons be held to be relevant under section 35 and must be produced by the State and be taken as forming part of the record of the writ petition.
Since all these documents are required by the Central Bureau of Investigation for the purpose of carrying out the investigation which has been commenced by them pursuant to the approval given by the State Government under section 6 of the Delhi Special Police Establishment Act, we would direct that five sets of photostat copies of these documents may be prepared by the office, one for Mrs. Hingorani, learned advocate appearing on behalf of the petitioners, one for Mr. K.G. Bhagat, learned advocate appearing on behalf of the State one for Dr. Chitale who is appearing amcius curiae at our request and two for the Court, and after taking such photostat copies, these documents along with the other documents which have been handed over to the Court by the State shall be returned immediately to Mr. K.G. Bhagat, learned advocate appearing on behalf of the State, for being immediately made available to the Central Bureau of Investigation for carrying out its investigation so that the investigation by Central Bureau of Investigation may not be impeded or delayed.
We hope and trust that the Central Bureau of Investigation will complete its investigation expeditiously without any avoidable delay.
S.R. Application allowed.
| IN-Abs | The petitioners are certain under trials in the State of Bihar.
In the Writ Petitions filed by them under Article 32 of the Constitution they complained that after their arrest, whilst under police custody they were blinded by the members of the police force, acting not in their private capacity but as police officials and their fundamental right to life guaranteed under Article 21 was therefore, violated and for this violation the State is liable to pay compensation to them.
On an application made by the petitioners, several documents including C.I.D. Reports submitted by Shri L.V. Singh, D.I.G., C.I.D, (Anti Dacoity) on December 9,1980 and other dates were called for by the Court.
The State raised an objection to the production of these documents on the ground that they are protected from disclosure under sections 162 to 172 of the Code of Criminal Procedure, 1973 and that the petitioners are not entitled to see them or to make any use of them in the present proceedings.
Overruling the State objection and directing the Registry to supply copies of these documents produced before the Court, to the petitioner 's advocate and the advocate appearing as amicus curiae, the Court ^ HELD: 1:1.
The reports submitted by Shri L.V. Singh setting forth the results of his investigation cannot be shut out from being produced and considered in evidence either under section 162 or 172 of the Criminal Procedure Code, even if they refer to any statements made before him and his associates during investigation, provided they are otherwise relevant under the provisions of the Indian Evidence Act.
In a writ petition against the State Government where the complaint is that the police officials of the State Government blinded the petitioners at the time of arrest or whilst in custody, the State Government cannot resist production of a report in regard to the truth or otherwise of the complaint, made by a highly placed officer pursuant to the direction issued by the State Government.
[163 B D] 1:2.
All the other reports covered by Items 2 to 5 of the Court 's order dated 16th February, 1981 are equally relevant and must, therefore, be produced and taken on record in the writ petition.
[164 B C] 146 2:1.
The procedure to be followed in a writ petition under Article 32 of the Constitution is prescribed under order XXXV of the Supreme Court Rules, 1966, and sub rule (9) of Rule 10 lays down that at the hearing of the rule nisi if the court is of the opinion that an opportunity be given to the parties to establish their respective cases by leading further evidence, the court may take such evidence or cause such evidence to be taken in such manner as it may deem fit and proper and obviously the reception of such evidence will be governed by the provisions of the Indian Evidence Act.
It is obvious, therefore, that even a statement made before a police officer during investigation can be produced and used in evidence in a writ petition under Article 32 of the Constitution provided it is relevant under the Indian Evidence Act and neither section 162 nor section 172 can be urged as a bar against its production or use.
[153 C E] 3:1.
When the Court trying the writ petition proceeds to inquire into the issue whether the petitioners were blinded by police officials at the time of arrest or whilst in police custody, it does so, not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation.
The nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the writ petition on this issue cannot have any relevance much less any binding effect, in criminal proceeding which may be taken against a particular police officer.
[160 G H, 161 A B] 4.
The pendency of a criminal proceeding cannot be urged as a bar against the Court trying a civil proceeding or a writ petition where a similar issue is involved.
The two are entirely distinct and separate proceedings and neither is a bar against the other.
It may be that in a given case, if the investigation is still proceeding, the Court may defer the inquiry before it until the investigation is completed or if the Court considers it necessary in the interests of Justice, it may postpone its inquiry even after the prosecution following upon the investigation is terminated, but that is a matter entirely for the exercise of the discretion of the Court and there is no bar precluding the Court from proceeding with the inquiry before it merely because the investigation or prosecution is pending.
[161 D E] 5.
The fact in issue in the inquiry before the Court in the present writ petition is whether the petitioners were blinded by the members of the police force at the time of the arrest or whilst in police custody.
The several reports called for by the Court clearly relate to the issue as to how, in what manner and by whom the twenty four undertrial prisoners were blinded, for that is the matter which Shri L.V. Singh was directed by the State Government to investigate.
If that be so, the State cannot resist the production of these reports and their use as evidence in the present proceeding.
These reports are clearly relevant under section 35 of the Indian Evidence Act since they relate to a fact in issue and are made by a public servant in the discharge of his official duty.
A D] P.C.P. Reddiar vs section Perumal, ; ; Kanwar Lal Gupta vs Amar Nath Chawla, ; ; followed.
Jagdat vs Sheopal, A.I.R. 1927 Oudh 323; Chandulal vs Pushkar Rai, A.I.R. 1952 Nagpur 271; Lionell Edwards Limited vs State of West Bengal, A.I.R, , quoted with approval.
147 6.
Section 4 of the Criminal Procedure Code, 1973 makes it clear that the provisions of the Criminal Procedure Code are applicable where an offence under the Indian Penal Code or under any other law is being investigated, inquired into tried or otherwise dealt with.
[151 B C] 7.
Section 162 bars the use of any statement made before a police officer in the course of an investigation under Chapter XII, whether recorded in a police diary or otherwise, but, by the express terms of the Section, this bar is applicable only where such statement is sought to be used "at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.
" If the statement made before the police officer in the course of an investigation under chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made, the bar of section 162 would not be attracted.
[152 A C] 7:2.
Section 162 has been enacted for benefit of the accused and to protect him against overzealous police officers and untruthful witnesses.
But, this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar.
It has no application in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Indian Evidence Act.
[152 D, H, 153 A B] Tehsildar Singh and Another vs The State of Uttar Pradesh, [1959] Supp. 2 S.C.R. 875 at 890, applied.
Emperor vs Aftab Mohd. Khan, A.I.R. 1940 All. 291; Baliram Tikaram Maratha vs Emperor, A.I.R. 1945 Nagpur 1; Malakalaya Surya Rao vs Janakamma, A.I.R. 1964 A.P. 198; approved.
Sub section (2) of section 172 of the Criminal Procedure Code empowers the criminal court holding an inquiry or trial of a case to send for the police diary of the case and the criminal court can use such diary, not as evidence in the case, but to aid it in such inquiry or trial.
But, by reason of sub section (3) of section 172, merely because the case diary is referred to by the criminal court, neither the accused nor his agents are entitled to call for such diary nor are they entitled to see it.
If however the case diary is used by the police officer who has made it to refresh his memory or if the criminal court uses it for the purpose of contradicting such police officer in the inquiry or trial, the provisions of section 161 or section 145, as the case may be of the Indian Evidence Act would apply and the accused would be entitled to see the particular entry in the case diary which has been referred to for either of these purposes and so much of the diary as in the opinion of the Court is necessary to a full understanding of the particular entry so used.
[156 C D] Queen Empress vs Mannu, [1897] 19 All. 390, quoted with approval.
State of Bihar vs J.A.C. Saldhana, ; , referred to.
The bar against production and use of case diary enacted in section 172 is intended to operate only in an inquiry or trial for an offence and even this 148 bar is a limited bar, because in an inquiry or trial, the bar does not operate if the case diary is used by the police officer for refreshing his memory or the criminal court uses it for the purpose of contradicting such police officer.
This bar can obviously have no application where a case diary is sought to be produced and used in evidence in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and particularly when the party calling for the case diary is neither an accused nor his agent in respect of the offence to which the case diary relates.
The present writ petition which has been filed under Article 32 of the Constitution to enforce the fundamental right guaranteed under Article 21 is neither an "inquiry" nor a "trial" for an offence nor is this court hearing the writ petition a criminal court nor are the petitioners, accused or their agents so far as the offences arising out of their blinding are concerned.
Therefore, even if the reports submitted by Shri L.V. Singh as a result of his investigation could be said to form part of "case diary" their production and use in the present writ petition under Article 32 of the Constitution cannot be said to be barred under section 172 of the Criminal Procedure Code.
[156 D G, 157 A B] 9:1.
It would not be right to extend the prohibition of section 172 to cases not falling strictly within the terms of the section, by appealing to what may be regarded as the principle or spirit of the section.
In fact to do so would be inconsistent with the constitutional commitment of the Supreme Court to the rule of law.
Either production and use of case diary in a proceeding is barred under the terms of section 172 or it is not, it cannot be said to be barred on an extended or analogical application of the principle supposed to be underlying that section, if it is not covered by its express terms.
In order that truth may emerge from the clash between contesting parties under the adversary system, it is necessary that all facts relevant to the inquiry must be brought before the Court and no relevant fact must be shut out, for otherwise the Court may get a distorted or incomplete picture of the facts and that might result in mis carriage of justice.
It is imperative to the proper functioning of the judicial process and satisfactory and certain ascertainment of truth that all relevant facts must be made available to the Court.
But the law may, in exceptional cases, in order to protect more weighty and compelling competing interests, provide that a particular piece of evidence, though relevant, shall not be liable to be produced or called in evidence.
Such exceptions are to be found, inter alia, in sections 122, 123 124, 126 and 129 of the Indian Evidence Act and sections 162 and 172 of the Criminal Procedure Code But being exceptions to the legitimate demand for reception of all relevant evidence in the interest of justice, they must be strictly interpreted and not expansively construed, "for they are in derogation of the search for truth".
[157 E H, 158 A C] United States vs Nixon, ; 41 Lawyers Edition (2nd series) 1039, quoted with approval.
The Court did not express any opinion regarding the two interesting questions, (i) whether an investigation carried out by a superior officer by virtue of a direction given to him by the State Government under section 3 of the Indian is an investigation under Chapter XII so as to attract the applicability of section 172 to a diary maintained by him in the course of such investigation and (ii) whether the report made by such officer as a result of the investigation carried out by him forms part of case diary within the meaning of section 172 of the Criminal Procedure Code.
[155 D G] 149
|
tition (Crl.) No. 8193A of 1981.
(Under Article 32 of the Constitution of India) R. K Garg, V. J. Francis, Sunil Kumar Jain and D. K Garg for the Petitioner Ranga 59 R. K. Jain and P K. Jain for the Petitioner Billa.
N. C. Talukdar and R. N. Poddar for Respondent No. 1.
L. N. Sinha, Attorney General and Miss A. Subhashini for Attorney General.
K. Parasaran, Solicitor General, M. K. Banerji, Additional Solicitor General and Miss A. Subhashini for Union of India.
N. Nettar for the State of Karnataka.
Raju Ramachandran for Applicant/intervener Chhaganlal Aggarwal.
The Judgment of the Court was delivered by CHANDRACHUD C. J.
The question as regards the scope of the power of the President under article 72 of the Constitution to commute a sentence of death into a lesser sentence may have to await examination on an appropriate occasion.
This clearly is not that occasion because in so far as this case is concerned, whatever be the guidelines observed for the exercise of the power conferred by article 72, the only sentence which can possibly be imposed upon the petitioner is that of death and no circumstances exist for interference with that sentence.
Therefore we see no justification for saying that in refusing to commute the sentence of death imposed upon the petitioner into a lesser sentence, the President has in any manner transgressed his discretionary power under article 72.
Undoubtedly, the President has the power in an appropriate case to commute any sentence imposed by a court into a lesser sentence and as said by Chief Justice Taft in James Shewan & Sons v United States, the "executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law" and that the administration of justice by the courts is not necessarily or certainly considerate of circumstances which may properly mitigate guilt.
But the question as to whether the case is appropriate for the exercise of the power conferred by Article 72 depends upon the facts and circumstances of each particular case.
The necessity or the justification for exercising that power has therefore to be judged from case to case.
In fact, we do not see what useful purpose will be achieved by the petitioner by 60 ensuring the imposition of any severe, judicially evolved constraints on the wholesome power of the President to use it as the justice of a case may require.
After all, the power conferred by Article 72 can be used only for the purpose of reducing the sentence, not for enhancing it.
We need not, however, go into that question elaborately because in so far as this case is concerned, we are quite clear that not even the most liberal use of his mercy jurisdiction could have persuaded the President to interfere with the sentence of death imposed upon the petitioner, in view particularly of the considerations mentioned by us in our judgment in Kuljeet Singh @ Ranga vs Union of India & Anr.
We may recall what we said in that judgment that "the death of the Chopra children was caused by the petitioner and his companion Billa after a savage planning which bears a professional stamp", that the "survival of an orderly society demands the extinction of the life of persons like Ranga and Billa who are a menace to social order and security", and that "they are professional murderers and deserve no sympathy even in terms of the evolving standards of decency of a mature society".
The petition is accordingly dismissed.
We have heard Shri R. K. Jain as amicus on behalf of the accused Billa.
We see no substance in Shri Jain 's contentions also.
The order of stay of execution of the death sentence which we had passed in favour of the accused Ranga and Billa as also the general order of stay are hereby vacated If in any specific case or cases there is an express order of stay, it will not be affected by the order which we are passing today.
S.R. Petition dismissed.
| IN-Abs | Dismissing the petition, the Court ^ HELD: 1.
Whatever be the guidelines observed for the exercise of the power conferred by Article 72 of the Constitution.
the only sentence which can, possibly be imposed upon the petitioner in The instant case, is that of death and no circumstances exist for interference with that sentence.
Not even tho most liberal use of his mercy jurisdiction could have persuaded tho President to interfere with the sentence of death imposed upon the petitioner in view particularly of the considerations mentioned in KS.
Ranga vs Union of India and Anr., [1981] 3 S.C R. 512.
Therefore, in refusing to commute the sentence the death imposed upon the petitioner into a lesser sentence the President has not in any manner transgressed his discretionary power under Article 72.
[59 D E, 60 B C] 2.
Undoubtedly, the President has the power in an appropriate case to commute any sentence imposed by Court into a lesser sentence.
But tho question as to whether the case is appropriate for the exercise of the power conferred by Article 72 depends upon the facts and circumstances of each particular case.
[59 E, G] 3.
After all the power conferred by Article 72 can be used only for the purpose of reducing the sentence, not for enhancing it.
Therefore, no useful purpose will be achieved by the petitioner by ensuring the imposition of any severe, judicially evolved constraints on the wholesome power of the President to use it as the justice of a case may require.
[59 H, 60 A] James Shewan & Sons vs United Stares, ; at 535, referred to.
|
titions Nos 5724, 5874 & 5433 of 1980.
(Under Article 32 of the Constitution of India) R K Garg, V.J. Francis and Sunil R. Jain for the Petitioners in WP.
5724 & 5874 and for interveners 3 12.
N.M. Ghatate, S.V. Deshpande and Shiva Pujan Singh for the petitioner in WP.
L.N. Sinha, Attorney General, K Parasaran, Solicitor General, M.K Banerjee, Additional Solicitor General, KS.
Gurumurthi Miss A. Subhashini and Girish Chandra for Respondent No. 1 in all the WPs.
Subbash C. Maheshwari, Additional, Advocate General, O.P. Rana, Hansraj Bhardwaj and R.K. Bhatt for Respondents 2 & 3 in WP.
5874180.
L.N. Sinha, Attorney General, Ram Balak Mahto, Additional Advocate General, K.G. Bhagat and D. Goburdhan for Respondents 2 & 3 in WP.
5724/80.
For Interveners: V.M. Tarkunde, P.H. Parekh, Miss Manik Tarkunde and R.N, Karanjawala for Intervener No 1.
Bhim Singh intervener No. 2 (in person) Dr. L.M. Singhvi, Anand Prakash, S.N. Kaekar, G. Mukhoty, B.B. Sinha, A.K Srivastava, Randhir Jain, M.L. Lahoty, Kapil Sibal, L K Pandey and S.S. Khanduja for Intervener No. 13.
Mrs. Subhadra Joshi for Intervener No 14.
Ram Jethmalani and Miss Rani Jethmalani for Intervener No, 15.
281 L.N. Sinha, Attorney General and Altaf Ahmed for Inter vener No. 16.
The following Judgments were delivered CHANDRACHUD, C.J. This is a group of Writ Petitions under Article 32 of the Constitution challenging the validity of the National Security ordinance, 2 of 1980, and certain provisions of the , 65 of 1980, which replaced the ordinance.
Writ Petition No. 5724 of 1980 is by Shri A. K. Roy, a Marxist member of the Parliament, who was detained under the ordinance by an order passed by the District Magistrate, Dhanbad, on the ground that he was indulging in activities which were prejudicial to public order.
Ten members of the Parliament, one an Independent and the others belonging to various political parties in opposition applied for permission to intervene in the Writ Petition on the ground that since the ordinance making power of the President is destructive of the system of Parliamentary democracy, it is necessary to define the scope of that power.
We allowed the intervention.
So did we allow the applications for intervention by the People 's Union of Civil Liberties, the Supreme Court Bar Association and the State of Jammu and Kashmir which is interested in the upholding of the Jammu & Kashmir Public Safety Act, 1978.
Shri R.K. Garg argued the Writ Petition, respondents being represented by the Attorney General and the Solicitor General.
After the ordinance became an Act, more writ petitions were filed to challenge the validity of the Act as well.
Those petitions were argued on behalf of the petitioners by Dr N. M. Ghatate, Shri Ram Jethmalani, Shri Shiv Pujan Singh and Shri Kapil Sibal.
Shri V.M. Tarkunde appeared in person for the People 's Union of Civil Liberties and Dr. L.M. Singhvi for the Supreme Court Bar Association.
Broadly, Shri Garg concentrated on the scope and limitations of the ordinance making power, Shri Ram Jethmalani on the vagueness and unreasonableness of the provisions of the Act and the punitive conditions of detention and Dr. Ghatate on the effect of the 44th Constitution Amendment Act and the validity of its section 1(2).
Shri Tarkunde dwelt mainly on the questions relating to the fulfillment of pre conditions of the exercise of the ordinance making power, the effect of non implementation by the Central Government of the provisions of the 44th Amendment regarding the composition of the Advisory Boards and 282 the broad, undefined powers of detention conferred by the Act.
Dr. L.M. Singhvi laid stress on the need for the grant of minimal facilities to detenus, the nature of the right of detenus to make an effective representation against the order of detention and the evils of the exercise of the power to issue ordinances.
The National Security ordinance, 1980, was passed in order "to provide for preventive detention in certain cases end for matters connected therewith.
" It was made applicable to the whole of India except the State of Jammu & Kashmir and it came into force on September 23, 1980.
The Parliament was not in session when it was promulgated and its preamble recites that it was being issued because the "President is satisfied that circumstances exist which render it necessary for him to take immediate action".
Shri R.K. Garg, appearing for the petitioners, challenges the power of the President to issue an ordinance depriving any person of his life or liberty.
He contends: (a) The power to issue an ordinance is an executive power, not a legislative power; (b) Ordinance is not 'law ' because it is not made by an agency created by the Constitution for making laws and no law can be made without the intervention of the legislature; (c) There is a marked shift towards distrust of power in order to preserve the people 's rights and therefore, liberty, democracy and the independence of Judiciary are amongst the principal matters which are outside the ordinance making power; (d) By Article 21 of the Constitution, a person can be deprived of his life or liberty according only to the procedure established by law.
Ordinance is not 'law ' within the meaning of Article 21 and therefore no person can be deprived of his life or liberty by an ordinance; (e) The underlying object of Article 21 is to wholly deny to the executive the power to deprive a person of his life or liberty.
Ordinance making power, which is 283 executive power, cannot therefore be used for that purpose.
The executive cannot resort to the power to make ordinances so as or in order to remove the restraints imposed upon it by Article 21; (f) The procedure prescribed under an ordinance is not procedure established by law because, ordinances have a limited duration in point of time.
The procedure prescribed by an ordinance is neither firm nor certain by reason of which the procedure cannot be said to be 'established '.
From this it follows that no person can be deprived of his life or liberty by procedure prescribed by an ordinance; (g) The power to issue an ordinance is ordaining power of the executive which cannot be used to liberate it from the discipline of laws made by a democratic legislature.
Therefore, the power to issue ordinances can be used, if at all, on a virgin land only.
No ordinance can operate on a subject which is covered by a law made by the legislature; (h) Equating an ordinance made by the executive with a law made by the legislature will violate the principle of separation of powers between the executive and the legislature, which is a part of the basic structure of the Constitution; and (i) Articles 14, 19 and 21 of the Constitution will be reduced to a dead letter if the executive is permitted to take away the life and liberty of the people by an ordinance, lacking the support of a law made by the legislature.
The ordinance making power must, therefore, be construed harmoniously with those and other provisions of the Constitution.
This many pronged attack on the ordinance making power has one central theme: 'ordinance is not law. ' We must therefore consider the basic question as to whether the power to make an ordinance is a legislative power as contended by the learned Attorney General or whether it is an executive power masquerading as a legislative power, as contended on behalf of the petitioners.
284 In support of these submissions Shri Garg relies on many texts and decisions which we need not discuss at length since, primarily, we have to consider the scheme of our Constitution and to interpret its provisions in order to determine the nature and scope of the ordinance making power.
Counsel drew our attention, with great emphasis, to the statements in Montesquieu 's Esprit des lois (1748) and Blackstone 's Commentaries on the laws of England ' (1756) which are reproduced in 'Modern Political Constitution 's by C.F. Strong (8th edition) at page 291.
According to Montesquieu, "when the legislative and executive powers are united in the same person or body of persons there can be no liberty, because of the danger that the same monarch or senate should enact tyrannical laws and execute them in a tyrannical manner.
" Blackstone expresses the same thought by saying that "wherever the right of making and enforcing the law is vested in the same man or one and the same body of men, there can be no public liberty".
Reliance was also placed on views and sentiments expressed to the same effect in Walter Bagehot 's 'The English Constitution (1867), Wade 's Administrative Law ' (3rd edition) pages 323 324, 'Constitutional Laws of the British Empire ' by Jennings and Young, 'Law and orders ' by C.K. Allen (1945) and Harold 'Laski 's Liberty in the Modern State ' (1961).
According to Laski (pages 42 43).
". if in any state there is a body of men who possess unlimited political power, those over whom they rule can never be free.
For the one assured result of historical investigation is the lesson that uncontrolled power is invariably poisonous to those who possess it.
They are always tempted to impose their canon of good upon others, and, in the end, they assume that the good of the community depends upon the continuance of their power.
Liberty always demands a limitation of political authority, and it is never attained unless the rulers of a state can, where necessary, be called to account.
That is why Pericles insisted that the secret of liberty is courage." Finally, counsel drew on Jawaharlal Nehru 's Presidential Address to the Lucknow Congress (April 19, 1936) in which he referred to the rule by ordinances as "the humiliation of ordinances" (Selected Works of Jawaharlal Nehru, volume 7, page 183).
We are not, as we cannot be, unmindful of the danger to people 's liberties which comes in any community from what is 285 called the tryanny of the majority.
Uncontrolled power in the executive is a great enemy of freedom and therefore, eternal vigilance is necessary in the realm of liberty.
But we cannot transplant, in the Indian context and conditions, principles which took birth in other soils, without a careful examination of their relevance to the interpretation of our Constitution.
No two Constitutions are alike, for it is not mere words that make a Constitution.
It is the history of a people which lends colour and meaning to its Constitution.
We must therefore turn inevitably to the historical origin of the ordinance making power conferred by our Constitution and consider the scope of that power in the light of the restraints by which that power is hedged.
Neither in England nor in the United States of America does the executive enjoy anything like the power to issue ordinances.
In India, that power has a historical origin and the executive, at all times, has resorted to it freely as and when it considered it necessary to do so.
One of the larger States in India has manifested its addiction to that power by making an overgenerous use of it so generous indeed, that ordinances which lapsed by efflux of time were renewed successively by a chain of kindred creatures, one after another.
And, the ordinances embrace everything under the sun, from Prince to pauper and crimes to contracts.
The Union Government too, so we are informed, passed about 200 ordinances between 1960 and 1980, out of which 19 were passed in 1980.
Our Constituent Assembly was composed of famous men who had a variegated experience of life.
They were not elected by the people to frame the Constitution but that was their strength, not their weakness.
They were neither bound by a popular mandate nor bridled by a party whip.
They brought to bear on their task their vast experience of life in fields social, economic and political.
Their deliberation, which run into twelve volumes, are a testimony to the time and attention which they gave with care and concern to evolving a generally acceptable instrument for the regulation of the fundamental affairs of the country and the life and liberty of its people.
The Constituent Assembly had before it the Government of India Act, 1935 and many of its members had experienced the traumas and travails resulting from the free exercise of the ordinance making power conferred by that Act.
They were also aware that such a power was not claimed by the Governments of two lading democracies of the world, the English and the American, 286 And yet, they took the Government of India Act of 1935 as their model, Section 42 of that Act ran thus: Power of "42(1) If at any time when the Federal Legis Governer lature is not in section the Governor General to General is satisfied that circumstances promulgate exist which render it necessary for him ordinances to take immediate action, he may during recess promulgate such ordinances as the of Legisla circumstances appear to him to require: ture.
Provided that the Governor General (a) . (b) . (2) An ordinance promulgated under this section shall have the same force and effect as an Act of the Federal Legislature assented to by the Governor General, but every such ordinance (a) shall be laid before the Federal Legislature and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or, if before the expiration of that period resolutions disapproving it are passed by both Chambers, upon the passing of the second of those resolutions; (b) shall be subject to the provisions of this Act relating to the power of His Majesty to disallow Acts as is it were an Act of the Federal Legislature assented to by the Governor General; and (c) may be withdrawn at any time by the Governor General.
287 (3) If and so far as an ordinance under this section makes any provision which the Federal Legislature would not under this Act be competent to enact, it shall be void".
Section 43 conferred upon the Governor General the power to issue ordinances for the purpose of enabling him satisfactorily to discharge his functions in so far as he was by or under the Act required to act in his discretion or to exercise his individual judgment.
Article 123, which confers the power to promulgate ordinances, occurs in Chapter III of Part V of the Constitution, called "Legislative Power of the President".
It reads thus: Power of "123 (1) If at any time, except when both Houses President of Parliament are in session, the to promul President is satisfied that gate Ordi circumstances exist which render it nances necessary for him to take immediate during action, he may promulgate such recess of ordinances as the circumstances appear parliament.
recess of to him to require.
(2) An ordnance promulgated under this Article shall have the same force and effect as an Act of Parliament, but every such ordinance (a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and (b) may be withdrawn at any time by the President.
288 Explanation Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.
" Article 213, which occurs in Part VI, Chapter IV, called "Legislative Power of the Governor ' ' confers similar power on the Governors of States to issue ordinances.
As we have said earlier while setting out the petitioner s case, the thrust of his argument is that the power to issue an ordinance is 7 Dan executive power, not a legislative power, and consequently, is not law.
In view of the clear and specific provisions of the Constitution bearing upon this question, it is quite impossible to accept this argument.
The heading of Chapter III of Part V is 'Legislative Powers of the President".
Clause (2) of Article 123 provides that an ordinance promulgated under Article 123 "shall have the same force and effect as an Act of Parliament".
The only obligation on the Government is to lay the ordinance before both Houses of Parliament and the only distinction which the Constitution makes between a law made by the Parliament and an ordinance issued by the President is that whereas the life of a law made by the Parliament would depend upon the terms of that law, an ordinance, by reason of sub clause (a) of clause (2), ceases to operate at the expiration of six weeks from the reassembly of Parliament, unless resolutions disapproving it are passed by both Houses before the expiration of that period.
Article 13 (2) provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this provision shall, to the extent of the contravention, be void.
Clause (3) of Article 13 provides that in Article 13, "law" includes, inter alia, an ordinance, unless the context otherwise requires.
In view of the fact that the context does not otherwise so require, it must follow from the combined operation of clauses (2) 'and (3) of Article 13 that an ordinance 289 issued by the President under Article 123, which is equated by clause (2) of that article with an Act of Parliament, is subject to the same constraints and limitations as the latter.
Therefore, whether the legislation is Parliamentary or Presidential, that is to say, whether it is a law made by the Parliament or an ordinance issued by the President, the limitation on the power is that the fundamental rights conferred by part III cannot be taken away or abridged in the exercise of that power.
An ordinance, like a law made by the Parliament, is void to the extent of contravention of that limitation ' The exact equation, for all practical purposes, between a law made by the Parliament and an ordinance issued by the President is emphasised by yet another provision of the Constitution.
Article 367 which supplies a clue to the "Interpretation" of the Constitution provides by clause (2) that "Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the Legislature of a State, shall be construed as including a reference to an ordinance made by the President or, to an ordinance made by a Governor, as the case may be.
" It is clear from this provision, if indeed there was any doubt about the true position, that the Constitution makes no distinction in principle between a law made by the legislature and an ordinance issued by the President.
Both, equally, are products of the exercise of legislative power and, therefore, both are equally subject to the limitations which the Constitution has placed upon that power.
It may sound strange at first blush that the executive should possess legislative powers, but a careful look at our Constitution will show that the scheme adopted by it envisages the exercise of legislative powers by the executive in stated circumstances.
An ordinance can be issued by the President provided that both Houses of the Parliament are not in session and the President is satisfied that circumstances exist which render It necessary for him to take immediate action An ordinance which satisfies these pre conditions has the same force and effect as an Act of Parliament.
Article 356 empowers the President to issue a proclamation in case of failure of constitutional machinery in the States.
By Article 357 (I) (a), if by a proclamation issued under Article 356 (1) it has been declared that the powers of the Legislature of the State shall be 290 exercisable by or under the authority of Parliament, it is competent for the Parliament to confer on the President the power of the Legislature of the State to make laws.
Indeed, by the aforesaid clause (a), the Parliament can not only confer on the President the power of the State Legislature to make laws but it can even authorise the President to delegate the power so conferred to any authority to be specified by him in that behalf.
The marginal note to Article 357 speaks of the "Exercise of Legislative powers" under the proclamation issued under Article 356.
There cannot be the slightest doubt that not only the power exercised by the President under Article 357(1 )(a) but even the power exercised by his delegate under that clause is legislative in character.
It is therefore not true to say that, under our Constitution, the exercise of legislative power by the legislature properly so called is the only source of law.
Ordinances issued by the President and the Governors and the laws made by the President or his delegate under Article 357 (1) (a) partake fully of legislative character and are made in the exercise of legislative power, within the contemplation of the Constitution.
It is thus clear that the Constituent Assembly was of the view that the President 's power to legislate by issuing an ordinance is as necessary for the peace and good government of the country as the Parliament 's power to legislate by passing laws.
The mechanics of the President 's legislative power was devised evidently in order to take care of urgent situations which cannot brook delay.
The Parliamentary process of legislation is comparatively tardy and can conceivably be time consuming.
It is true that it is not easy to accept with equanimity the preposition that the executive can indulge in legislative activity but the Constitution is what it says and not what one would like it to be.
The Constituent Assembly indubitably thought, despite the strong and adverse impact which the Governor General 's ordinance making power had produced on the Indian Community in the pre indepence era, that it was necessary to equip the president with legislative powers in urgent situations.
After all, the Constitution makers had to take into account life 's realities.
As observed by Shri Seervai in 'Constitutional Law of India ' (2nd Ed., p. 16), "Grave public inconvenience would be caused if on an Act, like the Bombay Sales Tax Act, being declared void no machinery, existed whereby a valid law could be promptly promulgated to take the place of the law declared void".
Speaking for 291 the majority in R.C. Cooper vs Union of India(l), Shah J. said: "The President is under the Constitution not the repostory of the legislative power of the Union, but with a view to meet extraordinary situations demanding immediate enactment of laws, provision is made in the Constitution investing, the President with power to legislate by promulgating ordinances." The Constituent Assembly therefore conferred upon the executive the power to legislate, not of course intending that the said power should be used recklessly or by imagining a state of affairs to exist when, in fact, it did not exist; nor, indeed, intending that it should be used mala fide in order to prevent the people 's elected representatives from passing or rejecting a Bill after a free and open discussion, which is of the essence of democratic process.
Having conferred upon the executive the power to legislate by ordinances, if the circumstances were such as to make the exercise of that power necessary, the Constituent Assembly subjected that power to the self same restraints to which a law passed by the legislature is subject.
That is the compromise which they made between the powers of Government and the liberties of the people.
Therefore, in face of the provisions to which we have already referred, it seems to us impossible to accept Shri Garg 's contention that a ordinance made by the President is an executive and not a legislative act.
An ordinance issued by the President or the Governor is as much law as an Act passed by the Parliament and is, fortunately and unquestionably, subject to the same inhibitions.
In those inhibitions, lies the safety of the people.
The debates of the Constituent Assembly (Vol. 8, Part V, Chapter III, pp 201 to 217) would show that the power to issue ordinances was regarded as a necessary evil.
That power was to be used to meet extra ordinary situations and not perverted to serve political ends.
The Constituent Assembly held forth, as it were, an assurance to the people that an extraordinary power shall not be used in order to perpetuate a fraud on the Constitution which is conceived with so much faith and vision.
That assurance must in all events be made good and the balance struck by the founding fathers between the powers of the Government and the liberties of the people not disturbed or destroyed.
The next contention of Shri Garg is that even assuming that the power to issue ordinances is legislative and not executive in character, ordinance is not 'law ' within the meaning of Article 21 of 292 the Constitution.
That article provides that "No person shall be deprived of his life or personal liberty except according to procedure established by law".
It is contended by the learned counsel that the decision of this Court in A. K. Gopalan(1) establishes that the supremacy of the legislature is enshrined in Article 21 as a fundamental right in order to afford protection to the life and liberty of the people R against all executive powers and, therefore, the supremacy of the legislature cannot be replaced by making the executive supreme by allowing it to promulgate ordinances which have the effect of depriving the people of their life and liberty.
The extent of protection afforded to the right conferred by Article 21 consists, according to counsel, in the obligation imposed upon a democratic legislature to devise a fair, just and reasonable procedure for attenuating the liberties of the people.
Since the very object of Article 21 is to impose restrains on the power of the executive in the matter of deprivation of the life and liberty of the people, it is absurd, so the argument goes, to concede to the executive the power to deprive the people of the right conferred by Article 21 by issuing an ordinance.
The argument, in other words is that the executive cannot under any conditions or circumstances be permitted to liberate itself from the restraints of Article 21.
Shri Garg says that if ordinances are not excluded from the precious area of life and liberty covered by Article 21, it is the executive which will acquire the right to trample upon the freedoms of the people rather than the people acquiring the fundamental right to life and liberty.
It is also urged that by elevating ordinances into the status of laws, the principle of separation of powers, which is a part of the basic structure of the Constitution, shall have been violated.
An additional limb of the argument is that an ordinance can never be said to 'establish ' a procedure, because it has a limited duration and it transient in character.
In one sense, these contentions of Shri Garg stand answered by what we have already said about the true nature and character of the ordinance making power.
The contention that the word 'law ' in Article 21 must be construed to mean a law made by the legislature only and cannot include an ordinance, contradicts directly the express provisions of Articles 123 (2) and 367(2) of the Constitution.
Besides, if an ordinance is not law within the meaning of Article 21, it will stand released from the wholesome and salutary restraint imposed upon the legislative power by Article 13(2) of the Constitution.
293 The contention that the procedure prescribed by an ordinance cannot be equated with the procedure established by law is equally unsound.
The word 'established ' is used in Article 21 in order to denote and ensure that the procedure prescribed by the law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the precise extent of such deprivation.
The decision of this Court in State of Orissa vs Bhupendra Kumar Bose(1), and Mohammadbhai Khudabux Chhipa & Anr.
vs The State of Gujarat & Anr(2), illustrate that enduring rights and obligations can be created by ordinances.
The fact that any particular law has a temporary duration is immaterial for the purposes of Article 21 so long as the procedure prescribed by it is definite and reasonably ascertainable.
In fact, the Preventive Detention laws were in their inception of a temporary character since they had a limited duration.
They were only extended from time to time.
The argument of the petitioner that the fundamental right conferred by Article 21 cannot by taken away by an ordinance really seeks to add a proviso to Article 123(1) to the following effect: "Provided that such ordinances shall not deprive any person of his right to life or personal liberty conferred by Article 21 of the Constitution."; An amendment substantially to that effect was moved in the Constituent Assembly by Shri B. Pocker Sahib, but was rejected by the Constituent Assembly, (see Constituent Assembly Debates, Vol. 8, p. 203).
Speaking on the amendment moved by Shri Pocker Dr. Ambedkar said: "Clause (3) of Article 102 lays down that any law made by the President under the provisions of Article 102 shall be subject to the same limitations as a law made by the legislature by the ordinary process.
Now, any law made in the ordinary process by the legislature is made subject to the provisions contained in the Fundamental Rights articles of this Draft Constitution.
That being so, any law made under the provisions of Article 102 would also be automatically subject to the provisions relating to fundamental rights of citizens, and any such law therefore will not be able to over ride those provisions and there is no need for any provision as was suggested by my friend, Mr. Pocker in his amendment No. 1796" (page 214).
It may be mentioned that Draft Article 102 corresponds to the present Article 123 of the Constitution.
294 Another answer to Shri Garg 's contention is that what Article 21 emphasise is that the deprivation of the right to life or liberty must be brought about by a State made law and not by the rules of natural law (See A.K Gopalan (supra) at pages 111, 169, 199, 229, 236 and 308, 309).
Reference may usefully be made in this behalf to a few representative decisions which illustrate that Article 21 takes in laws other than those enacted by the legislature.
In Re: Sant Ram(1), the Rules made by the Supreme Court; in State of Nagaland vs Ratan Singh,(2) the Rules made for the governance of Nagaland Hills District; in Govind vs State of Madhya Pradesh & Anr.(3) the Regulations made under the Police Act; in Ratilal Bhanji Mithani vs Asitt.
Collector of Customs, Bombay & Anr.
,(4) the Rules made by the High Court under Article 225 of the Constitution; and in Pandit M.S.M. Sharma vs Shri SriKrishna Sinha & Anr.(5), the Rules made by a House of Legislature under Article 208, were all regarded as lying down procedure established by 'law ' for the purposes of Article 21.
We must therefore reject the contention that ordinance is not 'law ' within the meaning of Article 21 of the Constitution.
There is no substance in the argument that the ordinance making power, if extended to cover matters mentioned in Article 21, will destroy the basic structure of the separation of powers as envisaged by the Constitution.
In the first place, Article 123(1) is a part of the Constitution as originally enacted; and secondly, our Constitution does not follow the American pattern of a strict separation of powers.
We may here take up for consideration some of the submissions made by Shri Tarkunde on the validity of the National Security ordinance.
He contends that the power to issue an ordinance under Article 123 is subject to the pre conditions that circumstances must exist which render it necessary for the president to take immediate action.
The power to issue an ordinance is conferred upon the President in order to enable him to act in unusual and exceptional circumstances.
Therefore, according to Shri Tarkunde, unusual and exceptional circumstances must be show to exist, they must be relevant on the question of the necessity to issue an ordinance and 295 they must be such as to satisfy a reasonable person that, by A reason thereof it was necessary to take immediate action and issue all ordinance.
The legislative power to issue an ordinance being conditional, the question as regards the existence of circumstances which compelled the issuance of ordinance is justiciable and it is open to this Court, says Shri Tarkunde, to determine whether the power was exercised on the basis of relevant circumstances which establish the necessity to take immediate action or whether it was exercised for a collateral purpose.
In support of this contention, Shri Tarkunde relies on the circumstance that the amendment introduced in Article 123 by the 38th Constitution Amendment Act, 1975, was deleted by the 44th Constitution Amendment Act, 1978.
Section 2 of the 38th Amendment Act introduced clause (4) in Article 123 to the following effect: "Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground.
" This amendment was expressly deleted by section 16 of the 44th Amendment Act.
Shri Tarkunde says that the deletion of the particular clause is a positive indication that the Parliament did not consider it safe or proper to entrust untrammeled powers to the executive to issue ordinances.
It therefore decided that the President 's satisfaction should not be "final and conclusive" and that it should be open to judicial scrutiny.
Shri Tarkunde added that the exercise of a conditional power is always subject to the proof of conditions and no distinction can be made in this regard between conditions imposed by a statute and conditions imposed by a constitutional provision.
Relying on section 106 of the Evidence Act, Shri Tarkunde says that circumstances which necessitated the passing of the ordinance being especially within the knowledge of the executive, the burden lies upon it to prove the existence of those circumstances.
It is strongly pressed upon us that we should not avoid the decision of these points on the plea that they involve political questions.
Shri Tarkunde distinguishes the decision in the Rajasthan Assembly Dissolution Case(2) on this aspect by saying that Article 356 which was under consideration in that case uses language which 296 is much wider than that of Article 123.
He relies on Seervai 's observation in the Constitutional Law of India ' (2nd Edition, Volume III pages 1795 and 1797) to the effect that "there is no place in our Constitution for the doctrine of The political question ' ', since that doctrine is based on, and is a consequence of, a rigid separation of powers in the U.S Constitution and our Constitution is not based on a rigid separation of powers.
Reliance is placed by Shri Tarkunde on the decision in the Privy Purse case(1) in which Shah, J. Observed that "Constitutional mechanism in a democratic polity does not contemplate existence of any function which may qua the citizens be designated as political and orders made in exercise whereof are not liable to be tested for their validity before the lawfully constituted courts".
In the same case Hegde J., said that "There is nothing like a political power under our Constitution in the matter of relationship between the executive and the citizens ' We see the force of the contention that the question whether the pre conditions of the exercise of the power conferred by Article 123 are satisfied cannot be regarded as a purely political question.
The doctrine of the political question was evolved in the United States of America on the basis of its Constitution which has adopted the system of a rigid separation of powers, unlike ours.
In fact, that is one of the principal reasons why the U.S. Supreme Court had refused to give advisory opinions.(2) In Baker vs Carr(3) Brennan J. said that the doctrine of political question was "essentially a function of the separation of powers".
There is also a sharp difference in the position and powers of the American President on one hand and the President of India on the other.
The President of the United States exercises executive power in his own right and is responsible not to the Congress but to the people who elect him.
In India, the executive power of the Union is vested in the President of India, but he is obliged to exercise it on the aid and advice of his Council of Ministers.
The President 's "satisfaction" is therefore nothing but the satisfaction of his Council of Ministers in whom the real executive power resides.
It must also be mentioned that in the United States itself, the doctrine of the political question has come under a cloud and has been the subject matter of adverse criticism 297 It is said that all that the doctrine really means is that in the exercise of the power of judicial review, the courts must adopt a 'prudential ' attitude, which requires that they should be wary of deciding upon the merit of any issue in which claims of principle as to the issue and claims of expediency as to the power and prestige of courts are in sharp conflict.
The result, more or less, is that in America the phrase "political question" has become "a little more than a play of words".
The Rajasthan case is often cited as an authority for the proposition that the courts ought not to enter the "polical thicket".
It has to be borne in mind that at the time when that case was decided, Article 356 contained clause (5) which was inserted by the 38th Amendment, by which the satisfaction of the President mentioned in clause (1) was made final and conclusive and that satisfaction was not open to be questioned in any court on any ground.
Clause (5) has been deleted by the 44th Amendment and, therefore, any observations made in the Rajasthan case on the basis of that clause cannot any longer hold good.
It is arguable that the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President 's satisfaction.
There are, however, two reasons why we do not propose to discuss at greater length the question as regards the justiciabilty of the President 's satisfaction under Article 123 (1) of the Constitution.
In the first place, the ordinance has been replaced by an Act.
It is true, as contended by Shri Tarkunde, that if the question as regards the justiciability of the President 's satisfaction is not to be considered for the reason that the ordinance has become an Act the occasion will hardly ever arise for considering that question, because, by the time the challenge made to an ordinance comes up for consideration before the Court, the ordinance almost invariably shall have been replaced by an Act.
All the same, the position is firmly established in the field of constitutional adjudiction that the Court will decide no more than needs to be decided in any particular case.
Abstract questions present interesting challenges, but it is for scholars and text book writers to unravel their mystique.
It is not for the courts to decide questions which are but of academic importance.
The other reason why we are not inclined to go into the question as regards the justiciability of the President 's satisfaction under 298 Article 123 (1) is that on the material which is placed before us, it is impossible for us to arrive at a conclusion one way or the other.
We are not sure whether a question like the one before us would be governed by the rule of burden of proof contained in section 106 of the Evidence Act, though we are prepared to proceed on the basis that the existence of circumstances which led to the passing of the ordinance is especially within the knowledge of the executive.
But before casting the burden on the executive to establish those circumstances, at least a prima facie case must be made out by the challenger to show that there could not have existed any circumstances necessitating the issuance of the ordinance.
Every casual or passing challenge to the existence of circumstances, which rendered it necessary for the President to take immediate action by issuing an ordinance, will not be enough to shift the burden of proof to the executive to establish those circumstances.
Since the petitioners have not laid any acceptable foundation for us to hold that no circumstances existed or could have existed which rendered it necessary for the President to take immediate action by promulgating the impugned ordinance, we are unable to entertain the contention that the ordinance is unconstitutional for the reason that the pre conditions to the exercise of the power conferred by Article 123 are not fulfilled.
That is why we do not feel called upon to examine the correctness of the submission made by the learned Attorney General that in the very nature of things, the "satisfaction" of the President which is the basis on which he promulgates an ordinance is founded upon materials which may not be available to others and which may not be disclosed without detriment to public interest and that, the circumstances justifying the issuance of the ordinance as well as the necessity to issue it lie solely within the President 's judgment and are, therefore, not justiciable.
The two surviving contentions of Shri Garg that the power to issue an ordinance can operate on a virgin land only and that Articles 14, 19 and 21 will be reduced to a dead letter if the executive is permitted to take away the life or liberty of the people by an ordinance, need not detain us long.
The Constitution does not impose by its terms any inhibition on the ordinance making power that it shall not be used to deal with a subject matter which is already covered by a law made by the Legislature.
There is no justification for imposing any such restriction on the ordinance making power, especially when an ordinance, like any law made by the Legislature, has to comply with the mandate of Article 13 (2) 299 of the Constitution.
Besides, legislative activity, properly so called, has proliferated so enormously in recent times that it is difficult to discover a virgin land or a fresh field on which the ordinance making power can operate, as if on a clean slate.
To day, there is possibly no subject under the sun which the Legislature has not touched.
As regards Articles 14, 19 and 21 being reduced to a dead letter, we are unable to appreciate how an ordinance which is subject to the same constraints as a law made by the Legislature can, in its practical operation, result in the obliteration of these articles.
The answer to this contention is again to be found in the provisions contained in Article 13 (2).
That disposes of the contentions advanced by the various parties on the validity of the ordinance.
We must mention that in a recent judgment dated October 20, 1981 delivered by a Constitution Bench of this Court in Writ Petition No. 355 of 1981 (the Bearer Bonds case(1), the question as regards the nature and scope of the ordinance making power has been discussed elaborately.
We adopt the reasoning of the majority judgment in that case.
The argments advanced on behalf of the various petitioners can be broadly classified under six heads: (1) The scope, limits and justiciability of the ordinance making power; (2) The validity of Preventive Detention in the light of the severe deprivation of personal liberty which it necessarily entails; (3) The effect of the non implemention of the 44th Amendment in so far as it bears upon the Constitution of the Advisory Boards; (4) The vagueness of the provisions of the , authorizing the detention of persons for the reasons mentioned in section 3 of the Act; (5) The unfairness and unreasonableness of the procedure before the Advisory Boards: and (6) The unreasonableness and harshness of the conditions of detention.
We have dealt with the first question fully though the impugned ordinance has been replaced by an Act, since the question was argued over several days and arises frequently as frequently as ordinances are issued.
All that needs have been said was said on that question by the various counsel and the relevant data was fully placed before us.
We will now turn to the 300 second question relating to the validity of Preventive Detention as a measure for regulating the liberties of the subject.
There can be no doubt that personal liberty is a precious right.
So did the founding fathers believe at any rate because, while their first object was to give unto the people a Constitution whereby a Government was established, their second object, equally important, was to protect the people against the Government.
That is why, while conferring extensive powers on the Governments like the power to declare an emergency, the power to suspend the enforcement of fundamental rights and the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental.
The imperative necessity to protect those rights is a lesson taught by all history and all human experience.
Our Constitution makers had lived through bitter years and seen an alien government trample upon human rights which the country had fought hard to preserve.
They believed like Jefferson that "an elective despotism was not the government we fought for. ' ' And therefore, while arming the government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people.
But, the liberty of the individual has to be subordinated, within reasonable bounds, to the good of the people.
Therefore, acting in public interest, the Constituent Assembly made provisions in Entry 9 of List I and Entry 3 of List III, authorising the Parliament and the State legislatures by Article 246 to pass laws of preventive detention.
These entries read thus: Entry 9, List I: "Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India ' persons subjected to such detention. ' ' Entry 3, List III: "Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention.
" 301 The practical need and reality of the laws of preventive detention find concrete recognition in the provisions of Article 22 of the Constitution.
Laws providing for preventive detention are expressly dealt with by that article and their scope appropriately defined.
"The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted.
If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited. . ,it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions" (see The Queen vs Burah.
The legislative power in respect of preventive detention is expressly limited to the specific purpose mentioned in Entry 9, List I and Entry 3, List III.
It is evident that the power of preventive detention was conferred by the Constitution in order to ensure that the security and safety of the country and the welfare of its people are not put in peril.
So long as a law of preventive detention operates within the general scope of the affirmative words used in the respective entries of the union and concurrent lists which give that power and so long as it does not violate any condition or restriction placed upon that power by the Constitution, the Court cannot invalidate that law on the specious ground that it is calculated to interfere with the liberties of the people.
Khanna J., in his judgment in the Habeas Corpus case has dwelt upon the need for preventive detention in public Interest.
The fact that England and America do not resort to preventive detention in normal times was known to our Constituent Assembly and yet it chose to provide for it, sanctioning its use for specified purposes.
The attitude of two other well known democracies to preventive detention as a means of regulating the lives and liberties of the people was undoubtedly relevant to the framing of our Constitution.
But the framers having decided to adopt and legitimise it, we cannot declare it unconstitutional by importing our notions of what is right and wrong.
The power to judge the fairness and 302 justness of procedure established by a law for the purposes of Article 21 is one thing: that power can be spelt out from the language of that article.
Procedural safeguards are the handmaids of equal justice and since, the power of the government is colossal as compared with the power of an individual, the freedom of the individual can be safe only if he has a guarantee that he will be treated fairly.
The power to decide upon the justness of the law itself is quite another thing: that power springs from a 'due process ' pro vision such as is to be found in the 5th and 14th Amendments of the American Constitution by which no person can be deprived of life, liberty or property "without due process of law".
In so far as our Constitution is concerned, an amendment was moved by Pandit Thakur Dass Bhargava to draft Article 15, which corresponds to Article 21 of the Constitution, for substituting the words "without due process of law" for the words "except according to procedure established by law".
Many members spoke on that amendment on December 6, 1948, amongst whom were Shri K.M. Munshi, who was in favour of the amendment, and Sir Alladi Krishnaswamy Ayyar who, while explaining the view of the Drafting Committee, said that he was "still open to conviction".
The discussion of the amendment was resumed by the Assembly on December 13, 1948 when, Dr. Ambedkar, who too had an open mind on the vexed question of 'due process ', said: ".
I must confess that I am somewhat in a difficult position with regard to article 15 and the amendment moved by my friend Pandit Bhargava for the deletion of the words "procedure according to law" and the substitution of the words "due process".
"The question of "due process" raises, in my judgment, the question of the relationship between the legislature and the judiciary.
in a federal constitution, it is always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legislature.
The 'due process ' clause, in my judgment, would give the judi 303 ciary the power to question the law made by, the legislature on another ground.
That ground would be whether that law is in keeping with certain fundamental principles relating to the rights of the individual.
In other words, the judiciary would be endowed with the authority to question the law not merely on the ground whether it was in excess of the authority of the legislature, but also on the ground whether the law was good law, apart from the question of the powers of the legislature making the law.
The question now raised by the introduction of the phrase 'due process ' is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles.
"There are dangers on both sides.
For myself I cannot altogether omit the possibility of a Legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual.
At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad.
It is a rather a case where a man has to sail between Charybdis and Seylla and I therefore would not say anything.
I would leave it to the House to decide in any way it likes." (See Constituent Assembly Debates Vol.
VII, pp.
999 1001) The amendment was then put to vote and was negatived.
In view of this background and in view of the fact that the Constitution, as originally conceived and enacted, recognizes preventive detention as a permissible means of abridging the liberties of the people, though subject to the limitations imposed by Part III, we must reject the contention that preventive detention is basically impermissible under the Indian Constitution.
The third contention centres around the 44th Constitution Amendment Act, 1978, with particular reference to section 1(2) and section 3 thereof.
Section 1 reads thus 304 "1.
Short title and commencement. (1) This Act may be called the Constitution (Forty fourth Amendment) Act, 1978.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act.
" Section 3 reads thus: "3.
Amendment of article 22.
In article 22 of the Constitution. (a) for clause (4), the following clause shall be substituted, namely: "(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than two months unless an Advisory Board constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court has reported before the expiration of the said period of two months that there is in its opinion sufficient cause for such detention: Provided that an Advisory Board shall consist of a Chairman and not less than two other members, and the Chairman shall be a serving Judge of the appropriate High Court and the other members shall be serving or retired Judges of any High Court: Provided further that nothing in this clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (a) of clause (7).
Explanation.
In this clause, 'appropriate High Court ' means, (i) in the case of the detention of a person in pursuance of an order of detention made by the Government of 305 India or an officer or authority subordinate to that Government, the High Court for the Union territory of Delhi; (ii) in the case of the detention of a person in pursuance of an order of detention made by the Government of any State (other than a Union territory), the High Court for that State; and (iii) in the case of the detention of a person in pursuance of an order of detention made by the administrator or a Union territory or an officer or authority subordinate to such administrator, such High Court as may be specified by or under any law made by Parliament in this behalf".
(b) in clause (7), (i) sub clause (a) shall be omitted; (ii) sub clause (b) shall be re lettered as sub clause (a); and (iii) sub clause (c) shall be re lettered as sub clause (b) and in the sub clause as so relettered, for the words, brackets, letter and figure "sub clause (a) of clause (4)", the word, brackets and figure "clause (4)" shall be substitued.
" Clause (4) of Article 22 of the Constitution to which the above amendment was made by the 44th Amendments reads thus: "22.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention 306 Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause (7): or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7).
" Clause (7) of Article 22 to which also amendment was made by the 44th Amendment reads thus "22.
(7) Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) clause (4); (b) the maximum period for which any person may in any class or classes of case be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause (4).
" The 44th Amendment Act received the assent of the President under Article 368 (2) on April 30, 1979.
Most of the provisions of the 44th Amendment were brought into force with effect from June 20, 1979 by a notification issued by the Central Government on June 19.
The rest of the provisions of the Amendment were brought into force with effect from August 1, 1979 except section 3 whereby Article 22 was amended, which has not yet been brought into force.
The position, as it stands today from the Government 's point of view, is that advisory Boards can be constituted to consist of persons who are, or have been, or are qualified to the appointed as, Judges of a High Court in accordance with the provisions of Article 22 (4) (a) in its original form, The amendment made to that article by section 3 of the 44th Amendment not 307 having been brought into force by the Central Government by issuing a notification under section 1(2), it is not necessary, according to the Union Government, to constitute Advisory Boards in accordance with the recommendation of the Chief Justice of the appropriate High Court and consisting of a Chairman and not less than two other Members, the Chairman being a serving Judge of the appropriate High Court and the other Members being serving or retired Judges of any High Court.
Before adverting to the arguments advanced before us on the question of the 44th Amendment, it must be mentioned that the National Security ordinance which came into force on September 22, a 1980 provided by clause (9) for the constitution of Advisory Boards strictly in accordance with the provisions of section 3 of the 44th Amendment Act, in spite of the fact that the aforesaid section was not brought into force.
The was passed on December 27, 1980 replacing the ordinance retrospectively.
Section 9 of the Act makes a significant departure from clause (9) of the ordinance by providing for the constitution of Advisory Boards in accordance with Article 22(4) in its original form and not in accordance with the amendment made to that article by section 3 of the 44th Amendment Act.
The arguments advanced before us by various counsel, bearing on the 44th Amendment have different facets and shall have to be considered separately.
The main thrust of Dr. Ghatate 's argument is that the Central Government was under an obligation to bring section 3 of the 44th Amendment into force within a reasonable time after the President gave his assent to the Amendment and since it has failed so far to do so, this Court must, by a mandamus, ask the Central Government to issue a notification under section 1(2) of the Amendment, bringing it into force without any further delay.
Alternatively, Dr. Ghatate contends that clause (2) of section I of the 44th Amendment is ultra vires the amending power conferred upon the Parliament by Article 368 of the Constitution.
He argues: The power to amend the Constitution is vested in the Parliament by Article 368, which cannot be delegated to the executive.
By such delegation, the Parliament has created a parallel constituent body which is impermissible under the terms of Article 368.
Sub section (2) of section I of the 44th Amendment Act vests an uncontrolled power in the executive to amend the Constitution at its sweet will, which is violative of the basic structure of the Constitution.
Section 308 1(2) is also bad because by conferring an unreasonable, arbitrary and unguided power on the executive, it violates Articles 14 and 19 which are in integral part of the basic structure of the Constitution.
Shri Tarkunde does not ask for a mandamus, compelling the Central Government to bring section 3 of the 44 the Amendment 13 Act into force.
He challenges the Central Government 's failure to bring section 3 into force as mala fide and argues: By refusing to bring section 3 into force within a reasonable time without any valid reason, the Central Government has flouted the constituent decision of the Parliament arbitrarily, which is violative of Article 21.
No law of preventive detention can be valid unless it complies with Article 22 of the Constitution, particularly with clause (4) of that Article.
Since the does not provide for the constitution of Advisory Boards in accordance with section 3 of the 44th Amendment Act, the whole Act is bad.
There was an obligation upon the Central Government to bring the whole of the 44th Amendment into force within a reasonable time, since section 1 (2) cannot be construed as conferring a right of veto on the executive to nullify or negate a constitutional amendment.
The bringing into force of a constitutional amendment when such power is left to the executive, may be conceivably deferred for reasons arising out of the inherent nature of the provisions which are to be brought into force.
But the executive cannot defer or postpone giving effect to a constitutional amendments for policy reasons of its own which are opposed to the policy of the constituent body as reflected in the constitutional amendment.
The fact that the National Security Ordinance provided by clause (9) for the constitution of Advisory Boards in accordance with the provisions of the 44th Amendment shows that no administrative difficulty was envisaged or felt in bringing the particular provision into force.
The dissolves the Advisory Boards Constituted under the ordinance in accordance with the 44th Amendment and substitutes them by Advisory Boards whose composition is contrary to the letter and spirit of that Amendment.
Shri Jethamalani, like Shri Tarkunde, relies upon the provisions of the 44th Amendment in regard to the constitution of Advisory Boards in support of the contention that the is bad for not compliance with section 3 of the Amendment, despite the fact that the said section has not been brought into force.
No Act passed by a legislature, according to Shri Jethamalani, can flout the constituent view or decision of the Parliament, whether or not 309 the Constitutional Amendment has been brought into force.
In any event, contends the learned counsel, even if section 3 of the 44th Amendment Act has not been brought into force, the wisdom of that Amendment, in so far as it bears on the composition of Advisory Boards, is available to the Court.
The view of the Constituent body on that question cannot but be regarded as reasonable, and to the extent that the provisions of the impugned Act run counter to that view, that Act must be held to be unreasonable and for that reason, struckdown.
Both Dr, Ghatate and Shri Garg contend that despite the provisions of section 1 (2) of the 44th Amendment Act, Article 22 of the Constitution stood amended on April 30, 1979 when the 44th Amendment Act received the assent of the President and that there was nothing more that remained to be done by the executive.
Section 1 (2) which, according to them is misconceived and abortive must be ignored and served from the rest of the Amendment Act and the rest of it deemed to have come into force on April 30, 1979.
In so far as the arguments set out above bear on the reasonableness of the provisions of the , we will consider them later when we will take up for examination the contention that the Act is violative of Articles 19 and 21 on account of the unreasonableness or unfairness of its provisions and of the procedure prescribed by it.
At this juncture we will limit ourselves to a consideration of those arguments in so far as they bear upon the interpretation of section 1 (2) of the 44th Amendment Act, the consequences of the failure of Central Government to issue a notification under that provision for bringing into force the provisions of section 3 within a reasonable time and the question as to whether, despite the provisions contained in section 1(2), the 44th Amendment Act must be deemed to have come into force on the date on which the President gave his assent to it.
The point last mentioned raises the question as to whether section 1(2) of the 44th Amendment Act is severable from the rest of its provisions, if that section is bad for any reason.
The argument arising out of the provisions of Article 368 (2) may be considered first.
It provides that when a Bill whereby the Constitution is amended is passed by the requisite majority, it shall be presented to the President who shall give his assent to the Bill, "and thereupon the Constitution shall stand amended in accordance with the terms of the Bill.
" This provision shows that a constitutional amendment cannot have any effect unless the President gives his assent to it and secondly, that nothing more than the President 's assent to an amendment duly passed by the Parliament is required, 310 in order that the Constitution should stand amended in accordance with the terms of the Bill.
It must follow from this that the Constitution stood amended in accordance with the terms of the 44th Amendment Act when the President gave his assent to that Act on April 30, 1979.
We must then turn to that Act for seeing how and in what manner the Constitution stood thus amended.
The 44th Amendment Act itself prescribes by section 1(2) a pre condition which must be satisfied before any of its provisions can come into force.
That pre condition is the issuance by the Central Government of notification in the official gazette, appointing the date from which the Act or any particular provision thereof will come into force, with power to appoint different dates for different provisions.
Thus, according to the very terms of the 44th Amendment, none of its provisions can come into force unless and until the Central Government issues a notification as contemplated by section 1(2).
There is no internal contradiction between the provisions of Article 368(2) and those.
Of section 1(2) of the 44th Amendment Act.
Article 368(2) lays down a rule of general application as to the date from which the constitution would stand amended in accordance with the Bill assented to by the President.
Section 1(2) of the Amendment Act specifies the manner in which that Act or any of its provisions may be brought into force.
The distinction is between the Constitution standing amended in accordance with the terms of the Bill assented to by the President and the date of the coming into force of the Amendment thus introduced into the Constitution.
For determining the date with effect from which the Constitution stands amended in accordance with the terms of The Bill one has to turn to the date on which the President gave, or was obliged to give, his assent to the Amendment.
For determining the date with effect from which the Constitution, as amended, came or will come into force, one has to turn to the notification, if any, issued by the Central Government under section 1(2) of The Amendment Act.
The Amendment Act may provide that the amendment introduced by it shall come into force immediately upon the President giving his assent to the Bill or it may provide that the amendment shall come the force on a future date.
Indeed, no objection can be taken to the Constituent body itself appointing a specific future date with effect from which the Amendment Act will come into force, and if that be so, different dates can be appointed by it for bringing into force different provisions of the Amendment Act.
The 311 point of the matter is that the Constitution standing amended in accordance with the terms of the Bill and the amendment thus introduced into the Constitution coming into force are two distinct things.
Just as a law duly passed by the legislature can have no effect unless it comes or is brought into force, similarly, an amendment of the Constitution can have no effect unless it comes or is brought into force.
The fact that the Constituent body may itself specify a future date or dates with effect from which the Amendment Act or any of its provisions will come into force shows that there is no antithesis between Article 368(2) of the Constitution and section 1(2) of the 44th Amendment Act.
The expression of legislative or constituent will as regards the date of enforcement of the law or Constitution is an integral part thereof.
That is why it is difficult to accept the submission that, contrary to the expression of the constituent will, the amendments introduced by the 44th Amendment Act came into force on April 30, 1979 when the President gave his assent to that Act.
The true position is that the amendments introduced by the 44th Amendment Act did not become a part of the Constitution on April 30, 1979.
They will acquire that status only when the Central Government brings them into force by issuing a notification under section 1(2) of the Amendment Act.
The next question for consideration is whether section 1(2) of the 44th Amendment Act is ultra vires the power conferred of the Parliament by Article 368 to amend the Constitution.
The argument is that the constituent power must be exercised by the Constituent body itself and it cannot be delegated by it to the executive or any other agency.
For determining this question, it is necessary to bear in mind that by 'constituent power ' is meant that power to frame or amend the Constitution.
The power of amendment is conferred upon the Parliament by Article 368 (1), which provides that the Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in that article.
The power thus conferred on the Parliament is plenary subject to the limitation that it cannot be exercised so as to alter the basic structure or framework of the Constitution.
It is well settled that the power conferred upon the Parliament by Article 245 to make laws is plenary within the field of legislation upon which that power can operate.
That power, by the terms of Article 245, is subject only to the provisions of the Constitution.
The constituent power, subject to the limitation aforesaid, cannot be any the less plenary that the legislative power, especially 312 when the power to amend the Constitution and the power to legislate are conferred on one and the same organ of the State, namely, the Parliament.
The Parliament may have to follow a different procedure while exercising its constituent power under Article 368 than the procedure which it has to follow while exercising its legislative power under Article 245.
But the obligation to follow different procedures while exercising the two different kinds of power cannot make any difference to the width of the power.
In either event, it is plenary, subject in one case to the constraints of the basic structure of the Constitution and in the other, to the provisions of the Constitution.
The contention raised by the petitioners, that the power to appoint a date for bringing into force a constitutional amendment is a constituent power and therefore it cannot be delegated to an outside agency is without any force.
It is true that the constituent power, that is to say, the power to amend any provision of the Constitution by way of an addition, variation or repeal must be exercised by the Parliament itself and cannot be delegated to an outside agency.
That is clear from Article 368 (1) which defines at once the scope of the constituent power of the Parliament and limits that power to the Parliament.
The power to issue a notification for bringing into force the provisions of a Constitutional amendment is not a constituent power because, it does not carry with it the power to amend the Constitution in any manner.
It is, therefore, permissible to the Parliament to vest in an outside agency the power to bring a Constitutional amendment into force.
In the instant case, that power is conferred by the Parliament on another organ of the State, namely, the executive, which is responsible to the Parliament for all its actions.
The Parliament does not irretrievably lose its power to bring the Amendment into force by reason of the empowerment in favour of the Central Government to bring it into force.
If the Central Government fails to do what, according to the Parliament, it ought to have done, it would be open to the Parliament to delete section 1 (2) of the 44th Amendment Act by following the due procedure and to bring into force that Act or any of its provisions.
We need not enter into the much debated question relating to the delegation of legislative powers.
In The Queen vs Burah the Privy Council upheld the delegated power to bring a law into force in a district and to apply to it, the whole or part of the present or 313 future laws which were in force in other districts.
In Russell vs The Queen it upheld the provision that certain parts of an Act should come into force only on the petition of a majority of electors.
In Hodge vs The Queen, it upheld the power conferred upon a Board to create offences and annex penalties.
The American authorities on the question of the validity of delegated powers need not detain us because, the theory that a legislature is a delegate of the people and therefore, it cannot delegate its power to another does not hold true under our Constitution.
The executive, under our Constitution, is responsible to the legislature and is not independent of it as in the United States.
The three Privy Council decisions to which we have referred above were considered by this Court in Re Delhi Laws Act case, which is considered as a leading authority on the question of delegated legislation.
The Reference made in that case by the President under Article 143(1) of the Constitution to the Supreme Court, in regard to the validity of certain laws, was necessitated by the decision of the Federal Court in Jatindra Nath Gupta vs State of Bihar in which it was held by the majority that the power to extend the operation of an Act for a further period of one year with such modification as May be specified was a legislative power and that the provisions of section 1(3) of that Act which delegated that power to an outside agency was bad.
One of the questions which was referred to this Court in Delhi Laws Act case was whether section 7 of the was ultra vires the Legislature which passed that Act.
That section provided that the Provincial Government may by a notification extend with such restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof any enactment which is in force in any part of British India at the date of such notification.
The difficulty of discovering the ratio of the seven judgments delivered in the case is well known.
There is, however, no difference amongst the learned Judges in their perception and understanding of what was actually decided in the three Privy Council cases to which we have referred and which were discussed by them.
They read the Privy Council decisions as laying down that conditional legislation is permissible whereby the legislature entrusts to an outside agency the discretionary power to select the time or place to enforce the law.
As stated by Shri H.M. Seervai in his 314 "Constitutional Law of India" (2nd ed.
at p. 1203: "The making of laws is not an end in itself, but is a means to an end, which the legislature desires to secure.
That end may be secured directly by the law itself.
But there are many subjects of legislation in which the end is better secured by extensive delegation of legislative power".
There are practical difficulties in the enforcement of laws contemporaneously with their enactment as also in their uniform extension to different areas.
Those difficulties cannot be foreseen at the time when the laws are made.
It, therefore, becomes necessary to leave to the judgment of an outside agency the question as to when the law should be brought into force and to which areas it should be extended from time to time.
What is permissible to the Legislature by way of conditional legislation cannot be considered impermissible to the Parliament when, in the exercise of its constituent power, it takes the view that the question as regards the time of enforcement of a Constitutional amendment should be left to the judgement of the executive.
We are, therefore, of the opinion that section 1 (2) of the 44th Amendment Act is not ultra vires the power of amendment conferred upon the Parliament by Article 368 (1) of the Constitution.
We may now take up for consideration the question which was put in the forefront by Dr. Ghatate, namely, that since the Central Government has failed to exercise its power within a reasonable time, we should issue a mandamus calling upon it to discharge its duty without any further delay.
Our decision on this question should not be construed as putting a seal of approval on the delay caused by the Central Government in bringing the provisions of section 3 of the 44th Amendment Act into force.
That Amendment received the assent of the President on April 30, 1979 and more than two and half years have already gone by without the Central Government issuing a notification for bringing section 3 of the Act into force.
But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of section 3 into force.
The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the Court to compel the Government to do that which, according to the mandate of the Parliament, lies in its discretion to do when it considers it opportune to do it.
The executive is responsible to the Parliament and if the Parliament considers that the executive has 315 betrayed its trust by not bringing any provision of the Amendment into force, it can censure the executive.
It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet we should show our disapproval of it by issuing a mandamus.
The Court 's power of judicial review in such cases has to be capable of being exercised both positively and negatively, if indeed it has that power; positively, by issuing a mandamus calling upon the Government to act and negatively by inhibiting it from acting.
If it were permissible to the Court to compel the Government by a mandamus to bring a Constitutional amendment into force on the ground that the Government has failed to do what it ought to have done, it would be equally permissible to the Court to prevent the Government from acting, on some such ground as that, the time was not yet ripe for issuing the notification for bringing the Amendment into force.
We quite see that it is difficult to appreciate what practical difficulty can possibly prevent the Government from bringing into force the provisions of section 3 of the 44th Amendment, after the passage of two and half year.
But the remedy, according to us, is not the writ of mandamus.
If the Parliament had laid down an objective standard or test governing the decision of the Central Government in the matter of enforcement of the Amendment, it may have been possible to assess the situation judicially by examining the causes of the inaction of the Government in order to see how far they bear upon the standard or test prescribed by the Parliament.
But, the Parliament has left the matter to the judgment of the Central Government without prescribing any objective norms.
That makes it difficult for us to substitute our own judgement for that of the Government on the question whether section 3 of the Amendment Act should be brought into force.
This is particularly so when, the failure of the Central Government to bring that section into force so far, can be no impediment in the way of the Parliament in enacting a provision in the on the lines of that section.
In fact.
the Ordinance rightly adopted that section as a model and it is the Act which has wrongly discarded it.
It is for these reasons that we are unable to accept the submission that by issuing a mandamus, the Central Government must be compelled to bring the provisions of section 3 of the 44th Amendment into force.
The question as to the impact of that section which, though a part of the 44th Amendment Act, is not yet a part of the Constitution, will be considered later when we will take up for examination the argument as regards the reasonableness of the procedure prescribed by the Act.
316 We have said at the very outset of the discussion of this point that our decision on the question as to whether a mandamus should be issued as prayed for by the petitioners, should not be construed as any approval on our part of the long and unexplained failure on the part of the Central Government to bring section 3 of the 44th Amendment Act into force.
We have no doubt that in leaving it to the judgment of the Central Government to decide as to when the various provisions of the 44th Amendment should be brought into force, the Parliament could not have intended that the Central Government may exercise a kind of veto over its constituent will by not ever bringing the Amendment or some of its provisions into force.
The Parliament having seen the necessity of introducing into the Constitution a provision like section 3 of the 44th Amendment, it is not open to the Central Government to sit in judgment over the wisdom of the policy of that section.
If only the Parliament were to lay down an objective standard to guide and control the discretion of the Central Government in the matter of bringing the various provisions of the Act into force, it would have been possible to compel the Central Government by an appropriate writ to discharge the function assigned to it by the Parliament.
In the past, many amendments have been made by the Parliament to the Constitution.
some of which were given retrospective effect, some were given immediate effect, while in regard to some others, the discretion was given to the Central Government to bring the Amendments into force.
For example, sections 3 (1) (a) and (4) of the Constitution (First Amendment) Act, 1951 gave retrospective effect to the amendments introduced in Articles 19 and 31 by those sections.
The 7th Amendment.
1956, fixed a specific date on which it was to come into force.
The 13th Amendment, 1962, provided by section 1 (2) that it shall come into force on such date as the Central Government may, by notification in the official Gazette, appoint.
That amendment was brought into force by the Central Government on December 1, 1963.
The 27th Amendment, 1971 brought section 3 thereof into force at once, while the remaining provisions were to come into force on a date appointed by the Central Government, which was not to be earlier than a certain date mentioned in section 1(2) of the Amending Act.
Those remaining provisions were brought into force by the Central Government on February 15, 1972.
The 32nd Amendment, 1973, also provided by section 1 (2) that it 11 shall come into force on a date appointed by the Central Government.
That amendment was brought into force on July 1, 1974.
The 42nd Amendment, 1976.
by which the Constitution was recast 317 extensively, gave power to the Central Government to bring it into force.
By a notification dated January 1, 1977 parts of that Amendment were brought into force in three stages (see Basu 's Commentary on the Indian Constitution, Ed. 1977, Volume C, Part III, page 134).
Certain sections of that Amendment, which were not brought into force, were repealed by section 45 of the 44th Amendment.
It is in this background that the Parliament conferred upon the Central Government the power to bring the provisions of the 44th Amendment Act into force.
The Parliament could not have visualised that, without any acceptable reason, the Central Government may fail to implement its constituent will.
We hope that the Central Government will, without further delay, bring section 3 of the 44th Amendment Act into force.
That section, be it remembered, affords to the detenu an assurance that his case will be considered fairly and objectively by an impartial tribunal.
As regards the argument that section 1(2) of the 44th Amendment Act is bad because it vests an uncontrolled power in the executive, we may point out, briefly, how similar and even more extensive delegation of powers to the executive has been upheld by this Court over the years.
In Sardar Inder Singh vs State of Rajasthan, section 3 of the Rajasthan (Protection of Tenants) Ordinance provided that it shall remain in force for a period of two years unless that period is further extended by the Rajpramukh.
It was held by this Court that section 3, in so far as it authorised the Rajpramukh to extend the life of the ordinance, fell within the category of conditional legislation and was ultra vires.
The Court dissented from the view expressed in Jetindra Nath Gupta vs The State of Bihar, (supra) that the power to extend the life of an enactment cannot validly be conferred on an outside authority.
In Sita Ram Bisaambhar Dayal and Ors.
vs State of U.P. and others, section 3D (1) of the U.P. Sales Tax Act, 1948, which was challenged on the ground of excessive delegation, provided for levying taxes at such rates as may be prescribed by the State Government not exceeding the maximum prescribed.
While rejecting the challenge, Hegde, J. speaking for the Court observed: "However much one might deplore the "New Despotism" of the executive, the very complexity of the modern 318 society and the demand it makes on its Government have set in motion force which have made it absolutely necessary for the legislatures to entrust more and more powers to the executive.
Text book doctrines evolved in the 19th Century have become out of date".
In Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. vs The Assistant Commissioner of Sales Tax, the question which arose for determination was whether the provisions of section 8 (2) (b) of the suffered from the vice of excessive delegation because the Parliament, in not fixing the rate itself and in adopting the rate applicable to the sale or purchase of good inside the appropriate State, had not laid down any legislative policy, abdicating thereby its legislative function.
Rejecting this contention Khanna, J., who spoke for himself and two other learned Judges observed that the growth of the legislative power of the executive is a significant development of the twentieth century and that provision was therefore made for delegated legislation to obtain flexibility, elasticity, expedition and opportunity for experimentation.
Mathew, J. speaking on behalf of himself and Ray, C.J. agreed with the conclusion that section 8 (2) (b) did not suffer from the vice of excessive delegation of legislative power.
The decisions bearing on the subject of excessive delegation have been surveyed both by Khanna, J. and Mathew, J. in their respective judgments.
In M.K. Pasiah and Sons v, The Excise Commissioner, it was contended for the appellants that the power to fix the rate of Excise Duty conferred by section 22 of the Mysore Excise Act of 1965 on the Government was bad for the reason that it was an abdication by the State legislature of its essential legislative function.
The Court, speaking through Mathew, J. upheld the validity of section 22.
We are unable to appreciate that the constituent body can be restrained from doing what a legislature is free to do.
We are therefore unable to accept the argument that section 1 (2) confers an uncontrolled power on the executive and is, by its unreasonableness, violative of Articles 14 and 19 of the Constitution.
We are also unable to accept Shri Tarkunde 's argument that the Central Government 's failure to bring section 3 of the 44th 319 Amendment into force is mala fide.
The Parliament has chosen to leave to the discretion of the Central Government the determination of the question as to the time when the various provisions of the 44th Amendment should be brought into force.
Delay in implementing the will of the Parliament can justifiably raise many an eye brow, but it is not possible to say on the basis of such data, as has been laid before us, that the Central Government is actuated by any ulterior motive in not bringing section 3 into force.
The other limb of Shri Tarkunde 's argument that there is an obligation upon the Central Government to bring the provisions of the 44th Amendment into force within a reasonable time has already been dealt with by us while considering the argument that, since the Government has not brought section 3 into force within a reasonable time, it should be compelled by a writ of mandamus to perform its obligation.
That disposes of all the contentions bearing on the 44th Amendment Act except one, which we will consider later, as indicated already.
The next question arises out of the provisions of section 3(1) and 3 (2) of the which, according to the petitioners, are so vague in their content and wide in their extent that, by their application, it is easy for the Central Government or the State Government to deprive a person of his liberty for any fanciful reason which may commend itself to them.
Sub section (1) and (2) of section 3 of the Act read thus: "3 (1) The Central Government or the State Government may: F (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India, or (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.
320 (2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.
Explanation: For the purposes of this sub section, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to sub section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, and accordingly no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.
" It is contended by Shri Jethmalani that the expressions 'defence of India ' 'relations of India with foreign powers ', security of India ' and 'security of the State ' which occur in sub sections (1) (a) and (2) of section 3 are so vague, general and elastic that even conduct which is otherwise lawful can easily be comprehended within those expressions, depending upon the whim and caprice of the detaining authority.
The learned counsel argues: These expressions are transposed from the legislative entries into the aforesaid two sub sections without any attempt at precision or definition.
In so for as 'Defence of India ' is concerned, the legislature could have easily indicated the broad content of that expression by including within it acts like inciting armed forces to rebellion, damaging or destroying defence installations or disclosing defence secrets.
In the absence of such definition, a statement that corrupt officials are responsible for the purchase of defence equipment from a foreign power, may be considered as falling within the mischief of that expression.
The expression 'acting in any manner prejudicial to the relations of India with foreign powers ', is particularly 321 open to grave objection because, it can take in any and every piece of conduct.
In the absence of a precise definition it is impossible for any person to know with reasonable certainty as to what in this behalf are the limits of lawful conduct which he must not transgress.
Even if a person were to say, in the exercise of the right of his free speech and expression, that a foreign power, which is not friendly with India, is adopting ruthless measures to suppress human liberties, it would be open to the detaining authority to detain a person for making that statement.
The vice, therefore, of section 3 consists in the fact that the governing factor for the application of that section is the passing and personal opinion of the detaining authority in regard to the security and defence of the country and its external affairs.
A cardinal requirement of the rule of law is that citizens must know with certainty where lawful conduct ends and unlawful conduct begins; but more than that, the bureaucrats must know the limits of their power.
The vagueness of the expressions used in section 3 confers uncontrolled discretion on the detaining, authority to expand the horizon of their power, to the detriment of the liberty of the subject.
Even the right to peaceful demonstration which has been upheld by this Court, may be treated by the detaining authority as falling within the mischief of section 3.
The circumstance that, if a habeas corpus petition is filed, the Court may release the detenu is hardly any answer to the vice of the section because, the fundamental principle is that a person cannot be deprived of his liberty on the basis of a vague and uncertain law.
The provisions of the Northern Ireland (Emergency Provisions) Act 1973 (Halsbury 's Statutes of England, 3rd edition, Volume 43, page 1235) is an instance of a statute which defines with precision the reasons for which a person can be detained.
That Act was passed inter alia for the detention of terrorists in Northern Ireland.
Section 10 (1) provides that any constable may arrest without warrant any person whom the suspects of being a terrorist.
Section 20 of that Act defines the terms 'terrorist ' and 'terrorism ' with great care and precision in order that the power of detention may not be abused.
In support of these propositions Shri Jethmalani relies on the decisions of the American Supreme Court in United States of America vs L. Cohen Grocery Company, Champlin Refining Company vs Corporation Commission of the State of Okalahoma, Ignatius 322 Lanzetta v, State of New Jersey and David H. Scull vs Commonwealth of Virginia Ex Rel., Committee on Law Reform and Racial Activities, The ratio of these cases may be Summed up by reproducing the third head note of the case last mentioned: "Fundamental fairness requires that a person cannot be sent to jail for a crime he could not with reasonable certainty know he was committing: reasonable certainty in that respect is all the more essential when vagueness might induce individuals to forgo their rights of speech, press, and association for fear of violating an unclear law.
" Counsel has also drawn our attention to the decision of this Court in the State of Madhya Pradesh & Anr.
vs Baldeo Prasad where a law was struck down on the ground, inter alia that the word 'goonda ' is of uncertain import, which rendered unconstitutional a law which permitted goondas to be externed.
In this behalf Dr. Singhvi, intervening on behalf of the Supreme Court Bar Association, has drawn our attention to section 8(3) of the Jammu & Kashmir Public Safety Act, 6 of 1968, which defines the expressions "acting in any manner prejudicial to the security of State 'and ' acting in any manner prejudicial to the maintenance of public order. ' Where there is a will there is a way, and counsel contends that the way shown with admirable precision by the Jammu & Kashmir Legislature is there for the Parliament to follow, provided its intention is, as it ought to be, that before the people are deprived of their liberty, they must have the opportunity to regulate their conduct in order to ensure that it may conform to the requirements of law.
In making these submissions counsel seem to us to have overstated their case by adopting an unrealistic attitude.
It is true that the vagueness and the consequent uncertainty of a law of preventive detention bears upon the unreasonableness of that law as much as the uncertainty of a punitive law like the Penal Code does.
A person cannot be deprived of his liberty by a law which is nebulous and uncertain in its definition and application.
But in considering the question whether the expressions aforesaid which are used in 323 section 3 of the Act are of that character, we must have regard to the consideration whether concepts embodied in those expressions are at all capable of a precise definition.
The fact that some definition or the other can be formulated of an expression does not mean that the definition can necessarily give certainty to that expression.
The British Parliament has defined the term "terrorism" in section 28 of the Act of 1973 to mean "the use of violence for political ends", which, by definition, includes 'any use of violence for the purpose of putting the public or any section of the public in fear.
" The phrases "political ends" itself of an uncertain character and comprehends within its scope a variety of nebulous situations.
Similarly, the definitions contained in section 8 (3) of the Jammu and Kashmir Act of 1978 themselves depend upon the meaning of concepts like 'overawe the Government. ' The formulation of definitions cannot be a panacea to the evil of vagueness and uncertainty.
We do not, of course suggest that the legislature should not attempt to define or at least to indicate the contours of expressions, by the use, of which people are sought to be deprived of their liberty.
The impossibility of framing a definition with mathematical precision cannot either justify the use of vague expressions or the total failure to frame any definition at all which can furnish, by its inclusiveness at least, a safe guideline for understanding the meaning of the expressions used by the legislature.
But the point to note is that there are expressions which inherently comprehend such an infinite variety of situations that definitions, instead of lending them a definite meaning, can only succeed either in robbing them of their intended amplitude or in making it necessary to frame further definitions of the terms defined.
Acts prejudicial to the 'defence of India ', 'security of India ', 'security of the State ', and 'relations of India with foreign powers ' are concepts of that nature which are difficult to encase within the strait jacket of a definition.
If it is permissible to the legislature to enact laws of preventive detention, a certain amount of minimal latitude has to be conceded to it in order to make those laws effective.
That we consider to be a realistic approach to the situation.
An administrator acting bona fide, or a court faced with the question as to whether certain Acts fall within the mischief of the aforesaid expressions used in section 3, will be able to find an acceptable answer either way.
In other words though an expression may appear in cold print to be vague and uncertain, it may not be difficult to apply it to life 's practical realities.
This process undoubtedly involves the possibility of error but then, there is hardly any area of adjudicative process which does not involve that possibility.
324 The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi.
The underlying principle is that every person is entitled to be informed as to what the State commands or forbids and that the life and liberty of a person cannot be put in peril on an ambiguity.
However, even in the domain of criminal law, the processes of which can result in the taking away of life itself, no more than a reasonable degree of certainty has to be accepted as a fact.
Neither the criminal law nor the Constitution requires the application of impossible standards and therefore, what is expected is that the language of the law must contain an adequate warning of the conduct which may fall within the prescribed area, when measured by common understanding.
In criminal law, the legislature frequently uses vague expressions like 'bring into hatred or contempt ', 'maintenance of harmony between different religious groups ' or 'likely to cause disharmony or hatred or ill will ', or 'annoyance to the public '.
(see sections 124A, 153A(1) (b), 153B (1)(c), and 268 of the Penal Code).
These expressions, though they are difficult to define, do not elude a just application to practical situations.
The use of language carries with it the inconvenience of the imperfections of language.
We see that the concepts aforesaid, namely, 'defence of India ', 'security of India ', 'security of the State ' and 'relations of India with foreign powers ' which are mentioned in section 3 of the Act, are not of any great certainty or definiteness.
But in the very nature of things they are difficult to define.
We cannot therefore strike down these provisions of section 3 of the Act on the ground of their vagueness and uncertainty.
We must, however, utter a word of caution that since the concepts are not defined, undoubtedly because they are not capable of a precise definition, courts must strive to give to those concept a narrower construction than what the literal words suggest.
While construing laws of preventive detention like the , care must be taken to restrict their application to as few situations as possible.
Indeed, that can well be the unstated premise for upholding the constitutionality of clauses like those in section 3, which are fraught with grave consequences to personal liberty, if construed liberally.
325 What we have said above in regard to the expressions 'defence of India ', 'security of India ', 'security of the State ' and 'relations of India with foreign powers ' cannot apply to the expression "acting in any manner prejudicial to the maintenance of supplies and services essential to the community which occurs in section 3(2) of the Act.
Which supplies and services are essential to the community can easily be defined by the Legislature and indeed, legislations which regulate the prices and possession of essential commodities either enumerate those commodities or confer upon the appropriate Government the power to do so.
In the absence of a definition of 'supplies and services essential to the community ', the detaining authority will be free to extend the application of this clause of subsection (2) to any commodities or services the maintenance of supply of which, according to him, is essential to the community.
But that is not all.
The explanation to sub section (2) gives to the particular phrase in that sub section a meaning which is not only uncertain but which, at any given point of time, will be difficult to ascertain or fasten upon.
According to the Explanation, no order of detention can be made under the on any ground on which an order of detention may be made under the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980.
The reason for this, which is stated in the Explanation itself, is that for the purposes of sub section (2) "acting in any manner prejudicial to the maintenance of supplies essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to subsection (1) of section 3 of the Act of 1980 Clauses (a) and (b) of the Explanation to section 3 of the Act of 1980 exhaust almost the entire range of essential commodities.
Clause (a) relates to committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 10 of 1955, or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in, any commodity essential to the community.
Clause (b) of the Explanation to section 3 of the Act of 1980 relates to dealing in any commodity which is an essential commodity as defined in the , or with respect to which provisions have been made in any such other law as is referred to in clause (a).
We find it quite difficult to understand as to which are the remaining commodities outside the scope of the Act of 1980, in respect of which it can be said that the maintenance of their supplies is essential to the community.
The particular clause in sub section (2) of section 3 of the 326 is, therefore, capable of wanton abuse in that, the detaining authority can place under detention any person for possession of any commodity on the basis that the authority is of the opinion that the maintenance of supply of that commodity is essential to the community.
We consider the particular clause not only vague and uncertain but, in the context or the Explanation, capable of being extended cavalierly to supplies, the maintenance of which is not essential to the community.
To allow the personal liberty of the people to be taken away by the application of that clause would be flagrant violation of the fairness and justness of procedure which is implicit in the provisions of Article 21.
In so far as "services essential to the community" are concerned, they are not covered by the Explanation to section 3 (2) of the Act.
But in regards to them also, in the absence of a proper definition or a fuller description of that or a prior enumeration of such services, it will be difficult for any person to know with reasonable certitude as to which services are considered by the detaining authority as essential to the community.
The essentiality of services varies from time to time depending upon the circumstances existing at any given time.
There are, undoubtedly, some services like water, electricity, post and telegraph, hospitals, railways, ports, roads and air transport which are essential to the community at all times but, people have to be forewarned if new categories are to be added to the list of services which are commonly accepted as being essential to the community.
We do not, however, prose to strike down the power given to detain persons under section 3 (2) on the ground that they are acting in any manner prejudicial to the maintenance of supplies and services essential to the community.
The reason for this is that it is vitally necessary to ensure a steady flow of supplies and services which are essential to the community, and it the State has the power to detain persons on the grounds mentioned in section 3 (1) and the other grounds mentioned in section 3 (2), it must also have the power to pass orders of detention on this particular ground.
What we propose to do is to hold that no person can be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community unless, by a law, order or notification made or published fairly in advance, the supplies and services, the maintenance of which is regarded as essential to the community and in 327 respect of which the order of detention is proposed to be passed, are made known appropriately, to the public.
That disposes of the question as to the vagueness of the provisions of the .
We will now proceed to the consideration of a very important topic, namely, the reasonableness of the procedure prescribed by the Act.
The arguments advanced on this question fall under three sub heads: (1) the reasonableness of the procedure which is generally prescribed by the Act; (2) the fairness and reasonableness of the substantive provisions in regard to the constitution of Advisory Boards; and (3) the justness and reasonableness of the procedure in the proceedings before the Advisory Boards.
The discussion of these questions will conclude this judgment.
Shri Jethmalani attacked the constitutionality of the very itself on the ground that it is a draconian piece of legislation which deprives people of their personal liberty excessively and unreasonably, confers vast and arbitrary powers of detention upon the executive and sanctions the use of those powers by following a procedure which is unfair and unjust.
The Act, according to the counsel, thereby violates Articles 14, 19 and 21 and is therefore wholly unconstitutional.
This argument, it must be stated, is not to be confused with the fundamental premise of the petitioners that, under our Constitution, no law of preventive detention can at all be passed, whatever be the safeguards it provides for the protection of personal liberty.
We have already dealt with that argument.
The argument of Shri Jethmalani against the validity of the can be disposed of briefly.
We need not enter into the controversy which is reflected in the dissenting judgment of Kailasam, J. in Maneka Gandhi as to whether the major premise of Gopalan 's case really was that Article 22 is a complete code in itself and whether because of that premise, the decision in that case that Article 21 excluded the personal freedom conferred by Article 19 (1) is incorrect.
We have the authority of the decisions in the Bank Nationalization case, Haradhan Saha, Khudiram, Sambhu Nath Sarkar and Maneka Gandhi for saying that the fundamental 328 rights conferred by the different Articles of of the Constitution are not mutually exclusive and that therefore a law of preventive detention which falls within Article 22 must also meet the requirements of Articles 14, 19 and 21.
Speaking for the Court in Khudiram, one of us, Bhagwati, J. said: "This question, thus, stands concluded and a final seal is put on this controversy and in view of these decisions, it is not open to any one now to contend that a law of preventive detention, which falls within article 22, does not have to meet the requirement of article 14 or article 19." (page 847) But just as the question as to whether the rights conferred by the different articles of Part III are mutually exclusive is concluded by the aforesaid decisions, the question whether a law of preventive detention is unconstitutional for the reason that it violates the freedoms conferred by Articles 14, 19, 21 and 22 of the Constitution is also concluded by the decision in Haradhan Saha.
In that case the validity of the was challenged on the ground that it violates these articles since its pro visions were discriminatory, they constituted an unreasonable infringement of the rights conferred by Article 19, they infringed the guarantee of fair procedure and they did not provide for an impartial machinery for the consideration of the representation made by the detenu to the Government.
The Constitution Bench which heard the case considered these contentions and rejected them by holding that the MISA did not suffer from any constitutional infirmity.
The MISA was once again challenged in Khudiram, but the Court refused to entertain that challenge on the ground that the question was concluded by the decision in Haradhan Saha and that it was not open to the petitioner to challenge that Act on the ground that some argument directed against the constitutional validity of the Act under Article 19 was not advanced or considered in Haradhan Saha.
The Court took the view that the decision in Haradhan Saha must be regarded as having finally decided all questions as to the constitutional validity of MISA on the ground of challenge under Article 19.
We would like to add that in Haradhan Saha the challenge to MlSA on the ground of violation of Articles 14, 21 and 22 was also considered and rejected.
The question therefore as to whether MISA violated the provisions of these four articles, namely, Articles 14, 19, 21 and 22, must be considered as having been finally decided in Haradhan Saha.
Accordingly, 329 we find it impossible to accept the argument that the , which is in pari materia with the , is unconstitutional on the ground that, by its very nature, it is generally violative of Articles 14, 19, 21 and 22.
Though the Act, as a measure of preventive detention, cannot be challenged on the broad and general ground that such Acts are calculated to interfere unduly with the liberty of the people, we shall have to consider the challenge made by the petitioners ' counsel, particularly by Shri Jethmalani and Dr. Ghatate, to certain specific provisions of the Act on the ground that they cause excessive and unreasonable interference with the liberty of the detenus and that the procedure prescribed by those provisions is not fair, just and reasonable.
Dr. Ghatate has, with particular emphasis, challenged on these grounds the provisions of sections 3(2), 3(3), 5, 8, 9, 10, 11, 13 and 16 of the Act.
Shri Tarkunde challenged the provisions of section 8 and 11(4) of the Act.
We have already dealt with the argument arising out of the provisions of section 3(2) read with the Explanation, by which power is conferred to detain persons in order to prevent them from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.
In so far as sub section (3) of section 3 is concerned, the argument is that it is wholly unreasonable to confer upon the District Magistrate or the Commissioner of Police the power to issue orders of detention for the reasons mentioned in sub section (2) of section 3.
The answer to this contention is that the said power is conferred upon these officers only if the State Government is satisfied that having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of these officers, it is necessary to empower them to take action under sub section (2).
The District Magistrate or the Commissioner of Police can take action under sub section (2) during the period specified in the order of the State Government only.
Another safeguard provided is, that the period so specified in the Order made by the State Government during which these officers can exercise the powers under sub section (2) cannot, in the first instance, exceed three months and can be extended only from time to time not exceeding three months at any one time.
By sub section ( 4) of section 3, the District Magistrate or the Commissioner of Police has to report forthwith the fact of detention to the State Govern 330 ment and no such order of detention can remain in force for more than 12 days after the making thereof unless, in the meantime, it has been approved by the State Government.
In view of these in built safeguards, it cannot be said that excessive or unreasonable power is conferred upon the District Magistrate or the Commissioner of Police to pass orders under sub section (2).
By section 5, every person in respect of whom a detention order has been made is liable (a) to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify, and (b) to be removed from one place of detention to another place of detention, whether hl the same State, or in another State, by order of the appropriate Government.
The objection of the petitioners to these provisions on the ground of their unreasonableness is not wholly without substance.
Laws of preventive detention cannot, by the back door, introduce procedural measures of a punitive kind.
Detention without trial is an evil to be suffered, but to no greater extent and in no greater measure than is minimally necessary in the interest of the country and the community.
It is neither fair nor just that a detenu should have to suffer detention in "such place" as the Government may specify.
The normal rule has to be that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence.
If a person ordinarily resides in Delhi to keep him in detention in a far of place like Madras or Calcutta is a punitive measure by itself which, in matters of preventive detention at any rate, is not to be encouraged.
Besides, keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or for the detenu to claim the advantage of facilities like having his own food.
The requirements of administrative convenience, safety and security may justify in a given case the transfer of a detenu to a place other than that where he ordinarily resides, but that can only be by way of an exception and not as a matter of general rule.
Even when a detenu is required to be kept in or transferred to a place which is other than his usual place of residence, he ought not to be 331 sent to any far off place which, by the very reason of its distance, is likely to deprive him of the facilities to which he is entitled.
Whatever smacks of punishment must be scruplously avoided in matters of preventive detention.
Since section 5 of the Act provides for, as shown by its marginal note, the power to regulate the place and conditions of detention there is one more observation which we would like to make and which we consider as of great importance in matters of preventive detention.
In order that the procedure attendant upon detentions should conform to the mandate of Article 21 in the matter of fairness, justness and reasonableness, we consider it imperative that immediately after a person is taken in custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody.
Intimation must also be given as to the place of detention, including the place where the detenu is transferred from time to time.
This Court has stated time and again that the person who is taken in custody does not forfeit, by reason of his arrest, all and every one of his fundamental rights.
It is therefore, necessary to treat the detenu consistently with human dignity and civilized norms of behavior.
The objection of the petitioners against the provision contained in section 8(1) is that it unreasonably allows the detaining authority to furnish the grounds of detention to the detenu as late as five days and in exceptional cases 10 days after the date of detention.
This argument overlooks that the primary requirement of section 8(1) is that the authority making the order of detention shall communicate the grounds of detention to the detenu "as soon as may be".
The normal rule therefore is that the grounds of detention must be communicated to the detenu without avoidable delay.
It is only in order to meet the practical exigencies of administrative affairs that detaining authority is permitted to communicate the grounds of detention not later than five days ordinarily, and not later than 10 days if there are exceptional circumstances.
If there are any such circumstances, the detaining authority is required by section 8(1) to record its reasons in writing.
We do not think that this provision is open to any objection.
Sections 9, 10 and 11 deal respectively with the constitution of Advisory Boards? reference to Advisory Boards and procedure of 332 Advisory Boards.
We will deal with these three sections a little later while considering the elaborate submissions made by Shri Jethmalani in regard thereto.
Dr. Ghatate 's objection against section 13 is that it provides for a uniform period of detention of 12 months in all cases, regard less of the nature and seriousness of the grounds on the basis of which the order of detention is passed.
There is no substance in this grievance because, any law of preventive detention has to provide for the maximum period of detention, just as any punitive law like the Penal Code has to provide for the maximum sentence which can be imposed for any offence.
We should have thought that it would have been wrong to fix a minimum period of detention, regardless of the nature and seriousness of the grounds of detention.
The fact that a person can be detained for the maximum period of 12 months does not place upon the detaining authority the obligation to direct that he shall be detained for the maximum period.
The detaining authority can always exercise its discretion regarding the length of the period of detention.
It must also be mentioned that, under the proviso to section 13, the appropriate Government has the power to revoke or modify the order of detention at any earlier point of time.
Section 16 is assailed on behalf of the petitioners on the ground that it confers a wholly unwarranted protection upon officers who may have passed orders of detention mala fide.
That section provides that no suit or other legal proceeding shall lie against the Central Government or a State Government and no suit, prosecution or other legal proceeding shall lie against a person, for anything in good faith done or intended to he done in pursuance of the Act.
The grievance of Dr. Ghatate is that even if an officer has in fact passed an order of detention mala fide, but intended to pass in good faith, he will receive the protection of this provision.
We see a contra diction in this argument because, if an officer intends to pass an order in good faith and if he intends to pass the order mala fide he will pass it likewise Moreover, an act which is not done in good faith will not receive the protection of section 16 merely because it was intended to be done in good faith.
It is also necessary that the act complained of must have been in pursuance of the Act.
333 Shri Jethmalani also challenged the provisions of section 16 on the ground of their unreasonableness.
He contends that the expression "good faith", which occurs in section 16, has to be construed in the sense in which it is defined in section 3(22) of the General Clauses Act, 10 of 1897, according to which, a thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not.
On the contrary, section 52 of the Indian Penal Code provides that nothing is said to be done or believed in "good faith" which is done or believed without due care and attention.
If the definition contained in section 52 of the Penal Code were made applicable, a suit or other proceeding could have lain against the detaining authority on the ground that the order was passed carelessly or without a proper application of mind.
Counsel contends that since the General Clauses Act would apply, the detaining authority can defend the order and defeat the suit or other proceeding brought against it by showing merely that the order was passed honestly.
We do not see any force in this grievance.
If the policy of a law is to protect honest acts, whether they are done with care or not, it cannot be said that the law is unreasonable.
In fact, honest acts deserve the highest protection.
T hen again, the line which divides a dishonest act from a negligent act is often thin and, speaking generally, it is not easy for a defendant to justify his conduct as honest, if it is accompanied by a degree of negligence.
The fact, therefore, that the definition contained in section 3(22) of the General Clauses Act includes negligent acts in the category of the acts done in good faith will not always make material difference to the proof of matters arising in proceedings under section 16 of the Act.
That takes us to the last of the many points urged in this case, which relates to the constitution of Advisory Boards and the procedure before them.
Three section of the are relevant in this context, namely, section 9, 10 and 11.
It may he recalled that section 3 of the 44th Constitution Amendment Act, 1978 made an important amendment to Article 22(4) of the Constitution by providing that (i) No law of preventive detention shall authorise the detention of any person for more than two months unless an Advisory Board has reported before the expiry of that period that there is in its opinion sufficient cause for such detention; 334 (ii) the Advisory Board must be constituted in accordance with the recommendation of the Chief Justice of the appropriate High Court; and (iii) the Advisory Board must consist of a Chairman and not less than two other members, the Chairman being a serving Judge of the appropriate High Court and the other members being serving or retired judges of any High Court.
The main points of distinction between the amended provisions and the existing provisions of Article 22(4) are that whereas, under the amended provisions, (i) the constitution of the Advisory Boards has to be in accordance with the recommendation of the Chief Justice of the appropriate High Court, (ii) the Chairman of the Advisory Board has to be a serving Judge of the appropriate High Court, and (iii) the other members of the Advisory Board have to be serving or retired Judges of any High Court, under the existing procedure, (i) it is unnecessary to obtain the recommendation of the Chief Justice of any High Court for constituting the Advisory Board and (ii) the members of the Advisory Board need not be serving or retired Judges of a High Court: it is sufficient if they are "qualified to be appointed as Judges of a High Court ' '.
By Article 217(2) of the Constitution.
a citizen of India is qualified for appointment as a Judge of a High Court if he has been advocate of a High Court for ten years.
The distinction between the provisions of the amended and the unamended provisions of Article 22(4) in regard to the constitution of Advisory Boards is of great practical importance from the point of view of the detenu.
The safeguards against unfounded accusation and the opportunity for establishing innocence which constitute the hallmark of an ordinary criminal trial are not available to the detenu.
He is detained on the basis of ex parte reports in regard to his past conduct, with a view to preventing him from persisting in that course of conduct in future.
It is therefore of the utmost importance from the detenu 's point of view that the Advisory Board should consist of persons who are independent, unbiased and competent and who possess a trained judicial mind.
But the question for our consideration is whether, as urged by Shri Jethmalani, section 9 of the is bad for the reason that its provisions do not accord with the requirements of section 3 of the 44th Amendment Act.
335 We find considerable difficulty in accepting this submission.
Earlier in this judgment, we have upheld the validity of section 1(2) of the 44th Amendment Act, by which the Parliament has given to the Central Government the power to bring into force all or any of the provisions of that Act, with option to appoint different dates for the commencement of different provisions of the Act.
The Central Government has brought all the provisions of the 44th Amendment Act into force except one, namely, section 3, which contains the provision for the constitution of Advisory Boards.
We have taken the view that we cannot compel the Central Government by a writ of mandamus to bring the provisions of section 3 into force.
We have further held that, on a true interpretation of Article 368(2) of the Constitution, it is in accordance with the terms of the 44th Constitution Amendment Act that, upon the President giving his assent to that Act, the Constitution stood amended.
Since section 3 has not been brought into force by the Central Government in the exercise of its powers under section 1(2) of the 44th Amendment Act, that section is still not a part of the Constitution.
The question as to whether section 9 of the is bad for the reason that it is inconsistent with the provisions of section 3 of the 44th Amendment Act, has therefore to be decided on the basis that section 3, though a part of the 44th Amendment Act, it is not a part of the Constitution.
If section 3 is not a part of the Constitution, it is difficult to appreciate how the validity of section 9 of the can be tested by applying the standard laid down in that section.
lt cannot possibly be that both the unamended and the amended provisions of Article 22(4) of the Constitution are parts of the Constitution at one and the same time So long as section 3 of the 44th Amendment Act has not been brought into force, Article 22(4) in its unamended form will continue to be a part of the Constitution and so long as that provision is part of the Constitution, the amendment introduced by section 3 of the 44th Amendment Act cannot become a part of the Constitution.
Section 3 of 44th Amendment substitute a new Article 22(4) for the old Article 22(4).
The validity of the constitution of Advisory Boards has therefore to be tested in the light of the provisions contained in Article 22(4) as it stands now and not according to the amended Article 22(4).
According to that Article as it stands now, an Advisory Board may consist of persons, inter alia, who are qualified to be appointed as Judges of a High Court.
Section 9 of the provides for the constitution of the Advisory Boards in conformity with that provision.
We find it impossible to hold, 336 that the provision of a statute, which conforms strictly with the existing provisions of the Constitution, can be declared bad either on the ground that it does not accord with the provisions of a constitutional amendment which has not yet come into force, or on the ground that the provision of the section is harsh or unjust The standard which the Constitution, as originally enacted, has itself laid down for constituting Advisory Boards, cannot be characterised as harsh or unjust.
The argument, therefore, that section 9 of the is bad for either of these reasons must fail.
We must hasten to add that the fact that section 3 of the 44th Amendment has not yet been brought into force does not mean that the Parliament cannot provide for the constitution of Advisory Boards in accordance with its requirements the Parliament is free to amend section 9 of the so as to bring it in line with section 3 of the 44th Amendment.
Similarly, the fact that section 9 provides for the constitution of Advisory Boards consisting of persons "who are, or have been, or are qualified to be appointed as Judges of a High Court" does not mean that the Central Government or the State Governments cannot constitute Advisory Boards consisting of serving or retired Judges of the High Court.
The minimal standard laid down in Article 22(4)(a), which is adopted by section 9 of the Act, is binding on the Parliament while making a law of preventive detention and on the executive while constituting an Advisory Board That standard cannot be derogated from.
But, it can certainly be improved upon.
We do hope that the Parliament will take the earliest opportunity to amend section 9 of the Act by bringing it in line with section 3 of the 44th Amendment as the ordinance did and that, the Central Government and the State Governments will constitute Advisory Boards in their respective jurisdictions in accordance with section 3, whether or not section 9 of the Act is so amended.
We are informed that some enlightened State Governments have already given that lead.
We hope that the other Governments will follow suit.
After all, the executive must strive to reach the highest standards of justice and fairness in all its actions, whether or not it is compellable by law to adopt those standards.
Advisory Boards consisting of serving or retired Judges of High Courts, preferably serving, and drawn from a panel recommended by the Chief Justice of the concerned High Court will give credibility to their proceedings.
There will then be a reasonable assurance that Advisory Boards will express their opinion on the sufficiency of the cause for 337 detention, with objectivity, fairness and competence.
That way, the implicit promise of the Constitution shall have been fulfilled.
Now, as to the procedure of Advisory Boards.
Shri Jethmalani laid great stress on this aspect of the matter and, in our opinion, rightly.
Consideration by the Advisory Board of the matters and material used against the detenu is the only opportunity available to him for a fair and objective appraisal of his case.
Shri Jethmalani argues that the Advisory Boards must therefore adopt a procedure which is akin to the procedure which is generally adopted by judicial and quasi judicial tribunals for resolving the issues which arise before them.
He assails the procedure prescribed by sections 10 and C 11 of the on the ground that it is not in consonance with the principles of natural justice, that it does not provide the detenu with an effective means of establishing that what is alleged against him is not true and that it militates against the requirements of Article 2 l .
Learned counsel enumerated twelve requirements of natural justice which, according to him, must be observed by the Advisory Boards.
Those requirements may be summed up, we hope without injustice to the argument, by saying that (i) the detenu must have the right to be represented by a lawyer of his choice; (ii) he must have the right to cross examine persons on whose statements the order of detention is founded; and (iii) he must have the right to present evidence in rebuttal of the allegations made against him.
Counsel also submitted that the Advisory Board must give reasons in support of its opinion which must be furnished to the detenu, that the entire material which is available to the Advisory Board must be disclosed to the detenu and that the proceedings of the Advisory Board must be open to the public.
According to Shri Jethmalani, the Advisory Board must not only consider whether the order of detention was justified but it must also consider whether it would have itself passed that order on the basis of the material placed before it, Counsel says that the Advisory Board must further examine whether all the procedural steps which are obligatory under the Constitution were taken until the time of its report, the impact of loss of time and altered circumstances on the necessity to continue the detention and last but not the least, whether there is factual justification for continuing the order of detention beyond the period of three months.
Counsel made an impassioned plea that 25 years of the Gopalan jurisprudence have desensitised the community to the perils of preventive detention and that, it is imperative to provide for the maximum safeguards to the detenu in order to preserve and protect his liberty, which can be achieved by 338 making at least the rudiments of due process available to him.
How much process is due must depend, according to Shri Jethmalani, on the extent of grievous loss involved in the case.
The loss in preventive detention is of the precious right of persona ' liberty and therefore, it is urged, all such procedural facilities must be afforded to the detenu as will enable him to meet the accusations made against him and to disprove them.
First and foremost, we must consider whether and to what extent the detenu is entitled to exercise the trinity of rights before the Advisory Board: (i) the right of legal representation; (ii) the right of cross examination and (iii) the right to present his evidence in rebuttal.
These rights undoubtedly constitute the core of just process because without them, it would be difficult for any person to disprove the allegations made against him and to establish the truth.
But there are two considerations of primary importance which must be borne in mind in this regard.
There is no prescribed standard of reasonableness and therefore, what kind of processual rights should be made available to a person in any proceeding depends upon the nature of the proceeding in relation to which the rights are claimed.
The kind of issues involved in the proceeding determine the kind of rights available to the persons who are parties to that proceeding.
Secondly, the question as to the availability of rights has to be decided not generally but on the basis of the statutory provisions which govern the proceeding, provided of course that those provisions are valid.
In the instant case, the question as to what kind of rights are available to the detenu in the proceeding before the Advisory Board has to be decided in the light of the provisions of the Constitution, and on the basis of the provisions of the to the extent to which they do not of lend against the Constitution.
Turning first to the right of legal representation which is claimed by the petitioners, the relevant article of the Constitution to consider is Article 22 which bears the marginal note "protection against arrest and detention in certain cases.
" That article provides by clause (l) that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
Clause (2) requires that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours 339 Of such arrest and that no person shall be detained in custody A beyond the said period without the authority of a magistrate.
Clause (3) provides that nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.
It may be recalled that clause 4(a) of Article 22 provides that no law of preventive detention shall authorise the detention of a person for a period longer than three months unless the Advisory Board has reported before the expiry of the said period of three months that there is in its opinion sufficient cause for such detention.
By clause 7(c) of Article 22, the Parliament is given the power to prescribe by law the procedure to be followed by the Advisory Board in an inquiry under clause 4(a).
On a combined reading of clauses (1) and (3) (b) of Article 22, it is clear that the right to consult and to be defended by a legal practitioner of one 's choice, which is conferred by clause (1), is denied by clause 3(b) to a person who is detained under any law providing for preventive detention.
Thus, according to the express intendment of the Constitution itself, no person who is detained under any law, which provides for preventive detention, can claim the right to consult a legal practitioner of his choice or to be defended by him.
In view of this, it seems to us difficult to hold, by the application of abstract, general principles or on a priori considerations that the detenu has the right of being represented by a legal practitioner in the proceedings before the Advisory Board, Since the Constitution, as originally enacted, itself contemplates that such a right should not be made available to a detenu, it cannot be said that the denial of the said right is unfair, unjust or unreasonable.
It is indeed true to say, after the decision in the Bank Nationalisation case, that though the subject of preventive detention is specifically dealt with in Article 22, the requirements of Article 21 have nevertheless to be satisfied.
It is therefore necessary that the procedure prescribed by law for the proceedings before the Advisory Boards must be fair, just and reasonable.
But then, the Constitution itself has provided a yardstick for the application of that standard, through the medium of the provisions contained in Article 22(3)(b).
Howsoever much we would have liked to hold otherwise, we experience serious difficulty in taking the view that the procedure of the Advisory Boards in which the detenu is denied the right of legal representation is unfair unjust or unreasonable.
If Article 22 were 340 silent on the question of the right of legal representation, it would have been possible, indeed right and proper, to hold that the detenu cannot be denied the right of legal representation in the proceedings before the Advisory Boards.
It is unfortunate that courts have been deprived of that choice by the express language of Article 22(3)(b) read with Article 22(1).
It is contended by Shri Jethmalani that the provision contained hl clause 3(b) of Article 22 is limited to the right which is specifically conferred by clause (1) of that article and therefore, if the right to legal representation is available to the detenu apart from the provisions of Article 22(1), that right cannot of denied to him by reason of the exclusionary provision contained in Article 22(3)(b).
Counsel says that the right of legal representation arises out of the provisions of Articles 19 and 21 and 22(5) and therefore, nothing said in Article 22(3)(b) can affect that right.
In a sense we have already answered this contention because, what that contention implies is that the denial of the right of legal representation to the detenu in the proceedings before the Advisory Board is an unreasonable restriction, within the meaning of Article 19(1), on the rights conferred by that article.
If the yardstick of reasonableness is provided by Article 22(3), which is as much a part of the Constitution as originally enacted, as Articles 19, 21 and 22(S), it would be difficult to hold that the denial of the particular right introduces an element of unfairness, unjustness or unreasonableness in the procedure of the Advisory Boards.
It would be stretching the language of Articles 19 and 21 a little too far to hold that what is regarded as reasonable by Article 22(3)(b) must be regarded as unreasonable within the meaning of those articles.
For illustrating this point, we may take the example of law which provides that an enemy alien need not be produced before a magistrate within twenty four hours of his arrest or detention in custody.
If the right of production before the magistrate within 24 hours of the arrest is expressly denied to the enemy alien by Article 22(3)(a), it would be impossible to hold that the said right is nevertheless available to him by reason of the provisions contained in Article 21.
The reason is, that the answer to the question whether the procedure established by law for depriving an enemy alien of his personal liberty is fair or just is provided by the Constitution itself through the provisions of Article 22(3)(a).
What that provision considers fair, just and reasonable cannot, for the purposes of Article 21, be regarded as unfair unjust or unreasonable.
341 To read the right of legal representation in Article 22(5) is straining the language of that article.
Clause (5) confers upon the detenu the right to be informed of the grounds of detention and the right to be afforded the earliest opportunity of making a representation against the order of detention.
That right has undoubtedly to be effective, but it does not carry with it the right to be represented by a legal practitioner before the Advisory Board merely because, by section 10 of the , the representation made by the detenu is required to be forwarded to the Advisory Board for its consideration.
If anything, the effect of section 11(4) of the Act, which conforms to Article 22(3)(b), is that the detenu cannot appear before the Advisory Board through a legal practitioner.
The written representation of the detenu does not have to be expatiated upon by a legal practitioner.
Great reliance was placed by Shri Jethmalani on the decision of the American Supreme Court in ozie Powell vs State of Alabama(1), in which it was held that the right of hearing includes the right to the aid of counsel because, the right Lo be heard will in many cases be of little help if it did not comprehend the right to be heard by a counsel.
Delivering the opinion of the court, Sutherland.
J. said: "Even the intelligent and educated layman has small and sometimes no skill in the science of law.
If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad.
He is unfamiliar with the rules of evidence.
Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible.
He lacks both the skill and knowledge adequately to prepare his defence, even though he have a perfect one.
He requires the guiding hand of counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.
If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.
If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for 342 him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense." (page 170) The aforesaid decision in Powell is unique in more than one way and has to be distinguished.
The petitioners therein were charged with the crime of rape committed upon two white girls.
At the trial, no counsel was employed on behalf (If petitioners but the trial Judge had stated that "he had appointed all the members of the Bar for the purpose of arranging the defendants and then of course anticipated that the members of the bar would continue to help the defendants if no counsel appeared".
The trial of the petitioners was completed within a single day, at the conclusion of which the petitioners were sentenced to death.
That verdict was assailed on the ground, inter alia, that the petitioners were denied the right of counsel.
It must be stated that the Constitution of Alaboma provided that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel; and a state statute required that the court must appoint a counsel for the accused in all capital cases where the accused was unable to employ one.
It is in the light of these provisions and as a requirement of the due process clause of the American Constitution that it was held that the right to hearing, which is a basic element of due process, includes the right to the aid of counsel.
The patent distinction between that case and the matter before us is that our Constitution, at its very inception, regarded it reasonable to deny to the detenu the right to consult and be defended by a legal practitioner of his choice.
Secondly, a criminal trial involves issues of a different kind from those which the Advisory Board has to consider.
The rights available to an accused can, therefore, be of a different character than those available to the detenu, consistently with reason and fairplay.
Shri Jethmalani also relied upon another decision of the Supreme Court which is reported in John J. Morrissey vs Lou B. Brewer.(l) In that case, two convicts whose paroles were revoked by the Iowa Board of Parole, alleged that they were denied due process because their paroles were revoked without a hearing.
Burger C.J., expressing the view of six members of the court, expressly left upon the question whether a prolee is entitled, in a parole revocation proceeding, to the assistance of counsel.
The 343 three other learned Judges held that due process requires that the parolee be allowed the assistance of counsel in the parole revocation proceeding.
It must be appreciated that the American decisions on the right to counsel turn largely on the due process clause in the American Constitution.
We cannot invoke that clause for spelling out a right as part of a reasonable procedure, in matters wherein our Constitution expressly denies that right.
In support of his submission that for detenu is entitled to appear through a legal practitioner before the Advisory Board, Shri Jethmalani relies on the decisions of this Court in Madhav Haywadanroo Hoskot vs State of Maharashtrara(1) Hussainara Khatoon vs Home Secretary, State of Bihar(2) and Francis Coralie Mullin vs The Administrator, Union Territory of Delhi(3).
Speaking for the Court, Krishna Iyer, J. said in Hoskot: "The other ingredient of fair procedure to a prisoner, who has to seek his liberation through the court process is lawyer 's services.
Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the carde where such supportive skill is absent for one side.
Our judicature, moulded by Anglo American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer power for steering the wheels of equal justice under the law," Page (204) In Hussainara Khatoon, one of us, Bhagwati, J. voiced the concern by saying: "It is an essential ingredient reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court 's process that he should have legal services avail to him." (Page 103).
344 These observations were made in the context of rights available to an accused in a criminal trial and cannot be extended to the proceedings of Advisory Boards in order to determine the rights of detenus in relation to those proceedings The question as regards the kind and nature of rights available in those proceedings has to be decided on the basis of the provisions contained in Article 22 of the constitution and sections 10 and 11 of the .
In Francis Caralie Mullin, the petitioner, while in detention, wanted to have an interview with her lawyer, which was rendered almost impossible by reason of the stringent provisions of clause 3(b)(i) of the Conditions of Detention ' formulated by the Delhi Administration.
In a petition filed in this Court to challenge the aforesaid clause, inter alia, it was held by this Court that the clause was void, since it violated Articles 14 and 21 by its discriminatory nature and unreasonableness.
The Court directed that the detenu should be permitted to have an interview with her legal adviser at any reasonable hour during the day after taking an appointment from the Superintendent of the jail and that the interview need not necessarily take place in the presence of an officer of the Customs or Central excise Department.
The Court also directed that the officer concerned may watch the interview but not so as to be within the hearing distance of the detenu and the legal adviser.
This decision has no bearing on the point which arises before us, since the limited question which was involved in that case was whether the procedure prescribed by clause (3), governing the interviews which a detenu may have with his legal adviser was reasonable.
The Court was not called upon to consider the question as regards the right of a detenu to be represented by a legal practitioner before the Advisory Board.
We must therefore, held, regretfully though, that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board.
It is, however, necessary to add an important caveat.
The reason behind the provisions contained in Article 22(4) (b) of the Constitution slate is that a legal practitioner should not be permitted So appear before the Advisory 345 Board for any party.
The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu.
In any case, that is not what the Constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22.
Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14, if a similar facility is denied to the detenu.
We must therefore make it clear that if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner.
We are informed that officers of the Government in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders.
If that be so, we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly; and no one should be enabled to take shelter behind the excuse that such officers are not "legal practitioner" or legal advisers, Regard must be had to the substance and not the form since, especially, in matters like the proceedings of Advisory Boards, whosoever assist or advises on facts or law must be deemed to be in the position of a legal adviser.
We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them.
Serving or retired Judges of the High Court will have no difficulty in under standing this position.
Those who are merely "qualified to be appointed" as High Court Judges may have to do a little homework in order to appreciate.
Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal practitioner should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner.
Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend.
A detenu, taken straight from his cell to the Board 's room, may lack the ease and composure to present his point of view.
He may be "tongue tied, nervous, confused or wanting in intelligence", (see Pett vs 346 Greyhound Racing Association Ltd.)(1), and if justice to be done, he must at least have the help of a friend who can assist him to give coherence to his stray and wandering ideas.
Incarceration makes a man and his thoughts dishevelled.
Just as a person who is domb is entitled, as he must, to be represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law.
It may be that denial of legal representation is not denial of natural justice per se, and therefore, if a statute excludes that facility expressly, it would not be open to the tribunal to allow it.
Fairness, as said by Lord Denning M.R., in Maynard vs Osmond(2) can be obtained without legal representation.
But, it is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend.
Whenever demanded, the Advisory Boards must grant that facility.
Shri Jethmalani laid equally great stress on the need to give the detenu the right of cross examination and in support of his sub mission in that behalf, he relied on the decisions of the American Supreme Court in Jack R. Goldberg vs John Belly(3), Morrissey, Norvai Goss vs Eileen Lopez(4) and Powell.
In Goldberg, Brennan, J., expressing the view of five members of the court said that in almost every setting where important decisions turn on questions of fact, due process requires opportunity to confront and cross examine adverse witnesses.
The learned Judge reiterated the court 's observations in Greeny vs McElore(5) to the following effect: "Certain principles have remained relatively immutable in our jurisprudence.
One of these is that where govern mental action seriously injures an individual, and toe reasonableness of the action depends on fact findings.
the evidence used to prove the Government 's case must be disclosed to the individual so that he has an opportunity to show that it is untrue.
While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose 347 memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.
We have formalized these protections in the requirements of confrontation and cross examination.
They have ancient roots.
They find expression in the Sixth Amendment.
This Court has been zealous to protect these right from erosion.
It has spoken out not only in criminal cases, . but also in all types of cases where administrative. . actions were under scrutiny".
Welfare recipients whose aid was terminated or was about to be terminated were held entitled to be given an opportunity to confront and cross examine the witnesses relied on by the department.
The right to confront and cross examine adverse witnesses was upheld in the other American cases also which counsel has cited.
For reasons which we have stated more than once during the course of this judgment, the decisions of the U.S. Supreme Court which turn peculiarly on the due process clause in the American Constitution cannot be applied wholesale for resolving questions which arise under our Constitution, especially when, after a full discussion of that clause in the Constituent Assembly, the proposal to incorporate it in Article 21 was rejected.
In U.S A. itself, Judges have expressed views on the scope of the clause, which are not only divergent but diametrically opposite.
For example, in Goldberg on which Shri Jethmalani has placed considerable reliance, Black, J., said in his dissenting opinion that the majority was using the judicial power for legislative purposes and that "they wander out of their filed of vested powers and transgress into the area constitutionally assigned to the Congress and the people".
The dissenting opinion of Chief Justice Burger in that case is reported in Mue Wheeler vs John Montgomery(l), in the some volume.
Describing the majority opinion as 'unwise and precipitous" the learned Chief Justice said: "The Court 's action today seems another manifestation of the now familiar conventionalizing syndrome: once some presumed flaw is observed, the Court then eagerly accepts the inviation to find a constitutionally "rooted" 348 remedy.
If no provision is explicit on the point it is then seen as implicit" or commanded by the vague and nebulous concept of "fairness".
It is only proper that we must evolve our own solution to problems arising under our Constitution without, of course, spurning the learning and wisdom of our counterparts in comparable jurisdictions.
The principal question which arises is whether the right of cross examination is an integral and inseparable part of the principles of natural justice.
Two fundamental principles of natural justice are commonly recognised, namely, that an adjudicator should be disinterested and unbiased (nemo judex in cause sua) and that, the parties must be given adequate notice and opportunity to be heard (audi alterm partem).
There is no fixed or certain standard of natural justice, substantive or procedural, and in two English cases the expression 'natural justice ' was described as one 'sadly lacking in precision '(l) and as 'vacuous '(2).
The principles of natural justice are, in fact, mostly evolved from case to case, according to the broad requirements of Justice in the given case.
We do not suggest that the principles of natural justice, vague and variable as they may be, are not worthy of preservation.
As observed by Lord Reid in Ridge vs Baldwin(3), the view that natural justice is so vague as to be practically meaningless" is tainted by "the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist".
But the importance of the realisation that the rules of natural justice are not rigid norms of unchanging content, consists in the fact that the ambit of those rules must vary according to the context, and they have to be tailored to suit the nature of the proceeding in relation to which the particular right is claimed as a component of natural justice.
Judged by this test, it seems to us difficult to hold that a detenu can claim the right of cross examination in the proceeding before the Advisory Board.
First and foremost, cross examination of whom ? The principle that witnesses must be con fronted and offered for cross examination applies generally to proceedings in which witnesses are examined or documents are adduced 349 in evidence in order to prove a point.
Cross examination then becomes a powerful weapon for showing the untruthfulness of that evidence.
In proceedings before the Advisory Board.
the question for consideration of the Board is not whether the detenu is guilty of any charge but whether there is sufficient cause for the detention of the person concerned.
The detention, it must be remembered, is based not on fact proved either by applying the test of preponderance of probabilities or of reasonable doubt.
The detention is based on the subjective satisfaction of the detaining authority that it is necessary to detain a particular person in order to prevent him from acting in a manner prejudicial to certain stated objects.
The proceeding of the Advisory Board has therefore to be structured differently from the proceeding of judicial or quasi judicial tribunals, before which there is a lis to adjudicate upon, Apart from this consideration, it is a matter of common experience that in cases of preventive detention, witnesses are either unwilling to come forward or the sources of information of the detaining authority cannot be disclosed without detriment to public interest.
Indeed, the disclosure of the identity of the informant may abort the very process of preventive detention because, no one will be willing to come forward to give information of any prejudicial activity if his identity is going to be disclosed, which may have to be done under the stress of cross examination.
It is therefore difficult, in the very nature of things, to give to the detenu the full panoply of rights which an accused is entitled to have in order to disprove the charges against him That is the importance of the statement that the concept of what is just and reasonable is flexible in its scope and calls for such procedural protections as the particular situation demands.
Just as there can be an effective hearing without legal E; representation even so, there can be an effective hearing without the right of cross examination.
The nature of the inquiry involved in the proceeding in relation to which these rights are claimed determines whether these rights must be given as components of natural justice.
In this connection, we would like to draw attention to certain decisions of our Court.
In New Prakash Transport Co. Ltd. vs New Suwarna Transport Co. Ltd(1), it was 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 350 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".
In Nagendra Nath Bora vs Commissioner of Hills Division and Appeals, Assam(1), the aforesaid statement was cited with approval by another Constitution Bench.
In State of Jammu Kashmir vs Bakshi Ghulam Mohammed(2), it was argued that the right to hearing included the right to cross examine witnesses.
That argument was rejected by the Court by observing that the right of cross examination depends upon the circumstances of each case and on the terms of the statute under which the matter is being enquired into.
Citing with approval the passage in Nagendra Nath Bora, the Court held that the question as to whether the right to cross examine was available had to be decided in the light of the fact that it was dealing with a statute under which a Commission of Inquiry was set up for fact finding purposes and that the report of the Commission had no force proprio vigore.
In support of his submission that the right of cross examination is a necessary part of natural justice, Shri Jethmalani relies upon the decisions of this Court which are reported in Union of India vs T. R. Varma(3) and Khem Chand vs Chand Union of India(4).
It was observed in the first of these two cases that the rules of natural justice require that the party concerned should have the opportunity of adducing the relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, that "he should be given the opportunity of cross examining the witnesses examined by" the other side and that no materials should be relied on against him without his being given an opportunity of explaining them.
In Khem Chand it was held that if the purpose of Article 311(2) was to give the Government servant an opportunity to exonerate himself from the charge and if this opportunity is to be a reasonable one, he should be allowed to show that the evidence against him is not worthy of credence or consideration and, "that he can only do if he is given a chance to cross examine the witnesses called against him "and to examine himself or any other witnesses in support of his defence.
These observations must be understood in the context of the proceedings in which they are made and cannot be taken as laying down a general rule that the right of cross examination is 351 available as a part of natural justice in each and every proceeding.
In both of these cases, the question which arose for consideration of the Court was whether a Government servant, who was dismissed from service, was given "a reasonable opportunity" of showing cause against the action proposed to be taken against him, within the meaning of Article 311(2) of the Constitution.
It shall have been noticed that the emphasis in these cases is on the right to cross examine the witnesses who are examined by the opposite party.
In T. R. Varma the right of cross examination is described as the right in regard to the witnesses examined by the other party while in Khem Chand, the right is described as an opportunity to defend oneself by cross examining the witnesses produced by the other side.
No witnesses are examined in the proceedings before the Advisory Board on behalf of the detaining authority and therefore, the rule laid down in the two decisions on which Shri Jethmalani relies can have no application to those proceedings.
If the debates of the Constituent Assembly are any indication, it would appear that Dr. R. Ambedkar, at any rate, was of the opinion that the detenu should be given the right to cross examine witnesses before the Advisory Board.
In his reply to the debate on the procedure of the Advisory Board, he said on September 16, 1949 that a "pointed question has been asked whether the accused person would be entitled to appear before the Board, cross examine the witnesses, and make his own statement '.
Dr. Ambedkar 's answer was that the Parliament should be given the power to prescribe the procedure to be followed by the Advisory Board.
That is how clause 7(c) came to be incorporated in Article 22 of the Constitution, giving that power to the Parliament.
Pandit Thakur Dass Bhargava thereafter asked as to what was the position regarding the safeguard of cross examination.
The reply of Dr. Ambedkar, significantly, was: "The right of cross examination is already there in the Criminal Procedure Code and in the Evidence Act.
Unless a provincial Government goes absolutely stark mad and takes away these provisions it is unnecessary to make any provision of that sort.
Defending includes cross examination.
" x x x x x x "If you can give a single instance in India where the right of cross examination has been taken away, I can 352 understand it.
I have not seen any such case." (see Constituent Assembly Debates, Vol. 9, pages 1561, 1562, 1563).
Dr. Ambedkar, unfortunately, was not prophetic and the authors of the various Preventive Detention Acts did not evidently share his view.
In fact, the right of cross examination under the Criminal Procedure Code and the Evidence Act, by which Dr. Ambedkar laid great store, has nothing to do with the detenu 's right of cross examination before the Advisory Board.
With great respect, Dry Ambedkar seems to have nodded slightly in referring to the pro vision for cross examination under those Acts.
Whatever it is, Parliament has not made any provision in the , under which the detenu could claim the right of cross examination and the matter must rest there.
We are therefore of the opinion that, in the proceedings before the Advisory Board, the detenu has no right to cross examine either the persons on the basis of whose statement the order of detention is made or the detaining authority.
The last of the three rights for which Shri Jethmalani contends is the right of the detenu to lead evidence in rebuttal before the Advisory Board.
We do not see any objection to this right being granted to the detenu.
Neither the Constitution nor the contains any provision denying to the detenu the right to present his own evidence in rebuttal of the allegations made against him.
The detenu may therefore offer oral and documentary evidence before the Advisory Board in order to rebut the allegations which are made against him.
We would only like to add that if the detenu desires to examine any witnesses, he shall have to keep them present at the appointed time and no obligation can be cast on the Advisory Board to summon them.
The Advisory Board, like any other tribunal, is free to regulate its own procedure within the constraints of the Constitution and the statute.
It would be open to it, in the exercise of that power, to limit the time within which the detenu must complete his evidence.
We consider it necessary to make this observation particulary in view of the fact that the Advisory Board is under an obligation under section 11(1) of the Act to submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned.
The proceedings before the Advisory Board have therefore to be completed with the utmost expedition.
353 It is urged by Shri Jethmalani that the Advisory Board must decide two questions which are of primary importance to the detenu: one, whether there was sufficient cause for the detention of the person concerned and two, whether it is necessary to keep the person in detention any longer after the date of its report.
We are unable to accept this contention.
Section 11(2) of the Act provides specifically that the report of the Advisory Board shall specify its opinion "as to whether or not there is sufficient cause for the detention of the person concerned".
This implies that the question to which the Advisory Board has to apply its mind is whether on the date of its report there is sufficient cause for the detention of the person.
That inquiry necessarily involves the consideration of the question as to whether there was sufficient cause for the detention of the person when the order of detention was passed, but we see no justification for extending the jurisdiction of the Advisory Board to the consideration of the question as to whether it is necessary to continue the detention of the person beyond the date on which it submits its report or beyond the period of three months after the date of detention.
The question as to whether there are any circumstances on the basis of which the detenu should be kept in detention after the Advisory Board submits its report, and how long, is for the detaining authority to decide and not for the Board.
The question as regards the power of the Advisory Board in this behalf had come up for consideration before this Court in Puranlal Lakhanpal vs Union of India.
While rejecting the argument that the words "such detention" which occur in Article 22(4)(a) of the Constitution mean detention for a period longer than three months, the majority held that the Advisory Board is not called upon to consider whether the detention should continue beyond the period of three months.
In coming to that conclusion the majority relied upon the decision in Dattatraya Moreshwar Pangarkar vs State of Bombay in which Mukherjea, J., while dealing with a similar question, observed: "The Advisory Board again has got to express its opinion only on the point as to whether there is sufficient cause for detention of the person concerned.
It is neither called upon nor is it competent to say anything regarding the period for which such person should be detained.
Once the Advisory Board expresses its view that there is sufficient cause for detention at the date when it makes its report, 354 what action is to be taken subsequently is left entirely to the appropriate Government and it can under section 11(1) of the Act confirm the detention order and continue detention of the person concerned for such period as it thinks fit." The contention that the Board must determine the question as to whether the detention should continue after the date of its report must therefore fail.
The duty and function of the Advisory Board is to determine whether there was sufficient cause for detention of the person concerned on the date on which the order of detention was passed and whether or not there is sufficient cause for the detention of that person on the date of its report.
We are not inclined to accept the plea made by the learned counsel that the proceedings of the Advisory Board should be thrown open to the public.
The right to a public trial is not one of the guaranteed rights under our Constitution as it is under the 6th Amendment of the American Constitution which secures to persons charged with crimes a public, as well as a speedy, trial.
Even under the American Constitution, the right guaranteed by the 6th Amendment is held to be personal to the accused, which the public in general cannot share.
Considering the nature of the inquiry which the Advisory Board has to undertake, we do not think that the interests of justice will be served better by giving access to the public to the proceedings of the Advisory Board.
This leaves for consideration the argument advanced by Shri Jethmalani relating to the post detention conditions applicable to detenus in the matter of their detention.
The learned counsel made a grievance that the letters of detenus are censored, that they are not provided with reading or writing material according to their requirements and that the ordinary amenities of life are denied to them.
It is difficult for us to frame a code for the treatment of detenus while they are held in detention.
That will involve an exercise which .
calls for examination of minute details, which we cannot undertake.
We shall have to examine each case as it comes before us, in order to determine whether the restraints imposed upon the detenu in any particular case are excessive and unrelated to the object of detention.
If so, they shall have to be struck down.
We would, however, like to say that the basic commitment of our Constitution is to foster human dignity and the well being of our people.
In recent times, we have had many an occasion to alert the authorities to the need to 355 treat even the convicts in a manner consistent with human dignity.
The judgment of Krishna Iyer, J. in Sunil Batra vs Delhi Administration is an instance in point.
It highlights that places of incarceration are "part of the Indian earth" and that, "the Indian Constitution cannot be held at bay by jail officials 'dressed in a little, brief authority".
We must impress upon the Government that the detenus must be afforded all reasonable facilities for an existence consistent with human dignity.
We see no reason why they should not be permitted to wear their own clothes, eat their own food, have interview with the members of their families at least once a week and, last but not the least, have reading and writing material according to their reasonable requirement.
Books are the best friends of man whether inside or outside the jail.
There is one direction which we feel called upon to give specifically and that is that persons who are detained under the must be segregated from the convicts and kept in a separate part of the place of detention.
It is hardly fair that those who are suspected of being engaged in prejudicial conduct should be lodged in the same ward or cell were the convicts whose crimes are established are lodged.
The evils of "custodial perversity" are well known and have even found a place in our law reports.
As observed by Krishna Iyer, J. in Sunil Batra, the most important right of the person who is imprisoned is to the integrity of his physical person and mental personality.
Even within the prison, no person can be deprived of his guaranteed rights save by methods which are fair, just and reasonable.
"In a democracy, a wrong to some one is a wrong to every one" and care has to be taken to ensure that the detenu is not subjected to any indignity.
While closing this judgment, we would like to draw attention to what Shah, J. said for the Court in Sampat Prakash vs State of Jammu & Kashmir(2): "The petitioner who was present in the Court at the time of hearing of his petition complained that he is subjected to solitary confinement while in detention.
It must be emphasised that a detenu is not a convict.
Our Constitution, notwithstanding the broad principles of the rule of law, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions pre 356 vailing legislation which is a negation of the rule of law, equality and liberty.
But it is implicit in the Constitutional scheme that the power to detain is not a power to punish for offences which an executive authority in his subjective satisfaction believes a citizen to have committed.
Power to detain is primarily intended to be exercised in those rare cases when the large interest of the State demand that restrictions shall be placed upon the liberty of a citizen curbing his future activities.
The restrictions so placed must consistently with the effectiveness of detention, be minimal.
" If any of the persons detained under the are at present housed in the same ward or cell where the convicts are housed, immediate steps must be taken to segregate them appropriately.
"The Indian human ' ', whenever necessary, has of course "a constant companion the Court armed with the Constitution" and informed by it.
In the result, the Writ Petitions shall stand disposed of in accordance with the view expressed herein and the orders and directions given above.
GUPTA, J. I find myself unable to agree with the views expressed in the judgment of the learned Chief Justice on two of the points that arise for decision in this batch of writ petitions, one of them relates to the failure of the Central Government to bring into operation the provisions of section 3 of the Constitution (Forty Fourth Amendment) Act, 1978 and the other concerns the question whether an ordinance is 'law ' within the meaning of article 21 of the Constitution.
The Constitution (Forty Fourth Amendment) Act, 1978 received assent of the President on April 30, 1979.
Article 368(2) says, inter alia, that after a Bill for the amendment of the Constitution is passed in each House of Parliament by the prescribed majority "it shall be presented to the President who shall give his assent to the Bill and there upon the Constitution shall stand amended in accordance with the terms of the Bill".
Section 1(2) of the Constitution (Forty Fourth Amendment) Act states that the Act "shall come into force on such date as the Central Government, may, by notification in the official Gazette, appoint," and that "different dates may be appointed for different provisions of this 357 Act".
Section 3 of the Amendment Act substitutes a new clause A for the existing clause (4) of article 22 of the Constitution which provides inter alia for the constitution of Advisory Boards.
The relevant part of section 3 reads as follows; "Amendment of article 22.
In article 22 of the Constitution, (a) for clause (4), the following clause shall be substituted, namely: (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than two months unless an Advisory Board constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court has reported before the expiration of the said period of two months that there is in its opinion sufficient cause for such detention: Provided that an Advisory Board shall consist of a Chairman and not less than two other members, and the Chairman shall be a serving Judge of the appropriate High Court and the other members shall be a serving or retired Judges of any High Court.
" The provision requiring the Advisory Board to be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court and that the Chairman of the Advisory Board shall be a serving Judge of the High Court and the other members of the Board shall be serving or retired Judges of any High Court is absent in the existing clause (4) under which persons who are only qualified to be appointed as Judges of a High Court are eligible to be members of the Advisory Board.
Many of the provisions of the Act were brought into force on different dates in the year 1979 but the provisions of section 3 were not given effect to for more than one year and seven months when the hearing of these writ petitions commenced on December 9, 1980.
Now though more than two and a half years have passed the provisions of section 3 have not yet been brought into force.
The question is whether under section 1(2) the Central Government had the freedom to bring into force any of the provisions of the Amendment Act at any time it liked.
I do not think that section 1(2) can be construed to mean 358 that Parliament left is to the unfettered discretion or judgment of the Central Government when to bring into force any provision of the Amendment Act.
After the Amendment Act received the President 's assent, the Central Government was under an obligation to bring into operation the provisions of the Act within a reasonable time; the power to appoint dates for bringing into force the provisions of the Act was given to the Central Government obviously because it was not considered feasible to give effect to all the provisions immediately.
After the Amendment Act had received the President 's assent the Central Government could not in it discretion keep it in a state of suspended animation for any length of time it pleased.
That Parliament wanted the provisions of the Constitution (Forty Fourth Amendment) Act, 1978 to be made effective as early as possible would appear from its objects and Reasons.
The following extract from the objects and Reasons clearly discloses a sense of urgency: "Recent experience has shown that the fundamental rights, including those of life and liberty, granted to citizens by the Constitution are capable of being taken away by a transient majority.
It is, therefore, necessary to provide adequate safeguards against the recurrence of such a contingency in the future and to ensure to the people themselves an effective voice in determining the form of government under which they are to live.
This is one of the primary objects of this Bill.
x x x x x x As a further check against the misuse of the Emergency provisions and to put the right to life and liberty on a secure footing, it would be provided that the power to suspend the right to move the court for the enforcement of a fundamental right cannot be exercised in respect of the fundamental right to life and liberty.
The right to liberty is further strengthened by the provision that a law for preventive detention cannot authorise, in any case, detention for a longer period than two months, unless an Advisory Board has reported that there is sufficient cause for such detention.
An additional safeguard would be provided by the requirement that the Chairman of an Advisory Board shall be a serving Judge of the appropriate High 359 Court and that the Board shall be constituted in accordance with the recommendations of the Chief Justice of that High Court.
" I have already said that Parliament must have taken into consideration the practical difficulties in the way of the executive in bringing into operation all the provisions of the Act immediately, and by enacting section 1(2) it relied on the Central Government to give effect to them.
Now when more than two and a half years have passed since the Constitution (Forty Forth Amendment) Act, 1978 received the assent of the President, it seems impossible that any such difficulty should still persist preventing the Government from giving effect to section 3 of the Amendment Act.
It is interesting to note that clause 9 of the National Security ordinance, 1980 provided for the constitution of Advisory Boards in conformity with article 22 of the Constitution as amended by section 3 of the Constitution (Forty Fourth Amendment) Act, 1978.
This makes it clear that non implementation of the provisions of section 3 was not due to any practical or administrative difficulty.
However, the which replaced the ordinance does not retain the provision of clause 9 of the ordinance and prescribes the constitution of the Advisory Boards in section 9 in accordance with unamended article 22(4).
I do not think it can the seriously suggested that a provision like section 1(2) of the Constitution (Forty Fourth Amendment) Act empowered the executive to scotch an amendment of the Constitution passed by Parliament and assented to by the President.
The Parliament is competent to take appropriate steps if it considered that the executive had betrayed its trust does not make the default lawful or relieve this Court of its duty.
I would therefore issue a writ of mandamus directing the Central Government to issue a notification under section 1(2) of the Constitution (Forty Fourth Amendment) Act, 1978 bringing into force the provisions of section 3 of the Act within two months from this date.
On the other point, I find it difficult to agree that an ordinance is 'law ' within the meaning of article 21 of the Constitution.
Article 21 reads: "No person shall be deprived of his life or personal liberty except according to procedure established by law." The National Security ordinance, 1980 has been challenged on a number of grounds, one of which is that the life and liberty of 360 person cannot be taken away by an ordinance because it is not 'law ' within the meaning of article 21.
Normally it is the legislature that has the power to make laws.
Article 123 of the Constitution deals with the President 's power to promulgate ordinances and the nature and effect of an ordinance promulgated under this article, Article 123 is as follows: "(1) It at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require.
(2) An ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance (a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions: and (b) may be withdrawn at any time by the President.
Explanation Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purpose of this clause.
(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void" To show that there is no difference between a law passed by Parliament and an ordinance promulgated by the President under article 123 reliance was placed on behalf of the Union of India on clause (2) of the article which says that an ordinance shall have the same force and effect as an Act of Parliament.
It was further pointed out that chapter III of part V of the Constitution which includes article 123 is headed "Legislative Powers of the President.
" Reference was made to article 213 which concerns the power of the Governor 361 to promulgate ordinances: article 213 is in chapter IV of part VI of the Constitution which hears a similar description: Legislative Power of the Governor".
From these provisions it was contended that the President in promulgating an ordinance under article 123 exercises his legislative power and therefore an ordinance must be regarded as 'law ' within the meaning of article 21.
But the nature of the power has to be gathered from the provisions of article 123 and not merely from the heading of the chapter.
It is obvious that when something is said to have the force and effect of an Act of Parliament, that is because it is not really an Act of Parliament.
Article 123 (2) does say that an Act of Parliament to make the two even fictionally identical.
The significance of the distinction will be clear by a reference to articles 356 and 357 which are in part XVIII of the Constitution that contains the emergency provisions.
The relevant part of article 356 reads: "(1) If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation (a) assume to himself all or any of the functions of the Government of the State and all or any or the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State; (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;" Article 357 provides: (1) Where by a Proclamation issued under clause (1) of article 356, it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament, it shall be competent (a) for Parliament to confer on the President the power of the Legislature of the State to make 362 laws, and to authorise the President to delegate, subject to such conditions as he may think fit to impose, the power so conferred to any other authority to be specified by him in that behalf; (b) for Parliament, or for the President or other authority in whom such power to make laws is vested under sub clause (a), to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities thereof; (c) x x x x x (2) Any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub clause (a) of clause (1) which Parliament or the President or such other authority would not, but for the issue of a proclamation under article 356, have been competent to make shall, after the Proclamation has ceased to operate, continue in force until altered or repealed or amended by a competent Legislature or other authority.
" It will appear that whereas an ordinance issued under article 123 has the same force and effect as an Act of Parliament, under article 357(1) (a) Parliament can confer on the President the power of the legislature of the State to make laws.
Thus, where the President is required to make laws, the Constitution has provided for it.
The difference in the nature of the power exercised by the President under article 123 and under article 357 is clear and cannot be ignored.
Under article 21 no person can be deprived of life and liberty except according to procedure established by law.
Patanjali Sastri J. in A. K Gopalan vs State observed that the word "established" in article 21 "implies some degree of firmness, permanence and general acceptance".
An ordinance which has to be laid before both Houses of Parliament and ceases to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses can hardly be said to have that 'firmness ' and 'permanence ' that the word 'established ' implies.
It is not the 363 temporary duration of an ordinance that is relevant in the present context, an Act of Parliament may also be temporary; what is relevant is its provisional and tentative character which is apparent from clause 2 (a) of article 123.
On this aspect also the difference between a law made by the President under article 357 and an ordinance promulgated by him under article 123 should be noted.
A law made under article 357 continues in force until altered, repealed or amended by a competent legislature or authority; an ordinance promulgated under article 123 ceases to operate at the expiration of six weeks from the reassembly of Parliament at the latest.
On behalf of the Union of India learned Attorney General referred to article 367 (2) to argue that the Constitution itself equates an ordinance with an Act of Parliament.
Article 367 (2) reads: "Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the Legislature of a State, shall be construed as including a reference to an ordinance made by the President or, to an ordinance made by a Governor, as the case may be." Any reference in the Constitution to Acts of Parliament has to be construed as including a reference to an ordinance made by the President as article 367 (2) provides because an ordinance has been given the force and effect of an Act, But clearly an ordinance has this force and effect only over an area where it can validity operate.
An invalid ordinance can have no force or effect and if it is not 'law ' in the sense the word has been used in article 21, article 367 (2) cannot make it so.
There is also another aspect of the matter.
Article 21 not only speaks of a situation in normal times which left no time for the to think of a situation in normal times which left no time for the President to summon Parliament and required him to promulgate ordinances to take away the life or liberty of persons, unless one considered life and liberty as matters of no great importance.
However, in view of the opinion of the majority upholding the validity of the ordinance, it is unnecessary to dilate on this aspect.
On all the other points I agree with conclusions reached by the learned Chief Justice.
364 TULZAPURKAR, J.
On the question of bringing into force, section 3 read with section 1(2) of the Constitution (Forty Fourth Amendment) Act, 1978 I am in agreement with the view expressed by my learned brother A. C. Gupta in his judgment.
Barring this aspect, I am in agreement with the rest of the judgment delivered by my Lord the Chief Justice.
| IN-Abs | Section 1(2) of the Constitution (Fortyfourth Amendment) Act 1978 provides that "It shall come into force on such date as the Central Government may, by notification in the official Gazette appoint and different dates may be appointed for different provisions of this Act.
" Section 3 of the Act substituted a new clause (4) for the existing sub clause (4) of Article 22.
By a notification the Central Government had brought into force all the sections of the Fortyfourth Amendment Act except section 3.
In the meantime the Government of India issued the National Security ordinance 2 of 1980 which later became the .
The petitioner was detained under the provisions of the ordinance on the ground that he was in dulging in activities prejudicial to public order.
In his petition under Article 32 of the Constitution the petitioner contended that the power to issue an ordinance is an executive power, not legislative power, and therefore the ordinance is not law. ^ HELD: [per Chandrachud, C.J., Bhagwati & Desai, JJ.] [Gupta and Tulzapurkar, JJ dissented on the question of bringing into force section 3 read with section 1(2) of the Fortyfourth Amendment Act.
Gupta J. dissented on the question whether ordinance is law].
273 The power of the President to issue an ordinance under Article 123 of the Constitution is a legislative and not an executive power.
From a conspectus of the provisions of the Constitution it is clear that the Constituent Assembly was of the view that the President 's power to legislate by issuing an ordinance is as necessary for the peace and good government of the country as the Parliament 's power to legislate by passing laws.
The mechanics of the Presidents legislative power was devised evidently in order to take care of urgent situations which cannot brook delay.
The Parliamentary process of legislation is comparatively tardy and can conceivably be time consuming.
It is true that it is not easy to accept with equanimity the proposition that the executive can indulge in legislative activity but the Constitution is what it says and not what one would like it to be.
The Constituent Assembly indubitably thought, despite the strong and adverse impact which the Governor General 's ordinance making power had produced on the Indian community in the pre independence era, that it was necessary to equip the President with legislative powers in urgent situations.
[290 E G] R.C. Cooper vs Union of India, [I 9701 3 SCR 530, 559, referred to.
The contention that the word 'law ' in Article 21 must construed to mean a law made by the legislature only and cannot include an ordinance, contradicts directly the express provisions of Articles 123 (2) and 367 (2) of the Constitution.
Besides, if an ordinance is not law within the meaning of Article 21, it will stand released from the wholesome and salutary restraint imposed upon the legislative power by Article 13(2) of the Constitution.
[292 G H] The contention that the procedure prescribed by an ordinance cannot be equated with the procedure established by law is equally unsound.
The word 'established ' is used in Article 21 in order to denote and ensure that the procedure prescribed by law must be defined with certainty in order that those who are deprived of t heir fundamental right to life or liberty must know the precise extent of such deprivation.
1293 A B] The argument of the petitioner that the fundamental right conferred by Article 21 can not be taken away by an ordinance really seeks to add a proviso to Article 123(1) to the effect: "that such ordinances shall not deprive any person of his right to life or personal liberty conferred by Article 21 of the Constitution.
" An amendment substantially to that effect moved in the Constituent Assembly was rejected by the Constituent Assembly.
[293 D E] A.K. Gopalan ; , Sant Ram; , , 506, State of Nagaland vs Ratan Singh ; , 851, 852, Govind vs State of Madhya Pradesh & Anr. ; , 955 56, Ratilal Bhanjl Mithani vs Asstt.
Collector of Customs, Bombay & Anr. ; , 928 931 and Pandit M.S.M. Sharma vs Shri Sri Krisna Sinha & Anr.
[1959] Supp.
I SCR 806, 860 861, referred to.
Since the petitioners have not laid any acceptable foundation for holding that no circumstances existed or could have existed which rendered it necessary 274 for the President to take immediate action by promulgating impugned ordinance, the contention that the ordinance is unconstitutional for the reason that the pre conditions to the exercise of power conferred by Article 123 are not fulfilled, has no force.
[298 D] There can be no doubt that personal liberty is a precious right.
So did the founding fathers believe at any rate because, while their first object was to give unto the people a Constitution whereby a Government was established.
their second object, equally important, was to protect the people against the Government.
That is why, while conferring extensive powers on the Government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights and the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental.
The imperative necessity to protect those rights is a lesson taught by all history and all human experience.
And therefore, while arming the government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people.
[300 B D] Section 1(2) of the Fortyfourth Amendment Act is valid.
There is no internal contradiction between the provisions of Article 368(2) and those of section 1(2) of the 44th Amendment Act.
Article 368(2) lays down a rule of general application as to the date from which the Constitution would stand amended in accordance with the Bill assented to by the President, section 1(2) of the Amendment Act specifies the manner in which that Act or any of its provisions may be brought into force.
The distinction is between the Constitution standing amended in accordance with the terms of the Bill assented to by the President and the date of the coming into force of the Amendment thus introduced into the Constitution.
For determining the date with effect from which the Constitution stands amended in accordance with the terms of the Bill, one has to turn to the date on which the President gave, or was obliged to give, his assent to the Amendment.
For determining the date with effect from which the Constitution.
as amended, came or will come into force, one has to turn to the notification, if any, issued by the Central Government under section 1(2) of the Amendment Act.
[310 D F] The contention raised by the petitioners, that the power to appoint a date for bringing into force a constitutional amendment is a constituent power and therefore it cannot be delegated to an outside agency is without force.
It is true that the constituent power, that is to say, the power to amend any provision of the Constitution by way of an addition, variation or repeal must be exercised by the Parliament itself and cannot be delegated to an outside agency.
That is clear from Article 368(1) which defines at once the scope of the Constituent power of the Parliament and limits that power to the Parliament.
The power to issue a notification for bringing into force the provisions of a Constitutional amendment is not a constituent power because, it does not carry with it the power to amend the Constitution in any manner.
It is, therefore, permissible to the Parliament to vest in an outside agency the power to bring a Constitutional amendment into force, [312 C E] 275 Although the 44th Amendment Act received the assent of the President on April 30, 1979 and more than two and a half years have already gone by without the Central Government issuing a notification for bringing section 3 of the Act into force, this Court cannot intervene by issuing a mandamus to the Central Government obligating it to bring the provisions of section 3 into force.
The Parliament having left this question to the unfettered judgment of the Central Government it is not for the Court to compel the Government to do that which according to the mandate of Parliament, lies in its discretion to do when it considers it opportune to do it.
The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment into force, it can censure the executive.
It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet the court should show its disapproval of it by against mandamus.
[314 G H] In leaving it to the judgment of the Central Government to decide as to when the various provisions of the 44th Amendment should be brought into force, the Parliament could not have intended that the Central Government may exercise a kind of veto over its constituent will by not ever bringing the Amendment or some of its provision into force.
The Parliament having seen the necessity of introducing into the Constitution a provision like section 3 of the 44th Amendment, it is not open to the Central Government to sit in judgment over the wisdom of the policy of that section.
If only the Parliament were to lay down an objective standard to guide and control the discretion of the Central Government in the matter of bringing the various provisions of the Act into force, it would have been possible to compel the Central Government by an appropriate writ to discharge the function assigned to it by the Parliament.
[316 B D] Expressions like 'defence of India ', 'security of India ' security of the State ' and 'relations of India with foreign powers ', mentioned in section 3 of the Act, are not of any great certainty or definiteness.
But in the very nature of things they are difficult to define.
Therefore provisions of section 3 of the Act cannot be struck down on the ground of their vagueness and certainty.
However, since the concepts are not defined, undoubtedly because they are not capable of a precise definitions, courts must strive to give to those concepts a narrower construction than what the literal words suggest.
While construing laws of preventive detention like the , care must be taken to restrict their application to as few situations as possible.
Indeed, that can well be the unstated premise for upholding the constitutionally of clauses like those in section 3, which are fraught with grave consequences to personal liberty, if construed liberally.
[324 E H] What is said in regard to the expressions 'defence of India ', `security of India ', 'security of the State ' and 'relations of India with foreign powers ' cannot apply to the expression "acting in any manner prejudicial to the maintenance of supplies and services essential to the community ' which occurs in section 3(2) of the Act.
The particular clause in sub section (2) of section 3 of the is capable of wanton abuse in that, the detaining authority can place under detention any person for possession of any commodity on the basis that the authority is of the opinion that the maintenance of supply of that commodity 276 is essential to the community.
This particular clause is not only vague and uncertain but, in the context of the Explanation, capable of being extended cavalierly to supplies.
the maintenance of which is not essential to the community.
To allow the personal liberty of the people to be taken away by the application of that clause would be a flagrant violation of the fairness and justness of procedure which is implicit in the provisions of Article 21.
The power given to detain persons under section 3(2) on the ground that they are acting in any manner prejudicial to the maintenance of supplies and Services essential to the community cannot however be struck down because it is vitally necessary to ensure a steady flow of supplies and services which are essential to the community, and if the State has the power to detain persons on the grounds mentioned in section 3(1) and the other grounds mentioned in section 3(2), it must also have the power to pass order of detention on this particular ground.
No person can be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community unless, by a law order or notification made or published fairly in advance, the supplies and services, the maintenance of which is regarded as essential to the community and in respect of which the order of detention is proposed to be passed, are made known appropriately, to the public.
[325 A C; 326 BC, FH] R. C. Cooper vs Union of India, ; , 559, Haradhan Saha; , , Khudiram, j ; , Sambhu Nath Sarkar, [1974] 1 SCR I and Maneka Gandhi, [1978]2 SCR 621, explained.
Laws of preventive detention cannot, by the back door, introduce procedural measures of a punitive kind.
Detention without trial is an evil to be suffered, but to no greater extent and in no greater measure than is minimally necessary in the interest of the country and the community.
It is neither fair nor just that a detenu should have to suffer detention in "such place" as the Government may specify.
The normal rule has to be that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence.
[330 E F] In order that the procedure attendant upon detentions should conform to the mandate of Article 21 in the matter of fairness, justness and reasonableness, it is imperative that immediately after a person is taken in custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody.
Intimation must also be given as to the place of detention, including the place where the detenu is transferred from time to time.
This Court has stated time and again that the person who is taken in custody does not forfeit, by reason of his arrest, all and every one of his fundamental rights.
It is, therefore, necessary to treat the detenu consistently with human dignity and civilized norms of behaviour.
[331 C D] Since section 3 has not been brought into force by the Central Government in the exercise of its powers under section 1(2) of the 44th Amendment Act, that section is still not a part of the Constitution.
The question as to whether section 9 of the is bad for the reason that it is inconsistent with the provisions of section 3 of the 44th Amendment Act, has therefore to be decided on the basis that section 3, though a part of the 44th Amendment Act, is not 277 a part of the Constitution.
If section 3 is not a part of the Constitution, it is difficult to appreciate how.
the validity of section 9 of the can be tested by applying the standard laid down in that section.
It cannot possibly be that both the unamended and the amended provisions of Article 22(4) of the Constitution are parts of the Constitution at one and the same time.
So long as section 3 of the 44th Amendment Act has not been brought into force, Article 22(4) in its unamended form will continue to be a part of the Constitution and so long as that provision is a part of the Constitution, the amendment introduced by section 3 of the 44th Amendment Act cannot become a part of the Constitution Section 3 of the 44th Amendment substitutes a new article 22(4) for the old article 22(4).
The validity of the constitution of Advisory Boards has therefore to be tested in the light of the provisions contained in Article 22(4) as it stands now and not according to the amended article 22(4).
[335 D H] On a combined reading of clauses (I) and (3)(b) of Article 22, it is clear that the right to consult and to be defended by a legal practioner of one 's choice, which is conferred by clause (1), is denied by clause (3)(b) to a person who is detained under any law providing for preventive detention.
Thus, according to the express intendment of the Constitution itself, no person who is detained under any law, which provides for preventive detention, can claim the right to consult a legal practioner of his choice or to be defended by him.
It is therefore difficult to hold, by the application of abstract, general principles or on a priori consideration that the detenu has the right of being represented by a legal practioner in the proceedings before the Advisory Board.
[339 D E] Yet the fact remains that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board.
The reason behind the provisions contained in Article 22(3)(b) of the Constitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party.
The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practioner but that the said facility should be denied to the detenu.
In any case, that is not what the Constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22.
Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14, if a similar facility is denied to the detenu.
Therefore if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner.
[344 H; 345 A C] The embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner.
Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend.
A detenu, taken straight from his cell to the Board 's room, may lack the ease and composure to present his point of view.
He may be "tongue tied, nervous, confused or wanting in intelligence" (see Pet vs Greyhound Racing Association Ltd.), and if justice is to be done he must at least have the help of a friend who can assist him to give coherence to his stray and wandering ideas.
[345 G H] 278 In the proceedings before the Advisory Board, the detenu has no right to cross examine either the persons on the basis of whose statement the order of detention is made or the detaining authority.[352D] Now Prakash Transport Co. Ltd. vs New Suwarna Transport Co. Ltd., , 106, Nagendra Nath Bora vs Commissioner of Hills Division and Appeals, Assam, ; , 1261, State of Jammu & Kashmir vs Bakshi Ghulam Mohammad, , 415, Union of India vs T.R. Verma, [1958] SCR 499, 507 and Kherr.
Chand vs Union of India , 1096, held inapplicable There can be no objection for the detenu to lead evidence in rebuttal of the allegation made against him before the Advisory Board.
Neither the Constitution nor the contains any provision denying such a right to the detenu.
The detenue may therefore offer oral and documentary evidence before the Advisory Board in order to rebut the allegations which are made against him.
[352 E F] It is not possible to accept the plea that the proceedings of the Advisory Board should be thrown open to the public.
The right to a public trial is not one of the guaranteed rights under our Constitution.
[354 C D] Puranlal Lakhanpal vs Union of India, , 475 and Dattatreya Moreshwar Pangarkar vs State of Bombay, ; , 626, referred to.
Yet the Government must afford the detenus all reasonable facilities for an existence consistent with human dignity.
They should be permitted to wear their own clothes, eat their own food, have interviews with the members of their families at least once a week and, last but not the least, have reading and writing material according to their reasonable requirements.
[355 B C] Persons who are detained under the must be segregated from the convicts and kept in a separate part of the place of detention.
It is hardly fair that those who are suspected of being engaged in prejudicial conduct should be lodged in the same ward or cell where the convicts whose crimes are established are lodged.
[355 D] Sunil Batra vs Delhi Administration and Sampat Prakash vs State of Jammu & Kashmir , referred to.
[per Gupta and Tulzapurkar, JJ dissenting] Section 1(2) of the Constitution (Fortyfourth Amendment) Act 1978 cannot be construed to mean that Parliament has left it to the unfettered discretion or judgment of the Central Government when to bring into force any provision of the amendment Act.
After the President 's assent, the Central Government was under an obligation to bring into operation the provisions of the Act within a reasonable time; the power to appoint dates for bringing into force the provisions of the Act was given to the Central Government obviously because it was not considered feasible to give affect to all the provisions immediately.
But the 279 Central Government could not in its discretion keep it in a state of suspended A animation for any length of time it pleased.
[358 A B] From the Statement of objects and Reasons it was clear that the Parliament wanted the provisions of the Amendment Act to be made effective as early as possible.
When more than two and half years have passed since the Amendment Act received the assent of the President, it is impossible to say that any difficulty should still persist preventing the Government from giving effect to section 3 of the Amendment Act.
A provision like section 1(2) cannot be said to have empowered the executive to scotch an amendment of the Constitution passed by Parliament and assented to by the President.
That Parliament is competent to take appropriate steps if it considered that the executive had betrayed its trust does not make the default lawful or relieve this Court of its duty.
[359 B C] [per Gupta J. dissenting.] Normally it is the legislature that has the power to make laws.
The nature of the legislative power of the President has to be gathered from the provisions of Article 123 and not merely from the heading of the chapter, "Legislative Powers of the President".
When something is said to have the force and effect of an Act of Parliament that is because it is not really an Act of Parliament.
Article 123(2) does not say that an ordinance promulgated under this article shall be deemed to be an Act of Parliament to make the two even fictionally identical.
While an ordinance issued under Article 123 has the same force and effect as an Act of Parliament, under Article 357(1)(a) Parliament can confer on the President the power of the legislature of a State to make laws.
The difference in the nature of power exercised by the President under Article 123 and under Article 357 is clear and cannot be ignored.
[360 B, 361 B C] The word "establish" in Article 21 as interpreted by this Court "implies some degree of firmness, permanence and general acceptance".
An ordinance which ceases to operate on the happening of one of the conditions mentioned in Article 123(2) can hardly be said to have that "firmness" and "permanence" that the word "establish" implies.
lt is not the temporary duration of an ordinance that is relevant; what is relevant is its provisional and tentative character which is apparent from Article 123(2).
[362 G] F A.K. Gopalan vs State ; , relied on.
A significant difference between the law made by the President under Article 357 and an ordinance promulgated by him under Article 123 is that while a law made under Article 357 continues to be in force until altered, repealed or amended by a competent legislature or authority, an ordinance promulgated under Article 123 ceases to operate at the expiration of six weeks of reassembly of the Parliament at the latest.
[363 B] The argument that since Article 367(2) provides that any reference in the Constitution to Acts of Parliament should be construed as including a reference to an ordnance made by the President, an ordinance should be equated with an Act of Parliament is without substance because an ordinance has the force and effect only over an area where it can validly operate.
An invalid ordinance can 280 have no force or effect and if it is not 'law ' in the sense the word has been used Article 21, Article 367(2) cannot make it so.
[363 E] [on all other points His Lordship agreed with the conclusions of Hon 'ble the Chief Justice].
[Hon 'ble Tulzapurkar J. agreed with the majority on all other points]
|
ivil Appeal Nos.
1370/74 and 1768 of 1975.
From the judgment and order dated the 29th September, 1972 of the Allahabad High Court in Income Tax Reference No. 47 of 1971.
S.T. Desai J.B. Dadachanji and K.J. John for the Appellant in C.A. 1370/74 and for Respondent in C.A. 1768/75.
V.S. Desai, Miss A. Subhashini, K.C. Dua and S.P. Nayar for the Respondent in CA.
1370/74 and for the Appellant in CA.
1768/75.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
These two appeals by certificate one by the assessee and the other by the Commissioner of Income tax, Kanpur are filed against the judgment and order dated September 29, 1972 of the High Court of Judicature at Allahabad in Income tax Reference No. 47 of 1971 under section 256(1) of the Income tax Act, 1961 (hereinafter referred to as 'the Act ') made by the Income tax Appellate Tribunal.
Allahabad Bench, Allahabad (for short 'the Tribunal ').
The two questions which were referred by the Tribunal for the opinion of the High Court were: "(1) Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the properties in dispute were capable of division in definite portions amongst the 10 coparceners as contemplated in Explanation (a) (i) to section 171 of the Income tax Act, 1961 and that even otherwise the mere severance of status was not sufficient to entitle the assessee to succeed in its claim for partial partition ? (2) Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that the 15 income from the properties in dispute which were accepted to have been partitioned under the Hindu law but with regard to which an order accepting the claim of partial partition was not made was liable to be included in the computation of the assessee 's income ?" The assessee is a Hindu undivided family known as M/s. Kalloomal Tapeshwari Prasad and the year of assessment is 1964.65.
The assessee is governed by the Mitakshara school of law.
The following genealogical tree represents the relationship amongst the members of the family: Phakki Lal ________________________________________________ | | | | | | Chandoolal Bishambhar Nath Sitaram (His Wife Rampiari (dies issueless (wife kripa died on 17.9.63) on 1940 wife Devi) | | | | | | | ______________ | | | | | | | Gopalji Ramji ___________________________________________ | | | | | Jagat Roop Swarup Shyam Bimal Narian Narain Narain Narian Narian During the relevant previous year, the family consisted of Chandoolal, Sitaram and his wife Kripa Devi, Jagat Narain, Roop Narain, Swarup Narain, Shyam Narain and Bimal Narain who were the five sons of Chandoolal and Gopalji and Ramji, the two Sons of Sitaram.
The assessee (Hindu undivided family) was deriving income from various sources such as income from property, income from money lending business, income from speculation business and cloth business etc.
There was a partial partition in the family in the year 1951 when a sum of Rs. 5,00,000 out of its total capital of Rs. 12,85,423 was divided amongst the coparceners at the rate of Rs. 41,666110/8 amongst members of Chandoolal 's branch and at the rate of Rs. 83,333/5/4 amongst the members of Sitaram 's branch.
Kripa Devi did not receive any share at that partition.
The said partial partition was accepted and acted upon by 16 the Income tax Department where after the cloth business was treated as the business of a firm consisting of most of the coparceners as partners.
Again on December 11, 1963 which fell within the previous year relevant for the assessment year in question i.e. 1964 65, according to the assessee, there was another partial partition orally as a result of which its eighteen immovable properties were divided amongst the ten members of the family and that they held those properties as tenants in common from that date.
It was claimed by the assessee in the course of the assessment proceedings that the members of the family had commenced to maintain separate accounts with regard to the income from the said eighteen properties and to divide the net profits amongst themselves according to their respective shares at the end of each year.
The eighteen immovable properties were situated in different places and their valuation was as follows: section No. Municipal number of Value the property 1.
75/2 1,78,875/ 2.
76/162 27,000/ 3.
76/169 45,000/ 4.
47/110 13,500/ 5. 47/26 20,700/ 6. 48/203 16,200/ 7.
55/124 90,000/ 8.
55/36} 9. 55/37} 41,400/ 10.
70/87 1,57,500/ 11.
71/150 8,100/ 12. 71/89 3,600/ 13.
71/112 19,800/ 14.
63/61 7,425/ 15.
51/68 17,100/ 16.
s 51/73 14,400/ 17.
86/37 20,520/ 18.
1/301A 45,000/ 7,26,120/ 17 When required by the Income tax Officer to explain as to why the properties were not divided in definite portions as required by section 171 of the Act, the assessee stated that physical division of the properties in question amongst the ten members was impossible and the only possible way to partition those properties was to define their respective shares and to enjoy the income from them separately.
In support of the above claim the assessee relied upon a copy of an award dated April 15, 1964 made by one S.B. Tandon which was made into a decree in Suit No. 60 of 1964 on the file of the Court of the First Civil Judge, Kanpur dated September 21, 1964.
In that award the arbitrator had stated that the properties did not admit of physical division.
The Income tax Officer did not agree with the assessee 's contention that it was not possible to divide the properties in question in definite portions.
Accordingly he rejected the claim of partial partition in respect of the eighteen immovable properties and proceeded to assess the income derived therefrom in the hands of the assessee.
Against the order of the Income tax Officer, the assessee filed an appeal before the Appellate Assistant Commissioner of Income tax.
During the pendency of that appeal the assessee appointed another arbitrator by the name Lakhsman Swaroop, a retired Chief Engineer to examine the possibility of a physical division of each of the eighteen properties into ten portions and if that was not possible to suggest any other mode or modes to divide them into ten parts in accordance with the share allotted to each of the parties to the partition.
By his award dated February 3, 1965, Lakshman Swaroop stated that the aforesaid properties were "not capable of physical division into ten shares by metes and bounds and that any practical division is that of allocation of proportionate shares in all the 18 properties in question.
" It may be mentioned here that out of the ten shares, six shares were 1/12th each and four shares were 1/8th each.
Chandoomal and his five sons had been allotted 1/12th each and Sitaram his wife and his two sons had been allotted 1/4th each.
Lakshman Swaroop was also examined as a witness before the Appellate Assistant Commissioner by the assessee and cross examined by the Income tax Officer.
The Appellate Assistant Commissioner on a consideration of the material before him including the decree of the court referred to above and the evidence of Lakshman Swaroop held that the case of the assessee that it was not possible to divide the properties physically into ten shares referred to above was not tenable and dismissed the appeal.
The assessee, thereafter took up the matter before the Tribunal in appeal.
The Tribunal also was of the view that the contention of the assessee that if the properties had 18 been divided into ten shares, they would have either been destroyed or would have lost in value was not correct.
Accordingly the claim of the assessee under section 171 of the Act that there was a partial partition was rejected.
Thereupon on an application of the assessee made under section 256(1) of the Act, the two questions set out above were referred by the Tribunal to the High Court for its opinion.
After hearing the parties, the High Court recorded its answer to the first question in the affirmative and in favour of the Department and in reaching that conclusion, it observed thus: "We have seen the evidence of the arbitrator as well as the Chief Engineer, and it is apparent there from that even though the 18 properties could not individually be divided into 10 shares without destroying their utility but after assessing the value of the properties, they could be apportioned between the ten members and the difference in the allocations could be equalised by payment of cash amounts by one to the other.
In our opinion, it cannot, in such a situation, be said that these 18 properties were incapable of physical division in 10 shares, and so, in view of clause (a) (i) of the Explanation, mere severance of status was not sufficient for recording a finding of partition.
" The High Court answered the second question in favour of the assessee holding that the income accruing from the eighteen immovable properties after December 11, 1963 was however not liable to be included in the computation of the joint Hindu family 's income.
In recording this answer, the High Court observed thus: "Sec. 171 of the 1961 Act in essence, is a re actment of Sec.
25A with the difference that it applies not only to cases of total partition but also to cases of partial partition.
There are some incidental changes as well, e.g. sec.
171 applies also for purposes of levying and collecting penalty, fine or interest and in addition requires the Income tax Officer to record a finding as to the date on which total or partial partition took place.
The fact that sec.
171 applies to a partial partition (meaning a partition which is partial as 19 regards the persons or as regards the properties of the family or both) as well shows that a finding of partial partition can be recorded and on such a finding being recorded under sub section (4) the total income of the joint family in respect of the period upto the date of partition is to be assessed as if no partition had taken place and each member of the family was to be liable, notwithstanding anything contained in clause (2) of sec.
10, jointly and severally for the tax on the income so assessed.
Thus sec.
171, like sec.
25A, seeks to nullify the effect of sec.
10 (2) under which a member was not liable to be taxed on the income received as a member of Hindu undivided family.
The section does not entitle the inclusion of income from an asset which has ceased to belong to the joint family, in the assessment of the joint Hindu family.
In the present case, on the findings, the position is that the joint Hindu family stood disrupted in relation to the 18 immovable properties as a result of the oral partition dated 11th December, 1963.
Thereafter the income of these properties belonged to the individual members and not to the joint family.
It could not be included in the assessment of the family.
" Aggrieved by the answer to the first question, the assessee has filed Civil Appeal No. 1370 of 1974 and aggrieved by the answer to the second question, the Revenue has filed Civil Appeal No. 1768 of 197.
It is necessary to refer to the history of the relevant provisions in order to decide the questions raised before us.
Under the Indian Income tax Act, 1922 (for short 'the 1922 Act ') a Hindu undivided family could be assessed on its income.
Section 3 of the 1922 Act laid down that where any Central Act enacted that income tax should be charged for any year at any rate or rates, tax at that rate or those rates should be charged for that year in accordance with and subject to the provisions of that Act in respect of total income of the previous year of every individual, Hindu undivided family etc.
But section 14 (1) of the 1922 Act provided that no tax was payable by an individual assessee in respect of any sum which he received as a member of a Hindu undivided family where such sum had been paid out of the income of the family.
Section 25 A was 20 inserted in the 1922 Act in the year 1928 providing for the machinery for assessment after partition of a Hindu undivided family.
That section immediately before the repeal of the 1922 Act read as follows: "25A. Assessment after partition of a Hindu undivided family (1) Where, at the time of making an assessment under section 23, it is claimed by or on behalf of any member of a Hindu family hitherto assessed as undivided that a partition has taken place among the members of such family, the Income tax Officer shall make such inquiry there into as he may think fit, and, if he is satisfied that the joint family property has been partitioned among the various members or groups of members in definite portions he shall record an order to that effect: Provided that no such order shall be recorded until notices of the inquiry have been served on all the members of the family.
(2) Where such an order has been passed, or where any person has succeeded to a business, profession or vocation formerly carried on by a Hindu undivided family whose joint family property has been partitioned on or after the last day on which it carried on such business, profession or vacation, the Income tax Officer shall make an assessment of the total income received by or on behalf of the joint family as such, as if no partition had taken place, and each member or group of members shall, in addition to any income tax for which he or it may be separately liable and notwithstanding anything contained in sub section (1) of section 14, be liable for a share of the tax on the income so assessed according to the portion of the joint family property allotted to him or it; and the Income tax Officer shall make assessments accordingly on the various members and groups of members in accordance with the provisions of section 23: Provided that all the members and groups of members whose joint family property has been partitioned 21 shall be liable jointly has severally for the tax assessed on the total income received by or on behalf of the joint family as such.
(3) Where such an order has not been passed in respect of Hindu family hitherto assessed as undivided, such family shall be deemed, for the purposes of this Act, to continue to be a Hindu undivided family".
Section 25 A of the 1922 Act as it stood then (subsequent modifications in it being immaterial for the purposes of this case) came up for consideration by the Judicial Committee of the Privy Council in Sir Sunder Singh Majithia vs The Commissioner of Income tax, C.P. and U.P.
The Privy Council held that section 25 A of the 1922 Act provided that if it be found that the family property had been partitioned in definite portions, assessment might be made, notwithstanding section 14(1) on each individual or group in respect of his or its share of the profits made by the undivided family, while holding all the members jointly and severally liable for the tax.
It was further held that if, however, though the joint Hindu family had come to an end, it be found that its property had not been partitioned in definite portions then the family was to be deemed to continue that is, to be an existent Hindu family upon which assessment could be made on its gains of the previous year.
But it was of the view that section 25 A had nothing to say about any Hindu undivided family which continued in existence never having been disrupted.
Such a case was held to fall outside sub section (3) of section 25 A and in effect, it held that the said section did not apply to cases of partial partition.
In Gordhandas T. Mangaldas vs Commissioner of Income tax, Bombay, Kania, J. (as he then was) who agreed with Beaument, C.J. explained the scheme of section 25 A of the 1922 Act (as it stood then) in his concurring judgment thus: "It is material to bear in mind the scheme of the Income tax Act, in the first instance.
Under sections 2 and 3 the different units stated therein are liable to be taxed as such.
One of them is a joint Hindu family.
In order to avoid double taxation, Section 14 lays down 22 that when the individual member is being assessed, his income as member of a joint family should not be assessed again.
Then comes the stage, what happens when a family, which has once been so assessed, comes to a partition.
To meet that contingency, Section 25 A has been enacted.
In the section, as it existed before the amendment of 1939, in terms the Income tax Officer required proof, (i) that a separation of the members of the joint family had taken place and (ii) that the joint family property had been partitioned amongst the various members or groups of members in definite portions.
On being satisfied on those points he had to record an order to that effect.
The effect of such a recording was that the joint family income would be assessed and recovered in terms of sub section (2).
In the absence of such order, under sub section (3) the joint family continued to be assessed as before." The same view was followed in Waman Satwappa Kalghatgi vs Commissioner of Income tax and in M.S.M.S. Meyyappa Chettiar vs Commissioner of Income tax, Madras.
This Court had to consider the true meaning of section 25 A of the 1922 Act in Lakhmichand Baijnath vs Commissioner of Income tax, West Bengal.
Venkatarama Aiyar, J. speaking for the Court observed in the above case thus: "Now, when a claim is made under section 25 A, the points to be decided by the Income tax Officer are whether there has been a partition in the family, and if so, what the definite portions are in which the division had been made among the members or groups of members.
The question as to what the income of the family assessable to tax under section 23 (3) was would be foreign to the scope of and enquiry under section 25 A.
That section was, it should be noted, introduced by the Indian Income tax (Amendment) Act, 1928 (3 of 1928) for removing a defect which the 23 working of the Act as enacted in 1922 had disclosed.
Under the provisions of the Act as they stood prior to the amendment, when the assessee was an undivided family, no assessment could be made thereon if at the time of the assessment it had become divided, because at that point of time, there was no undivided family in existence which could be taxed, though when the income was received in the year of account the family was joint.
Nor could the individual members of the family be taxed in respect of such income as the same is exempt from tax under section 14 (1) of the Act.
The result of these provisions was that a joint family which had become divided at the time of assessment escaped tax altogether.
To remove this defect, section 25 A enacted that until an order is made under that section, the family should be deemed to continue as an undivided family.
When an order is made under that section, the family should be deemed to continue as an undivided family.
When an order is made under that section, its effect is that while the tax payable on the total income is apportioned among the divided members or groups, all of them are liable for the tax payable on the total income of the family.
What that tax is would depend on the assessment of income in proceedings taken under section 23, and an order under section 25 A would have no effect on that assessment.
" The above view was reiterated by this Court in Kalwa Devadattam and Ors.
vs Union of India and Ors.
in Additional Income tax Officer, Cuddapah vs Thimmayya and Anr.
and in Joint family of Udayan Chinubhai etc.
vs Commissioner of Income tax, Gujarat.
The substance of all these decisions was that under section 25 A of the 1922 Act a Hindu undivided family which had been assessed to tax could be treated as undivided and subjected to tax under the Act in that status unless and until an order was made under section 25 A (1) and if in the course of the assessment proceedings it is claimed by any of the members of the Hindu undivided family that there 24 has been total partition of the family property resulting in physical division thereof as it was capable of, the assessing authority should hold an enquiry and decide whether there had been such a partition or not.
If he held that such a partition had taken place, he should proceed to make an assessment of the total income of the family as if no partition had taken place and then proceed to apportion the liability as stated in section 25 A amongst the individual members of the family.
If no claim was made or if the claim where it was made was disallowed after enquiry, the Hindu undivided family would continue to be liable to be assessed as such.
This was the legal position under the 1922 Act.
The law relating to assessment of Hindu undivided family, however, underwent a change when the Act came into force.
Section 171 of the Act which corresponds to section 25 A of the 1922 Act reads thus: "171.(1) A Hindu family hitherto assessed as undivided shall be deemed for the purposes of this Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under this section in respect of the Hindu undivided family.
(2) Where, at the time of making an assessment under section 143 or section 144, it is claimed by or on behalf of any member of a Hindu family assessed as undivided that a partition, whether total or partial, has taken place among the members of such family, the Income tax Officer shall make an inquiry thereinto after giving notice of the inquiry to all the members of the family.
(3) On the completion of the inquiry, the Income tax Officer shall record a finding as to whether there has been a total or partial partition of the joint family property, and, if there has been such a partition, the date on which it has taken place.
(4) Where a finding of total or partial partition has been recorded by the Income tax Officer under 25 this section, and the partition took place during the previous year: (a) the total income of the joint family in respect of the period up to the date of partition shall be assessed as if no partition had taken place; and (b) each member or group of members shall, in addition to any tax for which he or it may be separately liable and notwithstanding any thing contained in clause (2) of section 10, be jointly and severally liable for the tax on the income so assessed.
(5) Where a finding of total or partial partition has been recorded by the Income tax Officer under this section, and the partition took place after the expiry of the previous year, the total income of the previous year of the joint family shall be assessed as if no partition has taken place, and the provisions of clause (b) of sub section (4) shall, so far as may be, apply to the case.
(6) Notwithstanding anything contained in this section if the Income tax Officer finds after completion of the assessment of a Hindu undivided family that the family has already effected a partition, whether total or partial, the Income tax Officer shall proceed to recover the tax from every person who was a member of the family before and partition, and every such person shall be jointly and severally liable for the tax on the income so assessed.
(7) For the purposes of this section, the several liability of any member or group of members thereunder shall be computed according to the portion of the joint family property allotted to him or it at the partition, whether total or partial.
(8) The provisions of this section shall, so far as may be, apply in relation to the levy and collection of 26 any penalty, interest, fine or other sum in respect of any period up to the date of the partition, whether total or partial, of a Hindu undivided family as they apply in relation to the levy and collection of tax in respect of any such period.
Explanation In this section (a) "partition" means (i) where the property admit of a physical division, a physical division of the property, but a physical division of the income without a physical division of the property producing the income shall not be deemed to be a partition; or (ii) where the property does not admits of a physical division then such division as the property admits of, but a mere severance of status shall not be deemed to be a partition; (b) "partial partition" means a partition which is partial as regards the persons constituting the Hindu undivided family, or the properties belonging to the Hindu undivided family, or both." Section 4(1) of the Act which levies the charge of income tax states that where any Central Act enacts that income tax shall be charged for any assessment year at any rate or rates, income tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, the Act in respect of the total income of the previous year or previous years, as the case may be, of every person.
The expression 'person ' is defined in section 2(31) of the Act as including within its meaning a Hindu undivided family.
In order to avoid double taxation of the same income under the Act, any sum received by an individual as a member of a Hindu undivided family where such sum has been paid out of the income of the family is required by section 10 (2) of the Act not to be included in computing the total income of a previous year of any person.
This requirement, however, is subject to section 64 (2) of the Act with effect from April 1, 1971.
Then follows section 171 of the Act which 27 provides for the assessment after partition of a Hindu undivided family.
Under Hindu law partition may be either total or partial.
A partial partition may be as regards persons who are members of the family or as regards properties which belong to it.
Where there has been a partition, it is presumed that it was a total one both as to the parties and property but when there is a partition between brothers, there is no presumption that there has been partition between one of them and his descendants.
It is, however, open to a party who alleges that the partition has been partial either as to persons or as to property to establish it.
The decision on that question depends on proof of what the parties intended whether they intended the partition to be partial either as to persons or as to properties or as to both.
When there is partial partition as to property, the family ceases to be undivided so far as properties in respect of which such partition has taken place but continues to be undivided with regard to the remaining family property.
After such partial partition, the rights of inheritance and alienation differ accordingly as the property in question belongs to the members in their divided or undivided capacity.
Partition can be brought about (1) by a father during his lifetime between himself and his sons by dividing properties equally amongst them, (2) by agreement or (3) by a suit or arbitration.
A declaration of intention of a coparcener to become divided brings about severance of status.
As observed by the Privy Council in Appovier vs Rama Subba Aivan" when the members of an undivided family agree among themselves with regard to a particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject matter so agreed to be dealt with, and in the estate each member thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided".
A physical division of the property which is the subject matter of partition is not necessary to complete the process of partition in so far as that item of property is concerned under Hindu law.
The parties to the partition may enjoy the property in question as tenants in common.
In Approvier 's case (supra) the Privy Council further laid down that "if there be a conversion of the joint tenancy of an 28 undivided family into a tenancy in common of the members of that undivided family, the undivided family becomes a divided family with reference to the property that is the subject of that agreement, and that is a separation in interest and in right, although not immediately followed by de facto actual division of the subject matter.
This may, at any time, be claimed by virtue of the separate right.
" It is thus clear that Hindu law does not require that the property must in every case be partitioned by mates and bounds or physically into different portions to complete a partition.
Disruption of status can be brought about by any of the modes referred to above and it is open to the parties to enjoy their share of property as tenants in common in any manner known to law according to their desire.
But the income tax law introduces certain conditions of its own to give effect to the partition under section 171 of the Act.
Section 171 of the Act applies to a case where there is a Hindu undivided family which had been assessed as such under the Act until a claim is made under section 171(2) that there has been a partition total or partial in it.
The partition contemplated under section 171 of the Act may be either total or partial.
Here there is a departure made from section 25A of the 1922 Act which was concerned with a total partition only.
In sub sections (2) to (5) and (8) of section 171 of the Act, the word 'partition ' is qualified by words 'total or partial '.
The Explanation to section 171 of the Act to which we shall revert again also defines the expression 'partial partition ' as meaning a partition which is partial as regards the persons constituting the Hindu undivided family, or the properties belonging to the Hindu undivided family, or both.
Subsection (2) of section 171 provides that where at the time of making an assessment under section 143 or section 144 of the Act it is claimed by or on behalf of any member of a Hindu undivided family assessed as undivided that a partition, whether total or partial, has taken place among the members of such family, the Income tax Officer shall make an inquiry into the said claim after giving notice to all the members of the family.
On the completion of the inquiry, the Income tax Officer is required by sub section (3) of section 171 to record a finding as to whether the claim of partition, total or partial is true or not and if there has been such a partition, the date on which it has taken place.
Sub section (4) of section 171 states that when a finding of total or partial partition has been 29 recorded by the Income tax Officer and the partition had taken place during the previous year the total income of the joint family in respect of the period upto the date of partition shall be assessed as if no partition had taken place and each member or group of members shall in addition to any tax for which he or it may be separately liable and notwithstanding anything contained in clause (2) of section 10 be jointly and severally liable to the tax on the income so assessed Where the finding recorded is that the partition had taken place after the expiry of the previous year then the joint family has to be assessed under sub section (5) of section 171 as if no partition had taken place and the tax shall be recoverable mutatis mutandis as provided in clause (b) of sub section (4) thereof.
The several liability of a member or a group of the undivided family has to be determined under sub section (7) of section 171 according to the share of family property allotted to him or to the group, as the case may be.
Sub section (8) of section 171 extends the above rules of assessment and liability to levy and collection of any penalty, interest, fine etc.
payable by the family upto the date of partition.
Sub section (6) of section 171 which contains a non obstante clause empowers the Income tax Officer to recover the tax due from a family from every member of the family before the partition even if he finds after the completion of assessment that the family has undergone a partition already.
The true effect of this provision is discussed in Govinddas & Ors.
vs Income tax Officer & Anr.
Now we come to sub section (1) of section 171 of the Act which contains a 'deeming ' provision.
It says that a Hindu family hitherto assessed as undivided shall be deemed for the purposes of the Act to continue to be a Hindu undivided family except where and in so far as a finding of partition has been recorded in respect of it under section 171.
Partition referred to here can obviously include a partial partition also either as regards the persons constituting the undivided family or the properties belonging to it or both, in view of the provisions contained in the other sub sections in and the Explanation to section 171.
Where there is no claim that a partition total or partial had taken place made or where it is made and disallowed a Hindu undivided family which is hitherto being assessed as such will have to be assessed as such notwithstanding the fact a partition had in fact taken place 30 as per Hindu law.
A finding to the effect that partition had taken place has to be recorded under section 171 by the Income tax Officer.
He can record such a finding only if the partition in question satisfies the definition of the expression 'partition ' found in Explanation to section 171.
A transaction can be recognised as a partition under section 171 only if, where the property admits of a physical division, a physical division of the property has taken place.
In such a case mere physical division of the income without a physical division of the property producing income cannot be treated as a partition.
Even where the property does not admit of a physical division then such division as the property admits of should take place to satisfy the test of a partition under section 171.
Mere proof of severance of status under Hindu law is not sufficient to treat such a transaction as a partition.
If a transaction does not satisfy the above additional conditions it cannot be treated as a partition under the Act even though under Hindu law there has been a partition total or partial.
The consequence will be that the undivided family will be continued to be assessed as such by reason of sub section (1) of section 171.
At this stage one contention urged on behalf of the assessee needs to be considered.
It is asserted on behalf of the assessee that the fiction contained in section 171(1) of the Act does not at all apply to an undivided family which continues to be in fact an undivided family even after a partial partition as regards some of its properties had taken place.
The argument is that a 'deeming ' provision can operate only where the real state of affairs is different from what the law deems as existing and it can not where the real state of affairs is the same as the one which law by a fiction treats as existing.
It is urged that since the undivided family in fact continues even after a partial partition as regards property, there is no need to enact a rule declaring that it shall be deemed to continue as an undivided family.
Hence section 171(1) of the Act cannot be construed as being applicable to such a case.
In other words, it is urged that where all the members of an undivided family continue to be members of such family owning the remaining properties which are yielding income after a partial partition as regards some properties has taken place, the undivided family is liable to be assessed as such only in respect of the income derived by it from the remaining items of property owned by it and the income derived properties which have gone out of the ownership of the family by reason of the partial partition should be excluded from the total income of the family.
Reliance is placed on the following obser 31 vations of the Privy Council in the case of Sir Sunder Singh Majithia (supra) where sub section (3) of section 25 A of the 1922 Act arose for consideration: "The section has nothing to say about the Hindu undivided family which continues in existence never having been disrupted.
Such a case is outside sub section (3) because it is not within the section at all.
No sub section is required to enable an undivided family which has never been broken up to be deemed to continue.
But it need not have the same assets or the same income in each year and it can part with an item of its property to its individual members if it takes the proper steps.
" It is not necessary to make any comment on these observations as they had held the field until the Act came into force with section 171 inserted in it.
The Parliament enacted section 171 after taking note of the above decision and several other decisions following it which had taken the view that a partial partition did not fall within the scope of section 25 A.
It expressly stated in section 171 of the Act that the said provision was applicable to both kinds of partitions total or partial, It has also defined partial partition as one which is partial as regards persons constituting the undivided family or as regards the properties belonging to the undivided family or both.
Virtually the present provision deals with all kinds of partitions the nature of which sometimes may be difficult to predicate correctly.
Take a joint family consisting of a father, his sons and grandsons as shown in the following genealogical tree: A | | | ______________________________________________ | | | | | | B C D | | | | | | ______________ ___________ ___________ | | | | | | | | | | | | E F G H I J When a partition takes place in the above family there may be a partition when all of them A, B, C, D, E, F, G, H, I and J 32 become divided each of them taking his rightful share in the family property.
In this case there is a total partition.
The second kind of partition may be amongst four groups, the first consisting of A only, the second consisting of B, E and F, the third consisting of C, G and H and the fourth consisting of D, I and J each group taking one fourth share in all the properties and the branch of B, the branch of C, and the branch of D continuing as undivided families.
The third kind of partition may be a partition where any one of the three branches the branch of B, or the branch of C, or the branch of D separates from the rest of the family taking its share thus resulting in two undivided families one family which has gone out of the family and the other consisting of the remaining members.
In these cases the partition can be called partial both as regards persons and as regards properties.
The next kind of partition may be one where all the members divide amongst themselves only some of the family properties and continue as members of an undivided family owning the remaining family properties.
This is called a partial partition as regards property.
Even here the division of the property which is subject matter of partial partition may be groupwise also.
In the case of a partial partition as regards property, one thing noticeable is that after such partition, the property which is the subject matter of partition is held by the members of the family as tenants in common and the rest of the family properties continue to be held by them as members of the undivided family.
This is the very principle which is expounded by the Privy Council in Appovier 's case (supra) in the two passages extracted above.
After a partial partition as regards property, the property divided is held by the members of the undivided family as divided members with all the incidents flowing therefrom and the property not so divided as members of an undivided family.
The fiction enacted in section 171(1) of the Act, therefore, operate in such a case also because the family which has become divided as regards the property which is the subject matter of partial partition is deemed to continue as the owner of that property and the recipient of the income derived from it except where and in so far as a finding of partition has been given under section 171.
In such a case it is obvious the real state of affairs is in fact different from what is created by the fiction and it cannot be said that there is no occasion for the fiction to operate.
That is the true meaning of section 171 (1) of the Act.
In view of the substantial changes that are brought 33 about in section 171, we find it impossible to accept the contention that the fiction in section 171 (1) of the Act does not operate in the case of partial partitions as regards property where the composition of the family has remained unchanged.
The answer to the first question referred to the High Court by the Tribunal depends upon the true construction of sub clause (i) of clause (a) of the Explanation to section 171 of the Act.
The subject matter of partial partition as mentioned earlier, consisted of eighteen items of immovable property.
The value of each of them is given in the earlier part of this judgment.
Under the partial partition in question, six persons were allotted 1/12th share each in these eighteen properties and four persons were allotted 1/8th share each.
The total value of the eighteen properties was Rs. 7,26,120.
Six of the members were, therefore, entitled to properties of the value of Rs. 60,510/ each and four of them were entitled to properties of the value of Rs. 90,765 each.
Before the Tribunal two submissions were made on behalf of the assessee in support of the plea that the arrangement entered into amongst the parties providing for division of the income of the properties in question without resorting to physical division of the properties was a partition as defined by the Explanation to section 171 of the Act.
The first submission was that the word 'property ' occurring in clause (a) (i) of the Explanation to section 171 referred to an individual item of property which is divided and not to all the properties which are divided at the partition total or partial and hence as it had been accepted by the Department that each of the eighteen items of property could not be divided conveniently into ten portion without destroying its utility it had to be held that the properties did not admit of physical division.
The second submission which was urged in the alternative was that even if it was possible to distribute the said properties equitably amongst the shares by asking them to make necessary monetary adjustment to equalise the shares as the Explanation to section 171 did not contemplate any such monetary adjustment, the assessee could not be denied under section 171 the recognition of the partial partition which had taken place as per Hindu law.
In support of this plea the assessee depended upon the opinion of the arbitrator Tandon, on the basis of whose award the decree had been passed and also the evidence of Lakshman Swaroop tendered before the Appellate Assistant Commissioner.
Taking into consideration all the material before them and having regard to the shares allotted to each of the members, the market value, situation, size and the age 34 of each of the items of the property in question, the tax payable in respect of each of them and also the fact whether an item of property is in the occupation of a tenant or not, the Tribunal came to the conclusion that it was possible to divide the properties in question physically into different lots so that each member could take his rightful share in them.
The High Court also has expressed the same opinion.
On the facts and in the circumstances of the case, we approve of the above view of the High Court.
We feel that the properties involved in this case admitted of physical division into the required number of shares and such division would not have adversely affected their utility.
It is common knowledge that in every partition under Hindu law unless the parties agree to enjoy the properties as tenants in common, the need for division of the family properties by metes and bounds arises and in that process physical division of several items of property which admit of such physical division does take place.
It is not necessary to divide each item into the number of shares to be allotted at a partition.
If a large number of items of property are there, they are usually apportioned on an equitable basis having regard to all relevant factors and if necessary by asking the parties to make payments of money to equalise the shares.
Such apportionment is also a kind of physical division of the properties contemplated in the Explanation to section 171.
Any other view will be one divorced from the realities of life.
The case before us is not a case where it was impossible to make such a division.
Nor is it shown that the members were not capable of making payment of any amount for equalisation of shares.
We are of the view that there is no material in the case showing that the assessee ever seriously attempted to make a physical division of the property as required by law.
All that was attempted was to rely upon the arbitrator 's award and Lakshman Swaroop 's evidence which were rightly held to be insufficient by the Tribunal to uphold the claim of the assessee.
The assessee cannot derive any assistance from the decision of this Court in Charandas Haridas Anr.
vs Commissioner of Income tax, Bombay North.
Kutch and Saurarhtra, Ahmedabad, and Anr.
There the item of asset which had to be partitioned was the right in certain managing agency agreements.
The Court upheld the arrangement of division of commission amongst the members among whom the said right was divided as a partition satisfying the test laid down by the income tax law as it was of the view that any physical division of that right meant the dissolution of 35 the managing agency firms and their reconstitution which was not altogether in the hands of the karta of the family.
The Court also was satisfied that the family took the fullest measure possible for dividing the joint interest into separate interests.
In the present case we are satisfied that no such attempt to divide the properties was made.
This case clearly falls under sub clause (i) of clause (a) of the Explanation to section 171 of the Act but does not satisfy the requirement of that sub clause as no physical division of the properties was made even though they could be conveniently so divided.
Sub clause (ii) thereof does not apply to this case at all.
We, therefore, agree with the answer given by the High Court to the first question in the affirmative.
The appeal of the assessee is, therefore, liable to be dismissed.
Having held that the assessee was not entitled to claim a partial partition had taken place under section 171, the High Court fell into an error in holding that the income of the properties which were the subject matter of partial partition could not be included in the total income of the assessee by relying upon the decisions which had been rendered on the basis of section 25 A of the 1922 Act which had been construed as not being applicable to partial partitions.
We have already held that section 171 of the Act applies to all partitions total and partial and that unless a finding is recorded under section 171 that a partial partition has taken place the income from the properties should be included in the total income of the family by virtue of sub section (1) of section 171 of the Act.
To put it in other words what would have been the position of a Hindu undivided family which had claimed in an assessment proceedings under the 1922 Act that a total partition had taken place and had failed to secure a finding to that effect in its favour under section 25 A thereof would be the position of a Hindu undivided family which has failed to substantiate its plea of partial partition as regards property under section 171 of the Act.
The property which is the subject matter of partial partition would continue to be treated as belonging to the family and its income would continue to be included in its total income until such a finding is recorded.
That is the true effect of section 171 (1).
It was, however, urged on the analogy of the income from a family property alienated by a karta in favour of a stranger that the income which was not actually received by the family could not be taxed and in support of 36 this plea reliance was placed on a decision of the Madras High Court in A. Kannan Chetty vs Commissioner of Income tax, Madras In that decision it is observed thus: "For instance, if the karta of a family effects an alienation or even makes a gift.
in so far as the taxing department is concerned it is the income of the members of the Hindu undivided family that can be assessed, and if by reason of an alienation, whether it is binding upon the members of the joint family or not, an item of property ceases to be in the hands of the joint family, it would not be open to the department to say that they would ignore such an alienation, notwithstanding that the possession of the properties and its income may pass into the hands of a stranger.
It may be different in cases where the joint family deals with one or more items of property or converts it into a different estate retaining both possession and income in its own hands.
That may properly be a case where the department may ignore such a transaction.
" It is significant that in the passage extracted above the Madras High Court has distinguished the case of an alienation in favour of a stranger from the case where the joint family deals with one or more items of property or converts it into a different estate retaining both possession and income in its own hands.
We do not consider that such a plea is available to the assessee because the acceptance of such a plea would lead to the nullification of the scheme of section 171 of the Act itself.
As long as a finding is not recorded under section 171 holding that a partial partition had taken place the Hindu undivided family should be deemed for the purposes of the Act to be the owner of the property which is the subject matter of partition and also the recipient of the income from such property.
The assessment should be made as such and the tax assessed can be recovered as provided in the Act.
In the circumstances, the decision of the High Court on the second question has to be reversed.
We accordingly record our answer to the second question in the affirmative and in favour of the Department.
37 In the result, Civil Appeal No. 1370 of 1974 is dismissed and Civil Appeal No. 1768 of 1975 is allowed.
The assessee shall pay the costs of the Department.
Hearing fee one set.
N.V.K. Civil Appeal 1370/1974 dismissed and Civil Appeal 1768/1975 allowed.
| IN-Abs | The assessee, a Hindu Undivided Family was deriving income from various sources such as income from property, income from money lending business, income from speculation business and cloth business etc.
There was a partial partition in the family in the year 1951, which was accepted and acted upon by the Income tax department, whereafter the cloth business was treated as the business of a firm consisting of most of the coparceners as partners.
On December 1, 1963 which fell within the assessment year 1964 65 there was another partial partition orally, as a result of which eighteen immovable properties were divided amongst the ten members of the family, who held those properties as tenants in common from that date.
These eighteen immovable properties were situated in different places and their valuation was about Rs. 7 lacs.
In the course of assessment proceedings; the assessee claimed that the members of the family had commenced to maintain separate accounts with regard to the income from the eighteen immovable properties and to divide the nett profits amongst themselves according to their respective shares at the end of the year.
When required by the Income tax Officer to explain as to why the properties were not divided in definite portions as required by section 171 of the Income Tax Act 1961, the assessee stated that physical partition of the properties amongst the ten members was impossible and the only way to partition those properties was to define the respective shares and to enjoy the income from them separately.
In support of his contention that the properties did not admit of physical division the assessee relied on an arbitration award.
The Income tax Officer did not agree with the assessee 's contention that it was not possible to divide the properties in definite portions.
He rejected the claim of partial partition in respect of the eighteen immovable properties and proceeded to assess the income derived therefrom in the hands of the assessee.
10 The assessee filed an appeal before the Appellate Assistant Commissioner.
During the pendency of the appeal the assessee appointed another arbitrator to examine the possibility of physical division of each of the eighteen properties into ten portions.
The arbitrator by his award stated that the properties were not capable of physical division into ten shares by metes and bounds and that any practical division was that of allocation of proportionate shares in all the eighteen properties.
The Appellate Assistant Commissioner held that the case of the assessee that it was not possible to divide the properties physically as untenable and dismissed the appeal.
In further appeal to the Tribunal, the Tribunal held that the contention of the assessee that if the properties had been divided into ten shares they would have been either destroyed or would have lost their values was not correct, and that the claim of the assessee under section 171 of the Act that there was a partial partition was to be rejected.
On an application by the assessee under section 256 (1) of the Act, the Tribunal referred two questions to the High Court : (1) Whether the Tribunal was right in holding that the properties in dispute were capable of division in definite portions amongst the ten coparceners as contemplated in Explanation (a) (i) to section 171 of the Act, and (2) whether the Tribunal was justified in holding that the income from the properties in dispute which were accepted to have been partitioned under the Hindu Law but with regard to which an order accepting the claim of partial partition was not made was liable to be included in the computation of the assessee 's income ? The High Court held : (1) that even though the eighteen properties could not individually be divided into ten shares without destroying their utility but after assessing the value of the properties they could be apportioned between the ten members and the difference in the allocations could be equalised by payment of cash amounts by one to the other and in view of clause (a) (i) of the Explanation to section 171, mere severance of status was not sufficient for recording a finding of partition; and (2) that the income accruing from the eighteen immovable properties after December 11, 1963 was not liable to be included in the computation of the joint Hindu Family 's income.
Dismissing the Assessee 's appeal and allowing the Department 's appeal : ^ HELD : 1.
(i) The law relating to assessment of Hindu undivided family underwent a change when the 1961 Act came into force.
Section 171 of the Act provided for the assessment after partition of a Hindu undivided family.
[24 D] (ii) A finding to the effect that partition has taken place has to be recorded under section 171 by the Income tax Officer.
He can record such a finding only if the partition in question satisfies the definition of the expression 'partition ' found in Explanation to section 171.
A transaction can be recognised as a partition under section 171 only if, where the property admits of a physical division a physical division of the property has taken place.
In such a case mere physical 11 division of the income without a physical division of the property producing income cannot be treated as a partition.
Even where the property does not admit of a physical division then such division as the property admits of should take place to satisfy the test of a partition under section 171.
Mere proof of severance of status under Hindu Law is not sufficient to treat such a transaction as a partition.
If a transaction does not satisfy the above additional conditions it cannot be treated as a partition under the Act, even though under Hindu Law there has been a partition total or partial.
The consequence will be that the undivided family will be continued to be assessed as such by reason of sub section (1) of section 171.
[30 A D] (iii) It is common knowledge that in every partition under Hindu Law unless the parties agree to enjoy the properties as tenants in common, the need for division of the family properties by metes and bounds arises and in that process physical division of several items of property which admit of such physical division does take place.
It is not necessary to divide each item into the number of shares to be allocated at a partition.
If a large number of items of property are there, they are usually apportioned on an equitable basis and if necessary by asking the parties to make payments of money to equalise the shares.
Such a partition is also a kind of physical division of the properties and is contemplated in the Explanation to section 171.
[34 C E] In the instant case no attempt to divide the properties was made.
The case clearly falls under sub clause (i) of clause (a) of the Explanation to section 171 of the Act but does not satisfy the requirement of that sub clause as no physical division of the properties was made even though they could be conveniently so divided.
Sub clause (ii) therefore does not apply to this case.
[35 B] 2.
(i) The High Court having held that the assessee was not entitled to claim that a partial partition had taken place under section 171, fell into an error in holding that the income of the properties which were the subject matter of partial partition could not be included in the total income of the assessee by relying upon the decisions which had been rendered on the basis of section 25A of the 1922 Act which had been construed as not being applicable to partial partition.
[35 D] (ii) The true effect of section 171 (1) is that property, which is the subject matter of partial partition would continue to be treated as belonging to the family and its income would continue to be included in its total income until such a finding is recorded.
[35 G] (iii) Sub section (1) of section 171 contains a 'deeming ' provision.
It says that a Hindu family hitherto assessed as undivided shall be deemed for the purpose of the Act to continue to be a Hindu undivided family except where and in so far as a finding of partition has been recorded in respect of it under section 171.
The partition referred to in the section can include a partial partition also either as regards the persons constituting the undivided family or the properties belonging to it or both, in view of the provisions contained in the other subsections and the Explanation to the section.
[29 F G] 12 (iv) Where there is no claim that a partition total or partial had taken place made or where it is made and disallowed a Hindu undivided family which is hitherto being assessed as such will have to be assessed as such notwithstanding the fact a partition had in fact taken place as per Hindu law.
A finding to the effect that partition had taken place has to be recorded under section 171 by the Income tax Officer.
He can record such a finding only if the partition in question satisfies the definition of the expression 'partition ' found in Explanation to section 171.
The transaction can be recognised as a partition under section 171 only if where the properties admit of a physical division, a physical division of the property has taken place.
In such a case mere physical division of the income without a physical division of the property producing income cannot be treated as a partition.
Even where the property does not, admit of a physical division then such a division as the property admits of should take place to satisfy the test of a partition under section 171.
Mere proof of severance of status under Hindu Law is not sufficient to treat such a transaction as a partition.
If a transaction does not satisfy the additional condition it cannot be treated as a partition under the Act even though under Hindu Law there has been a partition total or partial.
The consequence will be that the undivided family will be continued to be assessed as such by reason of sub section (1) of section 171.
[29 G H,30 A D] Govinddas & Ors.
vs Income tax Officer & Anr., ; Charandas Haridas & Anr.
vs Commissioner of Income tax, Bombay North, Kutch & Saurashtra, Ahmedabad & Anr.
, ; A. Kannan Chetty vs Commissioner of Income tax, Madras, ; referred to.
(v) As long as a finding is not recorded under section 171 that a partial partition had taken place the Hindu undivided family should be deemed for the purposes of the Act to be the owner of the property which is the subject matter of the partition and also the recipient of the income from such property.
The assessment should be made as such and the tax assessed can be recovered as provided in the Act.
[36 F G] 3.
Under section 25A of the 1922 Act, a Hindu undivided family which had been assessed to tax could be treated as undivided and subjected to tax under the Act in that status unless and until an order was made under section 25A (1) and if in the course of the assessment proceedings it is claimed by any of the members of the Hindu undivided family that there has been total partition of the family property resulting in physical division thereof as it was capable of, the assessing authority should hold an enquiry and decide whether there has been such a partition or not.
If he held that such a partition had taken place, he should proceed to make an assessment of the total income of the family as if no partition had taken place and then proceed to apportion the liability as stated in section 25A amongst the individual members of the family.
If no claim was made or if the claim where it was made was disallowed after the enquiry, the Hindu undivided family would continue to be liable to be assessed as such.
[23 G H, 24 A C] 4.
When Parliament enacted section 171 it took note of the decisions which had taken the view that a partial partition did not fall within the scope of section 25A.
It expressly stated in section 171 of the Act that the said provision 13 was applicable to both kinds of partitions total or partial.
It has also defined partial partition as one which is partial as regards persons constituting the undivided family or as regards the properties belonging to the undivided family or both.
It deals with all kinds of partitions, the nature of which sometimes may be difficult to predicate correctly.
[31 D E] Sir Sunder Singh Majithia vs The Commissioner of Income tax.
C.P. & U.P., , Gordhandas T. Mangaldas vs Commissioner of Income tax Bombay, , Waman Satwappa Kalghatgi vs Commissioner of Income tax , M.S.M.S. Meyyappa Chettiar vs Commissioner of Income tax, Madras, , Lakhmtchand Baijnath vs Commissioner of Income tax West Bengal, , Kalwa Devadatta and Ors.
vs Vnion of India and Ors., [1963] 49 I.T.R. [S.C.] 165, Additional Income tax Officer, Cuddapah vs A. Thimmayya and Anr., , Joint Family of Vdayan Chinubhai etc.
vs Commissioner of Income tax, Gujarat, , referred to.
Partition may be several kinds.
It may be a total partition or a partial partition.
A partition can be called partial both as regards persons and as regards properties.
The next kind of partition may be one where all the members divide amongst themselves only some of the family properties and continue as members of an undivided family owing the remaining family properties.
This is called a partial partition as regards property.
Even here the division of the property which is subject matter of partial partition may be groupwise also.
In the case of a partial partition as regards property, one thing noticeable is that after such partition, the property which is subject matter of partition is held by the members of the family as tenants in common and the rest of the family properties continue to be held by them as members of the undivided family.
[31 F H, 32 A E] 6.
After a partial partition as regards property, the property divided is held by the members of the undivided family as divided members with all the incidents flowing therefrom and the property not so divided as members of an undivided family.
Section 171 (1) of the Act can, therefore operate in such a case also because the family which has become divided as regards the property which is the subject matter of partial partition is deemed to continue as the owner of that property and the recipient of the income derived from it except where and in so far as a finding of partition has been given under section 171.
[32 F G] 7.
Partition can be brought about, (1) by a father during his life time between himself and his sons by dividing properties equally amongst them, (2) by agreement, or (3) by a suit or arbitration.
A declaration of intention of a coparcener to become divided brings about severance of status.
[27 E 8.
A physical division of the property which is the subject matter of partition is not necessary to complete the process of partition in so far as the item of property is concerned under Hindu Law.
The parties to the partition may enjoy the property in question as tenants in common.
[27 G Appovier vs Rama Subba Aiyan [1866] 11 M.I.A, 75, referred to.
Hindu Law does not require that the property must in every case be partitioned by metes and bounds or physically into different portions to complete a partition.
Disruption of status can be brought about and it is open to the parties to enjoy their shares of property as tenants in common in any manner known to law according to their desire.[28 C]
|
tition Nos. 501, 643 44, 645, 649 and 1866 of 1981.
(Under article 32 of the Constitution of India) R. K. Garg, V.J. Francis, Sunil Kumar Jain and D. K. Garg for the Petitioners in WP.
501/81.
M. K Ramamurthi, J. Ramamurthi and Miss R. Vagai for the Petitioners in WPs.
643 44/81.
Vimal Dave and Miss Kailash Mehta for the Petitioners in WP.
No. 645/81.
A.K. Goel for the Petitioners in WP.
649/81.
Dalveer Bhandari and H. M. Singh for the Petitioners in WP.
1866/81.
L. N. Sinha, Attorney General, M. K Banerjee, Soliciter General, Miss A. Subhashini and R P. Singh for Respondent No. 1 in all the matters.
L. N. Sinha, Attorney General, O.C. Mathur and Sri Narain, for Respondent No. 2 in all the matters.
P. H. Parekh for the Intervener in WP.
501/81.
Somnath Chaterjee, J. Ramamurthi and Miss R. Vaigai for the Intervener Ajoy Kumar Banerjee in WPs.
643 44/81.
The following Judgments were delivered GUPTA, J.
The validity of the provisions of the Life Insurance Corporation (Amendment) Act, 1981 and the Life Insurance Corporation (Amendment) ordinance, 1981 which preceded it is challenged in this batch of writ petitions.
The writ petitions have a history behind them which can be conveniently divided into three chapters.
However, it will be easier to follow this history if we referred to some of the provisions of the Life Insurance Corporation Act, 1955 first.
The Life Insurance Corporation was constituted under the to provide for the nationalisation of life insurance business in India 'by transferring all 252 such business to the Life Insurance Corporation of India.
Under section 11(1) of the Act the services of the employees of insurers whose business has vested in the Corporation are transferred to the Corporation.
Sub section (2) of section 11 provides: "Where the Central Government is satisfied that for the purpose of securing uniformity in the scales of remuneration and the other terms and conditions of service applicable to employees of insurers whose controlled business has been transferred to, and vested in, the Corporation, it is necessary so to do, or that, in the interests of the Corporation and its policy holders, a reduction in the remuneration payable, or a revision of the other terms and conditions of service applicable, to employees or any class of them is called for, the Central Government may, not withstanding anything contained in sub section (1), or in the , or in any other law for the time being in force, or in any award, settlement or agreement for the time being in force, alter (whether by way of reduction or otherwise) the remuneration and the other terms and conditions of service to such extent and in such manner as it thinks fit; and if the alteration is not acceptable to any employee, the Corporation may terminate his employment by giving him compensation equivalent to three months ' remuneration unless the contract of service with such employee provides for a shorter notice of termination.
" There is an explanation to this sub section which is not relevant for the present purpose.
Section 48 of the Act empowers the Central Government to make rules to carry out the purposes of the Act.
Sub section (2) of section 48 in clauses (a) to (m) specifies some of the matters that the rules may provide for.
Sub section (3) of section 48 states: "Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive session, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses 253 agree that the rule should not be made, the rule shall A thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule." Section 49(1) empowers the Life Insurance Corporation of India to make regulations to provide for all matters for which provision is expedient for the purpose of giving effect to the provisions of the Act.
Clauses (a) to (m) of sub section (2) of section 40 specify some of the matters the regulations may provide for.
The matter referred to in clause (b) of sub section (2) is "the method of recruitment of employees and agents of the Corporation and the terms and conditions of service of such employees or agents.
" Clause (bb) speaks of the terms and conditions of service of persons who have become employees of the Corporation under sub section (1) of section 11.
Turning now to the history of the litigation, the first chapter begins with two settlements reached on January 24, 1974 and February 6, 1974 between the Life Insurance Corporation and its class III and class IV employees.
These were settlements under section 18 read with section 2(p) of the .
The settlements were identical in terms; four of the five unions of workmen subscribed to the first settlement while the remaining union was a signatory to the second.
The settlements cover a large ground including the claim for bonus.
Clause 8 of each of the settlements was as follows: "BONUS: (i) No profit sharing bonus shall be paid.
However, the Corporation may, subject to such directions as the Central Government may issue from time to time, grant any other kind of bonus to its Class III and IV employees.
(ii) An annual cash bonus will be paid to all Class III and Class IV employees at the rate of 15% of the annual salary (i.e. basic pay inclusive of special pay, if any, and dearness allowance and additional dearness allow 254 ance) actually drawn by an employee in respect of the financial year to which the bonus relates.
(iii) Save as provided herein all other terms and conditions attached to the admissibility and payment of bonus shall be as laid down in the settlement on bonus dated the 26th June, 1972.
" Clause 12 of the settlements inter alia provides: "This settlement shall be effective from 1st April, 1973 and shall be for a period of four years.
i.e. from 1st April 1973 to 31st March 1977.
" In 1975 an ordinance was promulgated called the Payment of Bonus (Amendment) ordinance which was subsequently replaced by the Payment of Bonus (Amendment) Act, 1976.
The reference to this ordinance and the Act would not have been relevant because section 32 (i) of the original made the said Act not applicable to the employees of the Life Insurance Corporation, but the Central Government appears to have decided also that the employees of establishments not covered by the would not be eligible to get bonus and ex gratia cash payment in lieu of bonus would be made.
Accordingly payment of bonus for the year 1975 76 to the employees of the Corporation was stopped under instructions from the Central Government.
On a writ petition filed by the employees of the Corporation in the Calcutta High Court, a single Judge of that court issued a writ of mandamus directing the Corporation to act in accordance with the terms of the settlement.
Thereafter the Life Insurance Corporation (Modification of Settlement) Act, 1976 was passed.
Some of the employees of Corporation challenged the constitutional validity of the Act by filing writ petition in this Court.
In Madan Mohan Pathak vs Union of India and Ors.(1) this Court held that the 1976 Act offended Article 31(2) of the Constitution and was as such void and issued a writ of mandamus directing the Union of India and the Life Insurance Corporation to forebear from implementing or enforcing the provisions of the 1976 Act and to pay annual cash bonus for the , years 1st April, 1975 to 31st March, 1976 and 1st April, 1976 to 31st March, 1977 to Class Ill and Class IV employees in accordance with the terms of the settlements.
The second chapter began on March 31, 1978 when the Corporation issued a notice under section 19(2) of the Industrial Dis 255 putes Act declaring its intention to terminate the settlements on the expiry of the period of two months from the date the notice was served.
On the same day another notice was issued by the Corporation under section 9A of the stating that it proposed to effect a change in the conditions of service applicable to the workmen.
The change proposed was set out in the annexure to the notice which reads: "AND WHEREAS for economic and other reasons it would not be possible for the Life Insurance Corporation of India to continue to pay bonus on the aforesaid basis; Now, therefore, it is our intention to pay bonus to the employees of the Corporation in terms reproduced hereunder: "No employee of the Corporation shall be entitled to profit sharing bonus.
However, the Corporation may, having regard to the financial condition of the Corporation in respect of any year and subject to the previous approval of the Central Government, grant non profit sharing bonus to its employees in respect of that year at such rate as the Corporation may think fit and on such terms and conditions as it may specify as regards the eligibility of such bonus.
" These notices were followed by a notification issued by the Corporation under section 49 of the on May 26, 1978 substituting a new regulation for the existing regulation No. 58 of the Staff Regulations.
Simultaneously the Life Insurance Corporation (Alteration of Remuneration and other terms and Conditions of Service of Employees) order, 1957, called the Standardisation order, made by the Central Government in exercise of the powers conferred on it by section 11(2) of the was amended with effect from June 1, 1978 substituting a new clause (9) for The original clause concerning bonus.
Clause (9) of the Standardisation order and Regulation 58 of the Staff Regulations after amendment read as follows: "No employee of the Corporation shall be entitled to profit sharing bonus.
However, the Corporation may, having regard to the financial condition of the Corporation in respect of any year and subject to the previous approval 256 of the Central Government, grant non profit sharing bonus to its employees in respect of that year at such rate as the Corporation may think fit and on such terms and conditions as it may specify as regards the eligibility for such bonus. " The validity of the said two notices and the notification issued for the purpose of nullifying any further claim of the workmen to annual cash bonus in terms of the Settlements of 1974 was challenged by the workmen by filing a writ petition in the Allahabad High Court.
The High Court allowed the writ petition and the Corporation preferred an appeal to this Court.
Another writ petition which had been filed in the Calcutta High Court challenging the said notices and the notification was transferred to this court, and the appeal and this writ petition were heard and disposed of by a common judgment.
The two cases were Civil Appeal No. 2275 of 1978, (The Life Insurance Corporation of India vs D.J. Bahadur and others)(1) and Transfer case No. I of 1979 (Chandrashekhar Bose and others vs Union of India and Ors.)(2).
By a majority the appeal preferred by the Corporation was dismissed and the transfer petition was allowed and a writ was issued by this Court to the Life Insurance Corporation directing it "to give effect to the terms of the settlements of 1974 relating to bonus until superseded by a fresh settlement, an industrial award or relevant legislation.
" The second chapter closed with this decision.
The third chapter begins with the promulgation of the Life Insurance Corporation (Amendment) ordinance, 1981 on January 31, 1981.
The following changes made in the principal Act by the ordinance are material.
In sub section (2) of section 48 of the principal Act a new sub clause (cc) was inserted with retrospective effect from June 20, 1979.
Clause (cc) relates to "the terms and conditions of service of the employees and agents of the Corporation, including those who became employees and agents of the Corporation on the appointed day under this Act.
" Three new sub sections (2A), (2B) and (2C) were added to section 48.
Sub section (2A) says that the regulations and other provisions as in force immediately before the commencement of the ordinance with respect to the terms and conditions of service of the employees and agents of the Corporation shall be deemed to be rules made under clause (cc) of 257 sub section (2).
Sub section (2B) provides that the power to make rules under clause (cc) of sub section (2) shall include (i) the power to give retrospective effect to such rules, and (ii) the power to amend by way of addition, variation or repeal the regulations and other provisions referred to in sub section (2A) with retrospective effect, but not from a date earlier than June 2(), 1979.
Sub section (2C) reads as follows: "The provisions of clause (cc) of sub section (2) and sub section (2B) and any rules made under the said clause (cc) shall have effect, and any such rule made with retrospective effect from any date shall also be deemed to have had effect from that date, notwithstanding any judgment, decree or order of any court, tribunal or other authority and notwithstanding anything contained in the or any other law or any agreement, settlement, award or other instrument for the time being in force.
" Certain consequential changes were also made in section 49 of the Act.
In clause (b) of section 49(2) which has been quoted above, the words "and the terms and conditions of service of such employees or agents" were omitted.
This was necessary because the terms and conditions of service of the employees and the agents with regard to which the Corporation was empowered to make regulations by section 49(1) of the principal Act is now a matter included in clause (cc) of section 48(2) as one of the matters covered by the rule making authority of the Central Government under section 48(1) of the Act.
The ordinance also omits clause (bb) from section 49(2).
Clause (bb) also quoted earlier included the terms and conditions of the service of the persons who had become employees of the Corporation under section 11(1) of The Act.
The terms and conditions of service of such persons are now included in the new clause (cc) of section 48(2).
By notification dated February 2, 1981 the Central Government in exercise of the powers conferred by section 48 of the made the rules called the Life Insurance Corporation of India Class III and IV employees (Bonus and Dearness Allowance) Rules, 1981.
The relevant rule is rule 3 : which has been given retrospective operation from July 1, 1979.
Sub rule (1) of rule 3 provides; "No Class III or Class IV employee 258 of the Corporation shall be entitled to the payment of any profit sharing bonus or any other kind of cash bonus.
" Sub rule (2) of rule 3 states that notwithstanding what sub rule (1) provides every Class III and Class IV employee shall be entitled to a payment in lieu of bonus (a) for the period commencing from July 1, 1979 and ending on March 31, 1980 at the rate of 15 per cent of his salary; and (b) thereafter for every year commencing on the 1st April and ending on the 31st day of March of the following year, at such rate and subject to such conditions as the Central Government may determine having regard to the wage level, the financial circumstances and other relevant factors.
There is a proviso to this sub rule which says that (i) no payment in lieu of bonus shall be made to any employee drawing a salary exceeding Rs. 1600 per month; and (ii) where the salary of an employee exceeds Rs. 750 per month but does not exceed Rs. 1600 per month, the maximum payment to him in lieu of bonus shall be calculated as if his salary were Rs. 750 per month.
For the purposes of this sub rule, "salary" was explained as meaning basic pay, special pay, if any, and dearness allowance.
Sub rule (3) of rule 3 rescinds regulation 58 of the Staff Regulations and all other provisions relating to the payment of bonus to the employee to the extent they are inconsistent with rule 3 Writ petition No. 501 of 1981 under Article 32 of the Constitution was filed in this Court on February 5, 1981 by Shri A.V. Nachane and the All India Life Insurance Corporation Employees Federation.
Bombay, challenging the validity of the ordinance and the aforesaid rules.
Similar writ petitions by other associations of the employees of the Corporation followed In the meantime the ordinance was repealed and replaced on March 17, 1981 by the Life Insurance Corporation (Amendment) Act, 1981 which received the assent of the President of India on the same day.
The writ petitions were suitably amended after the Amendment Act came into force.
The provisions of the Act are similar to those of the ordinance except that the Amendment Act adds a new sub section, sub section (3).
to section 49 of the principal Act.
The new sub section (3) which provides that the regulations made under section 49 shall be laid before each House of Parliament are similar in terms to sub section (3) OF section 48 requiring the rules made by the Central Government under the Act to be laid before each House of Parliament.
Section 4 of the Amendment Act repeals the ordinance but provides that "notwithstanding such repeal, anything done or any action taken under the principal Act as amended by the said 259 Ordinance shall be deemed to have been done or taken under the principal Act as amended by this Act The validity of the Amendment Act and the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981 have been challenged on several grounds.
It was argued that the Act and the rules were violative of Article 14, 19(1) (g) and 21 of the Constitution.
It was further contended that the said Act was invalid on the ground of excessive delegation of legislative functions.
Another contention raised was that in any event sub section (2C) of section 48 was invalid to the extent it permitted retrospective operation to rule 3 to override the order of this Court disposing of D. J. Bahadur 's case.
The challenge based on Article 19(1)(g) and Article 21 does not appear to have any substance.
Apart from anything else, a claim based on the 1974 settlements is certainly not a fundamental right that could be enforced through this Court.
As regards Article 21, the first premise of the argument that the word 'life ' in that Article includes livelihood was considered and rejected in In re: Sant Ram.
The contention that Article 14 is infringed arises on the provision of sub section (2C) of section 48 that any rule made under clause (cc) of sub section (2) of that section touching the terms and conditions of service of the employees of the Corporation shall have effect notwithstanding anything contained in the .
It is true that after rules are made regarding the terms and conditions of service, the right to raise an industrial dispute in respect of matters dealt with by the rules will be taken away and to that extent the provisions of the will cease to be applicable.
It was argued that there was no basis on which the employees of the Corporation could be said to form a separate class for denying to them the protection of the .
The reply on behalf of the Union of India and the Life Insurance Corporation was that the remuneration that was being paid to class III and class IV employees of the Corporation was far in excess of what was paid to similarly situated employees in other establishments in the public sector.
Some material was also furnished to support this claim though they were certainly not conclusive.
The need for amending the as appearing from the preamble of the Amendment Act and the ordinance is as follows: ". for securing the interests of the Life Insurance Corporation of India and its policy holders and 260 to control the cost of administration, it is necessary that revision of the terms and conditions of service applicable to the employees and agents of the Corporation should be undertaken expeditiously.
" Referring to the preamble of the Act the Attorney General appearing for the Union of India and the Corporation submitted that the problem of mounting cost of administration led to the making of in the impugned law.
He added that it was felt that no improvement in the situation was possible by the process of adjudication and a policy decision was taken that in the circumstances the proper course was legislation and that is why the Amendment Act was passed and the impugned rules were framed.
The learned Attorney General submitted that it was for Parliament to decide whether the situation was remediable by adjudication or required legislation.
According to him the as amended and the rules made after amendment placed the Corporation in the same position as other undertakings, that the advantages being enjoyed by the employees of the Corporation which were not available to similarly situated employees of other undertakings have been taken away removing what he described as discrimination in favour of the employees of the Life Insurance Corporation.
We have already said that the material produced on behalf of the Union of India and the Corporation to show that the terms and conditions of service of the employees in several other undertakings in the public sector compared unfavourably to those of the Corporation employees was not conclusive.
But the burden of establishing hostile discrimination was on the petitioners who challenged the Amendment Act and the rules.
It was for them to show that the employees of the Life Insurance Corporation and the employees of the other establishment to whom the provisions of the were applicable were similarly circumstanced to justify the contention that by excluding the employees of the Corporation from the purview of the they had been discriminated against.
There is no material before us on the basis of which we can hold that the Amendment Act of 1981 and the rules made on February 2, 1981 infringe Article 14.
We do not think that on the facts of this Case Express Newspapers (Private) Limited and another vs Union of India,(1) Moti Ram Deka etc.
vs General Manager N.E.F. Railways, Maligaon, Pandu etc.,(2) relied on by the petitioners, have any application.
261 It was contended that sub section (2C) added to section 48 of the by the Amendment Act of 1981 was invalid because of excessive delegation of legislative functions and that if sub section (2C) which is an integral part of the Amendment Act was ultra vires, the entire Amendment Act would be unconstitutional The Amendment Act introduced clause (cc) in section 48(2) authorising the Central Government to make rules in respect of the terms and conditions of service of the employees and agents of the Corporation.
Sub section (2C) of section 48 provides inter alia that rules made under clause (cc) shall have effect notwithstanding anything contained in the or any other law for the time being in force.
The argument is that the rules made under section 48(2) (cc) can virtually repeal the and other laws to the extent they are inconsistent with these rules.
Repealing a law, it was submitted on the authority of In re Delhi Laws Act,(l) was an essential legislative function which had been delegated to the Central Government and that the delegation was therefore excessive.
It is now well settled that it is competent for the legislature to delegate to other authorities the power to frame rules to carry out the purposes of the law made by it (see In re the Delhi Laws Act,(l) Raj Narain Singh vs The Chairman, Patna Administration Committee, Patna and another,(2) and D.S. Garewal vs State of Punjab and another(3) but the essential legislative functions cannot be delegated.
What is essential legislative function has been explained by Mukerjee., J. in the Delhi Laws case as follows: "The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of con duct.
It is open to the legislature to formulate the policy as broadly and with as little or as much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the framework of that policy." In Raj Narain Singh vs The Chairman, Patna Administration Committee, Patna, and another(2) a bench of five Judges of this Court held 262 that an executive authority can be empowered by a statute to modify either existing or future laws but not in any essential feature.
In the instant case section 48(2C) read with section 48(2) (cc) authorises the Central Government to make rules to carry out the purposes of the Act notwithstanding the or any other law.
This means that in respect of the matters covered by the rules the provisions of the or any other law will not be operative.
The argument is that sub section (2C) or any other provision introduced in the principal Act by the Amendment Act does not lay down any legislative policy nor supply any guidelines as to the extent to which the rule making authority would be competent to override the provisions of the or other laws.
Reference was made to Municipal Corporation af Delhi vs Birla Cotton Spinning and Weaving Mills, Delhi and another,(l) Gwalior Rayon Silk Manufacturing (Weaving) Company Limited vs Assistant Commissioner of Sales tax and others,(2) for the proposition that unlimited right of delegation is not inherent in the legislative power itself.
The question therefore is, does the Amendment Act of 1981 lay down no legislative policy or furnish no guidance to indicate the nature and extent of the modifications that the rules will be permitted to make in the existing laws to carry out the purposes of the as amended in 1981 ? Learned Attorney General relied on the decision of this Court in Harishankar Bagla and another vs State of Madhya Pradesh (3) This was a case under the Essential Supplies (Temporary Powers) Act, 1946.
Section 3(1) of that Act says that the Central Government for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
Sub section (2) of section 3 states that without prejudice to the generality of the powers conferred by sub section (1), such an order may provide inter alia for regulating by licences or permits or otherwise the production or manufacture and transport, distribution, disposal, acquisition; use or consumption of any essential commodity.
Section 6 of that Act provides inter alia that any order made under section 3 shall have effect notwithstanding any 263 thing inconsistent therewith contained in any enactment other than A that Act.
In exercise of the powers conferred by section 3 of that Act the Central Government made the Cotton Textiles (Control of Movement) order, 1948.
Clause 3 of the said order requires a person to take a permit from the Textile Commissioner to enable him to transport cotton textiles.
One of the question that arose in Harishankar Bagla 's case was whether section 6 of the Essential Supplies (Temporary Powers) Act permitted rules to be made by the Central Government repealing by implication an existing law, which was an essential legislative function and could not validly be delegated.
Mahajan C.J., speaking for the court said: "Section 6 does not either expressly or by implication repeal any of the provisions of pre existing laws, neither does not abrogate them.
Those laws remain untouched and unaffected so far as the statute book is concerned.
The repeal of a statute means as if the repealed statute was never on the statute book.
It is wiped out from the statute book.
The effect of section 6 certainly is not to repeal any one of those laws or abrogate them.
Its object is simply to by pass them where they are inconsistent with the pro visions of the Essential Supplies (Temporary Powers) Act, 1946, or the orders made thereunder.
In other words, the orders made under section 3 would be operative in regard to the essential commodity covered by the Textile Control order wherever there is repugnancy in this order with the existing laws and to that extent the existing laws with regard to those commodities will not operate.
By passing a certain law does not necessarily amount to repeal or abrogation of that law.
That law remains unrepealed but during the continuance of the order made under section 3 it does not operate in that field for the time being.
" We think the Attorney General was right in his submission that what has been said of section 6 of the Essential Supplies (Temporary Powers) Act should hold good for sub section (2C) of section 48 of the which is similar in terms in so far as it authorises the Central Government to make rules bypassing the existing laws.
Mahajan C.J., also holds that assuming that the rules framed under the Act had the effect of repealing the l l existing laws, the power to repeal is exercised not by the delegate but by the Act itself.
This is what he says on this point: 264 "Conceding, however, for the sake of argument that to the extent of a repugnancy between an order made under section 3 and the provisions of an existing law, to the extent of the repugnancy, the existing law stands repealed by implication, it seems to us that the repeal is not by any Act of the delegate, but the repeal is by the legislative Act of the Parliament itself.
By enacting section 6 Parliament itself has declared that an order made under section 3 shall have effect notwithstanding any inconsistency in this order with any enactment other than this Act.
This is not a declaration made by the delegate but the Legislature itself has declared its will that way in section 6.
The abrogation or the implied repeal is by force of the legislative declaration contained in section 6 and is not by force of the order made by the delegate under section 3.
The power of the delegate is only to make an order under section 3.
Once the delegate has made that order its power is exhausted.
Section 6 then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this Act.
Parliament being supreme, it certainly could make a law abrogating or repealing by implication provisions of any pre existing law and no exception could be taken on the ground of excessive delegation to the Act of the Parliament itself.
" The Attorney General relied strongly on these observations in submitting that it is not really the rules framed by the Central Government in exercise of the delegated authority that override the or any other existing law but the power of abrogating the existing laws is in sub section (2C) of section 48 enacted by Parliament itself.
The observations quoted above from Harishankar Bagla 's case which was decided by a bench of five Judges appear to support the Attorney General 's contention.
The question however remains to be answered, does the as amended in 1981 state any policy to guide the rule making authority ? We have earlier referred to the observations of Mukerjea J., in the Delhi Laws case that the legislature can formulate a policy as broadly and with as little or as much details as it thinks proper and may delegate the rest of the Iegislative work to a subordinate authority who will work out the details within the framework of the policy.
In Harishanker Bagla 's 265 case one of the questions for decision was whether section 3 of the A Essential Supplies (Temporary Powers) Act, 1946 amounts to delegation of legislative power outside the permissible limits.
It was held that legislature had laid down a legislative principle which was "maintaining or increasing supplies of any essential commodity," and "securing their equitable distribution and availability at fair prices.
" That statement was held as offering sufficient guidance to the Central Government in exercising its powers under section 3.
In the instant case the policy as stated in the preamble of the Amendment Act is that "for securing the interests of the Life Insurance Corporation of India and its policy holders and to control the cost of administration, it is necessary that revision of the terms and conditions of service applicable to the employees and agents of the Corporation should be undertaken expeditiously".
The policy stated here is at least as clear as the one held in Harishanker Bagla 's case offering sufficient guidance to the Central Government in exercising its powers under that Acts We have referred to section 48(3) of the which requires that every rule made by the Central Government under this Act shall be laid before each House of Parliament and that if both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be.
This Court in D.S. Grewal vs State of Punjab and another(supra) observed as follows in respect of a similar provision requiring the rules made by the delegated authority to be laid on the table of Parliament and making the rules subject to modification, whether by way of repeal or amendment on a motion made by Parliament: "This makes it perfectly clear that Parliament has in no way abdicated its authority, but is keeping strict vigilance and control over its delegate.
" In view of what has been held in Harishanker Bagla and D. section Grewal, both of which were decided by a larger bench, we do not find it possible to accept the contention that the Act is invalid on the ground of excessive delegation of legislative functions.
It was contended on behalf of the petitioners that in any event the provisions of the Amendment Act of 1981 could not nullify the effect of the writ issued by this Court in D. J. Bahadur 's case.
In our opinion this contention has substance.
Clause (cc) of section 48(2) empowers the Central Government to make rules with regard 266 to the terms and conditions of service of the employees and agents of the Corporation.
Sub section (2A) of section 48 provides that the regulations made under section 49 of the Act and "other provisions ' as in force before the commencement of the Amendment Act with respect to the said terms and conditions are to be deemed as rules made under clause (cc) of section 48(2).
Sub section (2B) of section 48 says that the power to make rules conferred by clause (cc) of sub section (2) shall include the power to add, vary or repeal the regulations and "other provisions" referred to in sub section (2A) with retrospective effect from a date not earlier than June 20, 1979.
Clearly a writ issued by this Court is not a regulation nor can it be described as 'other provision ' which expression possibly includes circulars and administrative directions.
Sub section (2C) of section 48 however provides inter alia that any rules made under clause (cc) with retrospective effect from any date shall be deemed to have had effect from that date notwithstanding any judgment, decree or order of any court, tribunal or other authority.
The order disposing of D. J. Bahadur 's case, made on November 10, 1980 reads: "In view of the opinion expressed by the majority, the appeal is dismissed with costs to the first, second and third respondents, and the Transfer Petition No. 1 of 1979 stands allowed insofar that a writ will issue to the Life Insurance Corporation directing it to give effect to the terms of the settlements of 1974 relating to bonus until superseded by a fresh settlement, an industrial award or relevant legislation.
Costs in respect of the Transfer Petition will be paid to the petitioners by the second respondent.
" The Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981 were made by the Central Government on February 2, 1981 in exercise of the powers conferred by section 48 of the as amended by the Life Insurance Corporation (Amendment) ordinance, 1981.
Rule 3 of these rules relates to the subject of bonus concerning class III and class IV employees of the Corporation.
The substance of this rule has been set out earlier in this judgment.
Clearly rule 3 seeks to supersede the terms of the 1974 settlements relating to bonus.
By virtue of rule 1(2), rule 3 'shall be deemed to have come into force on the Ist day of July, 1979".
The question is, can rule 3 read with rule ](2) nullify the effect of the writ issued by this Court on November 10, 1980 in D.J.Bahadur 's case ? In seems to us rule 3 cannot make the writ 267 issued by this Court nugatory in view of the decision of the majority in Madan Mohan pathak vs Union of India & ors.
etc.(supra) to which reference has been made earlier.
In Madan Mohan Pathak 's case it was contended that since the Calcutta High Court had by its judgment dated May 21, 1976 issued a writ of mandamus directing the Life Insurance Corporation to pay annual cash bonus to class III and class IV employees for the year April 1, 1975 to March 31, 1976 as provided by the 1974 settlements and this judgment had become final, the Life Insurance Corporation was bound to obey the writ of mandamus and pay as ordered by the High Court.
The court was dealing with the Life Insurance Corporation ( Modification of Settlement) Act, 1976 in that case.
Section 3 of that Act provided that the terms of the settlements in so far as they related to the payment of annual cash bonus to class III and class IV employees would not have any force or effect and be deemed not to have had any force or effect from April 1, 1975 Bhagwati J., speaking also for Iyer and Desai., JJ.
Observed: "Here, the judgment given by the Calcutta High Court, which is relied upon by the petitioners, is not a mere declaratory judgment holding an impost or tax to be invalid.
so that a validation statute can remove the defect pointed out by the judgment amending the law with retrospective effect and validate such impost or tax.
But it is a judgment giving effect to the right of the petitioners to annual cash bonus under the Settlement by issuing a writ of Mandamus directing the Life Insurance Corporation to pay the amount of such bonus.
If by reason of retrospective alteration of the factual or legal situation, the judgment is rendered erroneous, the remedy may be by way of appeal or review, but so long as the judgment stands, it cannot be disregarded or ignored and it must be obeyed by the Life Insurance Corporation.
We are, therefore, of the view that in any event! irrespective of whether the impugned Act is constitutionally valid or not, the Life Insurance Corporation is bound to obey the writ of Mandamus issued by the Calcutta High Court .
" Beg.
C.J. who delivered a separate but concurring judgment, after pointing out the "hurdle in the way" of the petitioner 's claim based on Article 19(1)(f) of the Constitution, which was that the Act Life Insurance Corporation (Modification of Settlement) Act, 1976) was 268 passed during the emergency, observed: "The object of the Act was, in effect, to take away the force of the judgment of the Calcutta High Court recognising the settlements in favour of Class III and Class IV employees of the Corporation.
Rights under that judgement could be said to arise independently of Article 19 of the Constitution.
I find myself in complete agreement with my learned brother Bhagwati that to give effect to the judgement of the Calcutta High Court is not the same thing as enforcing a right under Article 19 of the Constitution.
It may be that a right under Article 19 of the Constitution becomes linked up with the enforceability of the judgment.
Nevertheless, the two could be viewed as separable sets of rights.
If the right conferred by the judgment independently is sought to be set aside, section 3 of the Act, would in my opinion, be invalid for trenching upon the judicial power.
I may, however, observe that even though the real object of the Act may be to set aside the result of the mandamus issued by the Calcutta High Court, yet, the section does not mention this object at all Probably this was so because the jurisdiction of a High Court and the effectiveness of its orders derived their force from Article 226 of the Constitution itself.
These could not be touched by an ordinary act of Parliament.
Even if section 3 of the Act seeks to take away the basis of the judgment of the Calcutta High Court, without mentioning it, by enacting what may appear to be a law, yet, I think that where the rights of the citizen against the State are concerned, we should adopt an interpretation which upholds those rights.
Therefore, according to the interpretation r prefer to adopt the rights which had passed into those embodied in a judgment and became the basis of a Mandamus from the High Court could not be taken away in this indirect fashion. ' The Attorney General referred to a number of earlier decisions of this Court wanting us to infer that the observations quoted above from the judgment in Madan Mohan Pathak 's case did not state the correct law hl view of the said decisions.
But these observations expressed the majority view of a bench of seven judges bearing 269 directly on the point that arises for decision in the instant case and A are binding on us.
We therefore hold that rule 3 operating retrospectively cannot nullify the effect of the writ issued in D. J. Bahadur 's case which directed the Life Insurance Corporation to give effect to the terms of the 1974 settlements relating to bonus until superseded by a fresh settlement, an industrial award or relevant legislation.
The Life insurance Corporation (Amendment) Act, 1981 and the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981 are relevant legislation.
However in view of the decision in Madan Mohan Pathak 's case, these rules, in so far as they seek to abrogate the terms of the 1974 settlements relating to bonus, can operate only prospectively, that is, from February 2, 1981, the date of publication of the rules.
The petitions are allowed to this extent only.
In the circumstances of the case we make no order as to costs.
CHINNAPPA REDDY, J.
I have had the advantage of perusing the opinion of my brother Gupta J., I agree with his conclusion that the Life Insurance Corporation (Amendment) Act I of 1981 can operate but prospectively in so far as it seeks to nullify the terms of the 1974 settlements in regard to the payment of bonus.
On some of the other questions I have certain reservations.
I do not, however, desire to express any opinion on those questions as my brother Pathak J., has indicated that he is inclined to agree with Gupta J., on those questions.
Perhaps I will do well to add a few words of my own on the question of retrospectivity.
I am spared the necessity of stating the facts as those that are necessary have been stated by my brother Gupta J.
The 1974 settlements provided, among various other matters, for the payment of annual cash bonus (not a profit sharing bonus) to their Class Ill and Class IV employees at the rate of 15 per cent of the annual salary.
The settlements were to be operative from 1st April 1973 to 31st March 1977.
That the settlements were to be operative from 1st April 1973 to 31st March 1977 did not mean that the settlements would cease to be effective peremptorily from 1 4 1977 and, therefore, the annual cash bonus stipulated under the settlements would cease to be payable from that date onwards.
The settlements would continue to be binding even after 31 3.1977 and would not be liable to be terminated by the issuance of a unilateral notice by the employer purporting to terminate the settlements.
The settlements would cease to be effective only when they were replaced 270 by 'a fresh settlement, an industrial award or relevant legislation '.
This is the law and this was what the law was pronounced to be in Life Insurance Corporation of India vs D. J Bahadur(1) on a consideration of the relevant provisions and precedents.
The attempt made to supersede the settlements, in so far as they related to the payment of bonus, by enacting the Life Insurance Corporation (Modification of Settlement) Act 1976 failed, firstly because the Act was held to violate the provisions of Article 31(2) of the Constitution and secondly because the Act could not have retrospective effect so as to absolve the Life Insurance Corporation from obeying the writ of mandamus issued by the Calcutta High Court, which had become final and binding on the parties.
This was the decision of this Court in Madan Mohan Pathak vs Union of India(a), all the seven judges who constituted the Bench agreeing that the Act violated the provisions of Article 31(21 and four out of the seven judges, namely, Beg C. J., Bhagwati, Krishna Iyer and Desai JJ., taking the view that the Act did not have the effect of nullifying the writ of mandamus issued by the Calcutta High Court and the other three Judges, Chandrachud, Fazal Ali and Shinghal JJ, preferring not to express any view on that question.
The second attempt to nullify the 1974 settlements in regard to payment of bonus, by issuing notices under section 19(2) and Section 9 A of the and by amending the Standardization order and the Staff Regulations, was frustrated by the judgment of this Court in Life Insurance Corporation of India vs D.A. Bandar, the Court taking the view that the two settlements could only be superseded by 'a fresh settlement, an industrial award or relevant legislation '.
In this case, the Court issued a writ to the Life Insurance Corporation "to give effect to the terms of the settlements of 1974 relating to bonus until superseded by a fresh settlement, an industrial award or relevant legislation".
The effect of the two judgments in Madan Mohan Pathak 's case and D. J, Bahadhur 's case was clear: the settlements of 1974, in so far as they related to bonus could only be superseded by a fresh settlement.
an industrial award or relevant legislation.
But any such supersession could only have future effect, but not retrospective effect so as to dissentient the Class III and Class IV employees of the Life Insurance Corporation from receiving the cash bonus which had been earned by them, day by 271 day and which the Life Insurance Corporation of India was under an obligation to pay in terms of the writ issued in D. J. Bahadur 's case.
The present attempt made by the 1981 amending Act and the rules thereunder to scuttle the payment of bonus with effect from a date anterior to the date of the enactment must, therefore, fail.
The employees are entitled to be paid the bonus earned by them before the date of publication of the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 19 81.
N.V.K. Petitions partly allowed.
| IN-Abs | The Life Insurance Corporation was constituted under the , to provide for the nationalisation of life insurance business in India by transferring all such business to the Life Insurance Corporation of India.
Under Section 11(1) of the Act the services of the employees of the insurers whose business had vested in the Corporation were transferred to the Corporation.
Section 49(1 ) empowered the Life Insurance Corporation of India to make regulations for the purpose of giving effect to the provisions of the Act.
Two settlements were reached on January 24, 1974 and February 6, 1974 between the Life Insurance Corporation and its Class III and Class IV employees.
These settlements covered a large ground including the claim for bonus.
These were settlements under section 18 read with section 2(p) of the .
Under clause 12 of the settlements, the settlements were to be effective from 1st April, 1973 for a period of four years that is, from 1st April, 1973 to 31st March, 1977.
In 1975, the Payment of Bonus (Amendment) ordinance was promulgated which was subsequently replaced by the Payment of Bonus (Amendment) Act 1976.
The Central Government decided that the employees of establishments not covered by the Payment of Bonus Act would not be liable 247 to get bonus and ex gratia payment in lieu of bonus.
Payment of Bonus for the A year 1975 1976 to the employees of the Corporation was stopped under instructions from the Central Government.
A writ petition filed by the employees of the Corporation in the Calcutta High Court was allowed, and the Corporation was directed to act in accordance with the terms of the settlement.
In Madan Mohan Pathak vs Union of India and Ors.
; , the Supreme Court held that the 1976 Act offended Article 31(2) of the Constitution and was void, and directed the Union of India and the Life Insurance Corporation to forbear from implementing or enforcing the provisions of the 1976 Act and to pay annual cash bonus for the years 1st April, 1975 to 31st March, 1976 and 1st April 1976 to 31st March, 1977, to Class III and Class IV employees in accordance with the settlements.
On March 31, 1978, the Corporation issued a notice under section 19(2) of the declaring its intention to terminate the settlements on the expiry of two months from the date of notice.
On the same day another notice was also issued by the Corporation under section 9A of the stating that it proposed to effect a change in the conditions of service applicable to the workmen.
These notices were followed by a notification issued by the Corporation under section 49 of the on May 26, 1978 substituting 2 new regulation for the existing regulation No. 58 of the Staff Regulations.
Simultaneously the Life Insurance Corporation (Alteration of Remuneration and other Terms and Conditions of Service of Employees) order, 1957, was amended by the Central Government, substituting a new clause (9) for the original clause concerning bonus, to take effect from June 1, 1978, to provide that the employees of the Corporation shall not be entitled to profit sharing bonus.
The validity of the aforesaid two notices and the notification issued for the purpose of nullifying any further claim to annual cash bonus was challenged by the workmen in a writ petition in the Allahabad High Court.
The High Court allowed the writ petition.
In the appeal by the Corporation to this Court the Life Insurance Corporation of India vs D.J. Bahadur ; and the writ petition filed in the Calcutta High Court transferred to this Court, Chandrasekher Bose and others vs Union of India and Ors.
; , a writ was issued to the Corporation directing it "to give effect to the terms of the settlements of 1974 relating to bonus until superseded by a fresh settlement, an industrial award or relevant legislation".
On January 31, 1981, the Life Insurance Corporation (Amendment) ordinance, 1981 was promulgated.
A new sub clause(c) was inserted with retrospective effect from June 20, 1979 in sub section (2) of section 48 of the Principal Act.
Three new sub sections (2A), (2B) and (2C) were also added to section 48.
Sub section (2A) provided that the regulations and other provisions with respect to the terms and conditions of service of the employees and agents of the Corporation at The commencement of the ordinance shall be deemed to be rules made under clause (cc) of sub section (2) .
Sub section ! (2B) provided that the power to make rules under clause (cc) of sub section (2) shall include (i) the power to give retrospective effect to such rules, and (ii) the power to amend by way of addition, variation or repeal the regulations and other provisions referred to in sub section (2A) with retrospective effect, but not from a date earlier than 248 June 20. 1979.
Sub section (2C) provided that provisions of clause (cc) of sub section (2) and sub section (2B) and any rule made under clause (cc) shall have effect, notwithstanding any judgment, decree, or order of any court, tribunal or other authority, the , any agreement, settlement, award or other instrument.
The Central Government by a notification dated February 2, 1981 made the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules 1981.
Rule 3 which had been given retrospective operation with effect from July 1, 1979 provided by sub rule (1) that: "No Class Ill or Class IV employee of the Corporation shall be entitled to the payment of any profit sharing bonus or any other kind of cash bonus", and sub rule(2) of rule 3 provided that notwithstanding sub rule (1), every Class 111 and Class IV employee shall be entitled to a payment in lieu of bonus (a) for the period commencing from July 1, 1979 and ending on March 31, 1980 at the rate of IS per cent of his salary, and (b) thereafter for every year commencing from 1st April and ending on the 31st day of the March of the following year at such rate and subject to conditions which the Central Government may determine.
Sub rule (3) of rule 3 rescinded regulation 58 of the Staff Regulations and all other provisions relating to the payment of bonus to the extent they were inconsistent with rule 3.
The petitioners in their writ petitions to this Court challenged the validity of the Life Insurance Corporation (Amendment) ordinance, 1981, the Life Insurance Corporation (Amendment) Act, 1981 and the Life Insurance Corporation of India.
Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981 contending that: (1) the Act and the Rules were violative of Articles 14, 19(1)(g) and 21(2) of the Constitution: (2) the Act was invalid on the ground of excessive delegation of legislative functions; (3) sub section (2C) of section 48 was invalid to the extent it permitted retrospective operation to rule 3 to over ride the order of this Court in D.J. Bahadur 's case; (4) Article 14 was infringed because the provisions of sub section (2C) of section 48 provided that any rule under Clause (cc) of sub section (2) of that section touching the terms and conditions of service of the employees of the Corporation shall have effect notwithstanding anything contained in the ; (S) sub section (2C) added to section 48 of the by the Amendment Act of 1981 was invalid because of excessive delegation of legislative functions and if sub section (2C) which was an integral part of the Amendment Act was ultra vires, the entire Amendment Act would be unconstitutional.
and (6) the provisions of the Amendment Act of 1981 could not nullify the effect of the writ issued by this Court in D.J. Bahadur 's case.
The writ petitions were contested on behalf of the Union of India and the Lire Insurance Corporation by contending that remuneration that was being paid to Class III and Class IV employees of the Corporation was far in excess of what was paid tn similarly situated employees in other establishments in the public sector, and that the problem of the mounting cost of administration led to the making of the ordinance and the Amendment Act As no improvement in the situation was possible by the process of adjudication, a policy decision was taken that in the circumstances the proper course was legislation and that was why the Amendment Act was passed and the Rules framed.
The as amended and the Rules made after amendment placed the Corporation 249 in the same position as other undertakings, that the advantages being enjoyed by the employees of the Corporation which were not available to similarly situated employees of other undertakings had been taken away removing the discrimination in favour of the employees of the Life Insurance Corporation.
Repealing a law was an essential legislative function which had been delegated to the Central Government and the delegation was not excessive.
It is not the Rules framed by the Central Government in exercise of the delegated authority that over ride the or any other existing law, but the power of abrogating the existing law is in sub section (2C) of section 48 which was enacted by Parliament itself.
Allowing the writ petitions in part ^ HELD: [By the Court] The Life Insurance Corporation (Amendment) Act 1981 can operate but prospectively in so far as it seeks to nullify the terms of the 1974 settlements in regard to payment of bonus.
[269 A C, 271 A B] [Per Gupta & Pathak, JJ] 1.
(i) Rule 3 operating retrospectively cannot nullify the effect of the writ issued in D. J. Bahadur 's case which directed the Life Insurance Corporation to give effect to the terms of the 1974 settlements relating to bonus until superseded by a fresh settlement, an Industrial award or relevant legislation.
[269 A] (ii) The Life Insurance Corporation (Amendment) Act 1981 and the Life Insurance Corporation of India Class 111 and Class IV employees (Bonus and Dearness Allowance) Rules, 1981 are relevant legislation.
In view of the decision in Madan Mohan Pathak 's case these rules in so far as they seek to abrogate the terms of 1974 settlements relating to bonus, can operate only prospectively, that is.
from February 2, 1981 the date of publication of the Rules.
[269 B C] (iii) A claim based on the 1974 settlements is not a fundamental right that could be enforced through this Court.
[259 C] 2.
The burden of establishing hostile discrimination was on the petitioners who challenged the Amendment Act and the rules.
It was for them to show that the employees of the Life Insurance Corporation and the employees of the other establishments to whom the provisions of the were applicable were similarly circumstanced to justify the contention that by excluding the employees of the Corporation from the purview of the they had been discriminated against.
There is no material on the basis of which it can be held that the Amendment Act of 1981 and the rules made on February 2, 1981 infringe Article 14.
[260 F G] Express Newspapers (Private) Limited and another vs Union of India, and Moti Ram Deka etc.
vs General Manager, N.E.F. Railways, Maligaon.
Pandu etc.
; , held inapplicable.
In the instant case section 48(2C) read with section 48(2) (cc) authorises the Central Government to make rules to carry out the purposes of the Act notwithstanding the or any other law.
This means that in 250 respect of the matters covered by the rules, the provisions of the or any other law will not be operative.
[262 A B] 3.
The policy as stated in the preamble of the Amendment Act is that "for securing the interest of the Life Insurance Corporation of India and policyholders and to control the cost of administration, it is necessary that revision of the terms and conditions of service applicable to the employees and the agents 13 of the Corporation should be undertaken expeditiously.
" The policy offers sufficient guidance to the Central Government in exercising its powers under that Act.
[265 B C] 4 Clause (cc) of section 48(2) empowers the Central Government to make rules with regard to the terms and conditions of service of the employees and agents of the Corporation.
Sub section 2(B) of section 48 says that the power to make rules conferred by clause (cc) of sub section (2) shall include the power to add, vary or repeal the regulations and other "provisions" referred to in subsection (2A) with retrospective effect from a date not earlier than June 20, 1979.
A writ issued by this Court is not a regulation nor can it be described as 'other provisions ' which expression includes circulars and administrative directions.
Sub section (2C) of section 48 however provided that any rule made in clause (CC) with retrospective effect from any date shall be deemed to have had effect from that date notwithstanding any judgment, decree or order of any Court, Tribunal or other authority.
Rule 3 of the rules relating to the subject of bonus cannot make the writ issued by this Court nugatory in view of the decision of this Court in Madan Mohan Pathak vs Union of India.
[265 H 266; 267 A] 5.
It is not really the rules framed by the Central Government that over ride the or any other existing law, but the power of abrogating the existing laws is in sub section (2C) of section 48 enacted by Parliament itself.
[264 F] Hari Shankar Bagla and another vs State of Madhya Pradesh, , referred to.
[Per Chinnappa Reddy J.] The effect of the two judgments in Madan Mohan Pathak 's case and D. J. Bahadur 's case was clear: the settlements of 1974, in so far as they related to bonus, could only be superseded by a fresh settlement, an industrial award or relevant legislation.
But any such supersession could only have future effect, but not retrospective effect so as to disentitle the Class III and Class IV employees of Life Insurance Corporation from receiving the cash bonus which had been earned by them, day by day, and which the Life Insurance Corporation of India was under an obligation to pay in terms of the writ issued in D. J. Bahadur 's case.
The present attempt made by the 1981 amending Act and the rules thereunder to scuttle the payment of bonus with effect from a date anterior to the date of the enactment must, therefore, fail.
The employees are entitled to be paid the bonus earned by them before the date of publication of the Life Insurance Corporation of India Class III and Class IV employees (Bonus and Dearness Allowance) Rules, 1981.
[270H 271 B] 251
|
ition No. 1337 of 1979.
(Under article 32 of the Constitution of India).
V.M. Tarkunde, P.H. Parekh and Hemant Sharma for the Petitioner.
Abdul Khader, Girish Chandra and Miss A. Subhashini for the Respondents.
The Order of the Court was delivered by KOSHAL, J. The short question which falls for determination in this petition under article 32 of the Constitution of India praying for the issuance of appropriate writs quashing the letter dated 16th of March, 1979, by which the representation made by the petitioner against the seniority assigned to him in the cadre of Income tax Officers, Class I was rejected and he was informed that the seniority list forming an appendix to Annexure 'l ' had been correctly framed in accordance with the rules then in force.
The answer to the question posed by the petition has to be answered with reference to Rules 4, 6 and 8 of the Released Emergency Commissioned Officers & Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1971 (hereinafter called the Rules).
The relevant part of Rule 4(1) reads thus: 4(1) Twenty percent of the vacancies in the Indian Foreign Service, and 25 percent of the vacancies in all the Central Civil Services and posts, Class I, to which these rules apply. . . . 40 shall be reserved for being filled by the Emergency Commissioned Officers and the Short Service Commissioned Officers of the Armed Forces of the Union who were commissioned after the 1st November, 1962 but before the 10th January, 1968, and who (i) . . . . . . . . (ii) in the case of Short Service Commissioned Officers are released on the expiry of the tenure of their service; or (iii) . . . . . . . .
Rule 6 in so far as it is relevant for our purpose provides: 6(1) . . . . . . . . . (2) Seniority inter se of candidates who are appointed against the vacancies reserved under sub rule (1) of rule 4 and allotted to a particular year shall be determined according to the merit list prepared by the Commission on the basis of the results of their performance at the examination or test or interview.
(3) All candidates who have been appointed against the vacancies reserved under sub rule (1) of rule 4 shall rank below the candidates who were appointed against unreserved vacancies in the services of posts through the competitive examination or test or interview conducted by the Commission corresponding to the year to which the former candidates are allotted.
It is not disputed that the petitioner is an officer who is entitled to the benefit of reservation under the above abstracted portion of Rule 4(1) and to have his seniority accordance with sub rule (3) of Rule 6.
As we read the sub rule last mentioned we do not find it to be ambiguous in any manner whatsoever.
It lays down in clear terms that the officers appointed against vacancies reserved under sub rule (1) of Rule 4 shall rank below candidates who were appointed against unreserved vacancies in the services concerned through a competitive examination, etc.
Respondents Nos. 2 to 14 who have been placed in the impugned seniority list above the petitioner were appointed to the cadre of Income tax Officers, Class I through a competitive examination or test as envisaged by sub rule(3) of Rule 6.
Now if they were appointed against unreserved vacancies, they are entitled to rank above the petitioner but not otherwise.
41 It is conceded before us that respondents Nos. 2 to 14 have been appointed against vacancies reserved for Scheduled Castes and Scheduled Tribes.
Clearly, therefore, they must rank below the petitioner inasmuch as it cannot be said with any plausibility that they were appointed against unreserved vacancies.
Mr. Abdul Khader appearing for the Union of India has contested the interpretation just above placed by us on sub rule (3) of Rule 6.
According to him that interpretation makes the sub rule retrospective in operation, which it is not.
We agree that the sub rule is intended to be prospective only and that the above interpretation would be operative only after the date on which the sub rule was promulgated and not before that.
But then that means that every seniority list prepared after the date of the promulgation of the sub rule would be governed by it.
Similarly, every promotion made and every question relating to seniority cropping up after the date of the promulgation of the sub rule (which is 28th August, 1971) shall be determined according to that sub rule.
No question of retrospectivity of the sub rule is thus involved.
Of course, the inter se seniority of officers of the cadre prevailing upto 28th August, 1971 had to be determined under the rules as they existed before that date and any promotions made earlier to that date would continue to be good if made in accordance with those rules.
However, the position changed with the promulgation of the Rules and any promotion made thereafter has to conform to them.
Faced with the above situation Mr. Abdul Khader argued that the word, 'unreserved ' in sub rule (3) of Rule 6 would embrace the vacancies reserved for candidates belonging to the Scheduled Castes and Scheduled Tribes who had joined the cadre through open competition, etc., because the sub rule meant to take within its ambit all such persons who had been recruited in that manner.
The logic of the argument is not clear to us because it makes the whole sub rule meaningless.
If the argument were to be accepted, the use of the word 'unreserved ' would be wholly uncalled for and we just cannot hold that the word is redundant, forms part as it does of subordinate legislation.
The word 'unreserved ' can obviously not be equated with its antonym, that is, 'reserved ', and has to be applied only to vacancies which do not fall within the reserved categories.
Mr. Abdul Khader took another point and that was to the effect that the rules of the service in question had been amended 42 earlier to 1971 so as to place candidates covered by Rule 4(1) below those who had been appointed to reserved vacancies through a competitive examination.
That may well have been so but then that makes no difference to the interpretation which is given above to sub rule (3) of Rule 6.
Rule 8 of the Rules declares in no uncertain terms that all rules regulating the recruitment of persons to Central Civil Services and Posts, Class I, to which the Rules apply, shall be deemed to have been amended to the extent provided for in the Rules.
If the rules regulating the seniority of the petitioner and respondents Nos. 2 to 14 were so amended earlier to 1971 as to assign to the petitioner seniority below respondents Nos. 2 to 14, the situation would be wholly irrelevant to the present dispute because after the amendment brought about Rule 8 of the Rules, the members of the service to which the contested parties belong, have to be governed by the amendment of which sub rule (3) of Rule 6 forms a part.
This is the inescapable consequence flowing from Rule 8 of the Rules.
We may take note here of the only other argument raised by Mr. Abdul Khader and that is that Rule 8 regulates only the recruitment of persons to Central Civil Services and Posts, Class I, and not to their conditions of service.
We do not find any substance in this argument either.
The word 'recruitment ' is comprehensive enough to embrace the content of all the rules preceding Rule 8 including the fitment of candidates recruited to the service vis a vis each other.
In the result, we accept the petition, quash the seniority list abovementioned as well as the letter by which the representation there against made by the petitioner was rejected and direct respondent No. 1 to re frame the seniority list assigning the petitioner seniority in accordance with law as explained above.
There will be no order as to costs.
N. K. A. Petition allowed.
| IN-Abs | Respondents Nos. 2 to 14 were appointed to the cadre of Income tax Officers, Class I, against vacancies reserved for Scheduled Caste and Schedules Tribes, as a result of a competitive examination or test as envisaged by sub rule (3) of Rule 6.
The Petitioner was similarly appointed to the same cadre but against a vacancy reserved under sub rule (1) of Rule 4 for certain officers of the Armed Forces of the Union.
He was placed in the impugned seniority list below respondents Nos. 2 to 14.
He made a representation against the seniority assigned to him on the ground that under sub rule (3) of Rule 6 he was entitled to rank immediately below candidates appointed against unreserved vacancies.
The representation was rejected by a letter dated 16th March, 1979.
The petitioner filed a petition under article 32 of the Constitution of India seeking the issuance of a writ quashing that letter.
At the hearing it was not disputed that the petitioner was entitled to the benefit of reservation sub rule (1) of Rule 4 and to have his seniority determined in accordance with sub rule (3) of Rule 6.
However, it was contended on behalf of the respondents Nos. 2 to 14, inter alia, that the rules of the service had been amended earlier to 1971, so as to place candidates covered by sub rule (1) of Rule 4 below those who had been appointed against reserved vacancies through a competitive examination.
Accepting the petition, it was ^ HELD: (1) Sub rule (3) of Rule 6 is not ambiguous in any manner whatsoever and lays down in clear terms that the officers appointed against vacancies reserved under sub rule (1) of Rule 4 shall rank below candidates who were appointed against unreserved vacancies in the Services concerned through a competitive examination, etc.
[40 F G] 2.
Respondents Nos. 2 to 14 have been appointed against vacancies reserved for Scheduled Castes and Schedule Tribes.
Clearly therefore, they must rank below the petitioner inasmuch as it cannot be said with any plausibility that they were appointed against unreserved vacancies.
[41 A B] 3.
The argument that the rules of the service in question had been amended to 1971, so as to place candidates governed by Rule 4(1) below those who had been appointed to reserved vacancies through a competitive examination has no substance and makes no difference to the interpretation which is given above to 39 sub rule (3) of Rule 6, Rule 8 of the Rules declares in no uncertain terms that all rules regulating the recruitment of persons to Central Civil Services and Posts, Class I, to which the Rules apply, shall be deemed to have been amended to the extent provided for in the Rules.
Although the rules regulating the seniority of the petitioners and respondents Nos. 2 to 14 were so amended earlier to 1971 as to assign to the petitioner seniority below respondents Nos 2 to 14, the situation is wholly irrelevant to the present dispute because after the amendment brought about by Rule 8 of the Rules, the members of the service to which the contenting parties belong, have to be governed by the later amendment, of which sub rule (3) of Rule 6 forms a part.
This is the inescapable consequence flowing from Rule 8 of the Rules.
[41 G H, 42 A D] 4.
The word 'recruitment ' is comprehensive enough to embrace the content of all the rules proceeding Rule 8 including the fitment of candidates recruited to the service vis a vis each other.
[42 D E]
|
Criminal Appeal No. 5 of 1951.
Appeal from the Judgment and Order dated 18th August, '1950, of the High Court of Judicature for Rajasthan at Jaipur (Nawal Kishore C.J. and Dave J.) in Criminal Reference No. 229 of Sambat 2005.
H. J. Umrigar for the appellant.
G. C. Mathur for the respondent.
111 1951.
September 24.
The Judgment of the Court was delivered by Bose J.
The appellant was convicted under section 7 of the Jaipur Opium Act and fined Rs. 50.
The case as such is trivial but the High Court of Rajasthan in Jaipur granted special leave to appeal as an important point touching the vires of the Act arises.
We will state the facts chronolog ically.
It is conceded that the Rulers of Jaipur had full powers of government including those of legislation.
On the 7th of September, 1922, the late Maharaja died and at the time of his death his successor, the present Maharaja, was a minor.
Accordingly, the Crown Representative appointed a Council of Ministers to look after the government and administration of the State during the Maharaja 's minority On the 11th of December, 1923, this Council passed a Resolution which purported to enact the Jaipur Opium Act, and the only question is whether the mere passing of the Resolution without promulgation or publication in the Ga zette, or other means to make the Act known to the public, was sufficient to make it law.
We are of opinion that it was not.
But before giving our reasons for so holding, we will refer to some further facts.
About the same time (that is to say, in the year 1923 we have not been given the exact date) the same Council enacted the Jaipur Laws Act, 1923.
Section 3(b) of this Act provided as follows : "3.
Subject to the prerogative of the Ruler the law to be administered by the Court of Jaipur State shall be as follows: (b) All the regulations now in force within the said territories, and the enactments and regulations that may hereafter be passed from time to time by the State and published in the Official Gazette.
" This law came into force on the 1st of November, 1924.
It is admitted that the Jaipur Opium Act was never published in the Gazette either before or after the 1st of November, 1924.
But it is contended that was 112 not necessary because it was a "regulation" already in force on that date.
The only other fact of consequence is that on the 19th of May, 1938, section 1 of the Jaipur Opium Act was amended by the addition of sub section (c) which ran as follows: "(c) It shall come into force from the 1st of September, 1924.
" The offence for which the appellant was convicted took place on the 8th of October, 1948.
Dealing first with the last of these Acts, namely the one of the 19th of May, 1938, we can put that on one side at once because, unless the Opium Act was valid when made, the mere addition of a clause fourteen years later stating that it shall come into force at a date fourteen years earlier would be useless.
In the year 1938 there was a law which required all enactments after the 1st of November, 1924, to be published in the Gazette.
Therefore, if the Opium Act was not a valid Act at that date, it could not be validated by the publication of only one section of it in the Gazette fourteen years later.
The Jaipur Laws Act of 1923 required the whole of the enactment to be published; therefore publi cation of only one section would not validate it if it was not already valid.
We need not consider whether a law could be made retroactive so as to take effect from 1924 by publi cation in 1938, though that point was argued.
That throws us back to the position in 1923 and raises the question whether a law could be brought into operation by a mere resolution of the Jaipur Council.
We do not know what laws were operative in Jaipur re garding the coming into force of an enactment in that State.
We were not shown any, nor was our attention drawn to any custom which could be said to govern the matter.
In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge.
Natural justice requires that 113 before a law can become operative it must be promulgated or published.
It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence.
The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man.
It shocks his conscience.
In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way.
Promulgation or publica tion of some reasonable sort is essential.
In England the rule is that Acts of Parliament become law from the first moment of the day on which they receive the Royal assent, but Royal Proclamations only when actually published in the official Gazette.
See footnote (a) to paragraph 776.
page 601, of Halsbury 's Laws of England (Hailsham edition), Volume VI and 32 Halsbury 's Laws of England (Hailsham edition), page 150 note (r).
But even there it was necessary to enact a special Act of Parliament to enable such proclamations to become law by publication in the Gazette though a Royal Proclamation is the highest kind of law, other than an Act of Parliament, known to the Brit ish Constitution; and even the publication in the London Gazette will not make the proclamation valid in Scotland nor will publication in the Edinburgh Gazette make it valid for England.
It is clear therefore that the mere enacting or signing of a Royal Proclamation is not enough.
There must be publication before it can become law, and in England the nature of the publication has to be prescribed by an Act of Parliament.
The Act of Parliament regulating this matter is the Crown Office Act of 1877 ' (40 and 41 Victoria Ch. 41).
That Act, in addition to making provision for publication in certain official Gazettes, also provides for the 114 making of rules by Order in Council for the best means of making Proclamations known to the public.
The British Par liament has therefore insisted in the Crown Office Act that not only must there be publication in the Gazette but in addition there must be other modes of publication,if an Order in Council so directs, so that the people at large may know what these special laws are.
The Crown Office Act directs His Majesty in Council carefully to consider the best mode of making these laws known to the public and empowers that body to draw up rules for the same and embody them in an Order in Council.
We take it that if these Proc lamations are not published strictly in accordance with the rules so drawn up, they will not be valid law.
The principle underlying this question has been judi cially considered in England.
For example, on a somewhat lower plane, it was held in Johnson vs Sargant (1) that an Order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917 does not become operative until it is made known to the public, and the difference between an Order of that kind and an Act of the British Parliament is Stressed.
The difference is obvious.
Acts of the British Parliament are publicly enacted.
The debates are open to the public and the Acts are passed by the accredited representa tives of the people who in theory can be trusted to see that their constituents know what has been done.
They also re ceive wide publicity in papers and, now, over the wireless.
Not so Royal Proclamations and Orders of a Food Controller and so forth.
There must therefore be promulgation and publication in their cases.
The mode of publication can vary; what is a good method in one country may not neces sarily be the best in another.
But reasonable publication of some sort there must be.
Nor is the principle peculiar to England.
It was ap plied to France by the Code Napoleon, the first Article of which states that the laws are executory "by virtue of the promulgation thereof" and that they shall come into effect "from the moment at which their (1) ; 115 promulgation can have been known." So also it has been applied in India in, for instance, matters arising under Rule 119 of the Defence of India Rules.
See, for example, Crown vs Manghumal Tekuml(1), Shakoor vs King Emperor (2) and Babulal vs King Emperor (3).
It is true none of these cases is analogous to the one before us but they are only particular applications of a deeper rule which is rounded on natural justice.
The Council of Ministers which passed the Jaipur Opium Act was not a sovereign body nor did it function of its own right.
It was brought into being by the Crown Representa tive, and the Jaipur Gazette Notification dated the 11th August, 1923, defined and limited its powers.
We are enti tled therefore to import into this matter consideration of the principles and notions of natural justice which underlie the British Constitution, for it is inconceivable that a representative of His Britannic Majesty could have contem plated the creation of a body which could wield powers so abhorrent to the fundamental principles of natural justice which all freedom loving peoples share.
We hold that, in the absence of some specific law or custom to the contrary, a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation would not be sufficient to make a law operative.
It is necessary to consider another point.
It was urged that section 3(b) of the Jaipur Laws Act of 1923 saved all regulations then in force from the necessity of publication in the Gazette.
That may be so, but the Act only saved laws which were valid at the time and not resolutions which had never acquired the force of law.
The appeal succeeds.
The conviction and sentence are set aside.
The fine, if paid, will be refunded.
Appeal allowed.
Agent for the re spondent: P.A. Mehta.
(1) I.L.R. 1944 Karachi Nag. 762.
| IN-Abs | Natural justice requires that before a law can become operative it must be promulgated or published.
It must be broadcast in some recognisable way so that all men may know what it is; or at least there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence.
The Council of Ministers appointed by the Crown Repre sentative for the government and administration of the Jaipur State passed a Resolution in 1923 purporting to enact a law called the Jaipur Opium Act, but this law was neither promulgated or published in the Gazette nor made known to the public.
The Jaipur Laws Act, 1923, which was also passed by the Council and which came into force on the 1st November, 1924, provided by section 3 (b) that the law to be administered by the court of the Jaipur State shall be. " (b) all the regulations now in force within the said terri tories and the enactments and regulations that may hereafter be passed from time to.
time by the State and published in the Official Gazette.
" In 1938 the Jaipur Opium Act was amended by adding a clause to the effect that "it shall come into force from the 1st of September, 1924.
" Held, that the mere passing of the Resolution of the Council without further publication or promulgation of the law was not sufficient to make the law operative and the Jaipur Opium Act was not therefore a valid law.
Held fur ther, that the said Act was not saved by section 3 (b) of the Jaipur Laws Act, 1923, as it was not a valid law in force on the 1st November, 1924, and the mere addition of a clause in 1938 that it shall come into force in 1924 was of no use.
|
Appeal No. 181 of 1956.
Appeal by special leave from the judgment and order dated September 5,1955, of the Judicial Commissioner 's Court, Ajmer, in Civil Writ Petition No. 108 of 1955.
M. M. Kaul and R. H. Dhebar, for the appellants.
The respondent did not appear.
November 15.
The Judgment of the Court was delivered by BHAGWATI J.
This is an appeal with special leave from the judgment of the Judicial Commissioner, Ajmer, restraining the District Magistrate, Ajmer, from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955.
The respondent claimed to be a voter of the Ajmer Municipality.
By an order dated March 12, 1953, the Ajmer Municipal Committee had been suspended and that suspension was to continue till September 11, 1955.
In view of the impending elections after the period of suspension was over, the Chief Commissioner, Ajmer, the appellant before us, framed the Ajmer State Municipalities Election Rules, 1955, in exercise of the powers conferred by section 43 of the Ajmer Merwara Municipalities Regulation, 1925 (VI of 1925) and published them in the Government Gazette dated August 4, 1955.
On August 8, 1955, he notified an election programme and also authenticated and published an electoral roll.
This electoral roll had been corrected and altered by the orders of the Sub Divisional Officer on certain days prior to August 8, 1955, but the respondent 's name was alleged to have been incorrectly described therein, his father 's name having been mentioned as Ratan Lal instead of Chitar Mal.
On August 10, 1955, he applied for the correction of his father 's name in the Parliamentary Electoral Roll and on August 16, 1955, he filed his nomination paper.
His nomination was, however, rejected on August 17, 1955, 70 the Returning Officer stating that he was not one of the electors according to the roll.
His application for rectification of the mistake in the Parliamentary Electoral Roll was also rejected on August 18, 1955, by the Electoral Registration Officer on the ground that the roll of the Municipal elections had been finally published on August 8, 1955, and therefore no correction could be made.
The respondent thereupon filed on August 26, 1955, a writ petition being Civil Writ Petition No. 108 of 1955 in the Court of the Judicial.
Commissioner at Ajmer against the appellant and the District Magistrate, Ajmer, inter alia for a mandamus against the appellant to reconstitute the Ajmer Municipal Committee by a properly made and published notification under section 8(1) of the Regulation and an order against the District Magistrate, Ajmer, restraining him from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955, as notified.
The learned Judicial Commissioner upheld the contention of the respondent in regard to the reconstitution of the Committee but did not issue any directions in regard to the same in view of the fact that the appellant had already before that date issued a notification under section 8(1) of the Regulation to reconstitute the Committee.
He also held that Rule 7 of the Election Rules was not in consonance with and was in contradiction to section 30, sub section
(2), of the Regulation and was in excess of the rule making power conferred upon him, and the elections proposed to be held on September 9, 1955, were not lawful.
He, therefore, directed the District Magistrate, Ajmer, to refrain from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955.
On an application made by the appellant for a certificate under article 133(1)(c) of the Constitution, the learned Judicial Commissioner was of opinion that the direction given by him against the District Magistrate, Ajmer, was merely not to hold elections on September 9,,1955, and as that date had already passed when the application was disposed of by him, no useful purpose would be served by granting him a certificate and he accordingly refused to grant the same.
The appellant, 71 however, approached this Court and obtained special leave under article 136 for filing an appeal against the, decision of the learned Judicial Commissioner.
When the appeal came up for hearing before us, the respondent communicated to us his desire not to appear and contest the appeal with the result that the appeal has been heard by us exparte.
At the outset we pointed out to the learned counsel for the appellant that the appeal had become academic.
The appellant had in fact reconstituted the Ajmer Municipal Committee by a proper notification under section 8(1) of the Regulation and the date on which the elections and the poll to the Ajmer Municipal Committee were to he held, viz., September 9, 1955, had also passed.
The learned counsel for the appellant, however, urged before us that the pronouncement of the learned Judicial Commissioner to the effect that Rule 7 of the Election Rules was not in consonance with and was in contradiction to section 30, sub section
(2), of the Regulation and was in excess of the rule making power conferred upon the appellant was a stumbling block in the way of the appellant holding further elections on the basis of the electoral roll as it had been authenticated and published by him on August 8, 1955.
If that pronouncement stood, it would be incumbent on the appellant to authenticate and publish another electoral roll and incur the expenses which were inevitable in that process.
He, therefore, pressed upon us that we should set aside that pronouncement so that the Municipal elections may be held hereafter without straining the attenuated finances of the Municipality.
The relevant provisions which fall to be considered by us are the following: " Section 30.
(1): A person shall not be deemed to be an elector for any purpose of this Regulation or of any rule unless he is enrolled as an elector.
(2)as amended by Act LX V of 1950: Every person who would be entitled under the Representation of the People Act, 1950 (XLIII of 1950) to be registered in the electoral roll for a Parliamentary Constituency if 72 that Constituency had been co extensive with the Municipality, and whose name is registered in the electoral roll for the Parliamentary Constituency comprising the Municipality shall be entitled to be enrolled as an elector of the Municipality.
Section 43: The Chief Commissioner may, by notification, make rules consistent with this Regulation for the purpose of regulating all or any of the following matters, namely, : (a). . . . . (b). . . . . (c)the preparation and revision of electoral rolls, and the adjudication of claims to be enrolled and objections to enrolment; Section 248.
(4): On publication in the official Gazette of any rules made under this Regulation, such rules shall have effect as if enacted in this Regulation.
Elections Rules: Rule 7 Electoral rolls: In accordance with the provisions of sub section (2) of section 30 of the Ajmer Merwara Municipalities Regulation, 1925 (VI of 1925) the electoral roll of the particular Municipality shall be the same as the final printed roll for a Parliamentary Constituency representing the area covered by that Municipality.
9 Electors: No person shall be deemed to be an elector for the purposes of these rules unless his name appears in the electoral rolls.
mentioned above It is clear from section 30, sub section
(2), of the Regulation that in order to be entitled to be enrolled as an elector of a Municipality, a person has to fulfill two conditions, viz., (1) that he should be entitled under the Re. presentation of the People Act, 1950 (XLIII of 1950) to be registered in the electoral roll for a Parliamentary Constituency if that Constituency had been co extensive with the Municipality ' nd (2) that his name should be registered in the electoral roll for a Parliamentary Constituency comprising the Municipality.
If 73 both these conditions are fulfilled he would be entitled to be enrolled as an elector of the Municipality.
In regard to the first condition reference need be made to the qualifications prescribed for being registered in the electoral roll for the Parliamentary Constituency and it is only if these qualifications are possessed by the person that he would be entitled to be so registered.
In order, therefore, to determine whether a person is entitled to be enrolled as an elector of a Municipality, it would be necessary to ascertain in the first instance whether he is entitled to be registered in the electoral roll for the Parliamentary Constituency.
Once that condition is fulfilled, it would be further necessary to consider whether his name is registered in the electoral roll for the Parliamentary Constituency.
If, in spite of his fulfilling the condition that he is entitled to be registered in the electoral roll for the Parliamentary Constituency, his name is not registered in the electoral roll for the same, he would not be entitled to be enrolled as an elector of the Municipality.
The latter condition does not require any scrutiny for its fulfillment.
The fact of his being registered in the electoral roll for the Parliamentary Constituency would be apparent on the face of the electoral roll itself.
The fulfillment of the first condition, however, would be subject to scrutiny and it would be open to any resident of the Municipality to object to the enrolment of a particular person as an elector of the Municipality.
Even in the case of the electoral roll for the Parliamentary Constituency it would be open to a person to apply for a revision of that roll by applying for a correction of the mistakes or mis descriptions which might have crept therein as also to have his name registered in the roll if it had not been so registered provided he fulfilled the first condition, viz., that he was entitled to be registered in the electoral roll for the Parliamentary Constituency.
Objections could also be filed to the enrolment of particular persons as electors in the Parliamentary Constituency and also in the Municipality.
Apart from the preparation of the electoral roll for the Municipality it would, therefore, be necessary to have a, revision of such electoral rolls and 19 74 also the adjudication of claims to be enrolled therein and objections to such enrolment.
This was clearly envisaged by the framers of the Ajmer Merwara Municipalities Regulation, 1925, and with that end in view it was provided in section 43(c) that the Chief Commissioner may by notification make rules consistent with the Regulation for the purpose of regulating inter alia the preparation and revision of electoral rolls and the adjudication of claims to be enrolled and the objections to enrolment.
Such rules when framed and published in the official Gazette were, by virtue of section 248(4) to have effect as if enacted in the Regulation.
They were to have statutory effect and were to be treated as part and parcel of the Regulation and contained therein.
Before the amendment of section 30, sub section
(2), of the Regulation by Act LXV of 1950 there were in existence sub sections
(2) and (3) of that section which prescribed the qualifications for being enrolled as electors of the Municipality.
They were, however, substituted by the amended section 30, sub section
(2), set out hereinabove.
It thus substituted for the qualifications which had till then been considered requisite for such enrolment all the qualifications which were required.
for being registered in the electoral roll for the Parliamentary Constituency.
That, however, was a provision prescribing the qualifications for the purposes of such enrolment and the object of the amendment was to adopt the electoral roll for the Parliamentary Constituency as the basis for the electoral roll of the Municipality.
It did not eliminate the further steps in the matter of the revision of such electoral roll as also the adjudication of claims to be enrolled therein and objections to such enrollments.
The amendment did not obviate the necessity of taking these further steps inspite of the electoral roll for the Parliamentary Constituency being treated as the electoral, roll of the Municipality.
By thus treating the electoral roll for the Parliamentary Constituency as the basis for the electoral roll of the Municipality, the trouble and expenses involved in the preparation of the electoral roll for the Municipality were saved but the Municipality was not absolved 75 from the obligation of providing for the revision of such electoral roll as well as the adjudication of claims to be enrolled therein and objections to such enrolment.
When the Ajmer State Municipalities Election Rules, 1955, came to be framed in exercise of the power conferred by section 43 of the Regulation, the Chief Commissioner framed Rule 7 which provided that the electoral roll for the particular Municipality shall be the same as the final printed roll for the Parliamentary Constituency representing the area covered by the Municipality.
He dispensed with the independent preparation by the Municipality of the electoral roll but did nothing further.
Rule 9 provided that no person shall be deemed to be an elector for the purpose of the Rules unless his name appeared in the electoral rolls mentioned above.
That had reference obviously to the second condition prescribed in section 30, sub section
(2), of the Regulation but did not go far enough.
It did not say that a person whose name appeared in the electoral rolls for the Parliamentary Constituency was to be deemed to be an elector for the purposes of the Rules so as to obviate the necessity of fulfilling the first condition therein prescribed and rightly so, because, if it did say so, it would be in conflict with section 30, sub section
(2), of the Regulation.
These Rules did not eliminate the scrutiny which could be made at the instance of the parties concerned as to whether a person whose name was registered in the electoral roll for the Parliamentary Constituency was in fact entitled under the Representation of the People Act, 1950 (XLIII of 1950) to be so registered and whether he possessed the qualification prescribed in that Act in this behalf nor did they eliminate the further scrutiny for the purpose of the revision of such electoral roll or the adjudication of claims to be enrolled therein and objections to such enrolment.
It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll 76 opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications.
Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolnaent.
Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned.
It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective.
It was urged that the expression " the final printed roll for the Parliamentary Constituency " predicated that the electoral roll for the Parliamentary Constituency had been finalised after going through the whole procedure in accordance with the provisions of the Representation of the People Act, 1950 (XLIII of 1950) and, therefore, there was no necessity for making any further provision of that nature in the matter of the electoral roll of the Municipality.
This contention is unsound for the simple reason that by using this phraseology the whole of the procedure laid down in the Representation of the People Act, 1950 (XLIII of 1950) is not bodily incorporated in the Ajmer Merwar Muni cipalities Regulation, 1925 (VI of 1925).
Neither the Regulation nor the Rules which have been framed by the Chief Commissioner in exercise of the powers conferred under section 43 of the Regulation make any mention of any such incorporation nor is it possible to urge that, merely because the electoral roll for the Parliamentary Constituency was treated as the basis for the electoral roll of the Municipality, these provisions were bodily incorporated in the Rules.
If Rules 7 and 9 above referred to were intended to form a complete code for the finalisation of the electoral roll of the Municipality they did not serve the intended purpose and were either inconsistent with the provisions of section 30, sub section
(2), of the Regulation or were defective in so far as they 77 failed to provide the proper procedure for taking of the steps therein above indicated for finalising the electoral roll of the Municipality.
If that was the true position the electoral roll of the Municipality which had been authenticated and published by the Chief Commissioner on August 8, 1955, was certainly not an electoral roll prepared in accordance with law on the basis of which the elections and poll to the Ajmer Municipal Committee could be held either on September 9, 1955, or at any time thereafter.
In the view which we hold, it is not necessary to consider whether, in the event of an inconsistency between section 30, sub section
(2), of the Regulation and the Rules framed by the Chief Commissioner in exercise of the power conferred under section 43 of the Regulation, the section would prevail or the Rules.
Suffice it to say that the electoral roll of the Ajmer Municipality which was authenticated and published by the Chief Commissioner on August 8, 1955, was not in conformity with the provisions of section 30, sub section
(2), and the relevant provisions of the Regulation and could not form the basis of any valid elections to be held to the Ajmer Municipal Committee.
Under the circumstances we see no substance in the appeal and dismiss the same.
There will be, however, no order as to costs of the appeal in so far as the respondent has not appeared and contested the appeal before us.
Appeal dismissed.
| IN-Abs | Sub section (2) Of section 30 of the Ajmer Merwara Municipalities Regulation, 925, as amended, provided that " every person who would be entitled under the Representation of the People Act, 1950 (XLIII of 1950) to be registered in the electoral roll for a Parliamentary Constituency if that Constituency had been co extensive with the Municipality, and whose name is registered in the electoral roll for the Parliamentary Constituency comprising the Municipality, shall be entitled to be enrolled as an elector of the Municipality"; and section 43 enabled the Chief Commissioner to make rules consistent with the Regulation for the preparation and revision of electoral rolls and the adjudication of claims to be enrolled and objections to enrolment.
In exercise of this power the appellant framed Rules which, inter alia, provided that the electoral roll for the particular Municipality shall be the same as the final printed roll for the Parliamentary Constituency representing the area covered by the Municipality.
He notified an election programme and also authenticated and published an electoral roll on August 8, 1955.
The respondent whose father 's name was recited wrongly in the electoral roll applied for rectification of the mistake in the Parlia mentary Electoral Roll, on August 10, 1955, but it was rejected on the ground that the roll of the Municipal elections had been finally published on August 8, 1955, and therefore no correction could be made.
The respondent challenged the validity of the notification and the electoral roll.
Held, that under section 30 (2) Of the Ajmer Merwara Municipalities Regulation, 1925, the electoral roll for the Parliamentary constituency was only treated as the basis for the electoral roll of the Municipality and that the rules in so far as they made no provision for the revision of the electoral roll, for the adjudication of claims to be included therein or for entertaining objections to such inclusion, were defective and, therefore, the electoral roll of the Ajmer Municipality which was authenticated and published by the appellant on August 8, 1955, was not in conformity with the provisions of section 30 (2) and the relevant,provisions of the Regulation 69 and could not form the basis of any valid elections to be held to the Ajmer Municipal Committee.
|
etition (Criminal) No. 7207 of 1981.
(Under Article 32 of the Constitution of India) Ram Jethmalani and Miss Rani Jethmalani for the Petitioner.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
This petition for review and the petition for the issue of Writ under Article 32 were argued by Shri Jethmalani with, what appeared to us to be more than his customary vehemence and emotion.
Nonetheless, we confess, we are not impressed.
By our judgment dated August 12, 1981(1), we had set aside the judgment of acquittal passed by the High Court of Bombay and restored that of the learned Additional Chief Presidency Magistrate, 8th Court, Esplanade, Bombay, convicting the petitioner under different heads of charges and sentencing him to suffer imprisonment for various terms ranging from two years to four years and to the payment of fine of Rs. 10,000/ on each of different counts.
, Shri Jethmalani contended that though he had argued that the period during which the petitioner had been preventively detained under the maintenance of Security Act and the should be 'set off ' against the sentence of imprisonment imposed upon him, we had not touched upon the point.
He also drew our attention to a reference to set off ' in the written submissions given to us after the hearing of the case.
We may mention that what was argued before us was not that the petitioner was entitled to a 'set off ' but that the period of his detention might be taken into 63 account in considering the question of the appropriate sentence to A be imposed on the petitioner, which question was considered by us.
But, we will let that pass, accept Mr. Jethmalani 's word for it and proceed to consider the question straightaway.
It appears that the petitioner was detained first under the provisions of the MISA and later under the provisions of the COFEPOSA.
The periods of detention were September 17, 1974 to April 18, 1975, July 1, 1975 to November 21, 1975 and May 20, 1976 to March 22, 1977.
We are told that the orders of detention, which have not been produced before us, were based on facts which were the vary subject matter of the criminal case.
The learned Additional Chief Presidency Magistrate had convicted the petitioner by his judgment dated December 13, 1971 but that was set aside by the High Court by their judgment dated April 20, 1974.
The State of Maharashtra filed an application for special leave under article 136 of the Constitution on November 30, 1974 and special leave was granted by this Court on April 15, 1975.
It was noticed by this Court at the time of granting special leave that the petitioner was then in preventive detention and it was directed that in case he was released from detention but re arrested in connection with the case he should be released on bail on the same terms as those on which bail had been previously granted by the High Court.
The submission of Shri Jethmalani was that the total of the three periods of detention should be "set off ' against the sentence of imprisonment imposed upon him.
He relied upon the decision of this Court in Govt.
Of Andhra Pradesh & Anr.
vs Anne Venkateswara Rao etc.
etc.(l) We are unable to agree with the submission of Shri Jethmalani; In the very case cited by the learned counsel, the Court negatived the contention that the expression 'period of detention ' in Section 428 Code of Criminal Procedure included the detention under the Preventive Detention Act or the Maintenance of Internal Security Act.
It was observed: "It is true that the section speaks of the period of.
detention undergone by an accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the 64 case in which the accused person has been convicted.
The section makes it clear that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused on conviction must be during the investigation, enquiry or trial in connection with the 'same case ' in which he has been convicted.
We, therefore, agree with the High Court that the period during which the Writ Petitioners were in preventive detention cannot be set off under section 428 against the term of imprisonment imposed on them".
After holding that the period during which the petitioners therein were in preventive detention could not 'set off ' under Section 428 Code of Criminal Procedure against the term of imprisonment imposed on them, the Court went on to consider whether the period during which the petitioners were in preventive detention could for any reason be considered as period during which the petitioners were in detention as undertrial prisoners or prisoners serving out a sentence on conviction.
In the case of the prisoner A. V. Rao the Court held that the period commencing from the date when he would have normally been arrested pursuant to the First Information Report registered against him should be reckoned as period of detention as an undertrial prisoner.
In the case of another prisoner Krishnaiah it was held that the period during which he was in preventive detention subsequent to the conviction and sentence imposed upon him should be treated as detention pursuant to conviction and sentence.
The case before us is altogether different.
The petitioner had been acquitted by the High Court before any of the orders of detention were made against him.
There can be no question of the detention being considered as detention pursuant to conviction; nor can the detention be treated as that of an undertrial.
It is only in the circumstances where the prisoner would have unquestionably been in detention in connection with a criminal case if he had not been preventively detained, his preventive detention might be reckoned as detention as an undertrial prisoner or detention pursuant to conviction, for the purposes of Section 428 Code of Criminal Procedure.
Shri Jethmalani next contended that the petitioner had not been given an opportunity to argue on the question of sentence, that is hardly fair to us.
A substantial part of the argument of Shri Jethmalani on that occasion was on the question of sentence 65 and, in the judgment pronounced by us, we did consider the argument advanced by the learned counsel on the question of sentence.
It was also contended before us that the Court was not justified in holding that the petitioner was responsible for the long delay that had been caused in the disposal of the case and that the Court was wrong in holding that it was for the accused to show that he had been prejudiced by the delay.
We see no merit in these contentions.
The application for review is therefore dismissed.
No separate arguments were advanced in the Writ Petition which is also dismissed.
N.V.K. Petitions dismissed.
| IN-Abs | The Presidency Magistrate convicted the petitioner for offences under section 120B of the Indian Penal Code read with section 135 of and Customs Act and Rule 126P(2) (ii) and (iv) of the Defence of India Rules 1962 and sentenced him to suffer imprisonment for various periods ranging from two years to four years and to payment of fine.
The conviction and sentence was set aside by the High Court, but this Court in appeal by the State set aside the judgment of acquittal by the High Court and restored that of the Presidency Magistrate.
The petitioner was also preventively detained for various periods first under the Maintenance of Internal Security Act and afterwards under the .
In the review petition and writ petition to this Court it was contended on behalf of the petitioner that: (I) though it was argued in the appeal to this Court that the periods during which the petitioner had been preventively detained should be 'set off ' against the sentence of imprisonment imposed upon him this court had not touched upon the point; and (2) this court 's decision in Government of Andhra Pradesh and another vs Venkateswara Rao; , , enabled the petitioner to claim the total of the three periods of detention to be 'set off ' against the sentence of imprisonment.
Dismissing the review and writ petition, ^ HELD: 1.
It was not argued that the petitioner was entitled to a 'set off ' but that the period of his detention might be taken into account in considering the question of the appropriate sentence be imposed on him.
[62 H, 63 A].
2(i) In Government of Andhra Pradesh vs Venkateswara Rao, this Court negatived the contention that the expression period of detention in Section 428, Code of Criminal Procedure 1973 included the detention under the Preventive Detention Act or the Maintenance of Internal Security Act.
[63 F G] (ii) Section 428, Code of Criminal Procedure 1973 makes it clear that the period of detention which it allows to be 'set off ' against the term of imprisonment imposed on the accused on conviction must be during the investigation, enquiry, or trial in connection with the 'same case ' in which he has been convicted.
[64 A B] 62 (iii) only in circumstances where the petitioner would have unquestionably been in detention in connection with a criminal case if he had not been preventively detained, his preventive detention might be reckoned as detention as an undertrial prisoner or detention pursuant to conviction, for the purposes of Section 428, Code of Criminal Procedure 1973.
[64 G] In the instant case the petitioner had been acquitted by the High Court before any of the orders of detention were made against him.
There can, there fore, be no question of the detention being considered as detention pursuant to conviction nor can the detention be treated as that of an undertrial.
[64 F]
|
Civil Appeal No. 3436 of 1979.
From the Judgment and order dated the 19th April, 1978 of the Madras High Court in Writ Appeal No. 224178.
M.K. Ramamurthi, and C.S. Vaidyanathan for the Appellant.
Dr. Y.S. Chitale and A.V. Rangam for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
An order of pre mature retirement following close upon the heels of promotion and appointment to a coveted Selection post is bound to perplex any right thinking man and make him wonder whether the right hand knows what the left hand has done.
If in the month of May a Government servant is found to possess 'such high merit and ability, which naturally includes integrity, as to entitle him not merely to be promoted to a selection post but to be appointed to a very responsible and much desired post in that cadre, what could have happened between May and September to merit his being weeded out altogether from service in September under the rule which enables the Government to retire a Government servant in the public interest after he has attained the age of SO years or after he has completed 25 years of qualifying service.
One would expect that some grave and grim situation had developed in the interregnum to warrant the pursuit of such a drastic course.
But surprisingly, we found nothing what.
soever had happened in this case during that period.
Let us look at the totality of the facts.
77 The appellant appears to have had quite a noteworthy career.
A Starting at the lowest rung as a Lower Division Clerk in 1953, he was promoted as an Assistant Commercial Tax officer in 1954, next as a Deputy Commercial Tax officer in 1957, then as a Joint Commercial Tax officer in 1962, thereafter as a Commercial Tax officer in 1966, later as an Assistant Commissioner of Commercial Taxes in 1972 and finally as Deputy Commissioner of Commercial Taxes on 7 S 1975.
On promotion as Deputy Commissioner of Commercial Taxes he was posted as Member of the Sales Tax Appellate Tribunal in the same cadre.
On September 28,1975, he was retired under Fundamental Rule 56(d).
His Service Book shows that he had an excellent record of service.
He had earned several encomiums, commendations and appreciations.
The several promotions gained by him react his good record of service.
But there was one dark spot.
In 1969 when he was working as Commercial Tax officer it was noted in his Confidential file by the Deputy Commissioner of Commercial Taxes as follows: "This Commercial Tax officer is a very intelligent and capable officer who kept the entire district under his control in perfect discipline.
Unfortunately, his reputation is not at all good.
There were complaints that he used to threaten dealers and take money.
The entire matter is under investigation by the Vigilance and Anti Corruption Department".
There was an enquiry by the Directorate of Vigilance and Anti Corruption.
Charges were framed against the appellant by the Board of Revenue.
The explanation of the appellant was obtained.
The Full Board of Revenue then reported that the charges should be dropped.
The Government accepted the report of the Full Board and dropped the charges making the following order on 29 11 1974: "As the preliminary enquiry disclosed a prima facie case of corruption, a detailed enquiry was taken up by the Directorate of Vigilance and Anti Corruption.
Out of eleven allegations levelled against Thiru D. Ramaswami, seven allegations were not substantiated, in the enquiry made by the Directorate of Vigilance and Anti Corruption.
The Government, examined the report of the Directorate 78 and considered that there was a prima facie case in respect of certain allegations and this was sufficient to proceed against Thiru D. Ramaswami.
The Board of Revenue (CT) was therefore requested to frame charges straightaway as for a major penalty against Thiru D. Ramaswami on the basis of allegations levelled against him.
The Board accordingly framed charges against him in respect of allegations substantiated, obtained his explanation and sent its report thereon.
The Full Board considered that all the charges framed against Thiru D. Ramaswami in consequence of the detailed enquiry conducted by the Vigilance Department cannot be pursued and proved.
The Full Board has therefore expressed the view that the said charges may be dropped.
The Government accept the views of the Full Board and direct that all the charges framed against Thiru D. Ramaswami be dropped".
The effect of the order of November 29, 1974 of the Government was to grant absolution to the appellant from the repercussions of, the note of the Deputy Commissioner of Commercial Taxes, made in 1969.
If there was any ambiguity about the effect of the Government order, it was cleared by the circumstance that, within a few months, on May 7, 1975, he was promoted as Deputy Commissioner of Commercial Taxes and posted as Member, Sales Tax Appellate Tribunal, a prestigious post.
It has to be mentioned here that the post of a Deputy Commissioner of Commercial Taxes is a Selection post.
Under Rule 36(b) (i) of the Tamil Nadu Genera! Rules for the State and Subordinate Services: "Promotions in a service or class to a selection category or to a selection grade shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal".
Under Rule 2(b) of the Tamil Nadu Special Rules for Commercial Taxes Service: "All promotions shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal".
So, what do we have ? There was an adverse entry in the confidential file of the appellant in 1969.
The basis of the entry 79 was knocked out by the order dated November 29, 1974 of the A Government, and the effect of the entry was blotted out by the promotion of the appellant as Deputy Commissioner.
After his promotion as Deputy Commissioner there was no entry in the service Book to his discredit or hinting even remotely that he had outlived his utility as a Govt.
servant.
If there was some entry, not wholly favourable to the appellant after his promotion, one might hark back to similar or like entries in the past, read them all in conjunction and conclude that the time had arrived for the Government servant to quit Government service.
But, with nothing of the sort, it is indeed odd to retire a Government servant a few months after promoting him to a Selection post.
In the present case, we made a vain search in Service record of the appellant to find something adverse to the appellant apart from the 1969 entry.
All that we could find was some stray mildly deprecating entries such as the one in 1964 which said: "He is sincere and hardworking.
He 'manages his office very well.
He exercises adequate control over subordinates.
He maintains a cordial relationship with public.
Because of his stiff attitude some of the assessees complain about him stating that he is rude in his behaviour This perhaps is due to his unbending attitude.
With a little more tact he will be an asset to the Department".
one curious feature of the case is that while the 1969 entry noted that an enquiry was pending with the Vigilance and Anti Corruption Department in regard to the allegations against.
the appellant, the ultimate result of the enquiry which was that the charges should be dropped was nowhere noted in the personal file of the appellant.
One wonders whether the failure to note the result of the enquiry in the personal file led to the impugned order ! In the face of the promotion of the appellant just a few months earlier and nothing even mildly suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service.
The learned Counsel for the State of Tamil Nadu argued that the Government was entitled to take into consideration the entire history of the appellant including that part of it which was prior to his promotion, 80 We do not say that the previous history of a Government servant should be completely ignored, once he is promoted.
Sometimes, past events may help to assess present conduct.
But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion, we see no justification for needless digging into the past.
The learned Counsel for the appellant relied on the decisions in Swami Saran Saksena vs State of U.P, (1) Baldev Raj Chadha vs Union of India & Ors (2) State of Punjab vs Dewan Chuni Lal, (3) while the learned counsel for respondent relied on the decision in Union of India etc.
vs M.E. Reddy & Anr.
(4) All the decisions have a been considered by us in reaching our conclusion.
The appeal is allowed.
G. O. Ms. No. 1112 dated September 19, 1975, Commercial Taxes Religious Endowments Department, Government of Tamil Nadu is quashed.
The appellant will be reinstated in service and paid the arrears of salary due to him under the rules.
He is entitled to his costs.
P.B.R. Appeal allowed.
| IN-Abs | HELD: In the face of the appellant 's promotion a few months before his compulsory retirement under F. R. 56 (d) and nothing even mildly suggestive of ineptitude or inefficiency after his promotion, it is impossible to sustain the order of the Government retiring him from service.
[79 G] When the Government exonerated him of the charges levelled against him, the basis of the adverse entry in his confidential file was knocked out.
By reason of the promotion of the selection post of Deputy Commissioner and posting as a Member of the Sales Tax Appellate Tribunal, the effect of the entry was further blotted out.
Since then, there was no adverse entry in his service record to discredit him or hinting even remotely that he had outlived his utility as a Government servant.
Had there been another adverse entry after his promotion it would have been possible to read them all in conjunction and say that it was time for him to quit Government service.
But that was not so.
It was therefore odd that he was retired a few months after his promotion.
[79 A C] 76 All this is not to say that previous history of a Government servant should be completely ignored once he is promoted.
Sometimes past events might help to assess the present conduct, but when there was nothing in the present conduct casting any doubt on the wisdom of the promotion there was no justification for needless digging into the past.
[80 A B] Swami Saran Saksena vs State of U.P., [1980] I SCR 923; Baldev Raj Chadha vs Union of India & Ors., [1981] I SCR 430; State of Punjab vs Dewan Chuni Lal, ; ; and Union of India etc.
vs M. E. Reddy & Anr., ; ; referred to.
|
r Petition No. 36 of 1980.
Petition under section 25 of the Code of Civil Procedure for transfer of case No. 28 of 1980 Misc.
(36) pending in the Court of the Distt.
Judge, Udaipur (Rajasthan) to the Court of Subordinate Judge, Eluru (Andhra Pradesh) to be tried alongwith O. P. No. 72 of 1979 pending in that court.
G.S. Rama Rao for the Petitioner.
B.D. Sharma for the Respondent.
The following Judgments were delivered: TULZAPURKAR, J. On September 26, 1979, the petitioner (wife) filed a suit in forma pauperis seeking maintenance from the respondent (her husband) in the Court of Subordinate Judge, Eluru (Andhra Pradesh) being O. P. No. 72 of 1979.
On the receipt of the notice of the suit, the respondent filed a divorce suit (Petition Case No. 28 of 1980) against the wife under section 13 of the in the Court of the District Judge, Udaipur (Rajasthan).
By the instant transfer petition filed under section 25 C.P.C. 226 1908 the wife is seeking to get the husband 's suit transferred to Eluru.
On merits we are satisfied that it is expedient for the ends of justice to transfer the husband 's suit to the District Court at Eluru (A.P.) where both the proceedings could be tried together and for that purpose the wife is agreeable to have her maintenance suit transferred to the District High Court at Eluru (A.P.) However, counsel for the respondent (husband) has raised before us a preliminary objection that section 25 of the C.P.C. under which the transfer petition has been made is not applicable to proceedings under the and as such this Court has no power to transfer the husband 's suit from Udaipur District Court to the District Court at Eluru.
He urged that section 25 of C.P.C. gets excluded by reason of the provisions of section 21 and 21A of the .
According to him section 25 C.P.C. deals with the substantive law and not procedural law and since section 21 of the makes applicable to all the proceedings under the Act only such provisions of C.P.C. as relate to the regulation of proceedings i.e. such provisions which deal with procedural matters only, section 25 C.P.C. is not applicable.
He also urged that section 21 A (3) of the also makes the above position clear beyond doubt by specifically excluding sections 24 and 25 C.P.C. from being applied to the proceedings under the .
A large number of authorities were referred to by counsel to substantiate his contention and general principles but in particular one decision of the Nagpur Bench of the Bombay High Court in the case of Priyavari Mehta vs Priyanath Mehta was pressed into service as having a direct bearing on the point.
In our view, on proper construction of the relevant provisions it is not possible to uphold the preliminary objection.
In the first place it is difficult to accept the contention that the substantive provision contained in section 25 C.P.C. is excluded by reason of section 21 of the .
Section 21 of the merely provides: "Subject to other provisions contained in this Act and to such rules as the High Court may make in that behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908".
In terms section 21 does not make any distinction between procedural and substantive provisions of C.P.C. and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phrase 227 "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act.
It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into section 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provision of the Act.
For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act.
Res judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though Estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law (See: Canada and Dominion Sugar Co. Ltd. vs Canadian National (West Indies) Steamships Ltd. So far as section 21A of the is concerned the marginal note of that section itself makes it clear that it deals with power to transfer petitions and direct their joint or consolidated trial "in certain cases" and is not exhaustive.
Further sub section
(3) of section 21A on which strong reliance was placed runs thus: "21A (3).
In a case where clause (b) of sub section (2) applies, the Court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908) to transfer any suit for proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.
" This provision in terms deals with the power of the Government or the Court on whom powers of transfer have been conferred by the C.P.C. as it then stood, that is to say, old section 24 and 25 of C.P.C.
It does not deal with the present section 25 C.P.C. which has been substituted by an amendment which has come into force with effect from February 1, 1977 (section 11 of the Amending Act 104 of 1976).
By the amendment very wide and plenary power has been conferred on this Court for the first time to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one Civil 228 Court in one State to another Civil Court in any other State throughout the country.
Conferral of such wide and plenary power on this Court could not have been in the contemplation of Parliament at the time of enactment of section 21A of the .
It is, therefore, difficult to accept the contention that s, 21A of excludes the power of transfer conferred upon this Court by the present section 25 of C.P.C. in relation to proceedings under that Act.
Coming to the decision rendered by the Nagpur Bench of the Bombay High Court in Priyavari Mehta 's case (supra) it needs to be pointed out that the aforesaid aspects of section 21A of the and the present section 25 of the C.P.C. were not considered by the Nagpur Bench at all.
Moreover, the Nagpur Bench, following the decision of the Punjab and Haryana High Court in Smt.
Rama Kanta vs Ashok Kumar has also taken the view that section 21A of the permits transfer and consolidation of only two types of petition under the Act, namely, cross petitions filed by the two spouses against each other under section 10 or section 13 of the Act and that consolidation or joint hearing of other types of petitions is excluded by necessary intendment.
The Bench has observed: "The effect of section 21A, therefore, in my opinion, is that joint or consolidated hearing or trials of petitions other than those mentioned in that section not being permissible, the powers under section 23 to 25 of the Code cannot be exercised for transfer of petitions for a consolidated hearing of the petitions not contemplated by that section.
" Such a view, in our opinion, is not correct.
As stated earlier, in the matter of transfer of petitions for a consolidated hearing thereof section 21A cannot be regarded as exhaustive for the marginal note clearly suggests that the section deals with power to transfer petitions and direct their joint and consolidated trial "in certain cases.
" Moreover, it will invariably be expedient to have a joint or consolidated hearing or trial by one and the same Court of a husband 's petition for restitution of conjugal rights on ground that the wife has withdrawn from his society without reasonable excuse under section 9 of the Act and the wife 's petition for judicial separation against her husband on ground of cruelty under section 10 of the Act in order to avoid conflicting decisions being rendered by two different 229 Courts.
In such a situation resort will have to be had to the powers under sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing.
Reading section 21A in the manner done by the Nagpur Bench which leads to anomalous results has to be avoided.
In this view of the matter, the preliminary objection is overruled.
Divorce case No. 28 of 1980 pending in the District Court Udaipur (Rajasthan) is transferred to the District Court Eluru (A.P.), to which Court the wife 's petition for maintenance shall also stand transferred.
No order as to costs.
AMRENDRA NATH SEN, J.
I agree with the order proposed by my learned brother.
I, however, propose to make certain observations with regard to the preliminary objection raised as to the jurisdiction of this Court to entertain this application.
The preliminary objection raised is that the jurisdiction and power conferred on this Court under section 25 of the Code of Civil Procedure are excluded by the provisions contained in section 21 and section 21A of the ; and as section 25 of the Civil Procedure Code is not attracted, this Court does not have jurisdiction to entertain this application for transfer.
section 25 of the Code of Civil Procedure reads as follows: "(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.
(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.
(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either re try it or proceed from the stage at which it was transferred to it.
(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the 230 application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.
(5) The law applicable to any suit, appeal or other proceeding transferred under the section shall be the law which the court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.
" It may be noticed that the present section 25 was substituted for the former section 25 by the Code of Civil Procedure (Amendment) Act, 1976.
In this connection it may be relevant to set out section 25 of the Code of Civil Procedure, as it stood before its amendment by the substitution of the present section.
The earlier section 25 was in the following terms: "(1) Where any part to a suit, appeal or other proceeding pending in a High Court presided over by a single Judge objects to its being heard by him and the Judge is satisfied that there are reasonable grounds for the objection, he shall make a report to the State Government, which may, by notification in the Official Gazette, transfer such suit, appeal or proceeding in any other High Court: Provided that no suit, appeal or proceeding shall be transferred to a High Court without the consent of the State Government of the State that High Court has its principal seat.
(2) The law applicable to any suit, appeal or proceeding so transferred shall be the law which the Court in which the suit, appeal or proceeding was originally instituted ought to have applied to such case.
" A plain reading of section 25 of the Code clearly indicates that very wide jurisdiction and powers have been conferred on this Court to transfer any suit, appeal or any other proceeding from a High Court or other Civil Court in any State to a High Court or other Civil Court in any other State for the ends of justice.
I shall now set out the relevant provisions of the . section 21 of the is in the following terms: "Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all 231 proceedings under this Act shall be regulated, as far as may be by the Code of Civil Procedure, 1908." Section 21A which was introduced in the Act by the Amending Act, (68 of 1976) provided as follows: "(1) where (a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13, and (b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State; the petition shall be dealt with as specified in sub section(2) (2) in a case where sub section (1) applies; (a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that Court: (b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.
(3) In a case where clause (b) of sub section (2) applies, the court or the Government as the case may be, competent under the Code of Civil Procedure, 1908 to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.
" 232 The learned counsel for the respondent argues that in view of the provisions contained in section 21, only the provisions contained in the Code of Civil Procedure relating to procedure which will regulate the proceedings instituted under the will apply; and as section 25 of the Code of Civil Procedure does not appertain to the domain of procedure and confers substantive right, the said section is not applicable and cannot be attracted.
It is argued that this position is further made clear by the provisions contained in section 21A.
In my opinion, this argument of the learned counsel for the respondent husband is without any substance.
I have earlier set out section 25 of the Code of Civil Procedure and I have pointed out that an analysis of the section makes it abundantly clear that for the ends of justice, wide power and jurisdiction have been conferred on this Court in the matter of transfer of any suit, appeal or proceeding from any High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.
A suit or a proceeding for divorce under the in a Civil Court is necessarily a suit or proceeding and must on a plain reading of section 25(1) of the Code of Civil Procedure be held to come under section 25(1) of the Code, as the said section speaks of any suit, appeal or other proceeding.
This Court must necessarily enjoy the power and jurisdiction under the said provisions of transferring such a suit or proceeding for the ends of justice, unless the power and jurisdiction of this Court are specifically taken away by any statute.
If the jurisdiction clearly conferred on any Court has to be ousted, the exclusion of such jurisdiction must be made in clear and unequivocal terms.
S.21 of the does not deal with the question of jurisdiction of any Court.
As no procedure with regard to the proceedings under the has been laid down in the said Act, section 21 of the Act only provides that 'all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure. ' section 21 of the cannot be construed to exclude the jurisdiction conferred on this Court under section 25 of the Code of Civil Procedure.
It does not become necessary in the instant case to decide whether the provision in relation to jurisdiction of this Court contained in section 25 of the Code of Civil Procedure is one of substantive law or it belongs to the domain of Procedure.
Even I accept the argument of the learned counsel for the respondent that section 25 does not form any part of the procedural law and is a part of the substantive law, I am of the opinion that jurisdiction conferred on this Courts by section 25 of 233 the Code of Civil Procedure, is not in any way, affected by section 21 of the which, as I have already noted, only provides that 'all proceedings under the shall be regulated as far as may be by the Code of Civil Procedure, 1908. ' section 21A of the , in my opinion, has indeed no bearing on the question of jurisdiction conferred on this Court under section 25 of the Code of Civil Procedure.
section 21A of the makes provisions for transfer of petitions specified in the said section and for hearing and disposal of such petitions together by the District Court in which the earlier petition has been presented.
Such power has been conferred on the Court or the Government.
section 21A has no application to the case of transfer of any suit or proceeding from one State to another.
As I have earlier noted, very wide power and jurisdiction have been conferred on this Court in the interest of justice for transferring any appeal, suit or proceeding from one State to another under section 25 of the Code of Civil Procedure.
In the instant case, the petitioner has applied for transfer of the suit pending in the District at Udaipur in the State of Rajasthan to the appropriate Court at Eluru in the State of Andhra Pradesh.
I am, therefore, of the opinion that this Court enjoys the power and jurisdiction to entertain this application under section 25 of the Code of Civil Procedure and section 21 and section 21A of the do not, in any way, exclude, affect or curtail the power conferred on this Court under section 25 of the Code of Civil Procedure.
I may incidentally add that the present section 25 in the Code of Civil Procedure came into force after section 21 and 21A have been incorporated in the .
V.D.K. Preliminary objection rejected.
| IN-Abs | The petitioner (wife) filed a suit (O.P. 72/79) in forma pauperis seeking maintenance from the respondent (husband) in the court of subordinate Judge, Eluru (Andhra Pradesh).
On the receipt of the notice of the suit, the respondent filed a divorce suit (Petition Case No. 28/1980) against the wife under section 13 of the in the court of the District Judge, Udaipur (Rajasthan).
By the instant transfer petition filed under section , the wife sought to get the suit at Udaipur transferred to Eluru.
A preliminary objection was raised to the effect that section 25 of the Civil Procedure Code, which gets excluded by reason of the provisions of sections 20 and 21 of the , is not applicable to proceedings under the said Act and as such the Supreme Court has no power to transfer the husband 's suit from Udaipur District Court, Udaipur (Rajasthan) to Eluru District Court, Eluru (A.P.).
Rejecting the preliminary objection, the Court ^ HELD: Per curiam On merits, it is expedient for the ends of justice to transfer the husband 's suit pending in the District Court Udaipur (Rajasthan) to the District Court at Eluru (Andhra Pradesh), where both the proceedings could be tried together and for that purpose, the wife is agreeable to have her maintenance suit transferred to the District Court at Eluru (A.P.).
[226 A B] Per Tulzapurkar J. 1.
It will invariably be expedient to have a joint or consolidated hearing or trial by one and the same Court of a husband 's petition for restitution of conjugal rights on the ground that the wife has withdrawn from his society without reasonable excuse under section 9 of the and the wife 's petition for judicial separation against her husband on ground of cruelty under section 10 of the said Act in order to avoid conflicting decisions being rendered by two different Courts.
In such a situation resort will have to be had to the 224 powers under sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing.
[228 G H, 227A] 2:1.
On a proper construction of the relevant provisions, it cannot be said that the substantive provision contained in section 25 Civil Procedure Code is excluded by reason of section 21 of the .
In terms, section 21 C.P.C. does not make any distinction between procedural and substantive provisions of C.P.C. and all that it provides is that the Code, as far as may be, shall apply to all proceedings under the Act and the phrase "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Code.
It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into section 21 of the Act and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act.
[226 G H, 227 A B] 3.
Section 21A of the does not exclude the power of transfer conferred upon the Supreme Court by the present section 25 C.P.C., in relation to proceedings under that Act.
The marginal note of section 21A itself makes it clear that it deals with power to transfer petitions and direct their joint or consolidated "trial in certain cases" and is not exhaustive.
Section 21A does not deal with the present section 25 C.P.C. which has been substituted by an amendment which has come into force with effect from February 1, 1977 (section 11 of the Amending Act 104, 1976).
By the amendment very wide and plenary power has been conferred on the Supreme Court for the first time to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one Civil Court in one State to another Civil Court in any other State throughout the country.
Conferral of such wide and plenary power on the Supreme Court could not have been in contemplation of Parliament at the time of enactment of section 21A of the .
[227 C D, F H, 228 A B] Smt.
Rama Kanta vs Ashok Kumar, AIR 1977 Punjab & Haryana 373 and Priyavari Mehta vs Priyanath Mehta, AIR 1980 Bombay 337, overruled.
Per Amrendra Nath Sen, J. 1.
A plain reading of section 25 C.P.C. clearly indicates that very wide jurisdiction and powers have been conferred on the Supreme Court to transfer any suit, appeal or any other proceedings from a High Court or other Civil Court in any State to a High Court or other Civil Court in any other State for the ends of justice.
Supreme Court enjoys the power and jurisdiction to entertain the transfer application under section 25 of the Code of Civil Procedure.
D] 2 : 1.
Sections 21 and 21A of the do not in any way, exclude, effect or curtail the power conferred on the Supreme Court under section 25 of the Code of Civil Procedure.
If the jurisdiction clearly conferred 225 on any court has to be ousted, the exclusion of such jurisdiction must be made in clear and unequivocal terms.
[232E, 233D] 2 : 2.
Section 21 of the only provides that "all proceedings under the shall be regulated as far as may be by the Code of Civil Procedure, 1908".
Section 21 of the does not deal with the question of jurisdiction of any court and it cannot be construed to exclude the jurisdiction conferred on the Supreme Court under section 25 C.P.C. [232 E G] 2 : 3.
Section 21A of the has, indeed, no bearing on the question of jurisdiction conferred on the Supreme Court under section 25 C.P.C. Section 21A has no application to the case of transfer of any suit or proceeding from one State to another.
[233 B C] 2 : 4.
The Supreme Court must necessarily enjoy the power and jurisdiction under the provisions of section 25 C.P.C. of transferring such a suit or proceeding for the ends of justice unless the power and jurisdiction of the Supreme Court are specifically taken away by any statute.
[232D E] 3.
Section 25 of the Code of Civil Procedure came into force after section 21 and 21A of the have been incorporated in the and as such section 25 of the Code overrides sections 21 and 21A of the .
[233 A E]
|
N: Criminal Appeal No. 221 of 1981.
Appeal by Special Leave from the Judgment and Order dated 23.10.1979 of the Madras High Court in Criminal Appeal No. 759/79 (Referred Trial No. 9/79).
A.T.M. Sampath and P.N. Ramalingam for the Appellant.
A.V. Rangam for the Respondent.
272 The Judgment of the Court was delivered by, CHANDRACHUD C. J.
The appellant, Muniappan, was convicted by the learned Sessions Judge, Dharmapuri under section 302 of the Penal Code and sentenced to death on the charge that he had committed the murder of his mother 's brother also called Muniappan and his son Chinnaswamy.
The conviction for murder and the sentence of death having been confirmed by the High Court of Madras by a Judgment dated October 23, 1979, this appeal has been filed by the accused by special leave.
The leave is limited to the question of sentence.
The judgments of the High Court and the Sessions Court, in so far as the sentence is concerned, leave much to be desired.
In the first place, the Sessions Court overlooked the provision, contained in section 354(3) of the Code of Criminal Procedure, 1973, which provides, in so far as is relevant, that when the conviction is for an offence punishable with death, the judgment shall in the case of sentence of death state special reasons for such sentence.
The learned Sessions Judge, in a very brief paragraph consisting of two sentences, has this to say on the question of sentence: "When the accused was asked on the question of sentence, he did not say anything.
The accused has committed terrific double murder and so no sympathy can be shown to him.
" The judgment of the Sessions Judge is in Tamil but we understand from the learned counsel, who appear in the case and both of whom understand Tamil well enough, that the Tamil word "Bhayankaram" has been rightly translated as "terrific".
We plead our inability to understand what is meant by a "terrific" murder because all murders are terrific and if the fact of the murder being terrific is an adequate reason for imposing the death sentence, then every murder shall have to be visited with that sentence.
In that event, death sentence will become the rule, not an exception and section 354(3) will become a dead letter.
We are also not satisfied that the learned Sessions Judge made any serious effort to elicit from the accused what he wanted to say on the question of sentence.
All that the learned Judge says is that "when the accused was asked on the question of sentence, he did not say anything".
The obligation to hear the accused on the question of sentence which is imposed by section 235(2) of the Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the 273 question of sentence.
The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence.
All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal.
It is the bounden duty of the Judge to cast aside the formalities of the Court scene and approach the question of sentence from a broad sociological point of view.
The occasion to apply the provisions of section 235 (2) arises only after the conviction is recorded.
What then remains is the question of sentence in which not merely the accused but the whole society has a stake.
Questions which the Judge can put to the accused under section 235 (2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act.
The Court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction.
The Sessions Judge, in the instant case, complied with the form and letter of the obligation which Section 235(2) imposes, forgetting the spirit and substance of that obligation.
The High Court condemned the murders in terms equally strong by calling them "cold blooded" and thought that its duty to consider the propriety of the death sentence began and ended with that assertion.
Its failure to see the failings of the Sessions Court in the matter of sentencing led to an unexamined confirmation of the death sentence.
Coming to the judgement of the High Court itself, there are certain features of it which need a close reflection.
One of the questions before the High Court was as to the time when the double murder was committed because, upon that circumstance depended the veracity of the eye witnesses.
The doctor who performed the post mortem examination stated in his evidence that the deceased must have taken their food about four or five hours before their death.
The case of the prosecution was that the murders were committed at about 9.00 p.m. P.W. 1, who is the son of the deceased Muniappan, stated in his evidence that the deceased had taken their food at 8.30 p.m.
This was a very important aspect of the case to which the High Court should have applied its mind with care.
Instead, it took an extempore expedient by saying: "Both the deceased might have died a couple of hours after they substained the injuries at 9.00 p.m.".
It is impossible to appreciate how, after being shot in the chest and receiving the kind of injuries 274 which are described in the post mortem report, the deceased could have survived for a couple of hours after they were shot.
Yet another question which had an important bearing on the case was as to the delay caused in filing the F.I.R. The case of the prosecution is that P.W. 1 went to the Police Station promptly but the solitary police constable who was present there directed him to go to the village Munsif to have his complaint recorded.
Now, the record of the Police Station shows that a Sub Inspector of Police was also present at the Police Station which falsifies the evidence that only a police constable was present at the Police Station at the material time and, therefore, the F.I.R. could not be recorded.
The High Court has dealt with this aspect of the matter thus: "In passing, we may mention that this is a grave dereliction of duty on the part of the policeman who was in charge of the police station at that time and is a matter that ought to be enquired into by the higher authorities.
We hope that suitable directions will be issued to subordinate officers in this district to prevent a recurrence of such lapses on the part of policemen when reports of cognizable offences are given.
" The High Court added that the Inspector of Police was not on good terms with the Sub Inspector and, therefore, the former made a false entry that the latter was present at the police station, which, according to the High Court, was a serious matter which required to be probed by the Senior Officers.
We are not quite sure whether there is credible evidence on record to show any enmity between the Inspector and the Sub Inspector and whether the High Court merely relied on the statement made by counsel for the State that the relations between the two Police Officers were cordial.
Whatever that may be, we do not think that the High Court has explained satisfactorily why the F.I.R. was not recorded at the police station when P.W.1 went there.
The ex parte strictures passed by the High Court are likely to involve the two Police Officers or at least one of them into grave consequences.
They should have been given an opportunity to explain themselves before the High Court persuaded itself to make such scathing criticism on their conduct.
There is one more aspect of the Judgment of the High Court, which, with great respect, we are unable to appreciate.
A question arose before the High Court as to whether a "muchilikka" bears the signature of the appellant.
The High Court compared the 275 admitted signatures of the appellant with the disputed signature and came to the conclusion that the disputed signature was of the appellant himself.
The High Court castigated the Public Prosecutor who conducted the prosecution in the Sessions Court by saying that he had not followed the cross examination of P.W.1 "with attention, and not chosen to bring to the notice of P.W. 1 that the accused had signed the muchilikka, exhibit P. 1.
We do not know how the High Court came to know that the Public Prosecutor was not following the cross examination of the witness with attention, but we can guess why the High Court made that observation.
It added in parenthesis: "such lapses on the part of this Public Prosecutor have become frequent and have been commented upon by us, and we hope that at least hereafter he will take some interest in the cases which he is conducting.
" It is not the normal function of the High Court to pass judgment on the conduct of lawyers who appear before the lower courts.
One should understand if the High Court were to make its guarded observation on the conduct of lawyers appearing before it.
But how the learned Judges of the High Court had, in their capacity as Judges of the High Court, come to know that "such lapses on the part of this Public Prosecutor have become frequent. ," we are unable to understand.
These various matters make it unsafe to confirm the sentence of death imposed upon the appellant.
The reasons given by the learned Sessions Judge for imposing the death sentence are not special reasons within the meaning of section 354(3) of the Criminal Procedure Code and we are not sure whether, if he were cognisant of his high responsibility under that provision, he would have necessarily imposed the death sentence.
Accordingly, we set aside the sentence of death and sentence the appellant to imprisonment for life.
N.V.K. Appeal allowed.
| IN-Abs | The Code of Criminal Procedure, 1973 by section 354(3) provides that when the conviction is for an offence punishable with death, the judgment shall in the case of sentence of death state 'special reasons ' for such sentence.
The appellant was charged under section 302 of the Penal Code for having committed the murder of his maternal uncle and his son.
The Sessions Judge convicted the appellant for murder and being of the opinion that it was "a terrific double murder" sentenced the appellant to death, The High Court condemned the murders as "cold blooded" and confirmed the conviction and sentence.
Allowing the appeal to this Court, limited to the question of sentence.
^ HELD: 1.
The sentence of death imposed on the appellant is set aside and he is sentenced to imprisonment for life.
[275 F] 2.
The reasons given by the Sessions Judge for imposing the death sentence are not 'special reasons ' within the meaning of section 354(3) of the Criminal Procedure Code.
It is not certain if he were cognizant of his high responsibility under that provision, that he would have imposed the death sentence.
[275 E] 3.
It is not understood what is meant by "a terrific murder" as suggested by the Sessions Judge.
All murders are terrific and if the fact of the murder being 271 terrific is an adequate reason for imposing the death sentence then every murder shall have to be visited with that sentence.
Death sentence will then become the rule, not an exception and section 354(3) would become a dead letter.
[272 F G] 4(i).
On the question of sentence it is not merely the accused but the whole society which has a stake.
[273 B] (ii) After the conviction is recorded, the occasion to apply the provisions of section 235(2) of the Criminal Procedure Code arises.
The obligation under this section to hear the accused on the question of sentence is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence.
The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence.
All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal.
It is the bounden duty of the Judge to cast aside the formalities of the Court scene and approach the question of sentence from a broad sociological point of view.
Questions which the Judge can put to the accused under section 235(2) and the answers which the accused makes are beyond the narrow constraints of the Evidence Act.
The Court, while on the question of sentence, is in an altogether different domain in which facts and factors of an entirely different order operate.
[273 B; 272 H 273 A; 273 C] In the instant case, the Sessions Judge complied with the form and letter of the obligation which section 235(2) imposes, forgetting the spirit and substance of that obligation.
[273 D] 5.
It is not possible to appreciate how, after being shot in the chest and receiving the injuries described in the post mortem report, the deceased could have survived for a couple of hours thereafter.
There is also no explanation as to why the F.I.R. was not recorded at the Police Station when P.W. 1 went there.
It is therefore unsafe to confirm the sentence of death imposed upon the appellant.
[273 H. E] 6.
It is not the normal function of the High Court to pass judgment on the conduct of lawyers who appear before the lower courts.
[275 C] 7.
The High Court should have given an opportunity to the two police officers to explain their conduct before making criticism on it.
[274 G]
|
Civil Appeal No. 812 of 1980 Appeal by special leave from the judgment and order dated the 23rd November, 1979 of the Allahabad High Court in Civil Misc.
Writ No 479 of 1978.
R.K. Garg, V.J. Francis and S.K. Jain for the Appellant.
Shanti Bhushan, R.K Jain, P.R. Jain and Pankaj Kalra for Respondent No. 1.
116 The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated November 23, 1979 of the Allahabad High Court allowing a writ petition quashing the order of the Rent Control and Eviction officer and remanding the case to him for considering the question afresh in accordance with law and in the light of the observations made by the High Court.
The appeal involves a short and simple point but the case appears to have had rather a long and chequered career.
Put briefly, the facts of the case fall within a narrow compass so far as the points for decision are concerned.
The first respondent, Smt.
Rajkumari Jain, inducted Shri Thapalayal as a tenant in the premises in dispute which are situated in the town of Bijnor.
The tenant intimated his intention to the Rent Control and Eviction officer to vacate the premises on 25.6.1974 on receipt of the aforesaid application of the tenant a Rent Control Inspector was directed to visit the spot and after visiting the same he reported that the premises in question were likely to fall vacant on 9.6.74.
The prescribed authority by its order dated 1.6.74 allotted the premises to the appellant.
In fact, the appellant had applied to the authority on 20.5.74 for allotment of the accommodation to him.
It appears that these proceedings were taken behind the back of the respondent landlady who was not taken into confidence either by the appellant or by the Rent Control authorities.
It was only after the prescribed authority had allotted the premises to the appellant and the respondent landlady came to know of this fact that she moved the prescribed authority for cancellation of the allotment but her prayer was rejected.
Thereafter, the landlady filed an appeal before the Additional District Judge, Bijnor which was allowed and the allotment in favour of the appellant was cancelled on the ground that the provisions of section 17(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act ') were not complied with.
Before narrating further sequence of facts, it may be necessary to examine the relevant provisions of the Act.
Section 17(2) of the Act may be extracted thus: "Where a part of a building is in the occupation of the landlord for residential purposes or is released in his favour 117 under clause (b) of sub section (1) of Section to for residential purposes, the allotment of the remaining part thereof under clause (a) of the said sub section (1) shall be made in favour of a person nominated by the landlord " A perusal of this statutory provision would clearly disclose that the object of the Act was that where a tenant inducted by the landlord voluntarily vacates the premises, which are a part of the building occupied by the landlord, an allotment in the vacancy should be made only to a person nominated by the landlord.
The dominant purpose to be subserved by the Act is manifestly the question of removing any inconvenience to the landlord by imposing or thrusting on the premises an unpleasant neighbour or a tenant who invades the right of privacy of the landlord.
It is obvious that if the tenant has vacated the premises by himself and not at the instance of the landlord, there is no question of the Landlord occupying the said premises because he has got a separate remedy for evicting the tenant on the ground of personal necessity.
The statute, however, while empowering the prescribed authority to allot the accommodation, safeguards at least the right of the landlord to have a tenant of his choice.
In the instant case, the admitted position seems to be that when the prescribed authority allotted the premises to the appellant, the landlady was not taken into confidence nor was she asked to induct either the appellant or somebody else as the tenant of the premises which were likely to fall vacant or which may have fallen vacant.
This was undoubtedly an essential requirement of the provisions of section 17(2) of the Act as extracted above.
In these circumstances, there could be no doubt that the order of the prescribed authority allotting the premises to the appellant was completely without jurisdiction and against the plain terms of section 17(2) of the Act.
It was in view of this serious legal infirmity that the District Judge allowed the appeal filed by the landlady on 27.1.1976 and cancelled the allotment of the accommodation to the appellant.
On 2.2.76 the landlady herself filed an application before the District Magistrate, Bijnor for delivery of possession of the said premises to her but the District Magistrate rejected the application by his order dated 8.3.76 on the ground that as the landlady had not applied for release of the accommodation, she could not be allotted the premises straightaway.
On 5.4.76 the District Supply officer, Bijnor directed the counsel for the landlady to nominate a person 118 for allotment of the premises.
As against this, the landlady applied for release of the accommodation to her in terms of the provisions of section 16(1) (b) of the Act which runs thus: "16.
Allotment and release of vacant building.
(1) Subject to the provisions of this Act, the District Magistrate may by order: (a) xx xx (b) release the whole or any part of such building, or any land appurtenant thereto, in favour of the landlord (to be called a release order).
" The prayer of the landlady under section 16(1) (b) also appears to have been ignored by the Rent Control authorities and by an order dated 15.4.76, the District Supply officer re allotted the accommodation to the appellant.
This led the landlady to file another appeal before the Additional District Judge, Bijnor who by his Order dated 21.9.77 rejected the plea of the landlady, dismissed the appeal and confirmed the order of allotment.
The respondent landlady there upon filed a writ petition in the High Court challenged the orders of the District Supply officer as also of the District Judge who had affirmed that order and confirmed the order of allotment in favour of the appellant.
The High Court by the impugned order allowed the writ petition and sent the matter back to the Rent Control and Eviction officer to consider the question of allotment afresh in view of the observations Made by the High Court.
The appellant then obtained special leave of this Court against the order of the High Court and hence this appeal before us.
In support of the appeal, Mr. Shanti Bhushan, learned counsel for the appellant submitted that the High Court had no jurisdiction to interfere with the concurrent finding of fact given by the District Supply officer and the District Judge confirming the allotment in favour of the appellant and that too in a writ jurisdiction.
He also submitted that the landlady was not at all in actual physical possession of the premises and had been living outside Bijnor and, there fore, neither the provisions of section 16(1) (b) nor those of section 17(2) of the Act would apply to the facts of the present case.
On the other 119 hand, the counsel for the respondent submitted that initially the only question before the Rent Control Authority was whether the allotment should be made to the appellant even though he was not nominated by the landlady under section 17(2) of the Act.
It is common ground that the appellant was not a nominee of the landlady and, as discussed above, the District Judge in his first order had quashed the allotment on the ground that the provisions of section 17(2) had not been complied with.
It was also argued on behalf of the respondent landlady that the circumstances having changed, she now wanted to stay in Bijnor permanently and as she wanted additional accommodation she had applied to the District Magistrate under section 16(1) (b) for releasing the building in her favour.
This application was not at all considered on merits by the District Magistrate or by any court for that matter.
If the respondent could succeed in convincing the District Magistrate that a case for release of the entire building was made out, then the question of allotting the premises to the appellant would not have arisen at all.
We have gone through the judgment of the High Court in the light of the arguments of the parties and we are inclined to agree with the view taken by the High Court that the mere fact that the lady did not actually reside in the premises which were locked and contained her household effects, it cannot be said that she was not in possession of the premises so as to make section 17(2) inapplicable.
Possession by a landlord of his property may assume various forms.
A landlord may be serving outside while retaining his possession over a property or a part of the property by either leaving it incharge of a servant or by putting his household effects or things locked up in the premises.
Such an occupation also would be full and complete possession in the eye of law.
It was further argued by Mr. Shanti Bhushan that the landlady had absolutely no reason to stay in Bijnor because she was staying with her son in some other town.
That by itself is hardly a good ground for the landlady who was a widow to sever her connections with her own property.
Moreover, we do not want to make any observations on the merits of this matter as the High Court has rightly remanded the case for a fresh decision on all the points involved.
So far as the second point is concerned, Viz.
, the question of allotment of the premises to the appellant, the High Court was fully 120 justified in quashing the order of the District Supply officer as affirmed by the District Judge because despite several opportunities no attempt had been made to approach the landlady to nominate a tenant.
There is no evidence to show that either the prescribed authority or the Rent Control and Eviction officer ever approached the landlady for making a nomination in respect of the premises vacated by the original tenant and she refused to do so.
All that the landlady did was to ask for the release of the premises but even if this was refused it was incumbent on the Rent Control authorities to have fulfilled the essential conditions of section 17(2) of the Act before making any allotment in favour of the appellant or for that matter any other person.
It was suggested that as the landlady was not living 4 in the premises which were locked up, section 17(2) did not apply.
We have already rejected this argument because even occupation of apart of a building by the owner which she may visit off and on is possession in the legal sense of the term and, therefore, it cannot be said that the provision of section 17(2) would not apply and that the Rent Control authorities could make an allotment in favour of any person without giving an opportunity to the landlady or the landlord to exercise her/his privilege of nominating a tenant.
We have already pointed out that the object of the Act seems to be to arm the owner with the power of nomination so as to protect him/her from unpleasant tenants or indecent neighbours who may make the life of the owner a hell.
Moreover, the conduct displayed by the appellant in this case clearly shows that if he was thrust on the respondent without her being allowed an opportunity to nominate a tenant, it will violate the very spirit and tenor of section 17(2) of the Act.
As we are of the opinion that the order of the High Court has to be upheld we refrain from making any further observations on the merits or any aspect of the matter which have to be gone into afresh as directed by the High Court.
We find no merit in this appeal which is dismissed with costs quantified at Rs. 1,000/ (Rupees one thousand only.).
P.B.R. Appeal dismissed.
| IN-Abs | Section 16(1) (b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 empowers the District Magistrate to release the whole or any part of a building or any land appurtenant thereto, in favour of the landlord.
Section 17(2) provides that where a part of a building is in the occupation of the landlord for residential purposes or is released in his favour under section 16(1) (b) for residential purposes the allotment of the remaining part thereof under clause (a) of sub section (1) shall be made in favour of a person nominated by the landlord.
On intimation from tho tenant that he was vacating the premises, the rent control authority allotted them to the appellant without informing the landlady about the allotment.
On appeal the District Judge cancelled the allotment made in favour of the appellant The landlady then made an application for delivery of possession of the premises.
This application was rejected on the ground that she had not applied for release of the accommodation.
Her application under section 16(1) (b) for release of the premises was rejected and the accommodation was re allotted to the appellant.
The District Magistrate affirmed the order of the rent control authority.
The landlady 's writ petition impugning the orders of the courts below was allowed by the High Court.
The case was remitted to the courts below for reconsideration afresh of the question of allotment.
In appeal to this Court it was contended on behalf of the appellant that since the landlady was not in actual physical possession of the premises neither section 16(1) (b) nor section 17(2) had any application to the facts of this case.
Dismissing the appeal, ^ HELD: The order of the prescribed authority allotting the premises to the appellant was without jurisdiction and against the plain terms of section 17(2) of the Act.
The District Judge had rightly allowed the landlady 's appeal and cancelled The allotment to the appellant.
115 The object of the Act is that where a tenant inducted by the landlord voluntarily vacates the premises, partly occupied by the landlord, allotment in the vacancy should be made only to a person nominated by him, the dominant purpose of such provision being to remove any inconvenience to the landlord by imposing or thrusting on the premises an unpleasant neighbour or a tenant who invades the landlord 's right of privacy.
While empowering the prescribed authority to allot the accommodation, the Act safeguards the right of the landlord to have a tenant of his choice.
[117 B C, D] In the instant case if a tenant was thrust on the respondent without allowing her an opportunity to nominate a tenant of her choice it would violate the very spirit and tenor of section 17(2).
[120 F] Possession by a landlord of his property may assume various forms: a landlord living outside the town might retain possession over his property or a part of it either by leaving it in charge of a servant or by putting his household effects locked up in the premises.
Such occupation would be full and complete possession in the eye of law.
[119 F] In the instant case from the fact that the landlady was residing in another town and so was not actually residing in the premises it could not be said that she was not in possession of the premises or that she had severed her connection with her own property.
[119 G] The High Court was justified in quashing the orders of the rent control authority because no attempt had been made to approach the landlady for making a nomination in respect of the premises vacated by the original tenant.
All that the landlady did was to ask for the release of the premises.
Even if this was refused it was incumbent on the rent control authority to have fulfilled the requirements of section 17(2) before making an allotment in favour of the appellant or anyone else.
Simply because the landlady was living outside the town it could not be said that the provisions of this sub section would not apply and that the authorities concerned could make an allotment in favour of any person without giving an opportunity to her to exercise her privilege to nominate a tenant.
[120 A C]
|
Civil Appeal No. 853 of 1981.
Appeal by special leave from the judgment and order dated 4.11.1980 of the Madhya Pradesh High Court in Case Misc.
Petition No. 167 of 1980.
Shiv Dayal, P.S. Das Gupta and J.B. Dadachanji for the Appellant.
Gopal Subramaniam and S.A. Shroff for the Respondents.
The Judgment of the Court was delivered by VARADARAJAN, J.
This appeal by special leave is directed against the judgment of K.K. Dube, J. of the Madhya Pradesh High Court in Writ Petition No. 167 of 1980, with whom the learned Chief Justice of that High Court had agreed on a difference of opinion between the learned Judge and A. R. Navkar, J.
The petition filed under Article 226 of the Constitution was for the issue of a writ, order or direction for the writ petitioner 's admission into one of the medical colleges in Madhya Pradesh for the M.B.B.S. course, commencing in the academic year 1979 80.
After hearing the learned counsel for the parties we allowed the appeal by a brief order on 14.1.1982 without any order as to costs, on account of the urgency of the matter, reserving our reasons to be given later, and directed the respondents to admit the appellant to the M.B.B.S course for the academic year 1981 82 for which admissions are admittedly going on even now.
We are presently giving reasons.
The Government of Madhya Pradesh, Public Health and Family Welfare Department, have framed Rules on 17.4.1979 for 188 admission into the Medical, Dentistry and Ayurvedic Colleges in the State.
In this appeal we are not concerned with the Dentistry and Ayurvedic Colleges.
There are six Medical Colleges in the State of Madhya Pradesh affiliated to different universities.
There are 720 seats for admission into the first year course in those six colleges.
Rule 5(1) of the aforesaid Rules, hereinafter refer to as the Rules, lays down that no candidate shall be admitted to the M.B.B.S. course unless he has passed the B.Sc.
Part I (three years degree course Medical Group) examination of the recognised universities of the State with Physics, Chemistry, Biology (Zoology and Botany) or any examination of any other university or board recognised as equivalent thereto with practical tests in each subject provided the candidate has passed in each of those subjects in theory and practical separately.
Under rule 6 of the Rules no candidate shall be admitted to the medical college unless he completes the age of 17 years on the 31st December of the year of admission to the college.
Rule 1(3) provides for the pre medical examination being held every year for selection of candidates for admission to the medical colleges in the State and says that all admissions to those colleges have to be made only from the merit list prepared on the basis of the result of that examination except in the case of seats placed at the disposal of the Government of India or other States.
Under Rule 7 certain number of seats have to be reserved for specific categories of candidates passing the pre medical examination as below : 1.
Fifteen percent shall be reserved for women candidates; 2.
Fifteen percent shall be reserved for each of the categories of Scheduled Caste and Scheduled Tribes candidates; 3.
Seats not exceeding 3 percent may be reserved for children of military personnel who have to produce the necessary certificates.
Apart from those reservations, under Rule 8 seats not exceeding 3 per cent are reserved for nominees of the Government of India and three seats are reserved for candidates nominated by the Government of Jammu and Kashmir in consideration of three seats reserved in the medical colleges in that State for candidates of the State of Madhya Pradesh.
189 Under Rule 20, selection of candidates from amongst those who had appeared and qualified in the written examination shall be made strictly on merit as disclosed by the total number of marks obtained by a candidate in the pre medical examination.
The qualifying marks for admission shall be 50 per cent in the aggregate and 33 percent in each of the subjects.
For Scheduled Castes and Scheduled Tribes candidates the minimum qualifying marks shall be 45 per cent in aggregate and 30 per cent in each of the subject.
In case the required number of candidate for admission are not available according to the above percentage of qualifying marks the Board conducting the pre medical examination under Rule 2 shall have power to lower the marks up to S per cent in the aggregate for all categories of candidates.
If even with the relaxation granted by the Board, as above, required number of candidates in the categories of Scheduled Castes and Scheduled Tribes are not available for admission the Government has power to grant special relaxation in the maximum qualifying marks to the extent considered necessary.
Under Rule 9, in case sufficient number of candidates do not qualify for admission under any reserved category and any seats remain vacant, such vacant seals shall be fined by preparing a combined merit list of all the remaining categories of candidates on the waiting list and the candidates shall be admitted according to merit in the list so prepared.
It is not necessary to refer to any of the other rules for the purpose of this appeal.
Indisputably, the appellant belongs to the third category of seats reserved under Rule 7 as he is a son of a military personnel settled in Madhya Pradesh.
Sons and daughters of military personnel of Madhya Pradesh are entitled to 21 seats in all out of 720 seats available in the six medical colleges in the State.
As per the minimum number of qualifying marks prescribed in Rule 20, namely, 50 per cent in the aggregate and 33 per cent in each of the subjects, children of military personnel secured only 8 seats, and 13 seats in that category remained vacant and all other categories secured only 361 seats and 338 seats of those categories remained vacant.
The appellant did not qualify for admission on the basis of the marks specified in Rule 20 for the academic year 1979 80.
Then the Board applied Note (1) to Rule 20 which provides for lowering the minimum qualifying marks upto 5 per cent in the aggregate for all categories of candidates.
After that was done 6 more candidates 190 belonging to the category of sons and daughters of military personnel and 274 more candidates belonging to all other categories secured admission and 7 seats belonging to the category of children of military personnel and 64 seats of all other categories remained vacant.
Even then the appellant could not secure admission as he had secured only 43.6 per cent of marks in the aggregate and 33 per cent in each of the subjects in the pre medical examination and in the merit list prepared according to rule 9 he ranked 74 and only 71 candidates in that list could be admitted on the basis of merit.
Then the Madhya Pradesh Government issued an executive notification dated 10 March, 1980 regarding relaxation of qualifying marks for the purpose of admission to the medical colleges.
That notification is to the effect that for the year 1979 80 candidates who have obtained at least 43 per cent of marks in the aggregate in the pre medical examination shall be admitted to the medical colleges in the unfilled seats on the basis of merit according to the rules.
ordinarily, the appellant who had secured 43.6 per cent of marks in the aggregate in the pre medical examination and another candidate in the category of children of military personnel should have got admission after the lowering of the minimum qualifying marks to 43 per cent in the aggregate, leaving 5 seats in that category still vacant.
But Rule 9 was applied and a combined list of all the remaining categories on the waiting list was prepared and the candidates were admitted according to merit in the list so prepared and consequently the appellant who belongs to the category of children of military personnel and had secured 43.6 percent of marks in the aggregate in the pre medical examination could not secure admission.
These facts are not in dispute.
The appellant filed a writ petition for the aforesaid relief contending that as minimum qualifying marks have been reduced by the Notification dated 10 3.1980 to 43 percent in the aggregate and as he had secured 43.6 percent marks he should have been given admission in the category to which he belongs.
The writ petition was at first heard by K. K. Dube and A.R. Navkar, JJ.
A.R. Navkar, J, who decided in favour of the appellant, had observed in his judgment thus: "The reduction of percentage of marks for admission by the Government on 10.3.1980 (Annexure II) clearly shows that the candidates who got 43 per cent of marks 191 will be eligible for admission.
There is no dispute that the petitioner got 43.6 per cent of marks in the pre medical examination.
Therefore, applying this order of reduction of qualifying marks (Annexure II), I am of the opinion that the right of the petitioner for admission in the medical college cannot be defeated by resorting to Rule 9 of the Rules.
As mentioned above, Rule 9 of the Rules, in my opinion, is a mandatory one.
It says, if any seats remain vacant, such vacant seats shall be filled in by preparing a combined merit list of all the remaining categories of candidates on waiting list.
This was not done when the percentage of marks for admission was reduced from 50 per cent to 45 per cent for all categories.
Therefore, in my opinion, it cannot be done to defeat the right of the petitioner. `I am of the opinion that the present petitioner cannot be denied his right of admission to the medical college if he is otherwise eligible to get admission.
Denial of admission to him by purporting to act on the strength of Rule 9 of the Rules, in my opinion, will not be justified and will amount to denial to him the protection given to him by Article 14 of the Constitution.
The result, therefore, is that the petition deserves to be allowed. " But K.K. Dube, J. who took the opposite view has, after extracting notification dated 10.3.1980, observed in his judgment thus : "The reduced qualifying marks limit is only for filling up the vacant seats and the notification does not seek to amend Rule 20 or substitute 43 per cent for 50 per cent marks in the aggregate as minimum qualifying marks limit laid down under Rule 20.
Indeed, the notification does not state that the reduced qualifying marks limit is in substitution of the one provided in Rule 20.
That being the position, Rule 9 would necessarily operate, and it is for selecting from amongst the candidates for the number of seats remaining vacant by operation of Rule 9.
The petitioner 's contention would have some substance if Rule 9 was not there.
The effect of Rule 9 is to wipe out the reservation for admission to any of the reserved categories.
The main idea is that the best candidates be given admission to the medical colleges.
The reservation is for the purpose of securing a concession and must operate in a like manner 192 as provided in the Rules.
The reservation is not absolute, and, therefore, when the minimum qualifying marks were reduced to 43 per cent it was only for filling up the vacant seats as obtained by operation of Rule 9 of the Rules, according to the merit in the combined merit list.
We are unable to agree with the contention that the reduction in the eligibility to 43 per cent in the Government notification dated March 10, 1980 could be availed of by the petitioner and other similar candidates for filling up the 7 vacant seats in the reserved quota of the children of military personnel".
The learned Chief Justice before whom the matter came up on account of the difference of opinion between the two learned Judges who originally heard the writ petition, as mentioned above, while agreeing with K.K. Dube, J, has observed in his judgment thus : "When even on reduction of qualifying marks under Note (i) the required number of candidates do not qualify for admission under any reserved category and seats remain vacant, Rule 9 begins to apply and as directed by that Rule "such vacant seats shall be filled in by preparing a combined merit list of all the remaining categories of candidates in the waiting list and the candidates shall be admitted according to the merit in the list so prepared".
At this stage there is no further scope for reservation.
In other words, the reservation comes to an end after the required number of candidates in a reserved category do not become available on reduction of qualifying marks in the aggregate by the Board in exercise of its power under Note (i) to Rule 20.
It is generally expected that there would be a long waiting list of qualified candidates in the general category who would be available for filling in the seats transferred from a reserve category to general category.
In 1979, however, it so happened that there were vacancies in the general category, that is, there were not sufficient number of qualified candidates who could have exhausted the general category under Rule 9.
It is at this stage that the Government issued the order dated 10th March, 1980.
It is in the interpretation and application of this order that difference of opinion has arisen.
The 193 Order has not been issued under the Rules.
It is an independent order.
The order does not expressly refer to any reservation.
The order directs selection of candidates for vacant seats on the basis of merit from those who had secured aggregate marks up to 43 per cent.
The order was passed at a stage when the reserved categories had come to an end under Rule 20 read with Rule 9 as sufficient number of candidates were not available.
In my opinion, therefore, Dube, J. was right in holding that the order dated 10th March, 1980 did not bring back the reservation and selection had to be made on the basis of a combined merit list for all the vacant seats irrespective of whether they originally belong to any reserved category. .
There is yet another important factor to be taken notice of.
Not only the vacancies in the reserved category of children of military personnel but there were also vacancies in the category of women to be filled in on the basis of a combined merit list and no reservation was at all allowed in working out the order of 10th March, 1980.
The way in which this order was applied by the Board had apparently the approval of the Government and no other candidate excepting the petitioner has come forward to challenge its application.
As already pointed out, the order is not a statutory order.
It is an order passed by the State Government in the exercise of its executive power.
The Government 's approval of the manner in which the Board has applied the order goes to show that that was the intention of the Government in passing the order.
Although the approval of the Government of a particular mode of application of an order is not decisive of its meaning and it is for the Court to decide the correct meaning, still when the meaning of an order which is purely executive is in doubt the way in which it has been applied by all concerned is a relevant factor to be taken into account in deciding its true meaning.
The uniform application of the order by the Board with apparent approval of the Government for filling in all the vacant seats, goes a long way to show that the Government intended that the order should be applied by preparing a common merit list without continuing the reservations.
In these circumstances, even if the interpretation put forward by the learned counsel for 194 the petitioner and accepted by Navkar, J. can be accepted as a possible interpretation of the order, it would not be right for me to hold that it conveys the true meaning" We are inclined to agree with the conclusion reached by A.R. Navkar, J., though for different reasons.
The matter is simple.
Under Rule 20, the minimum number of marks prescribed for admission into the Medical Colleges in the State is 50 per cent in the aggregate and 33 per cent in each of the subjects.
On that basis, out of the total of 720 seats available in all the six medical colleges in the State only 8 out of 21 of the category of sons and daughters of military personnel, and only 361 out of 699 available for all other categories could be and were admitted in the academic year 1979 80.
Rule 9, which has been relied upon by the respondents as well as by K. K. Dube, J. and the Chief Justice says that in case sufficient number of candidates do not qualify for admission under any reserved category, barring, of course, the category of Scheduled Castes and Scheduled Tribes candidates, and any seats remain vacant, such vacant seats shall be filled by preparing a combined merit list of all the remaining categories of candidates on the waiting list and the candidates shall be admitted according to merit in the list so prepared.
But that Rule was not applied by the respondents and could not be applied under the circumstances of the case when 338 seats in all other categories and 13 seats of the category of sons and daughters of military personnel could not be filled in 1979 80 on the basis of the said minimum number of qualifying marks, namely, 50 per cent in the aggregate and 33 per cent in each of the subjects.
Then Note (1) to Rule 20 providing for lowering of the qualifying marks upto 5 per cent in the aggregate for all categories was applied.
Even then 64 seats of all other categories and 7 seats of the category of sons and daughters of military personnel could not be filled and remained vacant.
Then the Government by an executive order issued the notification dated 10th March, 1980 reducing the minimum qualifying marks to 43 per cent in the aggregate, and it is only at this stage Rule 9 was applied with the result that in the category of sons and daughters of military personnel only 2 more candidates could secure admission and 7 seats of that category had to be filled by other categories.
We are of the opinion that since the minimum qualifying marks were reduced to 43 per cent by an executive order without any provision therefor in the statutory rules, Rule 9 of the statutory rules could not be applied at that stage, and that the appellant who had secured 195 43.6 per cent of marks in the aggregate should have been admitted in the category to which he belongs.
We think that the difference between 45 per cent in the aggregate, to which the minimum qualifying marks were reduced under Note (1) to Rule 20 and 43.6 per cent of marks in the aggregate secured by the appellant is so little that it could not be a valid or sufficient reason for giving a go bye, on the ground of merit, to the reservation provided for in Rule 7 of the Rules.
The appellant deserves to be admitted even for this reason.
In these circumstances we are unable to agree with the view taken by K.K. Dube, J. and the Chief Justice, and we agree with the conclusion reached by A.R. Navkar, J.
The appeal is accordingly allowed without any order as to costs.
As already directed the appellant shall be admitted to the M.B.B.S. course for the academic year 1981 82 in the category mentioned in Rule 7 (3) (c) of the Rules.
S.R. Appeal allowed.
| IN-Abs | There are six medical colleges in Madhya Pradesh.
Admission to the first year of M.B.B.S. Course is on the basis of the qualifying examination.
There were 720 seats in those six colleges in the year 1979 80.
Under Rule 7 reservations are made for certain categories.
One such is for the sons and daughters of military personnel of Madhya Pradesh and 21 seats in all were reserved for that category.
Under Rule 20, the qualifying marks to be obtained by Candidates other than Scheduled Castes and Scheduled Tribes, shall be 50 per cent in the aggregate and 33 per cent in each of the subjects.
In case the required number of candidates for admission are not available, according to the above percentage of qualifying marks, the Board conducting the pre medical examinations under Rule 2 shall have power to lower the marks up to 5 per cent in the aggregate for all categories of candidates.
Under Rule 9, in case sufficient number of candidates do not qualify for admission under any reserved category and any seats remain vacant, such vacant seats shall be filled by preparing a combined merit list of all the remaining categories of candidates on the waiting list and the candidates shall be admitted according to merit in the list so prepared.
The appellant who was a son of a military personnel got only 43.6 per cent of marks in the aggregate, and he could not get a seat under the reserved category even after the marks were lowered to 45 per cent under Note 1 to Rule 20 by the Board.
Even after that was done, 7 seats remained vacant out of 21 seats reserved for the sons and daughters of military personnel.
On 10 3 1980, the Government by an executive order reduced the minimum aggregate to 43 per cent.
The Board, prepared a combined list under Rule 9 and applying the minimum of 43 per cent granted admission, as per that list, and refused admission to the appellant.
The question arose whether the selection should be based on the combined list prepared under Rule 9 or on taking 43 per cont as the qualifying marks in the aggregate.
187 Allowing the appeal by special leave, the Court, ^ HELD: Since the minimum qualifying marks were reduced to 43 per cent by an executive order without any provision therefor in the statutory rules, Rule 9 of the statutory rules could not be applied at that stage, and the appellant who had secured 43.6 per cent of marks in the aggregate should have been admitted in the category to which he belonged The difference between 45 per cent in the aggregate, to which the minimum qualifying marks were reduced under Note (1) to Rule 20 and 43.6 per cent of marks in the aggregate secured by the appellant is so little that it could not be a valid or sufficient reason for giving a go bye, on the ground of merit, to the reservation provided for in Rule 7 of the Rules.
[194 G H, 195 A B]
|
Civil Appeal No. 478 of 1982 Appeal by special leave from the Judgment and Order dated the 3rd August, 1981 of the Allahabad High Court in Civil Misc.
Writ No. 7869 of 1981.
S.N. Singh for the Appellants.
G.N. Dikshit and Shoba Dikshit for the Respondents.
The Judgment of the Court was delivered by DESAI, J.
The District Co operative Federation (Zila Sahakari Federation), Basti ( 'Federation ' for short) is a co operative society registered under the U.P.
Co operative Societies Act, 1965 ( 'Act ' for short).
As provided by section 29 of the Act, the management of the Federation vests in a committee designated as Committee of Management.
The committee consists of 10 elected members and 1 nominated member.
As the term of the Committee was drawing to a close, programme for election of the new committee of management was announced as required by Part VI of the U.P. Co operative Societies Rules, 1968 ( 'Rules ' for short).
Pursuant to 209 this programme poll was held on September 11, 1978.
It is not made clear to us when the counting of the votes commenced, though rule 444(1) provides that counting of the votes will take place immediately after the close of the poll except when postponed in a given set of circumstances.
Sub rule (4) of rule 444 provides that Election Officer shall announce the result of election as soon as the counting is completed indicating the number of votes secured by each candidate.
It appears that one Shri Kashi Nath whose name did not appear in the voter 's list and who, on account of the omission, could not contest the election filed Civil Suit No. 291 of 1978 in the Court of Munsif, Basti on September 9, 1978 and asked for and obtained ad interim ex parte injunction restraining the defendants in the suit from conducting the election of Board of Directors (Committee of Management), President, Vice President and the delegates of District Co operative Federation, Basti and/or announcing the result of election.
Defendants Nos.
1 to 4 in the suit appeared and contested the application for interim injunction.
The learned Munsif after hearing both sides confirmed the injunction in the following terms: "6 C. is allowed and the defendants No. 1 to 4 are directed not to conduct the election and not to declare the result, if any, of Board of Directors of District Co operative Federation, Basti, till disposal of the suit".
This order was made on September 21, 1978.
It appears that by the time the suit was filed and ex parte ad interim injunction obtained, the poll was already held but by the injunction, the defendants in the suit were prohibited from declaring the result and accordingly the result was not declared.
It now appears that the result was declared on January 28,1980, and the election of the Chairman and the Vice Chairman took place on January 29, 1980.
Appellant No. 1 was elected as Chairman.
The term of the members of the Committee of Management as provided by rule 445 as amended on June 30, 1981, is three co operative years including the year of election.
The Registrar of Co operative Societies pursuant to the amended rule 445 issued a teleprinter message to various authorities indicating that the term of the committee of management has expired and administrator should be appointed as provided by sub section (4) (b) of section 29 of the Act.
Pursuant to this teleprinter message, the Deputy Registrar, Co operative Societies, Gorakhpur made an order on July 1, 1981, that the term of the members of the committee of management of the Federation has expired on June 210 30, 1981, and proceeded to appoint an administrator.
The appellants questioned the validity and legality of the order of the Deputy Registrar in Writ Petition No. 7869 of 1981 filed in the High Court of Judicature at Allahabad.
The High Court was of the opinion that even though under rule 445 the term of the office of the elected members of the committee of management of co operative society is three co operative years including the co operative year of their election, once the poll is held and even though the result of the election is not announced, the term would commence from the date of the poll and therefore the decision of the Deputy Registrar that the term expired on June 30, 1981, is correct.
The High Court accordingly dismissed the writ petition.
Hence this appeal by special leave limited to one point only, namely, the commencement and completion of the term of office of the members of the committee of management of the second appellant.
Section 29(1) provides that the management of every co operative society shall vest in a committee of management constituted in accordance with the Act, the rules and the bye laws.
Sub section (2) provides that the term of the elected members of the committee of management shall be such as may be provided in the rules or the bye laws of the society.
Rule 445(1) provides that except as otherwise provided in rules 406, 433, 434 and 435 the term of the office of the elected members of the committee of management of a co operative society shall be three co operative years including the co operative year of their election.
Explanation appended to this Rule clarifies how the period of three co operative years is to be computed.
In substance the explanation clarifies that: "For the purpose of determination on the term of a elected member the co operative year during which the elections are held shall count as full year irrespective of the period left after such election in that co operative year".
There is a proviso to this explanation which is immaterial.
The expression 'co operative year ' is defined in section 2(i) of the Act to mean the year commencing on the 1st day of July and ending on the 30th day of June next following.
Part VI of the Rules sets out procedure for holding the election.
Election of members of committee of management of a co operative society has to be held in accordance with the provisions of the Act and rules and the District Magistrate of the district in which the 211 headquarter of the society is situated, shall take steps to organise the election under the superintendence, direction and control of the Registrar [see rule 439 (1)].
Sub rule (1) of rule 439 provides that the election in a co operative society or societies or a class or classes of co operative societies shall be held on such due date or dates as the Registrar may be order fix and the District Magistrate concerned shall on such dates being so fixed appoint by order one or more Election Officers or different Election Officers for different class or classes of society or for different areas for this purpose.
Sub rule (3) provides that the Election Officer shall perform all such functions as are enjoined upon him by the Rules or as may be incidental to or necessary for the discharge of his duties.
Rule 444 provides that the counting of votes will take place immediately after the closing of the poll and in case it is not possible to count votes immediately after the close of the poll, the ballot boxes shall be sealed by the Election Officer and kept in the safe custody in the nearest police station.
Sub rule (4) of rule 444 provides that the Election Officer shall announce the result of election as soon as the counting is completed indicating the number of votes secured by each candidate.
Sub rule (6) provides that the Election Officer shall display a list of elected candidates on the notice board of the society and also at such public places as he may deem fit.
Sub rule (7) provides that a copy of the list prepared under sub rule (6) shall be sent to the District Assistant Registrar concerned or the officer authorised under sub rule (2) of rule 440 and also to Secretary/Managing Director of the Society concerned.
Having noticed the conspectus of the provisions bearing on the topic 'election to a co operative society ', the principal point canvassed in this petition may be examined.
According to the appellant even though the poll was held on September 11, 1978, the result, as required by rule 444(4), was declared for the first time on January 28, 1980, the term of three co operative years of the elected members of the co operative society will expire on June 30, 1982.
On the other hand, according to the respondents, as the poll was held on September 11, 1978, the term of three co operative years including the co operative year of the election has expired on 30th June, 1981 and therefore the order appointing the administrator was legal and valid.
The question that emerges on rival contentions is as to from what date the term of the elected members of the committee of 212 management shall commence.
The period of three years as amplified by the Explanation to rule 445(1) is to be reckoned not from the date of the election but the term shall be three co operative years including the co operative year of the election.
The co operative year, as pointed out earlier, commences on July 1 and ends on June 30 of the next succeeding year.
Therefore, if the term commences from the date of poll which happened to be September 11, 1978, the whole of co operative year commencing from July 1, 1978 would have to be taken into reckoning for computing the term of three years and, therefore, three years would expire on June 30, 1981.
The question, however, is whether mere holding of the poll constitutes election of the members of committee of management or the result being declared after the counting has been completed and notified in the manner prescribed by sub rules (6) and (7) of rule 444 would provide the starting point for a terminus quo for the term of office to commence.
If the term was to commence on the declaration of the result of election, in this case admittedly the result was declared on January 28, 1980, that date would fall within the co operative year from July 1, 1979 to June 30, 1980, and the term of three co operative years would expire on June 30, 1982.
At one stage, Mr. Dixit, learned counsel for the respondents stated that there is no stage like declaration of result when the election of the members of the committee of management of a co operative society is held.
Sub rule (4) of rule 4444 clearly indicates to the contrary and it casts an obligation on the Election Officer to announce the result of election as soon as the counting is complete and he is also under a duty to indicate the number of votes secured by each candidate.
His duty does not end there.
He has to display a list of elected candidates on the notice board of the society and also at such public places as he may deem fit.
He is also under an obligation to send a copy of the list prepared under sub rule (6) to the District Assistant Registrar concerned.
it is, therefore, not possible to accept the submission that there is nothing like a stage of announcement of the result of election when election is held for electing members of the committee of management of a co operative society.
In fact, the various stages of election are clearly demarcated in the rules.
If the poll has become necessary and is held the unavoidable and inescapable stage of counting of votes and the next stage of announcement of result and subsequently publicising the result are part and parcel and necessary adjuncts of conducting poll.
If the rules provide for all the three stages it is difficult to accept the submission that by merely 213 holding of the poll, the process of election can be said to have been completed and the term of members who had contested would commence from the time of holding the election.
That is what the High Court holds.
Says the High Court: "that the elections since were held on 11.9.78, mere act of not declaring the result on account of any order issued by the Court or a stay order granted by it which was subsequently vacated could not be taken as if the term of the committee of the management has not commenced".
The High Court, at another stage, observed that the postponement of declaration of the result did not justify the holding of the view that elections had not been held in September 1978.
Taken to the logical end, the judgment of the High Court would imply that elected and non elected members both who participated in the poll would have their term as members commence since the poll is held.
Could this be the intendment of rule 445(1) ? This approach betrays lack of knowledge of the democratic process of election.
When the number of the members to be elected to the committee of management is fixed and candidates in excess of the fixed number are desirous of seeking office, the democratic process postulates holding of elections.
Mere holding of poll which means recording of votes without anything more would be inconsequential.
It is the counting of votes and the consequent declaration of result showing who amongst the contesting candidates has secured highest number of votes or large number of votes which would determine who has become eligible for office by the democratic process.
Therefore, recording of votes is a preliminary stage, the counting of votes and declaration of result are integral and inseparable part of process of holding and completing the process of election.
No election process can be said to be complete unless the votes are recorded, they are counted and those who have secured highest number of votes are declared elected and the result is publicised, as required by the relevant provision.
Rule 445(1) provides that the term of office of the elected members of a committee of management of a co operative society shall be three co operative years including the co operative year of their election.
This provision indicates the terminus quo for commencement of the term, viz., that the term of office of the elected members would be three co operative years including the year of their election.
Election means process of being elected and the term of office is of the elected member, not of contesting member.
When candidates offer themselves for election, they are 214 called candidates and unless elected the term of such candidates would not commence.
Their term would commence when etected.
The expression 'year of their election ' even on literal and grammatical construction would mean the year in which the member concerned whose term is in dispute, is declared elected meaning thereby he became eligible for office and entitled to enter office as a member.
Apart from literal construction, the completed process of election comprehends nomination, recording of votes, counting of votes and declaration of result and publicising and notifying the result.
There ends the process of election.
Recording of votes is a mere stage in the process of election.
Even when votes are recorded, the candidates contesting the poll do not acquire the status of members of committee of management.
That status is acquired on being declared elected.
And unless that status is acquired the term of office as member cannot begin to run.
Therefore, the expression 'co operative year of their election year ', upon true construction can only mean the year in which the member is declared elected and not the year in which he contested the poll.
Turning to the facts of this case, undoubtedly the poll was held on September 11, 1978, but in view of the injunction granted by the learned Munsif the respondents were restrained from declaring the result.
In the counter affidavit filed on behalf of the respondents in the High Court, the fact that the result was declared on January 28, 1980, is admitted.
The relevant portion reads as under: "4.
That the election of the committee of management of the Federation was held on 11.9.78 and not on 28.1.80 as alleged in the writ petition: In fact, the election was actually held on 11.9.78, but the declaration of the result of election stayed in pursuance of the order of learned Munsif, Basti, in Suit No. 291 of 1978 (Kashi Nath Tripathi vs D.M., Basti).
Consequent upon the order of the learned Munsif, the election officer also passed similar order on 11.9.78 on which date the election was held.
The result was subsequently declared on 28.1.80".
It is thus an admitted position that even though the poll was held on September 11, 1978, on account of the injunction granted by the Court, the result was declared on January 28, 1980.
On the very next day, i.e. January 29, 1980, first appellant was elected as Chairman of the Federation.
Once it is admitted that the result was declared on January 28, 1980, the term of the members of the committee of the management would commence from the co 215 operative year July 1, 1979, ending with June 30, 1980, and including this year the term would be of three years.
Therefore, obviously the term would expire on June 30, 1982.
Mr. Dixit, however, urged that where for any reason whatsoever, election of the elected members of the committee of management has not taken place or could not take place before the expiry of the term of elected members, the committee of management shall, notwithstanding anything to the contrary in the Act or the Rules or the bye laws of the society, cease to exist on the expiry of the said term.
In support of this submission he relied upon sub section (4) (a) and (b) of section 29.
They may be extracted: "29.
Committee of management: x x x x (4) (a) Where, for any reason whatsoever the election of the elected members of the committee of management has not taken place or could not take place before expiry of the term of elected members, the committee of management shall, notwithstanding anything to the contrary in this Act or the rules, or the bye laws of the Society, cease to exist on the expiry of such term.
(b) On or as soon as may be after the expiry of such term, the Registrar shall appoint an Administrator for the management of the affairs of the society until the reconstitution of the Committee of Management in accordance with the provisions of this Act, the rules and the bye laws of the society, and the Registrar shall have power to change the Administrator from time to time: Provided that so long as no Administrator is appointed under this sub section, the Secretary or the Managing Director, as the case may be, of the society shall be in charge only of the current duties of the committee of management.
Explanation Where results of the election of members of the Committee of Management have not been or could not be declared, for any reason whatsoever, before the expiry of the term of the elected members of the outgoing commit 216 tee, it shall be deemed that the election of the elected members of the committee has not taken place within the meaning of this sub section".
Sub section 4(a) would not be attracted at all in the facts of this case because when the term of the members of the former committee of management expired, poll was held on September 11, 1978.
Once poll was held as a part of the programme of the election it must progress to the statutory end of declaration of result.
Unless the term begins to run it cannot come to an end.
Sub section (4) (a) caters to a situation where the term of the members of a committee of management has begun and the election could not be held before the expiry of the term then, notwithstanding that no election has been held the term of the members of the former committee would come to an end and the committee of management would cease to exist on expiry of said term.
Sub section (4) (b) would only by be attracted if the term expires as contemplated by sub section (4) (a).
If the term expires and the old managing committee whose term has expired ceases to exist and the election has not been held or could not be held to elect a new committee of management then in the interregnum the Registrar has the power to appoint an administrator for the management of the affairs of the society.
In the fact situation as we have in the present case, sub section (4) (a) and (b) are not attracted and, therefore, the provision therein contained would not assist the respondent in any manner.
As the term of the committee of management would commence from the co operative year from July 1979 to June 1980, the same would expire on June 30, 1982.
On this reckoning the Registrar could not have issued teleprinter message declaring that the term has come to an end on June 30, 1981.
If the term had not expired, the administrator could not be appointed as contemplated by sub section (4) (b) of section 29.
Therefore, the order of the Deputy Registrar of the Co operative Societies, Gorakhpur Division dated July 1, 1981, appointing administrator is without jurisdiction and is clearly illegal and invalid and must be quashed and set aside.
Mr. Dixit lastly urged that even on the view this Court would take, the term of the committee of management would expire on June 30, 1982, and therefore, hardly a period of four months remains and the Court should not, therefore, disturb the administrator.
This submission does not commend to us because the Government by executive fiat cannot reduce the term of office statutorily fixed.
Further, the elections to panchayats, co operative societies and 217 smaller local bodies provide an apotheosis or a training ground for success of our larger experiment of parliamentary democracy.
Election process is sacrosanct.
Members elected must be permitted to discharge their functions as chosen representatives of the electorate for the statutory terms.
Such a drastic power of removing elected representatives before the expiry of term and substituting non elected persons must receive strict and narrow interpretation at the hands of the courts.
If allowed to foster it would be the negation of the democratic process and would engulf the whole fabric of democratic institutions which we are trying to build up.
Therefore, even though the term would expire roughly after four months, we would be perfectly justified in removing the administrator and re instating the elected representatives.
Accordingly, this appeal is allowed and the judgment of the High Court is set aside.
A writ in the nature of mandamus is issued quashing the impugned order dated July 1, 1981, of the Deputy Registrar, Co operative Societies, Gorakhpur Division, Gorakhpur.
It is declared that the term of the committee of management of District Co operative Federation Limited, Basti, and the 1st appellant Chairman has not expired and the elected members continue to occupy the office.
The administrator is hereby directed to hand over the charge forthwith to the Chairman of the Committee of Management.
There will be no order as to costs.
H.L.C. Appeal allowed.
| IN-Abs | The management of a cooperative society registered under the U.P. Cooperative Societies Act vests in a committee constituted in accordance with the provisions of the Act and the Rules made thereunder.
The term of elected members of a committee, according to section 29(2) read with r. 445(1) is three 'Cooperative years ' including the cooperative year in which they are elected. 'Cooperative year ' means the year commencing on the 1st day of July and ending on the 30th day of June next following.
Fresh members are to be elected before the expiry of the term of existing elected members failing which an administrator can be appointed by the Deputy Registrar, Cooperative Societies to manage the affairs of the cooperative society till the reconstitution of the committee.
In this case the term of the cooperative society in question was drawing to a close and the poll to elect fresh members was held on September 11, 1978.
The result of the poll could not be declared immediately owing to an injunction issued by a court in a suit filed by a voter whose name had not appeared in the electoral roll.
The result was, however, declared ultimately on January 28, 1980, and appellant No. 1 was elected Chairman of the committee on January 29, 1980.
By an order dated July 1, 1981, made under section 29(4) (b), the Deputy Registrar, Cooperative Societies appointed an administrator to manage the affairs of the society on the ground that the term of members of the Committee had expired on June 30, 1981.
The appellants challenged the validity of the order under article 226.
The High Court upheld the impugned order and dismissed the petition on the ground that once the poll was held and even though the result of the election was not announced, the term would commence from the date of the poll.
The appellants submitted that even though the poll was held on September 11, 1978, the result having been declared for the first time on January 28, 1980, the term of three cooperative years of the elected members would expire on June 30, 1982.
Allowing the appeal, ^ HELD: 1.
(a) Election means the process of being elected and the term of office is of elected members.
The term of office as member cannot begin to run unless the status of being a member is acquired on being declared elected.
208 The result of the election having been declared on January 28, 1980, the term of members commenced from the cooperative year beginning on July 1, 1979 and ending with June 30, 1980 and since their term was three cooperative years including the year of election, it would expire on June 30, 1982.
The order appointing the administrator was, therefore illegal.
[213 H, 214 H, 215 A, 216 F G] (b) The provision of section 29(4) (b) was not attracted as the process of election had begun with the holding of the poll before the expiry of the term and, once the poll was held as a part of the programme of election, it had to progress to the statutory end of declaration of result.
[216 B E] 2.
The various stages of election were clearly demarcated in the Rules.
Mere holding of poll, which means recording of votes, without anything more would be inconsequential.
It is the counting of votes and the consequent declaration of result which would determine who has become eligible for office by the democratic process.
No election process can be said to be complete unless the votes are recorded and counted and the result of the election declared and publicised.
[212 G H, 213 E G] 3.
The election process is sacrosanct and members elected must be permitted to discharge their functions as chosen representatives of the electorate for the statutorily prescribed term and therefore the plea that the administrator should not be disturbed as only four months would remain for the expiry of the term cannot be countenanced.
The drastic power of removing elected representatives before the expiry of their term must receive strict and narrow interpretation.
[217 A C]
|
Civil Appeal No. 1667 of 1981.
Appeal by special leave from the judgment and order dated the 30th July, 1980 of the Bombay High Court in Special Civil Application No. 1931 of 1975.
U.R. Lalit and Mrs. Jayshree Wad for the Appellants.
Naunit Lal for Respondents Nos. 1 to 4.
R.N. Poddar for Respondent No.5.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
This appeal by special leave is directed against the judgment and order dated July 30, 1980 of the High Court of Judicature at Bombay in Special Civil Application No. 1931 of 1975.
The question for consideration in this appeal is whether the proceedings commenced with the filing of a return by a person holding on the appointed day land in excess of the ceiling area prescribed by the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (hereinafter referred to as the 'Act ') would become infructuous and would have to be dropped if such person dies before a notification containing the declaration regarding sur 223 plus land held by him is published in the Official Gazette under section 21 of the Act and possession of such surplus land is taken over by the authorities concerned.
An extent of land measuring 21 A, 28 G, bearing Survey No. 34 situated in village Manori, Taluka Rahuri of Ahmednagar district in the State of Maharashtra belonged to respondents 1 to 4 but was in the possession of their tenant by name Bhikoba on the date of the commencement of the Act, i.e. January 26, 1962, which was the appointed day as defined by section 2(4) of the Act.
The Act was passed for the purpose of imposing a maximum limit (or ceiling) on the holding of agricultural land in the State of Maharashtra; to provide for the acquisition and distribution of land held in excess of such ceiling; and for matters connected with the purposes aforesaid.
Section 2(16) of the Act defined the expression "land" as land which was used or capable of being used for purposes of agriculture and included the sites of farm buildings on, or appurtenant to such land and land on which grass grows naturally.
Chapter II of the Act contained the provisions (Sections 3 to 7) prescribing the ceiling on holding of land, Chapter III contained the provisions (Sections 8 to 11) imposing restriction on alienation and acquisitions of land and laying down the consequences of contraventions of those provisions, Chapter IV contained provisions (Sections 12 to 21) for determining the extent of surplus land, Chapter V contained provisions (Sections 22 to 26) for determination of compensation payable to expropriated persons and Chapter VI which included (Sections 27 to 29) dealt with the mode of distribution of surplus land amongst those who were landless and who otherwise deserved to be granted land.
These and the other provisions in the Act were enacted with the object of providing for the more equitable distribution of agricultural land amongst the peasantry in the State of Maharashtra.
It may be mentioned here that Chapters II and III of the Act came to be substituted by new Chapters II and III by section 4 of the Maharashtra Act 21 of 1975.
Section 5 of the said Act, however, read as follows: "5.
Notwithstanding the substitution of the Chapters II and III by section 4 of this Act all proceedings pending immediately before the commencement date in any court or tribunal or before any authority for the purpose of 224 determining the ceiling area in respect of any holdings and the surplus land in such holdings in pursuance of the provisions in the original Chapters II and III shall be continued and disposed of by or under the principal Act, as if that Act had not been amended by the Amending Act, 1972; and the amount of compensation for such surplus land acquired by the State Government under sub section (4), or as the case may be, sub section (5), of section 21 shall be at the rate provided in the principal Act as unamended by this Act.
After the ceiling area is determined and the area delimited as surplus land is declared finally under section 21 of the principal Act, then, subject as aforesaid, the provisions of the principal Act as amended by this Act shall apply to such holding and land declared as surplus land.
" There was a further modification made in the new Chapters II and III by the Maharashtra Act 47 of 1975.
In view of the saving clause contained in section 5 of the Maharashtra Act 21 of 1975 reproduced above this case has to be decided in accordance with the provisions contained in Chapters II and III as they stood before their substitution since the proceedings with which we are concerned had already commenced and were pending immediately before the commencement of the said Amending Act.
Hence reference will be made hereafter to the provisions contained in Chapters II and III as they stood before their substitution.
Section 3 of the Act as it was originally enacted read as follows: "3.
In order to provide for the more equitable distribution of agricultural land amongst the peasantry of the State of Maharashtra (and in particular, to provide that land less persons are given land for personal cultivation), on the commencement of this Act, there shall be imposed to the extent, and in the manner hereinafter provided, a maximum limit (or ceiling) on the holding of agricultural land throughout the State.
" Section 4 of the Act prohibited holding of land by any person in excess of the ceiling area and declared that subject to the pro 225 visions of the Act, all land held by a person in excess of the ceiling area should be deemed to be surplus land and dealt with in the manner provided by the Act.
Sections 5 to 7 of the Act laid down the principles for the computation of the ceiling area in various cases.
As required by section 12 of the Act as it stood at the commencement of the Act Bhikoba, the tenant concerned in this case, filed before the Special Deputy Collector (especially empowered by the State Government to exercise the powers and perform the functions of the Collector under the Act) a return in the prescribed form furnishing particulars of land including the extent of 21 A, 28 G. bearing Survey No. 34 referred to above in his possession on the appointed day.
After recording the statement of Bhikoba and considering all the other relevant material before him the Special Deputy Collector found that Bhikoba was in possession of surplus land to the extent of 132 A. 1 G. and he made an order accordingly on March 27, 1965.
Against that order Bhikoba filed an appeal and the appellate authority by its order dated April 13, 1966 partly allowed the appeal and remanded the matter with some directions.
Thereafter Bhikoba died on January 31, 1969.
On June 27, 1969, the Special Deputy Collector after hearing the legal representatives of Bhikoba held that Bhikoba was a surplus holder of land to the extent of 16 A. and 26 G. Against that order Daulatram, Triambak, Dattatraya and Madhukar, the four sons of Bhikoba who are shown as the legal representatives (a to d) in this case filed an appeal before the Maharashtra Revenue Tribunal.
That appeal was dismissed on November 4, 1970 on the ground that it was a premature one as the holders had not yet exercised their choice under section 16(2) of the Act and a declaration under section 21 had not yet been made.
Thereafter a notice was issued to the heirs of Bhikoba under section 16 of the Act to exercise their choice in respect of land to be retained by them out of Bhikoba 's holding to the extent of the ceiling area.
The heirs of Bhikoba filed objections to the said notice on November 23, 1971 pleading inter alia that a holder of land in excess of the ceiling prescribed by the Act would be divested of his title to the surplus land only when its possession was taken from him after the publication of the notification under section 21 of the Act and since such notification had not yet been published and possession of surplus land had not been taken, Bhikoba continued to be the owner of the entire land (including the extent determined as surplus land) till his death and 226 that as inheritance could not remain in abeyance, his heirs at law became entitled to the entire land.
They contended that if a fresh determination was then made there would be no surplus land at all in their hands, which had to be surrendered.
They, therefore, prayed that the proceedings which were commenced with the return filed by Bhikoba should be dropped as they had become infructuous.
The Special Deputy Collector accepted the plea of the heirs of Bhikoba and dropped further proceedings as prayed for by them by his order dated March 13, 1973.
The respondents 1 to 4 who would have become entitled to claim relief under the Act at the time when the distribution of surplus land held by Bhikoba was taken up for consideration preferred an appeal against the order of the Special Deputy Collector dropping the proceedings as mentioned above before the Maharashtra Revenue Tribunal.
The Tribunal by its judgment dated January 31, 1975 dismissed the appeal following the decision of the High Court of Bombay (Nagpur Bench) in Dadarao Kashiram vs The State of Maharashtra(1).
Aggrieved by the decision of the Tribunal, respondents 1 to 4 filed a petition under Article 227 of the Constitution in Special Civil Application No. 1931 of 1975 before the High Court of Bombay.
That petition was allowed by the High Court by its judgment dated July 30, 1980 by which the order of the Tribunal was set aside and the matter was remanded to the Special Deputy Collector to continue the proceedings commenced on the basis of the return filed by Bhikoba in the presence of his legal representatives to determine the surplus land held by Bhikoba as on the appointed day and to dispose of the same in accordance with law.
This appeal by special leave is filed against the aforesaid judgment of the High Court.
There is no merit in the first contention urged in support of the above appeal viz. that respondents 1 to 4 had no locus standi to file an appeal against the order of the Special Deputy Collector dated March 13, 1973 dropping the proceedings which commenced with the return filed by Bhikoba.
It is no doubt true that at the first instance the land which is declared as surplus land in the hands of any person would vest in the State Government.
But the said land has to be distributed in accordance with the provisions contained in Chapter VI of the Act.
Any person who is entitled to 227 grant of land under any of the provisions of the Act may question any order which would have the effect of reducing the extent of total surplus land in any village.
Respondents 1 to 4 were the former landlords of the land bearing Survey No. 34 which formed part of the holding of Bhikoba.
They cannot, therefore, be characterised as just strangers to these proceedings.
It cannot, therefore, be said that respondents 1 to 4 had no locus standi to file an appeal before the Maharashtra Revenue Tribunal and then a petition under Article 227 of the Constitution before the High Court.
This contention is, therefore, rejected.
The next contention of the appellants is based on the judgment of the High Court of Bombay in Dadarao Kashiram 's case (supra).
It is no doubt true that the said decision supports the contention of the appellants that the proceedings initiated by a return filed by a holder of land would be come infructuous on his death if it takes place before a notification is issued under section 21 of the Act.
The said decision was rendered by the High Court relying upon the decision of the Bombay High Court in Commissioner of Income Tax vs Ellis C. Reid(1) and the decision of this Court in its Commissioner of Income Tax, Bombay City vs Amarchand N. Shroff(2) by the heirs & legal representatives both of which arose under the Indian Income tax Act, 1922.
We do not have provisions corresponding to the Indian Income tax Act, 1922 in the Act.
It is very hazardous to decide cases in which proprietary rights arise for determination on the basis of decisions rendered under taxation laws which have their own peculiarities.
The Act is not one levying tax on the income during the previous year or previous years or of a period other then the previous year in the hands of an assessee but a law imposing a ceiling on the holding of a person or a family as on a specified date.
The Act has to be construed in accordance with its scheme and object which, as stated earlier, is equitable distribution of land amongst the landless by taking over surplus land in the hands of those who held land in excess of the ceiling limit on the appointed day, or those who would acquire subsequently land in excess of the ceiling or those who own lands which exceed the ceiling limit by reason of their conversion into a different class.
In order to achieve that object, the Legislature enacted sections 3 and 4 of the Act declaring that no person could on or after the appointed day hold land in excess of the ceiling area and compelling every person acquiring or coming into possession of any 228 land in excess of the ceiling area on or after the appointed day to file a return before the Collector furnishing particulars of all land held by him.
Section 18 of the Act requires the Collector to hold an enquiry into the several matters set out therein including the total area of land held by a person on the appointed day.
Sections 19 and 20 of the Act provide for the restoration of land to a land lord in certain cases.
Section 21 provides that, as soon as may be, after the Collector has considered the matters referred to in section 18 and the questions, if any, under sub section (3) of section 20, he shall make a declaration stating therein his decision on (a) the total area of land which the person (who has filed a return) is entitled to hold as the ceiling area, (b) the total area and particulars of land which is in excess of the ceiling area, (c) the name of the person to whom possession of land is to be restored under section 19, and area and particulars of such land, (d) the area, description and full particulars of the land which is delimited as surplus land and (e) the area and particulars of land which is to be forfeited to the State Government under sub section (3) of section 10 or under the provisions of sub section (3) of section 13 of the Act.
After a declaration under sub section (1) of section 21 is made, as stated above, the Collector has to notify in the prescribed form in the Official Gazette the area, description and full particulars of the land which is delimited as surplus land, and also of the land which is to be forfeited to the State Government.
Any declaration made under section 21 of the Act is subject to the decision of the Maharashtra Revenue Tribunal in appeal and subject to any decision that may be made in such appeal, the Collector is empowered to take possession of the surplus land and with effect from the date of taking over possession, such surplus land vests in the State Government.
A close reading of the aforesaid provisions of the Act shows that the determination of the extent of surplus land of a holder has to be made as on the appointed day.
If any person has at any time after the fourth day of August, 1959 but before the appointed day held any land (including any exempted land) in excess of the ceiling area, such person should file a return within the prescribed period from the appointed day furnishing to each of the Collectors within whose jurisdiction any land in his holding is situated, in the form prescribed containing the particulars of all land held by him.
If any person acquires, holds or comes into possession of any land including any exempted land in excess of the ceiling area on or after the appointed day, such 229 person has to furnish a return as stated above within the prescribed period from the date of taking possession of any land in excess of the ceiling area.
If any person whose land is converted into another class of land in the circumstances described in section 11 A (formerly numbered as section (11) thereby causing his holding to exceed the ceiling area then such person has to file a return as mentioned above within the prescribed period from the date of such conversion (such date being a date to be notified in the Official Gazette by the State Government in respect of any area).
It is obvious from the foregoing requirements prescribed under section 12 of the Act that the crucial date with reference to which the extent of the surplus land held by a person is to be determined is the appointed day in the case of persons holding land in excess of the ceiling area at any time after the fourth day of August, 1959 but before the appointed day and in the case of those acquiring, holding or coming into possession of such excess land on or after the appointed day, the day on which they acquire possession of any land in excess of the ceiling area.
In the case of those who are affected by section 11 A of the Act, the crucial date is the date of conversion.
If a person is found to be in possession of land in excess of the ceiling area at any time after the fourth date of August, 1959 but before the appointed day, he incurs the liability to surrender any surplus land as on the appointed day on the appointed day itself even though the actual extent of such surplus land is determined on a subsequent date.
Similarly those who acquire land in excess of the ceiling area on or after the appointed day would become liable to surrender surplus land on the date of taking possession of any land in excess of the ceiling area.
A person whose case falls under section 11 A of the Act becomes liable to surrender any surplus land in his possession as on the date of conversion of land into irrigable land.
This liability to surrender surplus land would not in any way come to an end by reason of the death of such holder before the actual extent of surplus land is determined and notified under section 21 of the Act.
It is no doubt true that section 21 of the Act states that the title of the holder in the surplus land would become vested in the State Government only on such land being taken possession of after a declaration regarding the surplus land is published in the Official Gazette.
But the liability to surrender the surplus land, however, relates back to the appointed day in the case of those who fall under section 12(1)(a) of the Act, to the date of taking possession 230 of any land in excess of the ceiling area in the case of those who come under section 12(1)(b) of the Act and to the date of conversion of land into a different class in the case of those who come under section 12(2) of the Act.
Any other construction would make the Act unworkable and the determination of the extent of surplus land of a holder ambulatory and indefinite.
It is significant that section 8 of the Act prohibits transfer or partition of any land held by a person holding land in excess of the ceiling area on or after the appointed day until the land in excess of the ceiling is determined under the Act.
Section 10 provides that if any person after the 4th day of August, 1959 but before the appointed day transferred or partitioned any land in anticipation of or in order to avoid or defeat the objects of the Act or any land is transferred or partitioned in contravention of provisions of section 8 then in calculating the ceiling area which that person is entitled to hold the area so transferred or partitioned should be taken into consideration and land exceeding the ceiling area so calculated should be deemed to be in excess of the ceiling area for that holding notwithstanding the land remaining with him may not in fact be in excess of the ceiling area.
The expression 'holding ' used in sections 3, 5, 6 and 10 shows that the statute treats a holding as a unit for purposes of determination of surplus land which can be acquired from such holding.
Section 2(14) which defines the expression to hold land ' as 'to be lawfully in actual possession of land as owner or tenant ' requires that the expression 'holding ' should be construed accordingly.
Section 3 of the Act expressly imposes a limit on the holding of agricultural land on the commencement of the Act.
The extent of surplus land which the Government can acquire under the Act from a holder cannot therefore be made to depend upon the date on which a declaration indicating the extent of surplus land is notified in the Official Gazette under section 21 and the date on which such surplus land is taken possession of.
It cannot also be made to depend upon the holder who has incurred the liability on the relevant date being alive on the date on which the declaration is made under section 21 and possession of surplus land is taken.
The acceptance of the contention urged on behalf of the appellant that the proceedings initiated by a return filed by a holder have to be dropped if such holder dies before a declaration is made under section 21 and surplus land is taken possession of would frustrate the very object and purposes of the Act.
231 In Raghunath Laxman Wani & Ors.
vs State of Maharashtra & Ors.
,(1) this Court had to examine the scheme of the Act while considering the question whether in the case of a family, the ceiling area would be liable to fluctuations with the subsequent increase or decrease in number of the family members.
Dealing with that question the Court observed thus: "The scheme of the Act seems to be to determine the ceiling area of each person (including a family) with reference to the appointed day.
The policy of the Act appears to be that on and after the appointed day no person in the State should be permitted to hold any land in excess of the ceiling area as determined under the Act and that ceiling area would be that which is determined as on the appointed day.
Therefore, if there is a family consisting of persons exceeding five in number on January 26, 1962, the ceiling area for that family would be the basic ceiling are a plus 1/6th thereof per member in excess of the number five.
The ceiling area so fixed would not be liable to fluctuations with the subsequent increase or decrease in the number of its members, for, there is, apart from the explicit language of secs.
3 and 4, no provision in the Act providing for the redetermination of the ceiling area of a family on variations in the number of its members.
The argument that every addition or reduction in the number of the members of a family requires redetermination of the ceiling area of such a family would mean an almost perpetual fixation and re fixation in the ceiling area by the Revenue authorities, a state of affairs hardly to have been contemplated by the legislature.
The argument would also mean that where a surplus area is already determined and allotted to the land less persons such area would have to be taken back and given to a family, the number of whose members subsequently has augmented by fresh births.
" The above view supports our conclusion that the surplus land in the case of a person who at any time after the fourth day of August, 1959 but before the appointed day held any land (including any exempted land) in excess of the ceiling area has got to be determined as on the appointed day even though such person may 232 die before the actual extent of surplus land is determined and notified under section 21 of the Act.
The persons on whom his 'holding ' devolves on his death would be liable to surrender the surplus land as on the appointed day because the liability attached to the holding of the deceased would not come to an end on his death.
The heirs of the deceased cannot be permitted to contend to the contrary and allowed to get more land by way of inheritance than what they would have got if the death of the person had taken place after the publication of the notification under section 21.
At this stage it is necessary to refer to another contention of the appellants based on the second paragraph of sub section (2) of section 3 of the new Chapter II of the Act which is substituted in the place of the original Chapter II by the Maharashtra Act 21 of 1975.
The relevant part of the said paragraph reads: "In determining surplus land from the holding of a person, or as the case may be, of a family unit, the fact that the person or any member of the family unit has died (on or after the commencement date or any date subsequent to the date on which the holding exceeds the ceiling area, but before the declaration of surplus land is made in respect of that holding) shall be ignored; and accordingly, the surplus land shall be determined as if that person, or as the case may be, the member of a family unit had not died.
" It is contended that because for the first time the Legislature by introducing the above said paragraph directed that if a person dies after the commencement of the Act but before the declaration of surplus land is made in respect of his holding, the fact of his death should be ignored and the surplus land should be determined as if that person had not died, it should be held that before the introduction of that paragraph the proceedings needed to be dropped on the death of the person taking place before the declaration was made.
It appears to us that the said paragraph was introduced by way of abundant caution to get over the possible objection raised on the basis of the decision in the case of Dadarao Kashiram.
The said paragraph is merely declaratory of what the true legal position had always been even from the commencement of the Act.
The introduction of an express provision to the above effect does not have the effect of altering the true legal position as explained by us above even without the aid of such express provision.
This becomes 233 further clear from the observations found in the decision of this Court in Raghunath Laxman Wani 's case (supra).
It may be noticed that the said paragraph in the new section 3(2) refers to two contingencies (i) the death of a person who was holding land in excess of the ceiling limit and (ii) the death of any member of a family unit owning land in excess of the ceiling on the appointed day.
It provides that the death of the person or the death of a member of the family unit as the case may be should be ignored.
One of the contentions urged before this Court in that case was that the Tribunal was wrong in not taking into consideration the three children born in the family after the appointed day while determining the ceiling area to which the family of the appellants therein was entitled to.
This Court rejected that plea and upheld the decision of the Tribunal observing that "the argument that every addition or reduction in the number of the members of the family requires redetermination of the ceiling area of such a family would mean an almost perpetual fixation and re fixation in the ceiling area by the Revenue authorities, a state of affairs hardly to have been contemplated by the Legislature".
This conclusion was reached by this Court without the aid of any provision in the Act at the relevant time corresponding to the second paragraph of the new section 3(2) of the Act.
This case was no doubt one relating to a claim based on the birth of three children.
In principle it applies to the case where the number of members of a family decreases on account of death of any of its members, as observed by the Court.
On the same analogy it has to be held that the death of a person after the appointed day also would make no difference so far as the liability of his holding to part with the surplus land is concerned.
Hence it has to be held that the introduction of the second paragraph of the new section 3(2) does not lead to any conclusion different from the one which we have reached in this appeal.
In view of the foregoing, the decision of the High Court of Bombay in Dadarao Kashiram 's case (supra) cannot be considered as a correct one and we, therefore, overrule it.
The High Court was right in the present case in holding that the proceedings commencing with the return filed by Bhikoba could not be dropped merely because he died before a notification was issued under section 21 of the Act.
The proceedings have to be continued and the surplus land in the hands of Bhikoba as on the appointed day should be determined and taken possession of in 234 accordance with law.
The heirs of Bhikoba are entitled to participate in the said proceedings representing the estate of Bhikoba.
They would be entitled as heirs at law only such land that may remain after surrendering the surplus land as may be determined under the Act.
In the result, the appeal fails and is hereby dismissed.
No costs.
S.R. Appeal dismissed.
| IN-Abs | Bhikoba, the tenant (the predecessor of the appellants), as required by section 12 of the Maharashtra Land Ceiling Act, filed before the Special Deputy Collector a return in the prescribed form furnishing particulars of land including the extent of 21 acres 28 guntas bearing Survey No. 34 in his possession on the appointed day, that is, January 26, 1962.
After recording the statement of Bhikoba and considering all the other relevant material before him, the Special Deputy Collector found that Bhikoba was in possession of surplus land to the extent of 132 acres 1 guntas, as per his order dated March 27, 1965.
The appeal filed by Bhikoba was partly allowed by the appellate authority by its order dated April 13, 1966 and the matter was remanded to the Special Deputy Collector with certain directions.
Thereafter Bhikoba died on January 31, 1969.
On June 27, 1969, the Special Deputy Collector after hearing the legal representatives held that Bhikoba was a surplus holder of land to the extent of 16 acres and 26 guntas.
An appeal against that order filed by the four sons of Bhikoba was dismissed on November 4, 1970 as premature, since the holders had not yet exercised their choice under section 16(2) of the Act and a declaration under section 21 had not yet been made.
When a notice was issued under section 16 of the Act to the heirs of Bhikoba to exercise their choice in respect of the land to be retained by them out of Bhikoba 's holding to the extent of the ceiling area, the heirs of Bhikoba filed objections on November 23, 1971 pleading, inter alia, that a holder of land in excess of the ceiling prescribed by the Act would be divested of his title to the surplus land only when its possession was taken from him after the publication of the notification under section 21 of the Act and since such notification had not yet been published and possession of the surplus land had not been taken, Bhikoba continued to be the owner of the entire land till his death and that as inheritance could not remain in abeyance, his heirs at law became entitled to the 219 entire land and that if a fresh determination was then made there would be no surplus land at all in their hands which had to be surrendered.
The Special Deputy Collector accepted the plea of the heirs of Bhikoba and dropped further proceedings by his order dated March 13, 1973.
Respondents 1 to 4, former landlords, who would have become entitled to claim relief under the Act at the time when the distribution of surplus land held by Bhikoba was taken up for consideration preferred an appeal against the order of the Special Deputy Collector dropping the proceedings, before the Maharashtra Revenue Tribunal.
The Tribunal dismissed the appeal by its judgment dated January 31, 1975.
A petition filed under Article 227 of the Constitution before the High Court of Bombay challenging the decision of the Tribunal was allowed by the High Court by its judgment dated July 30, 1980 and the matter was remanded to the Special Deputy Collector to continue the proceedings commenced on the basis of the return filed by Bhikoba.
Hence the appeal by special leave.
Dismissing the appeal, the Court ^ HELD: 1.
Respondents 1 to 4 had locus standi to file not only an appeal before the Maharashtra Revenue Tribunal but also later on a petition under Article 227 of the Constitution before the High Court.
It is no doubt true that at the first instance the land which is declared a surplus land in the hands of any person would vest in the State Government under the Land Ceiling Act.
But the said land had to be distributed in accordance with the provisions contained in Chapter VI of the Act.
Any person who is entitled to grant of land under any of the provisions of the Act may question any order which would have the effect of reducing the extent of total surplus land in any village.
Respondents 1 to 4 were the former landlords of the land bearing Survey No. 34 which formed part of the holding of Bhikoba in the instant case.
They cannot, therefore, be characterised as just strangers to these proceedings.
[226 F H, 227 A B] 2.
It is very hazardous to decide cases in which proprietary rights arise for determination on the basis of decisions rendered under taxation laws which have their own peculiarities.
The Land Ceiling Act is not one levying tax on the income during the previous year or previous years or of a period other than the previous year in the hands of an assessee but a Law imposing a ceiling on the holding of a person or a family as on a specified date.
The Act has to be construed in accordance with its scheme and object which is equitable distribution of land in the hands of those who held land in excess of the ceiling limit on the appointed day, or those who would acquire subsequently land in excess of the ceiling or those who own lands which exceed the ceiling limit by reason of their conversion into a different class.
[227 E G] In order to achieve that object the Legislature enacted sections 3 and 4 of the Act declaring that no person could on or after the appointed day hold land in excess of the ceiling area and compelling every person acquiring or coming into possession of any land in excess of the ceiling area on or after the appointed day to file a return before the Collector furnishing particulars of all land held by him.
[227 G H, 228 A] 220 3. 1.
A close reading of the provisions contained in sections 3, 4 and 18 to 21 of the Land Ceiling Act shows that the determination of the extent of surplus land of a holder has to be made as on the specified date which is made further clear by the following requirements under section 12 of the Act.
If any person has at any time after the fourth day of August, 1959 but before the appointed day held any land (including any exempted land) in excess of the ceiling area, such person should file a return within the prescribed period from the appointed day furnishing to each of the Collectors within whose jurisdiction any land in his holding is situated, in the form prescribed containing the particulars of all land held by him.
If any person acquires, holds or comes into possession of any land (including any exempted land) in excess of the ceiling area on or after the appointed day, such person has to furnish a return within the prescribed period from the date of taking possession of any land in excess of the ceiling area.
If any person whose land is converted into another class of land in the circumstances described in section 11 A (formerly numbered as section 11) thereby causing his holding to exceed the ceiling area then such person has to file a return within the prescribed period from the date of such conversion (such date being a date to be notified in the Official Gazette by the State Government in respect of any area).
[228 F H, 229 A B] 3:2.
If a person is found to be in possession of land in excess of the ceiling area at any time after the fourth day of August, 1959 but before the appointed day, he incurs the liability to surrender any surplus land as on the appointed day itself even though the actual extent of such surplus land is determined on a subsequent date.
Similarly those who acquire land in excess of the ceiling area on or after the appointed day would become liable to surrender surplus land on the date of taking possession of any land in excess of the ceiling area.
A person whose case falls under section 11 A of the Act becomes liable to surrender any surplus land in his possession as on the date of conversion of land into irrigable land.
[229 D F] 3:3.
The liability to surrender surplus land would not in any way come to an end by reason of the death of such holder before the actual extent of surplus land is determined and notified under section 21 of the Act.
Section 21 of the Act, no doubt, states that the title of the holder in the surplus land would become vested in the State Government only on such land being taken possession of after a declaration regarding the surplus land is published in the Official Gazette.
But the liability to surrender the surplus land, however, relates back to the appointed day in the case of those who fall under section 12(1) (a) of the Act, to the date of taking possession of any land in excess of the ceiling area in the case of those who come under section 12(1) (b) of the Act and to the date of conversion of land into a different class in the case of those who come under section 12(2) of the Act.
Any other construction would make the Act unworkable and the determination of the extent of surplus land of a holder ambulatory and indefinite.
[229 F H, 230 A] 3:4.
Further, section 8 of the Act prohibits transfer or partition of any land held by a person holding land in excess of the ceiling area on or after the appointed day until the land in excess of the ceiling is determined under the Act.
Section 10 provides that if any person after the fourth day of August, 1959 but 221 before the appointed day transferred or partitioned any land in anticipation of or in order to avoid or defeat the objects of the Act or any land is transferred or partitioned in contravention of provisions of section 8 then in calculating the ceiling area which that person is entitled to hold the area so transferred or partitioned should be taken into consideration and land exceeding the ceiling area so calculated should be deemed to be in excess of the ceiling area for that holding notwithstanding the land remaining with him may not in fact be in excess of the ceiling area.
[230 B D] 3:5.
The expression 'holding ' used in sections 3, 5, 6 and 10 shows that the statute treats a holding as a unit for purposes of determination of surplus land which can be acquired from such holding.
Section 2(14) which defines the expression 'to hold land ' as 'to be lawfully in actual possession of land as owner or tenant ' requires that the expression 'holding ' should be construed accordingly.
Section 3 of the Act expressly imposes a limit on the holding of agricultural land on the commencement of the Act.
The extent of surplus land which the Government can acquire under the Act from a holder cannot therefore be made to depend upon the date on which a declaration indicating the extent of surplus land is notified in the Official Gazette under section 21 and the date on which such surplus land is taken possession of.
It cannot be also made to depend upon the holder who has incurred the liability on the relevant date being alive on the date on which the declaration is made under section 21 and possession of surplus land is taken.
The proceedings initiated by a return filed by a holder cannot be dropped if such holder dies before a declaration is made under section 21 and surplus land is taken possession of.
To hold otherwise would frustrate the very object and purposes of the Act.
[230 D H] 3:6.
The surplus land in the case of a person who at any time after the fourth day of August, 1959 but before the appointed day held any land (including any exempted land) in excess of the ceiling area has got to be determined as on the appointed day even though such person may die before the actual extent of surplus land is determined and notified under section 21 of the Act.
The persons on whom his 'holding ' devolves on his death would be liable to surrender the surplus land as on the appointed day because the liability attached to the holding of the deceased would not come to an end on his death.
The heirs of the deceased cannot be permitted to contend to the contrary and allowed to get more land by way of inheritance that what they would have got if the death of the person had taken place after the publication of the notification under section 21.
[231 G H, 232 A C] Raghunath Laxman Wani & Ors.
vs State of Maharashtra & Ors.
, ; , applied.
The introduction of the second paragraph of the new section 3(2) does not alter the position as to the true legal position and scope of section 21 of the Act.
The said paragraph was introduced by way of abundant caution to get over the possible objection raised on the basis of the decision in the case of Dadarao Kashiram.
The said paragraph is merely declaratory of what the true legal position had always been even from the commencement of the Act.
The said paragraph in the new section 3(2) refers to two contingencies (i) the death of a person who was holding land in excess of the ceiling limit; and (ii) the death 222 of any member of a family unit owning land in excess of the ceiling on the appointed day.
It provides that the death of the person or the death of a member of the family unit as the case may be should be ignored.
The death of a person after the appointed day also would make no difference so far as the liability of his holding to part with a surplus land is concerned.[232 F H, 233 A, E F] 3:8.
In the instant case, (i) the proceedings commencing with the return filed by Bhikoba could not be dropped merely because he died before a notification was issued under section 21 of the Act.
The proceedings have to be continued and the surplus land in the hands of Bhikoba as on the appointed day should be determined and taken possession of in accordance with law; (ii) the heirs of Bhikoba are entitled to participate in the said proceedings representing the estate of Bhikoba and (iii) they would be entitled as heirs at law only such land that may remain after surrendering the surplus land as may be determined under the Act.
[233 G H, 234 A B] Dadaro Kashiram vs The State of Maharashtra, , overruled.
|
iminal Appeal No. 278 of 1975.
Appeal by special leave from the judgment and order dated the 16th October, 1974 of the Madhya Pradesh High Court in Misc.
Criminal Case No. 786 of 1974.
Gopal Subramaniam for the Appellant.
P.D. Sharma, for the Respondent.
The Judgment of the Court was delivered by: SEN, J.
The short question involved in this appeal by special leave from the judgment and order of the Madhya Pradesh High Court is, whether an application for 'leave ' to appeal under sub section
(3) of section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code '), without which no appeal under sub section
(1) or sub section
(2) thereof can be entertained, being an integral part of the appeal must be laid before a Bench of two Judges of the High Court, under r. 1 (q) (ii), Chap.
I, Part I, of the Madhya Pradesh High Court Rules, or can be heard and disposed of by a Single Judge of the High Court under r. 1 (q) of the Rules.
The material facts giving rise to the appeal are these.
The State Government of Madhya Pradesh having decided to prefer an appeal under sub section
(1) of section 378 of the Code, filed an application for 'leave ' to appeal under sub section
(3) thereof, setting out therein the grounds of appeal.
According to the practice prevalent in the Madhya Pradesh High Court, the application was listed before a Single Judge, as per rule 1 (q), Chapter I, Part I of the Madhya Pradesh.
High Court Rules, The learned Single Judge refused to grant leave to appeal under sub section
(3) of section 378 on the ground that the judgment of acquittal was based on appreciation of evidence and was not perverse or unreasonable.
The State Government applied for grant of a certificate under article 134 (1) (c) of the Constitution.
The application for grant of a certificate was placed before and heard by a Division Bench.
The contention on behalf of the State Government was that an application for grant of leave under sub section
(3) of section 378 of the Code must be treated as a part of the appeal preferred by the State Government under sub section
(1) thereof, and 84 therefore, should have been placed before a Bench of two Judges and consequently the order of the learned Single Judge rejecting the application for grant of leave under sub section
(3) of section 378 of the Code was a nullity.
The Division Bench, following the decision of another Division Bench in the State of Madhya Pradesh vs Narendrasingh, rejected the contention of the State that the learned Single Judge had no jurisdiction to entertain or decide the application for leave to appeal under sub section
(3) of section 378 of the Code.
It however, noticed the incongruity of the requirement that an appeal under sub section
(1) or sub section
(2) of section 378 should be placed before a Bench of two Judges under r. 1 (q) (ii) of the Madhya Pradesh High Court Rules and the hearing and disposal of an application for leave under sub s (3) thereof should be by a Single Judge, and observed: "The matter is being examined by the rule making Committee.
It is rather anomalous that under rule 1 (q) item (ii) of Chapter I of the Madhya Pradesh High Court Rules, an appeal against acquittal filed by the State Government has to be heard by a Division Bench, still the application for leave under section 378 (3) of the Code should be laid before a Single Judge.
" As the case involved an important question relating to procedure and practice, and as the correctness of the decision of the High Court in Narendrasingh 's case was open to question, special leave was granted by this Court.
It appears that a practice was prevalent in the Madhya Pradesh High Court, requiring the State Government or the Central Government, desirous of preferring an appeal under sub section
(1) or sub section
(2) of section 378 of the Code, to make an application for leave under sub section
(3) thereof, and it was registered as a Miscellaneous Criminal Case and treated as a petition and as such placed before a Single Judge for hearing as per r. 1 (q), Chap.
I, Part 1, of the Madhya Pradesh High Court Rules.
It was only when the Single Judge granted leave to appeal under sub section
(3), that the petition for Leave was registered as a Criminal Appeal and placed before a Division Bench for admission under sub section
(1) of section 384 of the Code.
85 The contention that there was inherent lack of jurisdiction on the part of a Single Judge to hear and decide an application for leave under sub section
(3) of section 378 of the Code and, therefore, the proceedings were null and void is based on the provisions contained in r. 1 (q)(ii), Chap.
I, Part I, of the Madhya Pradesh High Court Rules, which read as follows: "l.
The following matters shall ordinarily be heard and disposed of by a Judge sitting alone: xx xx xx xx (q) An appeal, petition or reference under the Code of Criminal Procedure, other than; xx xx xx xx (ii) an appeal by the Provincial Government under section 417 of the Code from an order of acquittal.
" The heading of Chap.
I in which the rule finds place is "Jurisdiction of a Single Judge and of Benches of the Court.
" It is urged that any breach of the rule would render the judgment a nullity.
Rule 4 of the said Rules provides that 'Save as provided by law or by rules or by special orders of the Chief Justice, all matters shall be heard and disposed of by a Bench of two Judges '.
By reason of section 8 (2) of the , reference to an appeal against acquittal under section 417 (1) of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the old Code ') by the Provincial Government has to be read as an appeal against acquittal by the State Government under sub section
(1) of section 378.
It is contended on behalf of the State Government that the making of an application for leave under sub section
(3) of s 378 of the Code is tantamount to filing an appeal under sub section (1) thereof, and the High Court can grant leave and entertain the appeal at one and the same time, inasmuch as such an application by the State Government under sub section
(3) is transmuted into an appeal against acquittal under sub section
(1) of section 378, when leave is granted under sub section
(3) and, therefore, the application for leave under sub section (3) had to be heard by a Bench of two Judges.
It is urged that a com 86 parison of the language employed in sub sections
(3) and (4) of section 378 would make it clear that the Parliament never intended, in the case of an acquittal, that the State Government should first make an application for leave under sub (3) of section 378, and then, if leave is granted, present an appeal under sub section
(1) of section 378.
It is further urged that the jurisdiction of a Single Judge is limited by the words 'other than ' in r. 1 (q) of the Madhya Pradesh High Court Rules, and an appeal preferred by the State Government under sub section
(1) of section 37.8 of the Code could be heard and decided only by a Bench of two Judges as required by r. 1 (q) (ii) of the Rules.
The submission advanced on behalf of the respondents, on the other hand, is that the introduction of the new provision in sub section
(3) of section 378 and the use of the words 'leave of the High Court ' and the word 'entertained ' clearly indicates the legislative intent to prescribe for two different stages: (1) the making of an application for leave under sub section
(3) of section 378, and (2) then, if leave is granted, presenting the petition of appeal under section 382 of the Code.
It is urged that the State Government must obtain 'leave ' of the High Court under sub section
(3) of section 3.78, before an appeal against acquittal is preferred under sub section
(1) thereof, as in the case of a private complainant under sub section
(4) of section 378, and the difference in language in sub section (3) and sub section
(4) is of little consequence.
In Narendrasingh 's case, the State Government being.
desirous of preferring an appeal against acquittal under sub section
(1) of section 378, made an application for grant of leave under sub section
(3) and the proposed memorandum of appeal was annexed thereto.
An application was filed on behalf of the State Government stating that the prayer for grant of leave under sub section
(3) be treated as a part of the appeal itself and not separately.
It was further prayed that the case, which had originally been registered as a Miscellaneous Criminal Case relating to the grant of leave, should be registered as a 'Criminal Appeal '.
The matter was, therefore, placed before a Division Bench.
The learned Judges of the High Court referred to the report of the Law Commission and observed that the legislative object in re enacting the provisions of section 417 of the old Code with the addition of the new provision contained in sub section
(3) 87 of section 378 of the Code, was that there had to be a further scrutiny of a State appeal by the Court even prior to the stage of admission, requiring the Court to consider at the very outset whether the appeal should be entertained or not.
It was only after the appeal was entertained with the 'leave ' of the Court that it had to be heard for admission and it may be dismissed summarily without notice to the other side.
It was further observed that the legislature brought about the change while accepting the recommendation of the Law Commission to retain the power of the High Court to dismiss State appeals summarily without notice to the respondents.
In substance, the decision in Narendrasingh 's case, as expressed in the words of the learned Judges, may be thus stated: "(A) the very outset on an appeal against acquittal being lodged by the State, the High Court is to consider whether leave should be granted or not.
It is only when leave is granted under section 378(3) that the appeal is entertained.
On the appeal being so entertained as a con sequence of the grant of leave, it is to be listed for admission and in case it is not dismissed summarily under section 384 (1) notice is to be issued to the accused under section 385 (1) (iv).
xx xx xx xx The appeal being entertained only on the grant of leave under sec.
378 (3), the matter relating to grant of leave has to be ordinarily heard and disposed of by a Single Bench of this Court according to Rules.
The appeal itself being entertained only when leave is granted, there is, in fact, no appeal as such till the leave is granted, even though it may have been lodged while praying for leave.
The matter has, therefore, to be initially registered only as a 'Miscellaneous Criminal Case ' and it is only when the leave is granted resulting in the appeal being entertained that it can be registered as a criminal appeal.
Thereafter it has to be listed before the Division Bench for admission.
" In making these observations the learned Judges appear to have been swayed by a practice which was prevalent in their Court.
88 The jurisdiction of the Court in these matters is, however, statutory and the Court is not entitled to go outside the provisions of a statute but must interpret them as they are.
The answer to the question involved must turn on a proper construction of sub section
(3) of section 378 of the Code.
Section 378 of the Code corresponds to section 417 of the old Code, as amended in 1955.
Sub section
(1) of section 378 of the Code is in terms the same as sub section
(1) of section 417 of the old Code and it provides that 'Save as otherwise provided in sub section
(2) and subject to the provisions of sub sections
(3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by a court other than a High Court '.
Sub section
(2) of section 378 corresponds to sub section
(2) of section 417 and confers the right of appeal on the Central Government in certain class of cases subject to the provisions of sub section
(3) from such an order of acquittal.
Sub section (3) of section 378 is a new provision inserted to implement the recommendation of the Law Commission made in its 48th Report on Appeals against Acquittals, and provides that: "3.
No appeal under sub section
(1) or sub section
(2) shall be entertained except with the leave of the High Court.
" Sub section
(4) and sub section
(5) deal with an order of acquittal passed in any case instituted upon a complaint.
Sub section
(4) provides that if an order of acquittal is passed in such a case, and the High Court on an application made to it by the complainant in that behalf, grants 'special leave ' to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
Sub section
(5) provides for two distinct periods of limitation.
No application under sub section
(4) for grant of special leave to appeal from an order of acquittal in a complaint case shall be entertained by the High Court at the expiry of six months where the complainant is a public servant and sixty days in other cases computed from the date of the order of acquittal.
There is no period of limitation prescribed for presenting an application for grant of leave to appeal under sub section
(3) of section 378 from an order of acquittal passed in a case instituted otherwise than upon a complaint, obviously because the Code does not contemplate the making of an application for leave under sub section
(3) of section 378 of the Code.
Thus, the period of limita 89 tion in such a case, is for an appeal from an order of acquittal Under sub section
(1) or sub section
(2) of section 378 of the Code, as prescribed by article 114 of the .
The period of limitation prescribed therefor is sixty days from the date of the order appealed from.
Under the scheme of the Code, the State Government or the Central Government may prefer an appeal under sub section
(1) or sub section
(2) of section 378 of the Code, but such appeal shall not be entertained unless the High Court grants 'leave ' under sub section
(3) thereof.
The words 'No appeal under sub section
(1) or sub section
(2) shall be entertained ' used in sub section
(3) of section 378 create a qualified bar to the entertainment of an appeal filed by the State Government or the Central Government under sub section
(1) or sub section
(2) from an order of acquittal passed in a case instituted otherwise than upon a complaint.
The Code, by enacting sub section
(3) of section 378, therefore, brought about a change in that there is no longer an unrestricted right of appeal against the orders of acquittal passed in such cases.
The making of an application for grant of leave to appeal by the State Government or the Central Government under sub section
(3) of section 378 is, however, not a condition precedent to the entertainment of such an appeal.
The prayer for grant of leave under sub section
(3) may, as it should, be contained in the petition of appeal filed under section 382 of the Code.
There is no warrant for the view expressed by the High Court in Narendrasingh 's case that the legislative object in re enacting the provisions of section 417 of the old Code with the addition of the new provision contained in sub section
(3) of section 378 of the Code, was that there was to be a preliminary scrutiny of a State appeal by the Court even prior to the stage of admission, requiring the Court to consider at the very outset whether the appeal should be entertained or not, and that it was only after the appeal was entertained with the leave of the Court that it was to be heard for admission under sub section
(1) of section 384 read with sub section
(1) of section 385 of the Code.
The High Court appears to rest its decision more on the Report of the Law Commission than the actual language of sub section
(3) of section 378 of the Code, in coming to the conclusion that sub section
(3) contemplated two stages.
Sub section
(3) of section 378 is not susceptible of any such construction.
The Law Commission in its 48th Report had observed.
90 "While one may grant that cases of unmerited acquittals do arise in practice, there must be some limit as to the nature of cases in which the right should be available." And, keeping in view the general rule in most common law countries not to allow an unrestricted right of appeal against acquittals, it recommended: "With these considerations in view, we recommend that appeals against acquittals under section 417, even at the instance ' of the Central Government or the State Government, should be allowed only if the High Court grants special leave.
It may be pointed out that even now the High Court can summarily dismiss an appeal against an acquittal, or for that matter, any criminal appeal.
(Section 422, Criminal P.C.).
Therefore, the amendment which we are recommending will not be so radical a departure as may appear at the first sight.
It will place the State and the private complainant on equal footing.
Besides this, we ought to add that under section 422 of the Code, it is at present competent to the appellate Court to dismiss the appeal both of the State and of the complainant against acquittal at the preliminary hearing.
" The recommendations of the Law Commission were not, however, fully carried into effect.
Sub section
(3) of section 378 of the Code was introduced by Parliament to create a statutory restriction against entertainment of an appeal filed by the State Government or the Central Government under sub section
(1) or sub section
(2) of section 378 from an order of acquittal passed in a case instituted otherwise than upon complaint.
At the same time, Parliament re enacted sub sections
(3) and (4) of section 417 as sub sections
(4) and (5) of section 378, which deal with an order of acquittal passed in any case instituted upon a complaint.
The result of this has been that there is a difference in the procedure regulating entertainment of State appeals against acquittals under sub section
(1) or sub section
(2) of section 378 and appeals against acquittals filed by a complainant under sub section
(5) of section 378.
On a comparison of the language employed in sub section
(3) and sub section
(4) of section 378, it is clear that the legislature has chosen to treat State appeals in a manner different 91 from appeals by a complainant in the matter of preferring appeals against acquittals.
In the case of an appeal from an order of acquittal passed in a case instituted otherwise than upon complaint preferred by the State Government or the Central Government under sub section
(1) or sub section
(2) of s 378, the Code does not contemplate the making of an application for leave under sub section
(3) thereof, while the making of an application under sub section
(4) of section 378 is a condition precedent for the grant of 'special leave ' to a complainant under sub section
(5), The difference in language used in sub section
(3) and sub section
(4) of section 378 manifests the legislative intent to preserve a distinction between the two classes of appeals by prescribing two different procedures in the matter of entertainment of appeals against acquittals.
It, therefore, follows that the State Government or the Central Government may, while preferring an appeal against acquittal under sub section
(1) or sub section
(2) of section 378, incorporate a prayer in the memorandum of appeal for grant of leave under sub section
(3) thereof, or.
make a separate application for grant of leave under sub section
(3) of section 378, but the making of such an application is not a condition precedent for a State appeal.
In the State of Rajasthan vs Ramdeen & Ors., this Court dealt with a case where the Rajasthan High Court granted the State Government leave to appeal under sub section
(3) of section 378 of the Code, but dismissed the appeal filed thereafter on the ground that it had not been filed within ninety days from the judgment appealed from and was therefore barred by limitation under article 114 of the .
The application for grant of leave under sub section
(3) contained all the requisites of a memorandum of appeal and had been filed within ninety days from the date of order of acquittal but was not accompanied by a petition of appeal.
It was held that an appeal under sub section
(1) of section 378 was an integral part of an application for leave to appeal under sub s (3): Accordingly, the order passed by the High Court dismissing the appeal as barred by limitation was set aside.
In dealing with the question, it was observed: "Under the law it will be perfectly in order if a composite application is made giving the necessary facts and circumstances of the case along with the grounds which may be urged in the appeal with a prayer for leave to enter 92 tain the appeal.
It is not necessary, as a matter of law, that an application for leave to entertain the appeal should be lodged first and only after grant of leave by the High Court an appeal may be preferred against the order of acquittal.
If such a procedure is adopted, as above, it is likely, as it has happened in this case, the appeal may be time barred if the High Court takes more than ninety days for disposal of the application for leave.
The possibility that the High Court may always in such cases condone the delay on application filed before it does not, in law, solve the legal issue.
The right conferred by section 378 (1), Cr.
P.C., upon the State to prefer an appeal against acquittal will be jeopardised if such a procedure is adopted, for in certain cases it may so happen that the High Court may refuse to exercise its discretion to condone the delay.
The right conferred under the section cannot be put in peril by an interpretation of section 378 Cr.
P.C., which is likely to affect adversely or even perhaps to destroy that right.
" The view expressed by the High Court in Narendrasingh 's case being in conflict with the decision of this Court in Ramdeen 's case must be overruled.
It must accordingly be held that the learned Single Judge had no competence to entertain, hear or dispose of the question of grant of leave under sub section
(3) of section 378, as it had virtually entailed dismissal of the appeal preferred by the State Government under sub section
(1) thereof.
The matter should have been dealt with by a Bench of two Judges in terms of r. 1 (q) (ii), Chap.
1, , of the Madhya Pradesh High Court Rules.
The question at issue has now become academic.
As already stated, the High Court while refusing the grant of certificate of fitness, had adverted to the fact that the matter was being examined by the Rule Making Committee.
It has since amended r. 1 (q) and made a distinction between appeals from orders of acquittals under sub section
(1) of section 378 in respect of: (1) offences punishable with sentence of death or imprisonment for life and triable by Court of Sessions, and (2) other offences.
All appeals falling under category (1), together with applications for leave under sub section
(3) of section 378, have to be heard by a Bench of two Judges, and other appeals falling under category (2), together with applications for leave under sub s, (3) of section 378, are to be heard by a Single Judge.
93 In the result, the appeal must succeed and is allowed.
The order passed by the High Court, dismissing the application for leave under sub section
(3) of section 378 of the Code of Criminal Procedure, 1973, filed by the State Government of Madhya Pradesh, is set aside, and it is directed that the application shall be dealt with by a Bench of two Judges as required by r. 1 (q) (ii), Chap.
I, Part I, of the Madhya Pradesh High Court Rules, prior to its amendment.
H.L.C. Appeal allowed.
| IN-Abs | The Code of Criminal Procedure, 1973, provides inter alia, by sub section
(3) of section 3.8 that no appeal against an order of acquittal passed by a lower court shall be entertained under sub section
(1) or sub s.(2) except with the leave of the High Court.
A practice was prevalent in the Madhya Pradesh High Court, requiring the State Government or the Central Government, desirous of preferring an appeal under sub section
(1) or sub section
(2) of section 378 of the Code, to make an application for leave under sub section
(3) thereof, and it was registered as a Miscellaneous Criminal Case and treated as a petition and as such placed before a Single Judge for hearing as per r. 1 (q), Chapter I, Part I, of the Madhya Pradesh High Court Rules.
It was only when the Single Judge granted leave to appeal under sub section
(3), that the petition for leave was registered as a Criminal Appeal and placed before a Division Bench for admission under sub section
(1) of section 384.
The State Government of Madhya Pradesh having decided to prefer an appeal under sub section
(1) of section 378 filed an application for leave to appeal under sub section
(3) setting out therein the grounds of appeal and the Single Judge who heard it refused to grant the leave.
The State Government made an application for grant of certificate under Article 134 (1) (c) of the Constitution.
The application was heard by a Division Bench.
The contention was that there was inherent lack of jurisdiction on the part of the Single Judge to hear and decide an application for leave under sub section
(3) of section 378 of the Code, inasmuch as under r. 1 (q) (ii) of the Madhya Pradesh High Court Rules, Chapter I, Part 1, the matter had to be dealt with by a Bench of two Judges.
The High Court, following its earlier decision in State of Madhya Pradesh vs Narendrasingh, (1974) MPLJ (N) 102, rejected the contention, holding that the State had to obtain 'leave ' of the High Court under sub section
(3) of section 378, before an appeal against acquittal was preferred under sub section (1) thereof and therefore the learned Single Judge had jurisdiction to deal with tho application for leave under sub section
82 In appeal to this Court the State Government contended that the making of an application for leave under sub section
(3) of section 378 is tantamount to filing an appeal under sub section
(1) thereof, that the High Court could grant leave and entertain the appeal at one and the same time inasmuch as an application under sub section
(3) would be transmuted into an appeal under sub section
(1) when leave is granted under sub section (3) and, therefore, the application for leave under sub section
(3) must have been laid before a Bench of two Judges under r. 1 (q) (ii) of the High Court Rules.
Allowing the appeal, ^ HELD: 1.
An application for 'leave ' to appeal under sub section
(3) of section 378 without which no appeal under sub section
(I) or sub section
(2) thereof can be entertained, being an integral part of the appeal, must be laid before a Bench of two Judges of the High Court under r. 1 (q) (ii), Chapter I, Part I of the Madhya Pradesh High Court Rules (as it stood before the amendment) and could not be heard and disposed of by a Single Judge of the High Court under r. 1 (q) of the Rules, as it stood prior to its amendment.
[92 E F; 83 D] 2.
Sub section
(3) of section 378 was introduced by Parliament to create a statutory restriction against entertainment of an appeal filed by the State Government or the Central Government under sub section
(1) or sub section
(2) thereof from an order of acquittal passed in a case instituted otherwise than upon a complaint.
T here is a difference in the procedure regulating entertainment of State appeals under sub section
(1) or sub section
(2) of section 378 and appeals against acquittals filed by a complainant under sub section
(4) of section 378.
On a comparison of the language employed in sub section
(3) and sub section
(4) of section 378, it is clear that in the case of an appeal by the State Government or the Central Government under sub section
(1) or sub section
(2), the Code does not contemplate the making of.
an application for leave under sub section
(3) while making of an application under sub section
(4) is a condition precedent for the grant of special leave to a complainant under sub section
The difference in language used in sub section
(3) and sub section
(4) of section 378 manifests the legislative intent to preserve a distinction between the two classes of appeals by prescribing two different procedures in the matter of entertainment of appeals against acquittals.
While a period Of limitation has been prescribed in sub section
(5) of section 378 for an application of the complainant under sub section
(4), there is no period of limitation prescribed for an application for grant of Leave to appeal under sub section
(3), obviously because the Code does not contemplate the making of an application for leave under sub section
(3) of section 378.
It, therefore, follows that the State Government or the Central Government may, while preferring an appeal under sub section
(1) or sub section
(2) of section 378 incorporate a prayer in the memorandum of appeal for grant of leave under sub section
(3) thereof, or make a separate application for grant of leave under sub section
(3) of section 378, but the making of such an application is not a condition precedent for a State appeal.
[90 F H; 91 A C; 88 G H; 91 C D] State of Madhya Pradesh vs Narendra Singh, [1974] MPLJ (N) 102 over ruled.
State of Rajasthan vs Ramdeen & ors.
[1977] 3 S.C.R. 139 relied on. 83
|
Civil Appeal No. 1282 of 1976.
246 From the Judgment and Decree dated the 8th and 9th January 1976 of the Karnataka High Court in Misc.
First Appeal No. 19 of 1973.
K.N. Bhatt for the Appellant.
K.C. Dua for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
This appeal by certificate of fitness arises out of the judgment of the Karnataka High Court dated January 9, 1976 in Misc.
First Appeal No. 19 of 1973.
On April 5, 1970, the appellant 's husband was driving a scooter, MYL 8574, on the Kasturba Road, Bangalore, when a goods truck, MYT 3298, knocked him dead.
The owner of the truck had taken a statutory insurance policy with the respondent.
The Premier Insurance Co. Ltd., Gandhinagar, Bangalore, which was operative from June 30, 1969 to June 29, 1970.
The appellant filed an application before the Motor Accidents Claims Tribunal, Bangalore, under section 110 A of the , seeking compensation for her husband 's death.
The respondent denied its liability on the ground, amongst others, that its record did not disclose that it had issued any insurance policy in respect of the particular truck.
On a consideration of the entire evidence, the Tribunal passed an award on November 20, 1972, holding that the appellant was entitled to recover compensation in the sum of Rs. 60,000 for herself and her children.
The Tribunal limited the liability of the respondent insurer to a sum of Rs. 50,000.
The respondent filed an appeal in the High Court contending that on the date on which the insurance policy was alleged to have been issued by it, its statutory liability was limited to a sum of Rs. 20,000 only and, therefore, the Tribunal was in error in passing an award against it in the sum of Rs. 50,000.
This contention was accepted by the High Court and hence this appeal by the claimant.
Chapter VIII of the (The Act), bears the heading "Insurance of motor vehicles against third party risks".
By section 94 (1) of the Act, no person can use a motor 247 vehicle in a public place, except as a passenger, unless there is in force in relation to the use of the vehicle a policy of insurance complying with the requirements of the chapter.
Section 95 prescribes the requirements of the insurance policy and the "limits of liability" thereunder.
Broadly, by sub section (1) of section 95, a policy of insurance must insure the person or classes of persons specified in the policy to the extent specified in sub section (2) against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place.
Section 95 (2) (a) of the Act, with which alone we are concerned in this appeal, was originally cast thus: "95 (2) Subject to the proviso to sub section (1), a policy of insurance shall cover any liability incurred in respect of any one accident upto the following limits, namely (a) where the vehicle is a vehicle used or adapted to be used for the carriage of goods, a limit of twenty thousand rupees.
" This section was amended by Amendment Act 100 of 1956 which, inter alia, introduced therein the words "in all" after the words "twenty thousand rupees".
We are not concerned with that amendment.
What we are concerned with is the amendment made to clause (a) of section 95 (2) by the Motor Vehicles (Amendment) Act 56 of 1969, which substituted therein the word "fifty" for the word "twenty".
Section 95 (2) (a) so amended reads thus: "95 (2) Subject to the proviso to sub section (1), a policy of insurance shall cover any liability incurred in respect of any one accident upto the following limits, namely: (a) where the vehicle is a goods vehicle, a limit of fifty thousand rupees in all. ." Thus, the insurer 's liability under the statutory policy was increased by this amendment from twenty thousand rupees to fifty thousand rupees.
The amendment came into force on March 2, 1970.
248 The question which arises for consideration is whether the insurer 's liability for third party risks under the statutory policy must be held to be limited to Rs. 20,000 according to the relevant legal provision as it existed on the date on which the policy came into force or, whether, that liability can be extended to Rs, 50,000 in accordance with the legal provision as it stood on the date of the accident, the accident having occurred during the currency of the policy.
The relevant dates which have to be borne in mind in this behalf are these: The insurance policy came into force on June 30, 1969 and covered the period from June 30, 1969 to June 29, 1970; the amendment by which the statutory liability of the insurer was increased from Rs. 20,000 to Rs. 50,000 came into force on March 2, 1970, and the accident which gave rise to these proceedings occurred on April 5, 1970.
The High Court, in its judgment, has referred to the principles governing retrospective of statutes and has held by the application of those principles that the amendment introduced by Amending Act 56 of 1969 is prospective in nature and cannot be given any retrospective effect.
We consider that the High Court, with respect, has failed to appreciate the true nature of the issue before it.
The certificate of insurance, Exhibit p.9, which was issued by the respondent 's agent on May 31, 1969 for the period June 30, 1969 to June 29, 1970 shows that the respondent insurer had undertaken "liability as the one under Chapter VIII of the ".
That must mean liability as determinable under Chapter VIII at the relevant time, that is to say, at the time when the liability arises.
Since the liability of the insurer to pay a claim under a motor accident policy arises on the occurrence of the accident and not until then, one must necessarily have regard to the state of the law obtaining at the time of the accident for determining the extent of the insurer 's liability under a statutory policy.
In this behalf, the governing factor for determining the application of the appropriate law is not the date on which the policy of insurance came into force but the date on which the cause of action accrued for enforcing liability arising under the terms of the policy.
That we consider to be a reasonable manner in which to understand and interpret the contract of insurance entered into by the insured and the insurer in this case.
The contracting parties did not incorporate the provisions of Chapter VIII of the Act in their contract.
That is to say, they did not identify the liability of the promisor on 249 the basis of the provisions of Chapter VIII as they stood on the date when the contract was made.
They merely referred to the provisions of Chapter VIII, which means "the provisions of Chapter VIII in force at any given time", the given time being the date on which the right to sue accrues or, correspondingly, the liability arises.
If the parties to a contract agree that one shall pay to the other damages for breach of contract in accordance with the law contained in any particular statute, without identifying the law as the provision which is in force on the date of the contract, the law which will apply for determining the quantum of damages is the one which is in force on the date on which the breach of contract is committed, that being the date on which the cause of action arises, and not the law which was in force on the date on which the contract was made.
Thus, there is no question here, as the High Court thought, of giving retrospective operation to the amendment introduced by Amending Act 56 of 1969, by which the statutory liability of the insurer was increased from twenty thousand rupees to fifty thousand rupees with effect from March 2, 1970.
That question would have arisen if the accident had happened prior to that date.
The accident having happened on April 5, 1970, the question as to the extent of the insurer 's liability must be determined by the application of the law introduced by the Amendment which had come into force before the date of the accident.
The application of a law to facts which come into existence after that law has come into force does not involve giving retrospective operation to the law, merely because the facts to which the law is being applied are relatable to a contract or an instrument which had come into operation prior to the date on which the law itself had come into force.
We endorse the view taken by the Full Bench of the Karnataka High Court in Sanjiva Shetty section vs Anantha.(1) The Full Bench overruled the judgment which is under appeal in the instant case and held that the material date for ascertaining the extent of liability of the insurer is the date of the accrual of the cause of action for a claim arising out of an accident, which in general would be the date of the accident and therefore, the insurer 's liability arising out of an accident which happens after March 2, 1970, has to be 250 determined on the basis of the amended provisions of section 95 (2) (a) of the Act, even though the policy of insurance may have been issued prior to the date of the amendment, that is, prior to March 2, 1970.
For these reasons, we set aside the judgment of the High Court, restore the award of the Tribunal dated November 20, 1972 and allow the appeal with costs throughout.
N.V.K. Appeal allowed.
| IN-Abs | Section 95 of the prescribes the requirements of an insurance policy and the "limits of liability" thereunder.
Section 95(2) (a) was amended by the Motor Vehicles (Amendment) Act 56 of 1969 to provide that the insurer 's liability under a policy of insurance be increased from the existing "twenty thousand rupees" to "fifty thousand rupees".
The amendment came into force on March 2,1970.
The appellant 's husband, who was driving a scooter was knocked down dead by a truck on April 5, 1970.
The owner of the truck had taken a statutory insurance policy with the respondent which was operative from June 30,1969 to June 29, 1970.
The appellant filed an application before the Motor Accident 's Claims Tribunal under section 110 A of the Act seeking compensation for her husband 's death.
The respondent denied its liability and contested the application The Tribunal passed an award holding that the appellant was entitled to recover compensation in the sum of Rs. 60,000 for self and her children, but limited the liability of the respondent insurer to a sum of Rs. 50,000.
The respondent in its appeal to the High Court contended that on the date on which the insurance policy was issued, its statutory liability was limited to a sum Rs. 20,000 only, and therefore the Tribunal was in error in passing an award against it for a sum of Rs. 50,000.
This contention was accepted, and the appeal was allowed.
245 In the claimant 's appeal to this Court on the question whether the insurer 's liability for third party risks under the statutory policy must be held to be limited to Rs. 20,000 according to the relevant legal provision as it existed on the date on which the policy came into force, or whether that liability can be extended to Rs. 50,000 in accordance with the legal provision as it stood on the date of the accident, the accident having occurred during the currency of the policy.
Allowing the appeal, ^ HELD: 1.
The material date for ascertaining the extent of liability of the insurer is the date of the accrual of the cause of action for a claim arising out of an accident, which in general would be the date of the accident and therefore, the insurer 's liability arising out of an accident which happens after March 2, 1970 has to be determined on the basis of the amended provisions of section 95(2) (a) of the Act, even though the policy of insurance may have been issued prior to the date of the amendment, that is, prior to March 2, 1970.
[249 G H; 250A B] 2.
The governing factor for determining the application of the appropriate law is not the date on which the policy of insurance came into force, but the date on which the cause of action accrued for enforcing liability arising under the terms of the policy.
[248 G] 3.
The application of a law to facts which came into existence after that law has come into force does not involve giving retrospective operation to the law, merely because the facts to which the law is being applied are relatable to a contract or an instrument which had come into operation prior to the date on which the law itself had come into force.
[249E F] 4.
If the parties to a contract agree that one shall pay to the other damages for breach of contract in accordance with the law contained in any particular statute without identifying the law as the provision which is in force on the date of the contract, the law which will apply for determining the quantum of damages is the one which is in force on which the breach of contract is committed, that being the date on which the cause of action arises, and not the law which was in force on the date on which the contract was made.
[249 B C] In the instant case, the insurance policy came into force on June 30, 1969 and covered the period from June 30, 1969 to June 29, 1970.
The amendment by which the statutory liability of the insurer was increased from Rs. 20,000 to Rs. 50,000 came into force on March 2, 1970.
The accident which gave rise to these proceedings occurred on April 5, 1970.
The extent of the insurer 's liability must therefore be determined by the application of the law introduced by the Amendment which had come into force before the date of accident.
[248C; 249E] Sanjiva Shetty section vs Anantha, , approved.
|
Appeal No. 182 of 1956.
Appeal by special leave from the judgment and order dated November 23, 1955, of the Labour Appellate Tribunal of India, Bombay, in Appeal No. 224 of 1953 arising out of an award (Part II) dated June 4, 1953, of the Bombay Industrial Tribunal in Reference No. (I.T.A.)No.
18 of 1951.
M. C. Setalvad,Attorney General for India,N. C. Chatterji, J. B. Dadachanji, section N. Andley and Rameshwar Nath of Rajinder Narain & Co., for the appellant.
Purshottam Tricumdas, H. R. Gokhale, K. R. Choudhury and M. R. Rangaswamy, for the respondents.
November 13.
The Judgment of the Court was delivered by S.K. DAS J.
This is an appeal by special leave from a decision of the Labour Appellate Tribunal at Bombay, dated November 23, 1955.
The Baroda Borough Municipality is the appellant, and the respondents are the workmen employed in the electricity department of the said Municipality represented mostly by the Baroda State Electric Workers Union (hereinafter called the respondent Union).
The substantial question for determination in this appeal is if the respondents, workers in a municipal department engaged in the generation, supply and sale of electric energy, are entitled to the bonus claimed out of the surplus earnings of the said department (called "profits" by the respondents) after 35 allowing for all outgoings including necessary expenditure of the department and deductions for all prior, charges.
The question is, a short one, but has an importance and consequences reaching beyond the limits of the particular case in which it has arisen.
We may first state the relevant facts.
Before May 1, 1949, on which date the former State of Baroda was merged in and integrated with the then Province of Bombay (now the Bombay State), the Baroda Electric Supply Concern was owned and managed by the State of Baroda.
On April 19, 1949, the State Government of Baroda decided to hand over the said Concern as a gift to the Baroda Municipality and communicated an order to that effect in which it was stated inter alia: It is likely that the various types of assistance, financial or otherwise, which the Baroda Municipality has been receiving up to now from the Baroda Government may not be continued to a similar extent after integration.
It is therefore very necessary to find out new sources of revenue for the Municipality so that it may continue to maintain a high standard of efficiency as far as possible. .
With this object in view the Baroda Government are pleased to hand over to the Municipality as a gift the Baroda Electric Supply Concern which at present is a Government concern including both the generation and distribution of electric power.
With the transfer of the electric concern to the Municipality the various funds of the, electric department like the Reserve Fund the Depreciation Fund etc.
are also to be transferred to the Municipality with this specific understanding that these funds should not be used for purposes other than those for which they are intended. .
The Baroda City Municipality will have to be issued licence for the generation and distribution of electricity as per Barods Electricity Act and the Municipality should immediately apply for such a licence for the supply of electric power not only within the municipal limits but within a twenty miles radius round Baroda.
The Municipality should continue the policy of the department.
to give 36 electric energy at concessional rates for irrigation pur poses in the villages, although this may not be profitable in the beginning.
The entire staff of the Baroda Electric Supply Concern will be taken up by the Municipality without an reservation and the Municipality is directed to bring into operation terms and conditions of services as are prevalent under the Bombay Government and the officers and staff should be given emoluments which they would have got had they joined Bombay Government." On April 29, 1949, a formal order of handing over was made, subject to certain directions reserving the rights of the employees in the matter of pension, gratuity, provident fund, continuity of service etc.
In 1951, there was an industrial dispute between the Baroda Borough Municipality and the workmen employed in the electric department with reference to a number of demands made by the latter, and by consent of the appellant Municipality and the respondent Union, the dispute was referred to the Industrial Tribunal, Bombay, for adjudication, by an order of the Government of Bombay dated October22,1951.
The dispute related to a large number of items, one of which was "payment of bonus equivalent to three months ' wages (including dearness allowance) for the year 1940 50 to all employee,% of the electric department including daily wage workers and temporary workers.
" The dispute was settled by agreement with regard to all other items except the item of bonus; on that item the Industrial Tribunal heard the parties and came to the conclusion that the respondents were not entitled to the bonus claimed because(1) the Municipality was not a profit making concern;(2) the balance of earnings over the outgoings of the electric department of the Municipality was not 'profit ' as that word is understood in the ordinary trading or business sense; (3) the Municipality consisted of both earning and spending departments and it was not per missible to create an invidious distinction between the different employees of the Municipality by granting bonus to the workmen in one department only; and (4) the respondents having been compensated by higher 37 scales of salary on the municipalisation of the undertaking and having got other benefits and amenities appertaining to municipal service were not entitled to claim such bonus as was granted to them during the regime of the former State owned company.
Against this decision of the Tribunal, there was an appeal to the Labour Appellate Tribunal of India at Bombay.
The Appellate Tribunal came to the conclusion that the respondents were entitled to claim bonus; it expressed the view that on the decision of this Court in D. N. Banerji vs P. R. Mukherjee (1) the expression industrial dispute ' in the , includes disputes between municipalities and their employees in branches of work that can be regarded as analogous to the carrying on of a trade or business, and if the undertaking resulted in profit during the relevant trading period, the workmen were entitled to claim bonus as of right.
On the question whether the excess of earnings over outlay of a municipal undertaking like the one under consideration here was profit or not, the Appellate Tribunal relied on the circumstances stated below for its finding that the excess was really profit: (a) the very nature of the gift to the Baroda Municipality by the State Government of Baroda showed that the concern (or undertaking) made over to the former was a profit making concern; (b) the concern was run separately and as it was a trading concern by its very nature,, the balance of earnings derived from it after allowing for all outgoings was pecuniary gain and it made no material difference to the actual nature of the gain, whether it was called surplus or profit; and (c) no distinction could be made in principle between a municipal undertaking and an undertaking by a private or public concern, if the conditions laid down for the grant of bonus in Muir Mills Co. Ltd. vs Suti Mills Mdzdoor Union, Kanpur (2) were fulfilled.
As to the payment of bonus to the employees of one department only, the appellate Tribunal said that if (1) ; (2) ; 38 the profits were not sufficiently large to admit of bonus to all employees, it was permissible to treat the profitmaking department as a separate unit for the purpose of granting bonus, unless there was some essential nexus or connection between the profit making department and other departments or some unity of purpose or parallel or co ordinate activity towards a common goal.in all the departments without which the undertaking could not be carried on to proper advantage.
The Appellate Tribunal.
pointed out that the accounts of the electricity department.
of the Baroda Municipality were separately kept and as the undertaking carried on by the electricity department of the municipality differed.
from other normal activities of the Municipality, there being ' no common nexus between them, it was open to the workmen of the electricity department to claim bonus out of the profit made by that department after making deductions for all prior charges.
The Appellate Tribunal accordingly allowed the appeal, set aside the decision of the Industrial Tribunal and remanded the case for decision on merits according to law.
It is now finally settled by the decision of this Court in D. N. Banerji vs P. R. Mukherjee (supra) that a municipal undertaking of the nature we have under consideration here is an 'industry ' within the meaning of the definition of that word in section 2(j) of the , and that the expression 'industrial dispute ' in that Act includes disputes between municipalities and their employees in branches of work that can be regarded as analogous to the carrying on of a trade or business.
The learned Attorney General who appeared for the appellant made it clear at the very out set that the questions which he wished us to consi der in this case were different from those considered and determined by the aforesaid decision.
The first contention which he placed in the forefront of his argument is this: he invited attention to our decision in Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union, Kanpur (Supra) and contended that having regard to the principles laid down therein for the grant of bonus, the respondents were not entitled to claim any 39 bonus in this case because even though the undertaking in question was an 'industry ' within the meaning, of the Industial Disputes Act, 1947, there was no profit from the undertaking and the principles which govern the grant of bonus out of profits, as explained in that decision, were inapplicable to a municipal undertaking of the nature under consideration before us.
In the Muir Mills case (supra) it was observed that two conditions had to be satisfied before a demand for bonus could be justified: one was that the wages of the workmen fell short of the living standard and the other was that the industry made profits to the earning of which the workmen had contributed.
The principle for the grant of bonus was stated thus: ', 'It is fair that labour should derive some benefit if there is a surplus after meeting prior or necessary charges.
" The prior or necessary charges were then explained as (1) provision for depreciation, (2) reserves for rehabilitation, (3) a return of six per cent.
on the paid up capital and (4) a return on the working capital at a lesser rate than the return on paid up capital.
Do those principles apply in the case of a municipal undertaking of the kind in question here ? There can be no doubt that the respondents founded their claim of bonus in this case on the availability of profits after meeting prior or necessary charges.
In the statement of their claim they said, "The electric concern was treated as a commercial concern by the former Baroda State Government and it used to yield huge profits to the State.
Even after merger the municipality is treating it as a commercial concern and the concern is fielding huge profits to the municipality too.
It is submitted that all workers of the electric department should be paid bonus equivalent to three.
months wages including D.A.
The bonus should be paid to all the employees including daily wage, temporary and semi permanent workmen.
The workers are entitled to bonus both as share in profits and also &a deferred wages.
" It was decided in the Muir Mills case (supra) that bonus was not deferred wage; so the alternative claim of the respondents on the footing that bonus was deferred wage had no real basis, and their 40 claim of bonus as share in profits was the only claim which merited consideration.
In reply to that claim, the appellant said: This demand is not acceptable.
Under former Baroda Government Order No. (R) 403/63 dated 19 4 49, after serious consideration into the financial position of the Municipality after the integration of the Baroda State with the Bombay Province and with a view to find out new sources of revenue for the Municipality so that it may continue to maintain its standard of efficiency and to fulfill the obligations incumbent upon the Municipality, the Government was pleased to hand over to the Municipality the Baroda Electric Supply concern.
"The Municipality is experiencing great hardships still in meeting all its obligations and covering the lost sources of revenue.
Even including the income of the Electric Supply Concern, the municipal budget is a deficit one.
Due to want of sufficient funds, the Municipality has to give up certain schemes and works or to postpone the same. "Further, local authorities, like municipalities and local boards, are public utility institutions and the profits derived from the working of the Electric Supply Concern will all go to the Municipal treasury and city 's tax payers in general, unlike other commercial organisations whose profits are distributed only among the investing public.
" It is clear to us that having regard to the provisions of the Bombay Municipal Boroughs Act, 1925 (Bombay Act XVIII of 1925), hereinafter called the Municipal Act, under which the appellant Municipality is constituted and functions, the earnings of one department of the Municipality cannot be held to be gross profits in the ordinary commercial or trading sense; nor can, the principles governing the grant of bonus out of such profits after meeting necessary or prior charges be applied to the present case.
The relevant sections of the Municipal Act are sections 58, 63, 65, 66, 68 and 71.
We shall subsequently advert to section 58 of the Municipal Act in connection with another 41 contention of the learned Attorney General; but it is necessary to refer here to sections 63, 65, 66, 68 and 71 of the Act.
Section 63 lays down, inter alia, that all property of the nature specified in clauses (a) to (f) of sub section
(2) of the section shall be vested in and belong to the Municipality and shall, together with all other property of whatever nature or kind which may become vested in the municipality, be under its direction, management and control and shall be held and applied by it as trustee, subject to the provisions and for the purposes of the Act.
Clauses (a) to (f) of subs.
(2) of the section relate to immoveable property and permanent fixtures or works thereon.
Section 65, which is more relevant for our purpose, states inter alia that all moneys received by or on behalf of a munici pality, all taxes, fines, penalties etc.
, all proceeds of land or other property sold by the municipality and all rents accruing from its land or property and all interest, profits and other moneys accruing by gift or transfer from the Government or private individuals or otherwise, shall constitute the municipal fund and shall be held and dealt with in a manner similar to the property specified in a. 63.
Section 66 lays down that the municipal fund and all property vested in the municipality shall be applied for purposes of the Act within the limits of the municipal borough.
Section 68 lays down the duties of municipalities, one of which is the lighting of public streets, places and buildings.
This is an obligatory duty of the municipality.
Section 71 states the discretional functions of the municipality and one of such functions is the construction, maintenance, repairs, purchase of any works for the supply of electrical energy (see el.
It is worthy of note that cl.
(q1) was inserted by an amending Act in 1951 (Bombay Act 44 of 1951).
A similar amendment was made in the same year in section 66 of the Municipal Act and the effect of the amendment was that the municipality could incur expenditure to supply electrical energy not only for the use of the inhabitants of the municipal borough but also for the benefit of any person or buildings or lands in anyplace whether such place was or was not within the limits of the said 42 borough.
A scrutiny of these provisions clearly establishes two propoisition: one is that all municipal property, including moneys etc.
received by way of gift, is vested in the municipality and shall be held and applied by it as trustee subject to the provisions and for the purposes of the Municipal Act, and it is not open to the municipality to treat some of its property separately from other property and divert it for purposes other than those sanctioned by the Municipal Act; the other proposition is that there are some obligatory functions which a municipality must perform, and one of these is the lighting of public streets, places and buildings; and there are some other functions which the municipality may at it,% discretion perform either wholly or partly out of municipal property and fund, and one of these discretionalfunctions is the supply of electrical energy which is for the use of the inhabitants of the municipal borough or for the benefit of any person, buildings or lands in any place whether such place is or is not within the limits of the municipal borough.
The question now is whether, having regard to the aforesaid provisions, it was open to the Municipality to treat its electricity department, the property thereof and the income therefrom, separately from other departments and spend a part of the income for the benefit of the employees of that department only, treating it as profits of the particular department and not as part of the entire municipal fund or property.
In our opinion, such a treatment of the income of one department of the Municipality would be clearly against the provisions of the Municipal Act.
It is pertinent to refer here to Chapter XI of the Municipal Act dealing with Municipal Accounts.
Under section 209 a complete account of all receipts and expenditure of the municipality and a complete account of the actual and expected receipts and expenditure, together with a budget estimate of the income and expenditure of the municipality, have to be prepared for each year and these have to be prepared and laid before the municipality on or before a particular date.
These budget estimates have then to be sanctioned at a special 43 general meeting of the municipality.
Learned counsel for the respondents stressed two points in this connection.
He pointed out that as a matter of fact the ' Baroda Municipality kept separate accounts with regard to its electrical undertaking, including a capital account showing capital expenditure and capital receipts; separate accounts were also kept of the reserve fund, depreciation fund, provident fund etc.
It was argued that the maintenance of these separate accounts showed that the Baroda Municipality did treat the income of the electricity department separately from that of other departments, and the maintenance of such accounts did not contravene any of the provisions of the Municipal Act.
The second point stressed was that the distinction between the obligatory and discretional functions of the municipality showed that in the exercise of discretional functions the municipality might engage in an undertaking with a profit making motive.
Learned counsel for the respondents submitted before us that if there was profit from the 'electricity department was running an undertaking in exercise of the discretional functions of the Baroda Municipality, the workmen in that department would be entitled to bonus as of right.
In our opinion, these submissions are based on a misapprehension of the true position in law.
With regard to the first point, it is worthy of note that the maintenance of separate accounts of a particular department by the Municipality does not alter the nature or quality of the property or income therefrom.
The property or income is still municipal property within the meaning of sections 63 and 65 of the Municipal Act, and it can be utilised only for the purposes of the Act as laid down by section 66.
Maintenance of a separate account for a particular department is in the nature of an internal accounting arrangement; it does not really alter the quality or nature of the property or income, and for the purposes of section 209 of the Act the property or income has to be treated like all other property or income of the Munici pality in question.
In his book on Public Finance, Mr. Findlay Shirras has pointed out that the classification of public revenue or income, both of the State and 44 of municipalities, has undergone considerable change in recent years and non tax revenue of the State may be sub divided into three main classes (1) developmental revenues from the public domain and from the public undertakings, which include not only revenue from the State domain but also from the municipal domain; (2) administrative and miscellaneous revenues other than loan revenues; and (3) loan revenues (see Science of Public Finance by Findlay Shirras, Vol.
I, Book III, Chapter XIII, pages 211 212).
At page 717 (Vol. II, Book III, Chapter XXX), the learned author has posed the following question with regard to State or municipal concerns: "An important point in such concerns is the keeping of strictly commercial accounts.
Interest should be paid on capital.
Provision should also be made for depreciation of machinery and plant, for a pension fund, rents for land, and income tax in order to arrive at the true net profit.
State concerns sometimes show a surplus, but the point is how much of this is really profit?" The learned author has posed the question but given no answer.
We are of opinion that the answer has been very succinctly put in Dr. Paton 's Accountants ' Handbook (3rd edition, section 24 dealing with Governmental Accounting, page 1277).
Says Dr. Paterson: " In private business the proprietary or residual equity usually represents the ownership of individuals in the case of the corporation that of the shareholders.
In Government this residual element reflects the equity of the continuing body of citizens as a group, and in no sense belongs to particular members of the group ; it is not represented by capital stock and there are no shares with specific voting rights and dividend expectations.
" The legal position under the Municipal Act is the same.
The income of one department is the income of the municipality as a whole.
and that income is not 'Profit ' in the ordinary commercial or trading sense of being income derived from capital of particular individuals or shareholders; it may even be that the surplus of one department may dwindle into a deficit, when the entire income of the municipality is taken into consideration Vis a Vis its entire expenditure.
We have already pointed out that in the 45 present case also, the claim of the Municipality was that, even including the income of its electricity department, the municipal budget for the relevant year was a deficit one.
With regard to the second submission of; learned counsel for the respondents, nothing turns upon the distinction between obligatory and discretional functions of the municipality so far as the nature or quality of municipal property or municipal income is concerned.
The distinction referred to above does not entitle the municipality to treat the income from one department as though it were not part of the whole income of the Municipality.
Moreover, in its true nature or quality, such income is not profit in the sense in which that expression has been held to be the basis for the grant of bonus in the Muir Mills case (supra) though the word " profits " occurs in section 65 of the Municipal Act and has been loosely used in connection with State or municipal undertakings.
This brings us to the other question whether the principles laid down in the Muir Mills case (supra) for the grant of bonus can be applied in the present case.
Learned counsel for the respondents submitted before us that the gift made by the State Government of Baroda furnished the necessary capital for the municipal undertaking in question and as the reserve fund, depreciation fund etc.
had to be kept separate, there was no difficulty in applying the principles laid down in that decision to the facts of the present case.
The difficulties however arise in the following way.
Whatever was given by the State Government of Baroda to the Baroda Municipality became municipal property or municipal fund under sections 63 and 65 of ' the Act and was not capital in the sense in which a return on paid up or working capital is to be allowed" for in the matter of the grant of bonus in accordance with the decision in the Muir Mills case (supra).
Learned counsel referred us to the ordinary dictionary mean ing of the word 'capital ' and referred to Webster 's New International Dictionary (1937 edition, page 397) where one of the meanings of the word is stated to be " the amount of property owned by an individual or corporation which is used for business purposes." 46 He submitted that what was given by the Baroda State Government was capital within that meaning.
In Palgrave 's Dictionary of Political Economy, Vol. 1 (1925 edition) page 217, it has been stated that there is probably no term in economics which has given rise to so much controversy as 'capital. ' The word 'capital ' is connected with caput and in medieval Latin meant the principal sum as distinct from the interest.
Originally, the term was confined to loans of money.
In the natural course of historical development, the term 'capital ' received a wider meaning and capital came to be considered primarily as a source of profit and in ordinary thought capital is considered as wealth which yields a revenue.
Later economic theories introduced many refinements in the meaning of the Word We are not concerned with those refinements and it is unnecessary to discuss them here.
For our purpose it is sufficient to state that what the Baroda Municipality got from the State Government of Baroda merged in and became municipal property or municipal fund under the provisions of the Municipal Act and was not capital on which a return had to be earned in accordance with the principles laid down in the Muir Mills case (supra).
In our opinion, it is impossible to apply these principles in the case of a municipal undertaking of the nature we have under consideration here.
The argument of learned counsel for the respondents that once it is found that there was capital and actual profit in the sense of excess of earnings over outgoings from the undertaking in question, no distinction can be ,drawn between private enterprise and municipal enterprise, cannot therefore be accepted.
In the case 'before us, there was neither 'capital ' nor 'profit ' on which the principles laid down in Muir Mills case (supra) could operate.
We must make it clear that the question is not merely one of terminology; that is, whether the more appropriate word to use in connec tion with a municipal undertaking is surplus or profit; it is the nature or quality of the municipal property or fund which must be determinative of the question at issue, and it is on that basis that we have,come to the conclusion that in the present case there were no 47 profits of one single department of the municipality out of which the respondents could claim a bonus.
In the course of arguments before us a reference was made to certain observations contained in a Report of the Committee on Profit sharing set up by the Ministry of Industry and Supply in 1948.
With regard to the question how Government undertakings should be treated for purposes of profit sharing, the Committee said: " The answer to this question is only of academic interest, as there are no Government undertakings in the industries we have recommended for an experiment in profit sharing.
On the general question, we think that those business undertakings of Government, which aim at making a profit, and which will ordinarily be organised in the form of corporations, would automatically come under any law which governs private undertakings of a similar nature.
" We do not take those observations as deciding any question of principle; at best they express an opinion of the members of the Committee an opinion which is expressly confined to undertakings organised in the form of corporations with the aim of making a profit in the ordinary trading or business sense.
In our opinion, those observations have no apt application to a municipal undertaking meant for the purpose of augmenting municipal revenues in order to meet the municipal service demands and improve the amenities of the inhabitants of a modern municipal borough.
We proceed now to consider the second argument of the learned Attorney General.
This argument depends on the provisions of section 58 of the Municipal Act.
That section deals with the rule making power of the municipality and proviso (a) lays down that no rule or alteration or rescission of a rule made shall have effect unless and until it has been approved by the State Government.
Our attention has been drawn to cls.
(c), (f) and (1) of section 58 which enable the municipality to make rules relating, inter alia, to salaries and other allowances of the staff of officers and servants employed by the municipality; their pensions, gratuities or compassionate allowances on retirement, and provident 48 fund etc.
It was pointed out that under section 58 the Baroda Municipality had no power to make rules for the payment of bonus to its employees, because the word ' allowances ' did not include bonus; and even if such rules could be made, they required the sanction of the State Government under proviso (a) referred to above.
It was further submitted by the learned Attorney General that there were no existing rules with regard to the payment of bonus to a municipal employee.
In view of these provisions the learned Attorney General argued that it was not open to a Labour Court or Tribunal to direct the payment of bonus to a municipal employee.
We cannot accept this argument as correct.
The demand for bonus as an industrial claim is not dealt with by the Municipal Act; it is dealt with by the .
Therefore, it is not a relevant consideration whether there are provisions in the Municipal Act with regard to payment of bonus.
The provisions of the Municipal Act are relevant only for the purpose of determining the quality or nature of the municipal property or fund; those provisions cannot be stretched beyond that limited purpose for defeating a claim of bonus.
We do not therefore think that the absence of provisions in the Municipal Act for the payment of bonus to municipal employees is a consideration which is either determinative or conclusive of the question at issue before us.
If we had come to a different conclusion as respects the first contention of the learned Attorney General and his third contention to be referred to presently, the absence of suitable provisions relating to payment of bonus to municipal employees in the Municipal Act would not have stood in the way of our allowing the claim of the respondents for the payment of bonus.
We now proceed to consider the third and last contention of the learned Attorney General.
This contention centres round the question whether one department of the municipality can be isolated and a distinction made between the employees of that department and other departments in the matter of the 49 payment of bonus.
We have already pointed out that under the Municipal Act a municipality may perform various functions, some obligatory and some discretional.
The activities may be of a composite nature: ' some of the departments may be mostly earning departments and some mostly spending departments.
For example, the department which collects municipal taxes or other municipal revenue, is essentially an earning department whereas the sanitary department or other service department is essentially a spending department.
There may indeed be departments where the earning and spending may almost balance each other.
In spite of these distinctions in the internal arrangement of departments within a municipality, the property or income of the municipality remains of the same nature or quality, and it will be obviously unfair to draw a distinction between the employees of one department and the employees of another department for the payment of bonus.
The result of such a distinction will be that the staff of the spending depart ments will never be entitled to any bonus at all and instead of promoting peace and harmony amongst the employees of the municipality, a distinction like the one suggested by learned counsel for the respondents will create unrest and discontent.
Learned counsel for the respondents submitted before us that beyond the fact of single ownership, there was no other connection between the electricity department of the Municipality and its other departments.
We do not think that this submission is correct.
Under the Municipal Act the total income and expenditure of the municipality form one integrated whole; they are both for the purposes of the Act; and if the workmen of a service or spending department do not work efficiently with the result that the expenses on the obligatory functions of the municipality increase, that inefficiency is bound to affect even to dwindle or wipe out the surplus of an earning department.
For a true appreciation of the financial position of a municipality, its total income and expenditure must be considered; we must look at the whole picture, the part which is in shade as well as the part 7 50 which has caught the light for a correct appraisal of the picture.
Learned counsel for the respondents referred us to a number of decisions of Labour Tribunals where a distinction was made between a parent concern and subsidiary concerns, or even between different units of the same concern, in the matter of payment of bonus: Rohit Mills Ltd. vs Sri R. section Parmar(1), Mackinnon Mackenzie and Company 's Indian Staff Organisation vs Mackinnon Mackenzie and Company Ltd. (2), Ahmedabad Mfg. & Calico Ptg.
Co. Ltd. V. Their Workmen (a), Shaparia Dock and Steel Company vs Their Workers(,) and Minakshi Mills Ltd. vs Their Workmen Recently, we have had occasion to consider this question in Messrs. Burn & Co., Calcutta vs Their Employees (6) where we pointed out the harmful consequences which might arise if an invidious distinction were made amongst employees of the same industry.
Considering the question with reference to the facts of the present case, it is clear to us that the different activities of the Baroda Municipality constituted one integrated whole and the activities of the different departments of the Municipality were not distinct or unconnected activities so as to permit the isolation of one department from another or of an earning department from a spending department.
From this point of view also, the claim of bonus was not maintainable.
Some decisions were brought to our notice in which the question of the payment of bonus to their employees by Electric Supply Companies, not run as a State or municipal undertaking, was considered with reference to the provisions of the , and one of the points which fell for consideration there was the interpretation of clause XVII (2) (b) (xi) of Schedule VI of the .
It is not necessary to consider those decisions in the (1) (2) (3) (4) (5) (6) C.A. 325 Of 1955, decided on October 11, 1956.
51 present case, because they have no bearing on the questions which we have to consider in this case.
For the reasons given above, we hold that the Industrial Tribunal came to the correct decision that the respondents employed in the electricity department of the Baroda Municipality were not entitled to the bonus claimed, and the Labour Appellate Tribunal came to an erroneous decision on that question in its order dated November 23, 1955.
We accordingly allow the appeal and set aside the order of the Labour Appellate Tribunal.
In the circumstances of this case, we direct that the parties will bear their own costs throughout.
Appeal allowed.
| IN-Abs | The Baroda Electric Supply Concern was owned and managed by the State of Baroda.
Immediately before the merger of the State in the Province of Bombay, the State made a gift of the Concern to the Baroda Municipality to provide it with a new source of revenue as.
aid from the State might not be continued after the merger.
Later in 1951, the workmen employed in the electricity department demanded bonus and the dispute was referred for adjudication.
The bonus was claimed on the basis that the electric Concern was a commerical concern, that it was making 'huge profits and that the workmen were entitled to bonus as a share in the profits.
The municipality resisted the demand, inter alia, on the grounds that the earnings of one department could not be treated as profits of the municipality, and that as a whole the muncipal budget for the relevant period was a deficit budget.
Held, that the workers employed in the electricity department of the municipality were not entitled to the bonus claimed.
According to the provisions of the Bombay Municipal Boroughs Act, 1925, under which the municipality is constituted and functions, the earnings of one department cannot be held to be gross profits in the ordinary commercial or trading sense.
The mere fact that separate accounts were kept of the electricity department did not alter the position, as there was one budget for the municipality as a whole and income from and expenses of all departments constituted the income and expenses of the municipality.
The different activities of the municipality constituted one integrated whole, 5 34 and the activities of the different departments were not distinct or unconnected activities so as to permit the isolation of one department from another or of an earning department from a spending department.
It would be unfair to draw a distinction between the workers of the earning department and the workers of the spending department for the payment of bonus.
Such a distinction would, instead of promoting peace and harmony among the employees of the municipality, create unrest and discontent.
D. N. Banerji vs P. R. Mukherjee, [19531 S.C.R. 302 and Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union, Kanpur, ; referred to.
|
Civil Appeal No. 440 (N) of 1970.
Appeal by special leave from the judgment and order dated the 18th June 1969 of the Bombay High Court in Misc.
Civil Appln.
No. 139 of 1968.
290 Naunit Lal, for the Appellant.
A.G. Ratnaparkhi for Respondents Nos.
M.N. Shroff, for Respondents Nos.
17 19.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave is directed against the judgment of the Nagpur Bench of the Bombay High Court quashing the grant of Nazul land to the appellants on a writ petition filed by the respondents Nos. 1 to 16.
The respondents Nos. 1 to 16 applied on March 15, 1963 for the grant of sixteen plots of land included in Government Nazul Plot No. 31/1 (Sheet No. 49 D) in Yeotmal Town for the purpose of constructing shops thereon.
They alleged that they had not been allotted any land yet for carrying on business at Yeotmal, and inasmuch as land sites were being released to refugees or displaced persons they claimed that having been compelled to migrate from West Pakistan to India during the partition of 1947 they were entitled to the grant of such plots.
The appellants made a similar application on May 16, 1964 and it is their case that they had also applied earlier in the same behalf on February 27, 1962.
There were applications from other claimants also.
The State Government, acting on the report of the Commissioner, Nagpur Division, rejected all the applications.
The appellants say that they sought a review of the order of the Government, and on June 28, 1965 the Government reversed its order and decided to grant plots on permanent lease to the appellants.
The Collector, Yeotmal submitted a report to the Government pointing out that each plot would be 192 sq.
in area and having regard to its market value each allottee should be required to pay a premium of Rs. 960.
The State Government granted the plots to the appellants as shop sites in Bhumidhari right without auction on payment of premium, and the decision was conveyed in a Memorandum dated March 3, 1966.
The allotment was assailed by the respondents, and they represented to the State Government that after further inquiry the land should be reserved for deserving claimants.
The respondents filed a writ petition before the Nagpur Bench of the Bombay High Court challenging allotment made by the Government in favour of the appellants.
They urged that no reason 291 able opportunity had been given to them to press their claims for grant of plots after the Government had reversed its earlier decision not to grant land, that the appellants had been unduly favoured and that the order was bad in law because the plots had been granted without holding an auction.
It was also contended that the power to grant the plots was vested in the Collector and not the State Government.
During the pendency of the writ petition a statement was made on behalf of the State Government that it was prepared to consider the claims of the respondents.
The appellants, however, maintained that they had acquired a right to the land in terms of the order dated March 3, 1966 and that they could not be divested of those rights.
By its judgment dated March 14, 1968 the High Court allowed the writ petition, quashed the order granting plots to the appellants and directed the State Government and its officers to take appropriate action on the several claims for allotment of land.
The High Court held that in view of sub section
(2) section 149 read with sub section
(3) of section 164 of the Madhya Pradesh land Revenue Code, 1954, as applied to the Vidharba region of Maharashtra, and rules 22 and 26 framed under the Code, it was not open to the State Government to dispose of the plots without holding a public auction unless there were reasons recorded in writing for doing so, and that after initially deciding not to grant the plots the subsequent decision to allot them to the appellants was contrary to law inasmuch as the claims of others had not been considered.
In this appeal, it is urged by the appellants that the High Court erred in applying sub section
(3) of section 164 and rule 26, and therefore in holding that the lease of the plots without auction and without recording any reasons was invalid.
When the Government decided to grant land to the appellants, it thought that the grant should take the form of a permanent lease in their favour.
The Collector was requested to frame suitable proposals and to submit them to the Government.
The Collector submitted a report dated November 23, 1965 suggesting the allotment of plots for the construction of shops on the footing that each plot would measure 192 sq.
and its market value, worked out on the basis of recorded sale transactions, and taking into regard the commercial purpose for which the land was intended, indicated a premium of Rs. 960.
He recommended further that the plots may 292 be granted without auction and in Bhumidhari right on payment of premium for constructing shops thereon for carrying on business.
On March 3, 1966 the State Government made an order accordingly.
Now section 149 of the Madhya Pradesh Land Revenue Code 1954 provides: "149.
(1) Subject to rules made under this Code, land belonging to the State Government, not being land herein after mentioned in sub section (2), shall be disposed of in Bhumidhari or Bhumiswami rights by the Deputy Commissioner who may require payment of a premium for such right or sell the same by auction.
(2) The land referred to in sub section (1) shall be the following, namely: (a) land situate in the bed of a river of a tank; (b) land reserved for communal purposes such as common grazing ground and cremation grounds; (c) land given out on favourable terms for the promotion of religious, charitable, educational, public or social purposes; (d) land given out to persons on the condition that it shall be used only for grazing cattle; (e) land given out for temporary purposes or for limited periods or for mining and purposes subsidiary thereto or for industrial or commercial purposes; (f) land given out to persons on favourable terms for rendering service as a kotwar; (g) any other land which the State Government may, by notification issued in this behalf, specify.
" Section 164 of the Code may also be set forth: 293 "164.
(1) Every person who holds land from the State Government or to whom a right to occupy land is granted by the State Government or the Deputy Commissioner and who is not entitled to hold land as a tenure holder shall be called a Government lessee in respect of such land.
(2) The Government lessee shall, subject to any express provision in this Code, hold his land in accordance with the terms and conditions of the grant which shall be deemed to be a grant within the meaning of the .
(3) The State Government or the Deputy Commissioner may, subject to rules made under this Code, dispose of the right to occupy the land specified in sub section (2) of section 149 on payment of a premium or by auction or on such terms and conditions as may be prescribed.
" It is apparent that the grant cannot be attributed to clause (c) of sub section
(2) of section 149.
The land was disposed of in Bhumidhari right.
Moreover, it was not given on favourable terms to the appellants; the market value of the plots was taken for fixing the premium.
From the nature of the grant, it is clear that action under sub section
(1) of section 149 was intended.
Now Part III of the Notification No. 1118 1832 55 XXVIII dated May 22, 1956 sets forth the rules framed with reference to sub section (1) of section 149.
These rules provide for the grant of Bhumiswami and Bhumidhari rights in nazul land for dwelling houses and ancillary purposes.
Rule 24 defines the expression "Nazul Land" to mean land belonging to the State Government which is used for building on, or for roads, markets and other public purposes.
Rule 26 applies the provisions of rules 18 to 36 contained in Part V of the Notification No. 1119 1832 55 XXVIII dated May 22, 1956 to the disposal of nazul land under Part III.
The provise to rule 26 declares that where nazul land is put to auction it should normally be granted in Bhumiswami right, and where it is disposed of without auction it should normally be granted in Bhumidhari right.
Rule 22 of Part V defines the power of the State Government and of the Collector to dispose of nazul plots with or without auction.
Rule 22 provides: 294 "22.
Power to dispose of nazul plots with or without auction shall be exercised in accordance with these Rules (1) by the State Government in the case of (i) plots of which the freehold market value is not less than Rs. 5,000; (ii) plots within the limits of the Municipal Corporation of the City of Nagpur, whether or not included in the Schemes of Nagur Improvement Trust; (iii) plots reserved for specific purposes under rule 20; (iv) strips of land not being independent plots to be settled with the occupants of adjoining land where the freehold value of the strip is not less than Rs. 5,000; (v) small strips of land adjacent to occupied plot, which cannot be disposed of as a separate site and in respect of which there is a difference of opinion between the Collector and the Officer in charge, Town Planning and Valuation: (vi) independent plots not included in the approved lists where there is a difference of opinion between the Collector and the Officer in charge, Town Planning and Valuation; (vii) plots granted without auction.
(2) by the Collector, in case of the other plots.
" Sub rule (1) of rule 26 in Part V declares: "26. (1) Leasehold rights in nazul land shall be disposed of by public auction except when in any particular case the State Government or as the case may be, the Collector thinks for reasons to be recorded in writing that there is good reason for granting the land without auction." 295 It seems indisputable that under the Rules as a general principle leasehold rights in nazul land are to be disposed of by public auction.
If in any particular case the State Government or, as the case may be, the Collector considers that there is good reason for granting the land without auction the reasons must be recorded in writing.
The existence of good reason for departing from the general principle, and the recording of the reason in writing are essential prerequisites which must be satisfied before leasehold rights are granted without auction.
It is pointed out that under clause (vii) of sub rule (1) of rule 22 the State Government is empowered to dispose of nazul plots without auction.
We have no doubt it can do so, but only after full compliance with sub rule (1) of rule 26.
The sub rule (1) controls the power of the State Government conferred by clause (vii) of sub rule (1) of rule 22.
To hold otherwise would be to confer an arbitrary power on the State Government to dispose of nazul plots.
It would be in the absolute discretion of the State Government to decide whether nazul plots should be granted with auction or without auction.
If that construction is accepted, it is clear that sub rule (1) of rule 26 would be negatived.
The only reasonable construction, it seems to us, is to read the two provisions together.
In the present case there is no evidence that the State Government has recorded any reasons in writing for preferring the mode of disposing of the land without auction and we are not satisfied that it had good reason for favouring that mode.
In the circumstances the grant of land to the appellants has been rightly quashed by the High Court.
There is also sufficient justification in the grievance of the respondents that the State Government did not consider the claims of other persons, including the respondents, when making an allotment of the plots.
The State Government had decided earlier, as a matter of policy, not to allot nazul land to displaced persons, and pursuant to that decision all the applications for allotment were rejected.
The applications were not rejected on the merits of the respective claims set out therein.
Subsequently when the State Government made an allotment of the plots to the appellants, it was consequent to a decision which analytically must be regarded as a composite of two decisions, one, a policy decision to throw open 296 the land to allotment in reversal of the earlier policy and, two, to allot the land to the appellants.
It will be remembered that the applications of the respondents for allotment of plots were rejected on the ground that the land was not available for allotment.
That was a policy decision.
When it was reversed, it was incumbent on the State Government to reconsider those applications or to notify that the land was available for allotment and to invite fresh applications in that behalf.
It was not open to the State Government to allot the plots to the appellants in disregard of the claims of others who had also applied for allotment.
In quashing the order granting plots to the appellants and directing the State Government or its appropriate officers to consider the several claims for allotment the High Court, in our opinion, did that which was plainly right.
The appellants say that the respondents must be taken to have accepted the rejection of their applications for allotment, and it was only the appellants who pursued the matter and obtained a reversal of the order of the Government and therefore the appellants alone were entitled to the allotment of plots.
The submission would have had force but for the circumstance that the State Government effected what was a change of general policy.
The change of policy altered the situation completely, and all the claimants were entitled to the benefit of that change.
By adopting the new policy, the State Government must be taken to have declared that the land was now open to allotment to the claimants who were found most deserving.
There were several applicants for allotment, and a selection had to be made.
It cannot be contended, as indeed it is urged before us, that the appellants constitute a distinct and separate class from the respondents only because the appellants agitated against the rejection of their applications while the respondents did not.
The controversy which remains is whether it is the State Government or the Collector who has power to dispose of the plots in view of their market value.
That is a matter on which we need express no opinion, having regard to the quashing of the entire allotment proceeding from its inception.
It will be for the Govern 297 ment or the appropriate authority to decide what should be the nature of the rights to be conferred on the allottees and, therefore, what should be the premium to be fixed.
In the result, the appeal is dismissed with costs.
N.V.K. Appeal dismissed.
| IN-Abs | Respondents Nos. 1 to 16 applied for the grant of plots of land for purposes of constructing shops, alleging that they were displaced persons and entitled to the grant of plots.
The appellants also made a similar application.
There were applications from other claimants.
The State Government acting on the report of the Commissioner rejected all the applications.
Subsequently the Government at the instance of the appellants who had sought a review, reversed its earlier order and decided to grant plots on permanent lease to the appellants.
The decision was conveyed in a memorandum by the State Government, who granted the plots to the appellants as shop sites in Bhumidhari rights without auction on payment of premium.
The allotment was assailed by the respondents and they represented to the State Government that only after further inquiry should the land be reserved for deserving claimants.
The respondents filed a writ petition in the High Court challenging the allotment made by the Government in favour of the appellants contending that no reasonable opportunity had been given to them to press their claim for grant of plots, after reversal of the earlier decision not to grant land, that the appellants had been unduly favoured, and that the power to grant plots was vested in the Collector and not in the State Government.
The appellants contested alleging that they had acquired a right to the land that they could not be divested of those rights.
The High Court quashed the order granting plots to the appellants and directed the State Government to take appropriate action on the several claims for allotment of land.
It held that under sub section (2) of section 149 read with sub section (3) of section 164 of the Madhya Pradesh Land Revenue Code, 1954, and rules 22 and 26 framed under the Code it was not open to the State Government to dispose of the plots without holding a public auction unless there were reasons recorded in writing for doing so and that after initially deciding not to 289 grant the plots, the subsequent decision to allot them was contrary to law as the claims of others had not been considered.
Dismissing the appeal, ^ HELD :1.
The High Court was right in quashing the order granting plots to the appellants and directing the State Government to consider the several claims for allotment.
[296 C D] 2.
The grant cannot be attributed to clause (c) of sub section (2) of section 149.
The land was disposed of in Bhumidhari right.
It was not given on favourable terms to the appellants, the market value of the plots was taken for fixing the premium.
From the nature of the grant, it was clear that action under subsection (1) of section 149 was intended.
[293 E] 3.
Under Rules 24 to 26 of the Land Revenue Code, lease hold rights in nazul land are to be disposed of by public auction.
If in any particular case the State Government or the Collector considers that there is good reason for granting the land without auction the reasons must be recorded in writing.
The existence of good reason for departing from the general principle and the recording of the reason in writing are essential prerequisites which must be satisfied before lease hold rights are granted without auction.
[295 A C] In the instant case there is no evidence that the State Government has recorded any reasons in writing for preferring the mode of disposing of the land without auction.
It had also no good reason for favouring that mode.
In these circumstances the grant of land to the appellants was rightly quashed by the High Court.
[295 E F] 4.
The State Government had decided earlier, as a matter of policy, not to allot nazul land to displaced persons, and pursuant to the decision all the applications for allotment were rejected.
The applications were not rejected on the merits of their respective claims.
Subsequently, when the State Government made an allotment of the plots to the appellants, it was consequent to a decision, which must be regarded as a composite of two decisions, one a policy decision to throw open the land to allotment in reversal of the earlier policy and, two, to allot the land to the appellants.
The applications of the respondents for allotment of plots were rejected on the ground that the land was not available for allotment.
That was a policy decision.
When it was reversed it was incumbent on the State Government to reconsider those applications or to notify that the land was available for allotment and to invite fresh applications in that behalf.
It was not open to the State Government to allot the plots to the appellants in disregard of the claims of others who had also applied for allotment.[295 G H; 296 A B]
|
N: Criminal Appeal No. 4 of 1976.
279 Appeal by special leave from the judgment and order dated the 29th August 1975/1st Sept., 1975 of the Bombay High Court in Criminal Appeal No. 1639 of 1972.
Ram Jethmalani, Mrs. section Bhandare, A.N. Karkhanis, T. Sridharan and C.K. Sucharita for the Appellant.
J.L. Nain, and H.R. Khanna and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated 29th August 1975/1st September 1975, of the Bombay High Court convicting the appellant, Mohanlal Gangaram Gehani (hereinafter referred to as A 1) under section 326, I.P.C. and sentencing him to rigorous imprisonment for three years.
He was also convicted under section 323 read with section 34 I.P.C. but no separate sentence was awarded.
The trial court had convicted A 1 under section 326/34 I.P.C. which was altered by the High Court to one under section 326 simpliciter.
The details of the prosecution case are to be found in the judgment of the High Court and it is not necessary for us to repeat the same.
We shall, however, give a brief resume of the important facts which are germane for deciding the short points raised by Mr. Jethmalani, counsel for the appellant.
The occurrence out of which the present appeal arises appears to have taken place on April 2, 1972 at about 11 11.30 p.m.
According to the prosecution while Ishrat Malik Faqih (hereinafter referred to as 'Ishrat ') was returning from a movie in Paradise Cinema, situated at Lady Jamashedji Road, Mahim at about 12 15 a.m. he met Salim, a friend of his, alongwith Shaikh Abdul Kalim alias Pappu (P.W. 4).
He also saw another person standing with Salim and Pappu.
All of them started talking to one another when suddenly they saw a black Fiat car coming from Lady Jamashedji Road and taking a turn to Chotani Road.
The car stopped near the place where the aforesaid persons were talking and A 1, A 2 (Shashi) and A 3 (Kumar) emerged from the car.
According to the informant, Ishrat, all the three accused were known to him before.
These persons were dead drunk and asked Ishrat and party as to who amongst them was their leader.
Some sort of 280 an altercation took place in the course of which A 2 caught hold of the shirt of Shanker Shetty and assaulted him with fists.
He was joined by A 3 and the altercation culminated in a murderous assault said to have been made by A 1 who took out a dagger and stabbed Shetty on the right side of the stomach below the chest.
Shetty fell down.
Thereafter A 1 ran back to his car and sped away leaving behind A 3 who could not get into the car.
Ishrat immediately proceeded to the Mahim police station and lodged an F.I.R. with Sub Inspector Sawant (P.W. 7) at 00.50 hrs.
On April 3, 1972.
According to the prosecution, the informant had rushed to the police station and lodged the F.I.R. within an hour of the occurrence.
Subsequently, it appears that a wireless police van which passed through the place of occurrence having found Shetty lying injured picked him up and removed him to K.E.M. Hospital.
Dr. Heena (P.W. 11) admitted Shetty and made a note of the injuries received by him in the notesheet of the hospital register and also mentioned the fact that the injured had named his assailant as one Tiny.
It was further alleged by the prosecution that Sawant after recording the F.I.R. rushed to the hospital and contacted Shetty and recorded his statement at 1.45 a.m. After the usual investigation, chargesheet was submitted against A 1 to A 3 who were ultimately tried and convicted for an offence under section 326 read with section 34 I.P.C. and A 1 was sentenced as mentioned hereinbefore.
A 2 and A 3 each was sentenced to suffer rigorous imprisonment for two years.
A 1 pleaded innocence and his defence was that he was falsely implicated due to enmity because Ishrat and his friends were carrying on Matka business and the appellant being an informer of the Customs Department had made certain reports against the prosecution witnesses particularly Ishrat who was a smuggler.
We need not refer to the defence of A 2 or A 3 as they have been acquitted by the High Court.
The appellant raised several points before the High Court which after hearing the parties confirmed his conviction but reduced his sentence to rigorous imprisonment for three years.
In support of the appeal Mr. Jethmalani has argued three important points relating to certain circumstances which completely demolish the entire prosecution case against the appellant.
281 In the first place, it was argued that the F.I.R. was not at all lodged at 00.50 hrs.
as alleged by the prosecution but much later.
Secondly, Shetty did not know the appellant before the occurrence and thirdly, Mr. Jethmalani argued, that his version that the name of the appellant was disclosed to him by Salim should not be accepted.
Another important circumstance to which our attention was drawn and which has greatly impressed us is that the hospital register (Ext. 22) shows that when Shetty was taken to the hospital and produced before Dr. Heena (P.W. 11) he gave the name of his assailant as one Tiny or Tony.
The evidence further shows that Tiny or Tony was undoubtedly a known person who was living in a locality near the place of occurrence and was not a fictitious red herring as the prosecution would have us believe.
According to Ext.
22 Shetty made a statement to Dr. Heena at 1.
15 a.m. on April 3, 1972.
Dr. Heena, who appeared as P.W. 11, fully supported the contents of Ext.
It is manifest that once the statement of P.W. 11 is accepted then the entire prosecution case against the appellant falls.
The High Court realising the importance of this document and the evidence of P.W. 11 seems to have explained it away on three main grounds.
In the first place, the High Court laid great emphasis on the fact that where Dr. Heena had mentioned the name of Tiny, there was no particular column where the name of assailant could be given.
We have examined the original document ourselves and we find that the entire part of the register where the statement has been recorded by P.W. 11 is described as Registrar 's note which comprehends everything including the nature of injuries of the injured, any statement made by him or similar other matters.
We are, therefore, unable to agree with the High Court that there was no particular column under which the name of the assailant could be mentioned.
Moreover, there is absolutely no evidence on the record to show that P.W. 11 was in any way friendly with the appellant or had any animus against Shetty which might impel her to make false entries in order to oblige the appellant.
P.W. 11 was an absolutely disinterested and independent witness.
After going through her evidence we find no reason why her evidence should not be accepted in toto.
The High Court further observed that from the hospital register it appears that the word 'Tony ' was first written, then crossed 282 and changed into 'Tiny '.
This may be a mistake in the pronunciation of the name and much significance cannot be attached to this circumstance because P.W. 11 had initialled the change and it is not a case of forgery at all.
Moreover, P.W. 11 was examined as a prosecution witness and if the learned prosecutor had thought that she (P.W. 11) had given false evidence to help the appellant, he could have declared her hostile and sought the permission of the court to cross examine her but no such course was adopted.
Hence, the mere change of the word 'Tony ' to Tiny ' can be explained on the basis of a bona fide mistake.
There is no erasure.
Both names are decipherable.
What may have happened was that the injured may have pronounced Tiny in such a way that P.W. 11 thought it was Tony but on further clarification the injured must have said that it was Tiny.
P.W. 11 in her evidence has clearly stated that she had examined the patient and had given the history of the assault with knife by a person called Tiny and that the patient was fully conscious.
There is nothing in her evidence to show that her statement could be untrue.
The High Court then sought to exclude the evidence of P.W. 11 as being inadmissible as the provisions of section 145 of the Evidence Act were not complied with.
It was suggested that Shetty had mentioned the name of the appellant in his statement in court but the statement of P. W. 11 shows that he had named Tiny as his assailant and, therefore, Dr. Heena (P.W. 11) should have been cross examined on this point to explain the contradiction.
With great respect, the High Court has erred on this point and has misconstrued the provisions of section 145 of the Evidence Act which may be extracted thus: "145.
Cross examination as to previous statements in writing.
A witness may be cross examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved, but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
" 283 It is obvious from a perusal of section 145 that it applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding.
If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under section 145.
In other words, where the statement made by a person or witness is contradicted not by his own statement but by the statement of another prosecution witness, the question of the application of section 145 does not arise.
To illustrate, we might give an instance suppose A, a prosecution witness, makes a particular statement regarding the part played by an accused but another witness B makes a statement which is inconsistent with the statement made by A, in such a case section 145 of the Evidence Act is not at all attracted.
Indeed, if the interpretation placed by the High Court is accepted, then it will be extremely difficult for an accused or a party to rely on the inter se contradiction of various witnesses and every time when the contradiction is made, the previous witness would have to be recalled for the purpose of contradiction.
This was neither the purport nor the object of section 145 of the Evidence Act.
For instance, in the instant case, if P.W. 11 had been examined under section 164 of Code of Criminal Procedure or before a committing court and made a particular statement which was contradictory to a statement made in the Sessions Court, then section 145 would have applied if the accused wanted to rely on the contradiction.
Such, however, is not the position because the evidence of P.W. 11 is not only consistent throughout but the earlier statement recorded by her can be taken to corroborate her.
There was no question of contradicting the statement of P.W. 11 by her previous or subsequent statement.
On the other hand, Dr. Heena was a prosecution witness whose statement that Shetty had named Tiny on the earliest occasion, was an admission by a prosecution witness which threw considerable doubt on the complicity of the appellant in the occurrence.
If Shetty stated in his evidence that he named A 1 (Mohanlal) then that would be a statement which was contradictory to that of P. W. 11 and the question will be which of the two statements should be preferred.
If Dr. Heena had made two inconsistent statements then only section 145 would have applied.
284 In Bishwanath Prasad & Ors.
vs Dwarka Prasad and Ors.(1) while dwelling upon a distinction between an admission and a statement to which section 145 would apply, this Court observed as follows: "In the former case an admission by a party is substantive evidence if it fulfills the requirements of section 21 of the Evidence Act; in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence.
In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigor: in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by section 145 of the Evidence Act.
" The statement made by P.W. 11 was, therefore, an admission of a prosecution witness and if it was inconsistent with the statement made by another prosecution witness namely Shetty, there was no question of the application of section 145 of the Evidence Act which did not apply to such a case in terms.
Thus, the reason given by the High Court for distrusting the evidence of Dr. Heena is wholly unsustainable.
Moreover, the statement of the injured to Dr. Heena being the first statement in point of time must be preferred to any subsequent statement that Shetty may have made.
In fact, the admitted position is that Shetty did not know the appellant before the occurrence nor did he know his name which was disclosed to him by one Salim.
Therefore, Salim who is now dead, being the source of information of Shetty would be of doubtful admissibility as it is not covered by section 32 of the Evidence Act.
And, once we believe the evidence of P.W. 11, as we must, then the entire bottom out of the prosecution case is knocked out.
Apart from this, there is another circumstance which renders the testimony of Shetty (P.W. 5) valueless.
He admits in para 10 of his evidence (page 35 of the paperbook) that he had not seen the accused before the date of the incident, that he did not know him at all, and that he came to know the name of the accused on the 285 date of the incident and that it was Salim who had given him the name of the accused while he was being taken to the hospital.
The fact that Salim disclosed the name of the appellant to Shetty is falsified by the fact that he did not name the appellant to Dr. Heena when he reached the hospital but named one Tiny.
It is also relevant to note that Tiny Advani is not an unknown figure but is a living person as would appear from the evidence of P.W. 3, Shaikh, where he says that he knew Tiny Advani who is also known to Ishrat, Salim and Pappu and they are on greeting terms.
Another important circumstance which discredits the testimony of P.W. 5 (Shetty) is that he admits that although he did not know the accused from before the occurrence yet the accused was shown to him by the police at the police station.
The relevant statement of P.W. 5 may be extracted thus: "I had seen the accused before coming to the Court and after the incident, I had seen the accused ten days after I was discharged from the hospital.
I was shown these accused by the Police at the Police Station." Thus, as Shetty did not know the appellant before the occurrence and no Test Identification parade was held to test his power of identification and he was also shown by the police before he identified the appellant in court, his evidence becomes absolutely valueless on the question of identification.
On this ground alone, the appellant is entitled to be acquitted.
It is rather surprising that this important circumstance escaped the attention of the High Court while it laid very great stress in criticising the evidence of Dr. Heena when her evidence was true and straight forward.
For these reasons, therefore, we are unable to place any reliance on the evidence of Shetty so far as the identification of the appellant is concerned.
The other witness who knew the accused is P.W. 1 (Ishrat) who is said to have lodged the F.I.R. at Mahim police station at 12.50 a.m. on 3.4.1972.
There is clear intrinsic evidence in the case to show that the FIR was ante timed and could not have been lodged at 12.50 a.m. P.W. 7, Sawant had clearly admitted in his evidence at page 41 of the Paperbook that the station diary entry which has to contain the contents of the F.I.R. does mention that Ishrat had 286 visited the Police station and lodged the complaint.
The witness further admits that the station diary entry does not also mention anywhere that he (P.W. 7) had left the police station for K.E.M. hospital accompanied by P.W. 1, Ishrat.
He also admits that he knew the accused before the incident.
The witness further admits that although he had come to know the name of the assailant at 12.50 a.m. yet he did not take any step to arrest or cause the arrest of any one of the accused.
He has not given any explanation for this unusual conduct.
It is extremely doubtful if P.W. 1 had actually named the appellant, inspector Sawant would not have arrested him immediately after the F.I.R. was lodged or, at any rate, after he returned from the Hospital.
The evidence, however, shows that A 1 was arrested on 5.4.72, that is to say, two days after the occurrence.
No explanation for this unusual phenomenon has been given by the prosecution.
For these reasons, therefore, the statement of P.W. 1 that he lodged the F.I.R. at 12.50 a.m. on 3.4.72 and disclosed the name of the appellant becomes absolutely doubtful.
If we reject this part of the evidence of P.W. 1, then his evidence on the question of complicity of the appellant in the crime also becomes extremely doubtful.
The only other evidence against the appellant is that of P.Ws. 3 and 4.
So far as P.W. 3 is concerned his evidence also suffers from the same infirmity as that of Shetty.
P.W. 3 (Shaikh) admits at page 22 of the Paperbook that he had not seen the accused or any of the three accused before the date of the incident and that he had seen all the three for the first time at the time of the incident.
He further admits that the names of the accused were given to him by the police.
In these circumstances, therefore, if the appellant was not known to him before the incident and was identified for the first time in the court, in the absence of a test identification parade the evidence of P.W. 3 was valueless and could not be relied upon as held by this court in V.C. Shukla vs State (Delhi Administration)(1) Where this Court made the following observations: "Moreover, the identification of Tripathi by the witness for the first time in the court without being tested by a prior test identification parade was valueless.
" 287 Same view was taken in a Federal Court decision in Sahdeo Gosain & Anr.
vs The King Emperor.(1) This, therefore, disposes of the evidence of P.W. 3.
As regards the evidence of P.W. 4, the High Court itself found at page 129 of the paperbook that the learned Additional Sessions Judge had disbelieved P.W. 4, Shaikh alias Pappu.
Therefore, the evidence of P.W. 4 also goes out of consideration.
The position, therefore, is that there is absolutely no legal evidence on the basis of which the appellant could be convicted.
For the reasons given above, we are satisfied that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt.
The appeal is accordingly allowed and the appellant is acquitted of the charges framed against him.
He will now be discharged from his bailbonds and need not surrender.
P.B.R. Appeal allowed.
| IN-Abs | The prosecution case against the appellant was that on the night of occurrence between 11 and 11.30 the informer and two of his friends were standing on a road when suddenly the three accused emerged out of the car and the appellant assaulted and stabbed the injured person with a dagger.
The prosecution alleged that there was enemity between the assailants and the injured person; that the informer lodged a F.I.R. at 00.50 hrs.
and that the injured man was picked up by a Police Wireless Van and admitted in the hospital.
The trial court convicted the accused under section 326/34 I.P.C. and sentenced them variously.
The High Court acquitted two of the three accused.
In regard to the appellant, disbelieving the evidence of the doctor on the ground that the name of the assailant was first written by her as "Tony" but later changed to read as "Tiny" and that secondly there was no particular column in the register where the name of the assailant could be written, the High Court altered the conviction to one under section 326 I.P.C. and sentenced him to rigorous imprisonment for three years.
On appeal to this Court it was contended on behalf of the appellant that (1) the F.I.R. was not lodged at 00.50 hrs.
as claimed by the prosecution; (2) the injured did not know the appellant before the occurrence; (3) the version of the injured that the name of the assailant was disclosed to him by a friend of the informer should not be accepted and (4) the discrepancy in the name of the assailant recorded by the doctor was not such as to completely discredit her evidence.
Allowing the appeal, ^ HELD: (a) The change of name "Tony" into "Tiny" in the hospital register might be due to mis hearing of the name in the first instance and correcting it later.
Much could not be made of this circumstance.
The doctor had initialled the alteration.
The prosecution has not made any attempt to declare 278 the doctor a hostile witness and to cross examine her.
Therefore the change in the name could be a bona fide mistake.
That apart, the injured was fully conscious at the time he made the statement to the doctor.
[282 A C] (b) The High Court was in error in stating that there was no particular column in the hospital register in which the name of the assailant could be mentioned.
The entire part of the register where the statement had been recorded by the doctor is described as the "Registrar 's note" which comprehends everything including the nature of injuries to the injured, any statement made by him or similar other matters.
[281 E F] (c) There is no evidence on record to show that the doctor was in any way friendly with the appellant or inimical towards the injured man; she was an absolutely disinterested and independent witness.
[281 G] 2 (a) The High Court had erred in holding that the doctor 's evidence was inadmissible in that the provisions of section 145 of the Evidence Act had not been complied with.
[282 F] (b) Section 145 applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding.
If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statements under section 145, that is to say, where the statements made by a person or a witness is contradicted not by his own statement but by the statement of another prosecution witness the question of application of section 145 does not arise.
[283 A C] (c) The doctor 's statement was an admission of a prosecution witness.
If it was inconsistent with the statement made by another prosecution witness there was no question of application of section 145 of the Evidence Act.
[283 C] In the instant case the statement of the injured to the doctor being first in point of time it must be preferred to any subsequent statement made by the injured.
There is much evidence to show that the injured did not know the appellant before the date of the incident.
No test identification parade had been held.
The appellant was shown by the police before he identified him.
If the accused was not known to the injured and his friends before the incident and was identified for the first time in the court, this evidence has no value and cannot be relied upon in the absence of a test identification parade.
[285 E,C,F] V.C. Shukla vs State (Delhi Administration), ; and Sahdeo Gosain & Anr.
vs The King Emperor , referred to.
|
ition No. 4676 of 1978, (Under article 32 of the Constitution of India) M.S. Ganesh for the Petitioner.
N.C. Talukdar, R.N. Poddar and Miss A. Subhashini, for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
'Equal pay for equal work ' is not a mere demagogic slogan.
It is a constitutional goal capable of attainment through constitutional remedies by the enforcement of constitutional rights.
So the petitioner claims; so the petitioner asserts.
Article 39 (d) of the Constitution proclaims, as a Directive Principle, the Constitutional goal of 'equal pay for equal work for both men and women '.
Articles 14 and 19 guarantee respectively the fundamental rights to equality before the law and equality of opportunity in the matter of public employment and article 32 provides the remedy for the enforcement of the fundamental rights.
So the petitioner has invoked the jurisdiction of this Court under article 32 and has asked us to direct the respondents to give him his due, the same as they have given others like him.
True, he is the merest microbe in the mighty organism of the State, a little clog in a giant wheel.
But, the glory of our Constitution is that it enables him to a directly approach the highest Court in the land for redress.
It is a matter of no little pride and satisfaction to us that he has done so.
Hitherto the equality clauses of the Constitution, as other articles of the Constitution guaranteeing fundamental and other rights, were most often invoked by the privileged classes for their protection and advancement and for a 'fair and satisfactory ' distribution of the buttered leaves amongst themselves.
Now, thanks to the rising social and political consciousness and the expectations roused as a consequence, and the forward looking posture of this Court, the underprivileged also are clamouring for their rights and are seeking intervention of the Court with touching faith and confidence in the Court.
The judges of the Court have a duty to redeem their constitutional oath and do justice no less to the pavement dweller than to the guest of the five star hotel.
301 The petitioner is a Driver Constable in the Delhi Police Force under the Delhi Administration and he demands that his scale of pay should atleast be the same as the scale of pay of other drivers in the service of the Delhi Administration.
The scale of pay of a Driver Constable in the Delhi Police Force is Rs. 210 270 in the case of non matriculates and Rs. 225 308 in the case of matriculates.
The scale of pay of a Driver in the Railway Protection Force is Rs. 260 400.
The scale of pay of drivers in the non Secretariat offices in Delhi is Rs. 260 6 326.E B 8 350.
The scale of pay of drivers in the Secretariat offices in Delhi is Rs. 260 6 290 EB 6 326 8 366 EB 8 8 8 390 10 400.
The scale of pay of drivers in the office of the Language Commission is Rs. 260 350.
The pay scale of drivers of heavy vehicles in the Fire Brigade and the Department of Light House is Rs. 330 480.
The case of the petitioner is that he discharges the same duties as the rest of the drivers in the other offices; in fact he claims that he discharges more onerous duties than the others.
He complains that there is no reason whatsoever to discriminate against the petitioner and other driver Constables merely because he and his ilk happen to be described as constables as indeed they are bound to be so described, belonging as they do to the Police Force.
It appears that the Third Pay Commission considered the claims of all drivers as a common category under the head "the pay scales appropriate for drivers of motor vehicles operating on roads.
After considering the qualifications etc.
possessed by drivers the Commission proposed pay scales for various categories of drivers like drivers of light motor vehicles, drivers of heavy motor vehicles, drivers employed in organisations with large fleet of vehicles, drivers of staff cars etc.
The pay scales were professed to be fixed with reference to the qualifications for driving, the nature and the arduousness of the duties and responsibilities, the non availability of adequate promotional avenues and such other usual considerations.
The Pay Commission, however, while considering the question of the scales of pay of drivers separated the case of constable drivers on the ground that their case would be considered along with the cases of other police personnel.
The grievance of the petitioner is that while considering the question of the scales of pay of the police personnel, the Pay Commission failed to consider the drivers as a separate category and ignored the special considerations which prevailed in the case of drivers in other departments and which should have, therefore, prevailed in the case of driver constables also.
302 The drivers constables were not only required to possess heavy transport driving licence, they were further required to undergo a test of proficiency in driving before they were appointed as driver constables in the police force.
Their duties were no less arduous and their responsibilities no less heavy than the duties and responsibilities of drivers in other departments.
Their hours of work were long and inconvenient and there was constant exposure to security risks.
The petitioner and other driver constables made a representation to the authorities that their case was omitted to be considered separately by the Pay Commission and that their scales of pay should be the same as the drivers of heavy vehicles in other departments.
As their claims for better scales of pay did not meet with any success, the present application has been filed for the issue of a Writ under Art, 32 of the Constitution.
Among the submissions made on behalf of the respondents, it was suggested that the petitioner was no more and no less than a constable of the Delhi Police Force and that there was no such category of Drivers in the Delhi Police Force.
The hollowness of this submission is exposed by a reference to the facts relating to the individual petitioner.
The petitioner who was an ex gunner (driver) in the artiliary corps of the Indian Army and who was experienced in the driving, operation and maintenance of jeeps, trucks and heavy armoured vehicles was allowed to retire from the Army on compassionate grounds.
He held an Army driving licence as also a Civil Heavy Transport Driving Licence.
After he was discharged from the Army his nominal roll was forwarded by the Director General Resettlement, Ministry of Defence to the Commandant, Delhi Armed Police, Delhi.
The question of his employment as a driver in the Delhi Police Force was considered and he was informed that a test of proficiency in driving would be held.
He was required to produce his Civil Heavy transport driving licence at the time of the test.
It is of interest to note that the subject of the communication sent by the Delhi Police establishment to the petitioner was "Employment of ex servicemen in Delhi Police as N.T. Driver (Const)".
He appeared at the test.
By a communication dated March 29, 1968, he was informed by the Commandant, Delhi Armed Police, Delhi that his name had been "approved for enlistment as driver in the Delhi Police".
Thereafter a certificate in the prescribed form was issued to him vesting him with the powers, functions and privileges of a police Officer.
It is clear and it cannot be seriously disputed that the petitioner was appointed as a driver in the Delhi 303 Police Force.
He was designated as constable, because, for the purposes of the discipline of the Force and appointment as driver in the Delhi Police Force, he had to be made a member of the Delhi Police Force and had to be assigned a rank in the Force.
The investiture of the petitioner with the "powers, functions and privileges of a police Officer" was a consequence of his becoming a member of the Force.
The main defence taken by the respondents is, in the words of the deponent of the counter affidavit, as follows : "It is submitted that there can be no comparison between the different departments of the Government of India for the purpose of fixation of pay scale.
A pay scale has been fixed upon consideration of various factors.
The pay scales of the drivers of the Delhi Police has been fixed after duly considering all the circumstances.
The drivers in the other departments are not similarly situated as the petitioner and there is no question of any hostile discrimination.
It is, however, denied that the drivers have been treated as a separate class.
It is also denied that the designation of the petitioner is N. T. Driver (Constable) ' The counter affidavit does not explain how the case of the drivers in the police force is different from that of the drivers in other departments and what special factors weighed in fixing a lower scale of pay for them.
Apparently in the view of the respondents, the circumstance that persons belong to different departments of the Government is itself a sufficient circumstance to justify different scales of pay irrespective of their identity of their powers duties and responsibilities.
We cannot accept this view.
If this view is to be stretched to its logical conclusion, the scales of pay of officers of the same rank in the Government of India may vary from department to department notwithstanding that their powers duties and responsibilities are identical.
We concede that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts but we must hasten to say that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments.
Of course, if officers of the same rank perform dissimilar functions and the powers, 304 duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.
Our attention was drawn to Binoy Kumar Mukerjee vs Union of India, Makhan Singh vs Union of India & Ors.
where reference was made to the observations of this Court in Kishori Mohanlal Bakshi vs Union of India describing the principle of equal pay for equal work as an abstract doctrine which had nothing to do with article 14.
We shall presently point out how the principle, "equal pay for equal work" is not an abstract doctrine but one of substance.
Kishori Mohanlal Bakshi vs Union of India is not itself of any real assistance to us since what was decided there was that there could be different scales of pay for different grades of a service.
It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade.
The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay.
The principle of equal pay for equal work would be an abstract doctrine not attracting article 14 if sought to be applied to them.
It is true that the principle of 'equal pay for equal work ' is not expressly declared by our Constitution to be a fundamental right.
But it certainly is a Constitutional goal.
article 39(d) of the Constitution proclaims 'equal pay for equal work for both men and women" as a Directive Principle of State Policy. 'Equal pay for equal work for both men and women ' means equal pay for equal work for everyone and as between the sexes.
Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation.
article 14 of the Constitution enjoins the state not to deny any person equality before the law or the equal protection of the laws and article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under 305 the State.
These equality clauses of the Constitution must mean some thing to everyone.
To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get.
To them the equality clauses will have some substance if equal work means equal pay.
Whether the special procedure prescribed by a statute for trying alleged robber barons and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular Governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the takeover of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions of people of this country untouched.
Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them.
The preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic.
Again the word 'Socialist ' must mean something.
Even if it does not mean 'To each according to his need ', it must atleast mean 'equal pay for equal work '.
The principle of 'equal pay for equal work ' is expressly recognized by all socialist systems of law, e.g, Section 59 of the Hungarian Labour.
Code, para 2 of Section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code.
Indeed this principle has been incorporated in several western labour codes too.
Under provisions in Section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bargaining agreements.
In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance (vide: International Labour Law by Istvan Szaszy p. 265).
The preamble of the Constitution of the International Labour Organisation recognises the principle of 'equal remuneration for work of equal value ' as constituting one of the means of achieving the improvement of conditions "involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled".
Construing Articles 14 and 16 in the light of the Preamble and article 39(d) we are of the view that the principle 'Equal pay for Equal work ' is deducible from those Article and may be properly applied to cases of unequal scales of pay based 306 on no classification or irrational classification though these drawing the different scales of pay do idential work under the same employer.
There cannot be the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government.
If anything, by reason of their investiture with the 'powers, functions and privileges of a police officer ', their duties and responsibilities are more arduous.
In answer to the allegation in the petition that the driver constables of the Delhi Police Force perform no less arduous duties than drivers in other departments, it was admitted by the respondents in their counter that the duties of the driver constables of the Delhi Police Force were onerous.
What then is the reason for giving them a lower scale of pay than others ? There is none.
The only answer of the respondents is that the drivers of the Delhi Police Force and the other drivers belong to different departments and that the principle of equal pay for equal work is not a principle which the Courts may recognise and act upon.
We have shown that the answer is unsound.
The clarification is irrational.
We, therefore, allow the Writ Petition and direct the respondents to fix the scale of pay of the petitioner and the drivers constables of the Delhi Police Force atleast on a par with that of the drivers of the Railway Protection Force.
The scale of pay shall be effective from 1st January, 1973, the date from which the recommendations of the Pay Commission were given effect.
S.R. Petition allowed.
| IN-Abs | The petitioner is a driver constable in the Delhi Police Force under the Delhi Administration.
The scale of pay in the Delhi Police Force is for non matriculate drivers Rs. 210 270 and for matriculate drivers 225 308.
The scale of pay of a driver in the Railway Protection Force is Rs. 260 400.
The scale of pay of driver in the non secretariat offices in Delhi is Rs. 260 6 326 EB 8 350, while that of Secretariat offices in Delhi is Rs. 260 6 290 EB 6 326 8 366 EB 8 8 8 390 10 400.
The scale of pay of drivers in the office of the Language Commission is Rs. 260 300 while the drivers of heavy vehicles in the Fire Brigade and the Department of Light House is Rs. 330 480.
The petitioner and other driver constables made a representation to the authorities that their case was omitted to be considered separately by the Third Pay Commission and that their pay scales should be the same as the drivers of heavy vehicles in other departments.
As their claims for better scales of pay did not meet with success, the present application has been filed by the petitioner for the issue of a writ under Article 32 of the Constitution.
Allowing the petition, the Court ^ HELD: 1:1.
The petitioner was appointed as a driver in the Delhi Police Force.
After his discharge from the army question of his employment as a driver in Delhi Police Force was considered, he was asked to appear for a test of proficiency in driving, directed to produce a Civil Heavy Transport Driving Licence, selected thereafter as a driver in Delhi Police Force under the category "Employment of Ex serviceman in Delhi Police as N.T. Driver (Constable).
" He was designated as Constable, because for the purposes of the discipline of the Force and appointment as driver in the Delhi Police Force he had to be made a member of the Delhi Police Force and had to be assigned a rank in the Force.
The investiture of the petitioner with the "powers, functions and privileges of a police Officer" was a consequence of his becoming a member of the Force.
[302 H, 303 A C] 1:2.
The petitioner and other drivers in the Delhi Police Force perform the same functions and duties as other drivers in the service of the Delhi Administration and the Central Government.
If anything, by reason of their investiture with the "power, functions and privileges of a police Officer", their duties and responsibilities are more arduous.
The clarification that the drivers of the 299 Delhi Police Force and the other drivers belong to different departments and that the equal pay for equal work is not a principle which the courts may recognise and act upon is irrational.
[306 A, B, C, D] 2:1.
No doubt, equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies and not for the courts, but where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments.
Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.
[303 G H, 304 A] 3:1.
The principle "equal pay for equal work" is not an abstract doctrine but one of substance.
There can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade.
The higher qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay.
The principle of equal pay for equal work would be an abstract doctrine not attracting Article 14 if sought to be applied to them.
[304 C E] 3:2.
It is true that the principle of "equal pay for equal work" is not expressly declared by our Constitution to be a fundamental right.
But it certainly is a Constitutional goal.
Article 39 (d) of the Constitution proclaims "equal pay for equal work for both men aud women" as a Directive Principle of State Policy.
"Equal pay for equal work for both men and women" means equal pay for equal work for every one and as between the sexes.
Directive Principles have to be read into the fundamental rights as a matter of interpretation.
Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
These equality clauses of the Constitution must mean something to everyone.
To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get.
To them the equality clauses will have some substance if equal work means equal pay.
Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them.
The preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic.
Again the word 'Socialist ' must mean something.
Even if it does not mean 'to each according to his need ', it must at least mean 'equal pay for equal work '.
[304 E H, 305 A D] 3:3.
From a construction of Articles 14 and 16 in the light of the Preamble and Article 39(d), it is clear that the principle "equal pay for equal work" is deducible from those Articles and may be properly applied to cases of unequal 300 scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.
[305 G H, 306 A] Kishori Lal Mohan Lal Bakshi vs Union of India, A.I.R. , distinguished.
|
me that these utterly unfair provisions wholly denying socio economic justice are properly modified and brought in conformity with the modern concept of justice and faieplay to the lowest and the lowliest in Railway administration.
[273 C D, 274 A B] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1613 of 1979.
Appeal by special leave from the Judgment and Order dated the 9th January, 1979 of the Kerala High Court in O.P. No. 4401 of 1974.
K.R.R. Pillai for the Appellant.
P.A. Francis and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by DESAI, J.
Appellant L. Robert D 'Souza joined service as a gangman at Mangalapuram in Southern Railway on July 1, 1948.
In course of his service he was transferred to various places.
When he was last working as Lascar at Ernakulam, on October 8, 1974 the Executive Engineer (Construction), Ernakulam intimated to him that his services were deemed to have been terminated from September 18, 1974, from which date the appellant was said to have absented himself from duty.
This letter has an important bearing on the issues raised in this appeal, and, therefore, relevant portion may be extracted here: "You have absented yourself unauthorisedly from 18.9.1974 and hence your services are deemed to have been terminated from the day you have absented yourself.
Please note.
256 Since you are no longer on the rolls of this office you should vacate the quarters allotted to you immediately failing which action will be taken to evict you".
According to the appellant, up to the date of unauthorised and illegal termination of his service he had rendered continuous service for a period of 26 years yet the Railway administration wrongfully denied him the status of a temporary and or regular workman and treated him a daily rated casual labourer.
This treatment according to the appellant was so unfair that it prompted persons who were victims of this unfair treatment by the Railway administration to form a Union named Southern Railway Construction Workers Union, Ernakulam, of which the appellant was the General Secretary.
The Union submitted a charter of demands which presumably irritated the authorities and chagrinned by it, the appellant was transferred to Podannur in Tamil Nadu by way of punishment.
As the late Shri A.K. Gopalan, who was a renowned trade union leader, espoused the cause of the appellant, his transfer was cancelled and he was repasted and allowed to continue at Ernakulam after paying the arrears of wages and granting continuity of service for the period he did not join duty at the place of his transfer.
This is quite evident from the letter of the Under Secretary, Ministry of Labour, dated April 23, 1974, which reads as under: "With reference to your letter dated the 28th May, 1973, on the above subject, I am directed to say that it has been reported by the Ministry of Railways that the Southern Railway Administration has been advised that as you were transferred back to Ernakulam on 19th March, 1971, you should be deemed to have been on duty for the intervening period from 8th March, 1970 to 19th February, 1971, and your wages paid accordingly".
The local superiors of the appellant were annoyed by the success of the appellant and they were on a look out for settling the score with the appellant.
In the meantime the appellant approached the Labour Court for recovering some of his dues which remained pending for a long time.
As the appellant and those similarly situated were likely to reach the age of superannuation and by the unfair labour practice of the Railway administration they were likely to be denied the full retirement benefits, appellant and several others filed a writ petition in the High Court of Kerala.
According 257 to the appellant, for the various reasons stated in the petition, appellant and those similarly situated could not be treated as daily rated casual labour and under the relevant rules appellant and his co workers would at least acquire the status of temporary railway servants and their services could not be terminated in the manner in which the appellant 's service was terminated and that they would be entitled to all the retiral benefits.
The petition came up before a learned single judge who dismissed the same.
The matter was taken in appeal before the Division Bench.
In the appeal it was contended that the termination of service of the appellant in the circumstances as set out earlier would constitute retrenchment within the meaning of section 25F of the ( 'Act ' for short), and therefore, the order of termination, inter alia, is invalid.
The Division Bench found the question raised before it of such importance and magnitude that it referred the same to the Full Bench.
In the meantime the appellant was actively pursuing his trade union activities.
A demand was made that all the benefits granted by the Central Pay Commission be extended to the category of employees to which the appellant belonged and when these demands fell on deaf ears, it was resolved to give a strike notice.
The matter was taken in conciliation which ultimately resulted in failure.
The appellant approached the Central Government to make a reference under section 10 of the in respect of the demands for adjudication by National Tribunal.
As the Central Government was wobbling in its approach, the appellant declared his intention to go on fast unto death for redressal of the grievances suffered for decades by the lowest category of railway employees.
At that stage the Assistant Labour Commissioner intervened and persuaded the appellant not to precipitate the matter.
The appellant accordingly broke his fast on September 28, 1974, in the hospital where he was confined during his fast.
Taking advantage of his absence during the fast immediately the order of termination of his service was served and this led to the present proceedings which have culminated in this appeal.
The appellant, inter alia, contended before the Full Bench of Kerala High Court that the termination of his service for the reasons and in the manner brought about is illegal and invalid, that it was victimisation for trade union activities; that it was unfair labour practice and that it was mala fide.
It was also contended that in view of his long uninterrupted service admittedly over twenty years 258 he was at the minimum a temporary railway servant and, therefore, his service cannot be terminated unless he was rendered surplus or by way of disciplinary measure after complying with Article 311 of the Constitution.
The legal submission put in the forefront was that in the circumstances herein mentioned the termination of service constituted 'retrenchment ' within the meaning of section 25F of the and as the pre condition to valid retrenchment having not been satisfied, the termination is illegal and invalid.
The Full Bench answered the point referred to it against the appellant holding that there is no retrenchment as contended for, on behalf of the appellant and finally dismissed the petition.
Hence this appeal by special leave.
At the outset it must at once be pointed out that the construction put by the Full Bench of the Kerala High Court on the expression 'retrenchment ' in section 2(oo) of the that it means only the discharge of surplus labour or staff by the employer for any reason whatsoever is no more good law and in fact the decision of the Full Bench of Kerala High Court in L. Robert D 'Souza vs Executive Engineer, Southern Railway and Anr.,(1) has been specifically overruled by this Court in Santosh Gupta vs State Bank of Patiala (2) This Court has consistently held in State Bank of India vs N. Sundera Money,(3) Hindustan Steel Ltd. vs Presiding Officer, Labour Court,(4) and Delhi Cloth & General Mills Ltd. vs Shambhu Nath Mukherji,(5) 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 such as sections 25FF and 25FFF.
It was attempted to be urged that in view of the decision of this Court in Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor Union,(6) the ratio of which was re affirmed by a Constitution Bench of this Court in Hariprasad Shivshanker Shukla vs A.D. Divikar,(7) all the later decisions run counter to the Constitution Bench and must be treated per in curium.
This contention need not detain us because first in Hindustan Steel Ltd. case, then 259 in Santosh Gupta 's case (Supra) and lastly in Mohan Lal vs Bharat Electronics Ltd.,(1) it was in terms held that the decision in Sundera Money 's case was not at all inconsistent with the decision of the Constitution Bench in Hariprasad Shukla 's case and not only required no reconsideration but the decision in Sundera Money 's case was approved in the aforementioned three cases.
This position is further buttressed by the decision in Delhi Cloth and General Mills Ltd. case wherein striking off the name of a workman from the roll was held to be retrenchment.
It is, therefore, the settled law that the expression 'termination of service for any reason whatsoever ' in the definition of the expression 'retrenchment ' in section 2(oo) of the 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 such as sections 25FF and 25FFF.
Two things thus emerge, firstly, that the decision of the Full Bench of Kerala High Court under appeal has been specifically overruled by this Court in Santosh Gupta 's case (Supra) and secondly, in view of the decision in Delhi Cloth General Mills Ltd. case (Supra) striking off the name of a workman from the rolls without anything more constitutes retrenchment within the meaning of the expression 'retrenchment ' in section 2(oo).
This emerging legal position alone would be sufficient for us to allow the appeal and set aside the decision of the Kerala High Court.
Sheet anchor of Mr. Francis 's submission is that this Court should proceed on the construction of expression 'retrenchment ' as set out in Hariprasad Shukla 's case, and ignore the construction of the expression 'retrenchment ' put in the decisions of this Court in Sundera Money 's Hindustan Steel Ltd. case, Santosh Gupta 's case, Delhi Cloth & General Mills Ltd. case as being per in curium.
We are not disposed to undertake this recurring futile exercise for obvious reason that on four different occasions, in Hindustan Steel Limited case, a Division Bench of this Court consisting of Chandrachud, Goswami and Gupta, JJ.
in Sundera Money 's case, a Bench consisting of Chandrachud, Krishna Iyer and Gupta, JJ; in Santosh Gupta 's case, a Bench consisting of Krishna Iyer and O. Chinnappa Reddy, JJ.
and a Bench of two judges consisting of Gupta, J. and one of us in Mohanlal 's case, have repeatedly undertaken this very detailed exercise and held that there is no inconsistency of any nature and kind nor any conflict, contradiction or repugnancy between the decision of the Constitution Bench in Hariprasad Shukla 's case and aforementioned later four decisions 260 and they stand in harmony with each other and the later decisions take note of an amendment in the relevant provisions of and, therefore, the construction put on the expression 'retrenchment ' in the aforementioned decisions pronounced the settled view of this Court.
We, therefore, consider it futile and waste of precious time of the Court to re examine the submission of Mr. Francis negatived on four different occasions in the past.
Undoubtedly, Mr. Francis pointed out that in Surendra Kumar Verma & Ors.
vs Central Government Industrial Tribunal cum Labour Court, New Delhi & Anr.,(1) Pathak, J. in his concurring judgment has stated that his concurrence with the majority view propounded by Reddy, J. should not be taken to imply his agreement with the interpretation of section 2(oo) rendered in Santosh Gupta 's case.
It may, however, be mentioned that the majority in that case has affirmed the earlier decision.
Therefore, after meticulously examining on five distinct and different occasions, it is clearly and unequivocally stated that there is neither apparent nor real conflict between the decision of the Constitution Bench in Hariprasad Shukla 's case and the later five decisions commencing from Sundera Money and ending with Mohanlal 's case, it would be sheer waste of time and merely adding to the length of the judgment to re examine this contention over again, so as to cover the familiar ground.
As we are not prepared to examine the contention over again, the submission of Mr. Francis that 'retrenchment ' contemplates some overt act on the part of the employer, that it inheres the principle of last come first go which again requires an overt act on the part of the employer; that when retrenched workmen and required to be re employed, first option for re employment has to be given to the retrenched workmen, which necessitates some overt act on the part of the employer, would be beside the point and of no relevance and significance.
The reference to Rules 76, 77 and 78 of the Industrial Disputes (Central Rules).
1957, does not advance his case a step further.
The definition of expression 'retrenchment ' in section 2(oo) is so clear and unambiguous that no external aids are necessary for its proper construction.
Therefore, we adopt as binding the well settled position in law that if termination of service of a workman is brought about for any reason whatsoever, it would be retrenchment except if the case falls within any of the excepted categories, i.e., (i) termination by way of punishment inflicted pursuant to disciplinary action; (ii) voluntary retirement of the work 261 man; (iii) 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; (iv) or termination of the service on the ground of continued ill health.
Once the case does not fall in any of the excepted categories the termination of service even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of expression in section 2(oo).
It must as a corollary follow that if the name of the workman is struck off the roll that itself would constitute retrenchment, as held by this Court in Delhi Cloth & General Mills Ltd. case.
We specifically refer to this case because the facts in the case before us are on all fours with the facts in the aforementioned cases and on parity of reasoning and judicial comity the same conclusion must follow unless something to the contrary is indicated.
In that case respondent section N. Mukherji who was recruited as a labourer came to be promoted in course of time to the post of Motion Setter.
On October 1, 1964, pursuant to some re organisation in the establishment the post of Motion Setter was abolished.
The management offered employment to the respondent section N. Mukherji on any other suitable post, which was indicated to be the post of Assistant Line Fixer (Assistant Grade I) without loss of wages.
He was to be on probation.
The management found him unsuitable for this post even after extending the period of probation by 9 months and therefore offered him post of Fitter on the same pay which he, as a Motion Setter, used to get.
The response of section N. Mukherji to this offer was that he should be given a further opportunity to show his efficiency in his job and if he fails to improve, he would tender his resignation voluntarily.
The management did not reply to the letter with the result that the workman did not report for work at the newly offered post.
On January 19, 1966, the management wrote to the workman that his name has been struck off from the rolls with effect from August 24, 1965, for continued absence without intimation.
Such termination of service was held to be covered by the expression 'retrenchment ' and it was struck down on the ground that the pre condition to valid retrenchment was not complied with.
It would thus appear that it is consistently held by this Court that termination of service for any reason whatsoever except the excepted categories would constitute retrenchment within the meaning of the expression in the .
And here recall the order of termination of service of the appellant wherein it is stated that "You have absented yourself unauthorisedly from 19.8.1974 and hence your services are deemed to have been terminated from the day you have absented yourself.
" Is any other 262 conclusion possible save and except the one recorded by this Court in Delhi Cloth & General Mills Ltd case that this constitutes retrenchment and for non compliance with pre condition, it is invalid.
Before referring to other contentions of Mr. Francis, we may dispose of one contention based upon construction of section 9A of the as in our opinion, it is utterly untenable.
Mr. Francis says that if valid retrenchment presages a notice contemplated by section 25F, the same would stand dispensed with in view of the proviso (b) of section 9A of the and therefore even if the termination is held to be retrenchment, the same would be valid.
There are two basic fallacies in this submission.
Retrenchment to be valid must comply with three conditions set out in section 25F.
They are (a) subject to the proviso to clause (a), one month 's notice in writing specifying the reasons for retrenchment or wages in lieu of notice; (b) compensation to be paid according to the measure provided in the clause, the payment to be simultaneous with the retrenchment; and (c) the notice in the prescribed manner to be served on the appropriate Government.
If the termination in this case otherwise constitutes retrenchment admittedly clauses (b) and (c) of section 25F have not been complied with.
That apart, the submission that in view of the provision contained in proviso (b) of section 9A, the notice contemplated by clause (a) of section 25F would be dispensed with, is without merits.
Section 9A imposes an obligation on the employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule to give notice as therein provided and the employer is precluded from effecting the change without giving to the workman likely to be affected by such change, notice in the prescribed manner of the nature of the change proposed to be effected, and the change cannot be effected within 21 days of the giving of such notice.
In order to attract section 9A the change proposed must be in the conditions of service applicable to the workman in respect of any matters specified in the Fourth Schedule.
If the proposed change falls in any of the matters specified in the Fourth Schedule the change can be effected after giving notice in the prescribed manner and waiting for 21 days after giving such notice.
There is a proviso to section 9A which exempts the employer from giving the notice of change if the case falls in any of the two provisos.
According to Mr. Francis the case would be covered by proviso (b).
It reads as under: "9A. No employer, who proposes to effect any change in the conditions of service applicable to any workman in 263 respect of any matter specified in the Fourth Schedule, shall effect such change (a) x x x x (b) x x x x Provided that no notice shall be required for effecting any such change: (a) x x x x (b) where the workmen likely to be effected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Services Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules, or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply".
It was obligatory upon the employer, who wants to retrench the workmen to give notice as contemplated by clause (a) of section 25.
When a workman is retrenched it cannot be said that change in his conditions of service is effected.
The conditions of service are set out in Fourth Schedule.
No item in Fourth Schedule covers the case of retrenchment.
In fact, retrenchment is specifically covered by Item 10 of the Third Schedule.
Now, if retrenchment which connotes termination of service, cannot constitute change in conditions of service in respect of any item mentioned in Fourth Schedule, section 9A would not be attracted.
In order to attract section 9A the employer must be desirous of effecting a change in conditions of service in respect of any matter specified in Fourth Schedule.
If the change proposed does not cover any matter in Fourth Schedule section 9A is not attracted and no notice is necessary.
See Workmen of Sur Iron & Steel Co. (P) Ltd. vs Sur Iron & Steel Company (P) Ltd., Tata Iron & Steel Company Ltd. vs Workmen and Assam Match Co. Ltd. vs Bijoy Lal Sen.
Thus if section 9A is not attracted the question of seeking exemption from it in the case falling under 264 the proviso would hardly arise.
Therefore, neither s 9A nor the proviso is attracted in this case.
The basic fallacy in the submission is that notice of change contemplated by section 9A and notice for a valid retrenchment under section 25F are two different aspects of notice, one having no co relation with the other.
It is, therefore, futile to urge that even if termination of the service of the petitioner constitutes retrenchment it would nevertheless be valid because the notice contemplated by section 25F would be dispensed with in view of the provision contained in section 9a, proviso (b).
That apart, it is an indisputable position that none of the other pre conditions to a valid retrenchment have been complied with in this case because the very letter of termination of service shows that services were deemed to have been terminated form a back date which clearly indicates no notice being given, no compensation being paid and no notice being given to the prescribed authority.
Therefore, termination of service, being retrenchment, for failure of comply with section 25F, would be viod ab initio.
Mr. Francis next contended that as the appellant belonged to the category of casual labour as defined in rule 2501 in Chapter XXV of the India Railway Establishment Manual ( 'Manual ' for short), no notice prior to termination of his service is necessary or required by law in view of the provisions contained in Rule 2505.
The submission is that in the case of casual labour the service will be deemed to have been terminated when such employee absents himself or no the close of the day.
Rule 2501 reads as under: "2501.
Definition (a) Casual labour refers to labour whose employment is seasonal, intermittent, sporadic or extends over short periods.
Labour of this kind is normally recruited from the nearest available source.
It is not liable to transfer, and the conditions applicable to permanent and temporary staff do not apply to such labour, (b) The casual labour on railway should be employed only in the following types of cases, namely: (i) Staff paid from contingencies except those retained for more than six months continuously.
Such of those persons who continue to do the same work 265 for which they were engaged or other work of the same type for more than six months without a break will be treated as temporary after the expiry of the six months of continuous employment.
(ii) Labour on projects, irrespective of duration, except those transferred from other temporary or permanent employment.
(iii) Seasonal labour who are sanctioned for specific works of less than six months duration.
If such labour is shifted from one work to another of the same type, e.g., relaying and the total continuous period of such work at any one time is more than six months ' duration, they should be treated as temporary after the expiry of six months of continuous employment.
For the purpose of determining the eligibility of labour to be treated as temporary, the criterion should be the period of continuous work put in by each individual labour on the same type of work and not the period put in collectively by any particular gang or group of labourers.
x x x Note : (1) x x (2) Once any individual acquires temporary status, after fulfilling the conditions indicated in (i) or (iii) above, he retains that status so long as he is in continuous employment on the railways.
In other words, even if he is transferred by the administration to work of a different nature he does not lose his temporary status.
(3) x x x (4) Casual labour should not be deliberately discharged with a view to causing an artificial break in their service and thus prevent their attaining the temporary status.
266 (5) x x x Rule 2505 may as well be extracted.
It reads as under: "2505.
Notice of termination of service Except where notice is necessary under any statutory obligation, no notice is required for termination of service of the casual labour.
Their services will be deemed to have terminated when they absent themselves or on the close of the day.
Note: In the case of a casual labourer who is to be treated as temporary after completion of six months ' continuous service, the period of notice will be determined by the rules applicable to temporary Railway servants".
In order to satisfactorily establish that the applicant belonging to the category of casual labour whose service by deeming fiction enacted in Rule 2505 will stand terminated by the mere absence, it must be shown that the appellant was employed in any of the categories set out in clause (b) of rule 2502.
What has been urged on behalf of the respondent is that the appellant was employed in construction work and, therefore, labour on projects irrespective of duration would belong to the category of casual labour.
That, however, does not mean that every construction work by itself becomes a work charged project.
On the contrary sub clause (1) of clause (b) of rule 2501 would clearly show that such of those persons belonging to the category of casual labour who continued to do the same work for which they were engaged or other work of the same type for more than six months without a break will be treated as temporary after the expiry of the six months of continuous employment.
Similarly, seasonal labour sanctioned for specific works for less than six months ' duration would belong to the category of casual labour.
However, sub clause (iii) of clause (b) of rule 2501 provides that if such seasonal labour is shifted from one work to another of the same type, as for example, 'relaying ' and the total continuous period of such work at any one time is more than six months ' duration, they should be treated as temporary after the expiry of six months of continuous employment.
The test provided is that for the purpose of determining the eligibility of casual labour to be treated as temporary, the criterion should be the period of continuous work put in by each individual 267 labour on the same type of work and not the period put in collectively by any particular gang or group of labourers.
It is thus abundantly clear that if a person belonging to the category of casual labour employed in construction work other than work charged projects renders six months ' continuous service without a break, by the operation of statutory rule the person would be treated as temporary railway servant after the expiry of six months of continuous employment.
It is equally true of even seasonal labour.
Once the person acquired the status of temporary railway servant by operation of law, the conditions of his service would be governed as set out in Chapter XXIII.
Rule 2301 in Chapter XXIII defines a temporary railway servant.
It reads as under: "2301.
Definition A 'temporary railway servant ' means a railway servant without a lien on a permanent post on a Railway or any other administration or office under the Railway Board.
The term does not include 'casual labour ', a 'contract ' or 'part time ' employee or an 'apprentice '.
" The service of a temporary railway servant may be terminated as provided in Rule 2301.
The benefits which a temporary railway servant enjoys are set out in the same chapter.
The question, therefore, is whether the appellant who was recruited as casual labour continued to be the same or he had acquired the status of temporary railway servant at the time of termination of his service.
In the affidavit filed in the High Court the respondents contended that the appellant was employed in construction work on work charged project.
The High Court did not examine this contention on merits and, therefore, it has become obligatory upon us to probe it.
The appellant has stated that he joined as a Gangman on July 1, 1948 at Mangalapuram and he was transferred in 1953 to Pindur in Mysore State.
He confessed that he does not have any record to show this employment but urged that if the pay roll of the relevant period would be produced by the Railway administration, the fact alleged would be completely borne out.
We would bypass this controversial period, without recording any finding on it one way or the other.
The appellant further contends that on November 15, 1954, on transfer he joined in the office of Inspector of Works 268 at Mangalore and since then he has been in continuous employment in the construction branch of the Southern Railway till the date of his illegal termination of service on October 8, 1974.
These averments are incontrovertible and have not rightly been controverted before us, in view of unimpeachable evidence produced by the appellant.
The Executive Engineer, Ernakulam, where the appellant at the relevant time, i.e. September 5, 1966, was working, addressed a letter to various Executive Engineers inquiring from them whether the surplus staff on his establishment could be absorbed by any of them.
The material portion of the letter reads as under: Ext.
P 3 Executive Engineer 's Office, Ernakulam Dated 5.9.1966 Subject : Surplus staff (Casual labour staff) absorption of "Since the major portion of the work in this construction unit is over the list of the C.L. staff who are likely to be rendered surplus by 30.9.66 and 31.12.66 due to expiry of sanction to the post held by them, is enclosed.
Please advise whether you can absorb any of these personnel in your construction division so that they may be relieved in time if they are willing".
Enclosures: (1) List.
List of C.L. Staff Working in Xen 's Office/Ers.
No. Name Presently working as Date of appointment X X X 10.
Robert D 'Souza.
Peon/Lascar.
15.11.54 X X X This evidence furnished from the record of the respondent and not controverted by any affidavit to the contrary would establish that the appellant was in continuous service from November 15, 1954.
Recall here, the fact that his service was terminated by the impugned order contained in the letter Annexure 1 dated October 8, 1974.
Therefore, apart from the period in controversy from 1948 to 1964 269 it is unquestionably established that the appellant was in continuous uninterrupted service from November 1954 to October 1974, a period of 20 years and he was working as Peon/Lascar.
Undoubtedly he has been referred to as belonging to casual labour staff but would it be fair to hold that after 20 years of continuous service, he would still continue to be a casual labour and therefore, his service could be terminable at will, and he would not be entitled to any of the benefits which a temporary or a permanent railway employee would enjoy ? There is, however, one more aspect to which we would refer before we proceed to pronounce upon the status of the appellant.
The definition of casual labour extracted by us above clearly indicates that person belonging to casual labour is not liable to transfer.
The appellant has stated that he was transferred to Madras in 1957, to Tuni in Andhra Pradesh in 1958, to Rajahmundry in 1960, to Samalkhotan in 1961, to Virudhnagar in 1962 and to Manamadurai in 1965 and then to Ernakulam in August 1965.
It appears that he was again transferred from Ernakulam which was seriously objected and he took up the matter with the higher authorities when he was re transferred to Ernakulam on March 19, 1971.
This appears from the letter of the Under Secretary in the Ministry of Labour addressed to the appellant in which it is stated that the Ministry of Railways was advised that the appellant be transferred back to Ernakulam, which advice has been carried out and the intervening period for which he did not report for duty, i.e. from March 6, 1970 to February 19, 1971, he would be paid the wages as if he was on duty.
In the face of these incontrovertible facts could it at all be said that the appellant though transferred ad nauseum still continued to belong to the category of casual labour ? An additional fact which buttresses this conclusion may be referred to.
The appellant and several others filed petition in the High Court of Kerala from which the present appeal arises.
All the petitioners before the High Court contended that each of them having rendered continuous service for decades they could not be said to be belonging to the category of casual labour and if anything all of them had acquired status of temporary employees.
The respondent filed counter affidavit and contended that the appellant and his co petitioners in the High Court never acquired the status of temporary railway servant and each of them belonged to the category of casual labour.
During the pendency of the petition 270 in the High Court service of the appellant was terminated but his co petitioners continued in service.
After the dismissal of the writ petition by the learned single judge appellant and three others preferred Writ Appeal No. 218 of 1973 in the same High Court.
By the time the appeal came up for hearing three co appellants of the present appellant who were appellants before the Division Bench were informed that they were treated as on regular employment and ceased to belong to the category of casual labour.
Unfortunately as the service of the appellant was already terminated he was not given this benefit.
This fact clearly emerges from the manner in which the Division Bench disposed of the appeal before it.
The relevant observation is as under: "In view of the letters received from the Executive Engineer, Southern Railway, addressed to Shri K.P. Pathrosa, advocate, appearing for respondents in the writ appeal, it has become unnecessary to consider this writ appeal on merits".
With reference to the appellant it was stated as under: "As regards the first appellant, it is stated that he absented himself from duty and so he had been denied employment.
Since then another Writ Petition O.P. No. 4401/74 has been filed by the first appellant and is now pending before this Court.
The contention of the first appellant including what has been raised in this petition will be considered in O.P. 4401/74".
By the letters referred to by the Division Bench, the Executive Engineer informed the advocate appearing for Railway administration that appellants other than the present appellant were absorbed as regular railway employees and hence the appeal has become infructuous.
Unfortunately for the appellant he was denied this benefit as his service was already terminated.
If his service was not terminated, his case was not distinguishable from the case of his co appellants and he would have been entitled both in law and facts to the same treatment.
The approach of the Railway administration to say the least is amazing.
For years they did not act according to law and confer status of temporary railway servant on the appellant and his colleagues in the High Court.
When appellant espoused this cause he was thrown out but his colleagues were given the benefit richly deserved in law.
This discriminatory treatment cannot 271 help the respondent because appellant 's case cannot be distinguished.
If the status of temporary railway employee was already acquired before the termination of service in the manner brought about, the same would be ipso facto invalid.
At this stage we would again revert to the annexure to the letter of Executive Engineer dated September 5, 1966, in which the name of the appellant appears at Serial No. 10.
One of the co petitioners of the appellant in the High Court, who got the benefit of regular employment pursuant to the writ petition was one Shri K.N. Balakrishna.
His name appears at Serial No. 1 in the annexure to the letter of Executive Engineer referred to above.
His date of appointment is shown to be March 24, 1954.
It would thus appear at a glance that the case of the appellant could not be distinguished from the case of Shri K.N. Balakrishna and if Shri Balakrishna was accorded the status of regular employee, the appellant could not be treated otherwise, but for a singular unfortunate event of his termination of service.
He could not be singled out for such treatment, Had his service not been terminated, the Railway administration could not have denied him the status and this status he would have acquired long back.
If by operation of law, to wit, Rule 2501 the appellant had acquired the status of temporary railway servant by rendering continuous uninterrupted service for more than six months, his service could not have been terminated under rule 2505.
It, however, needed moral force of fast and costly court proceedings by a low daily paid workman against the Railway administration in the High Court to obtain such meagre benefit.
It would thus clearly appear that even the appellant would have acquired the status of at least a temporary railway servant.
But we would rather like to refer to the legal position in this behalf more accurately.
To start with, let us recall the rule 2501(b) (i) and (iii) and note below rule 2505.
The underlying internment of the provision is that a casual labourer who has rendered six months ' continuous service would be place in the category of temporary railway servant unless he is employed on work charged project.
Rule 2501(b) (i) clearly provides that even where staff is paid from contingencies, they would acquire the status of temporary railway servants after expiry of six months of continuous employment.
But reliance was placed on rule 2501(b) (ii) which provides that labour on projects, irrespective of duration, except those transferred from other temporary or permanent employment would be treated as casual labour.
In order to bring the case within the 272 ambit of this provision it must be shown that for 20 years appellant was employed on projects.
Every construction work does not imply project.
Project is correlated to planned projects in which the workman is treated as work charged.
The letter dated September 5, 1966, is by the Executive Engineer, Ernakulam, and he refers to the staff as belonging to construction unit.
It will be doing violence to language to treat the construction unit as project.
Expression 'project ' is very well known in a planned development.
Therefore, the assertion that the appellant was working on the project is belied by two facts: (i) that contrary to the provision in Rule 2501 that persons belonging to casual labour category cannot be transferred, the appellant was transferred on innumerable occasions as evidenced by orders Ext.
P 1 dated January 24, 1962, and Ext.
P 2 dated August 25, 1964, and the transfer was in the office of the Executive Engineer (Construction); (ii) there is absolutely no reference to project in the letter, but the department is described as construction unit.
If he became surplus on completion of project there was no necessity to absorb him.
But the letter dated September 5, 1966, enquires from other executive engineers, not attached to projects, whether the surplus staff including appellant could be absorbed by them.
This shows that the staff concerned had acquired a status higher than casual labour, say temporary railway servant.
And again construction unit is regular unit all over the Indian Railways.
It is a permanent unit and cannot be equated to project.
Therefore, the averment of the Railway administration that the appellant was working on project cannot be accepted.
He belonged to the construction unit.
He was transferred fairly often and he worked continuously for 20 years and when he questioned the bona fides of his transfer he had to be re transferred and paid wages for the period he did not report for duty at the place where he was transferred.
Cumulative effect of these facts completely belie the suggestion that the appellant worked on project.
Having rendered continuous uninterrupted service for over six months, he acquire the status of a temporary railway servant long before the termination of his service and, therefore, his service could not have been terminated under Rule 2505.
Once it is held that by operation of statutory rule in the Manual, the appellant had acquired a status of temporary railway servant and assuming, as contended by Mr. Francis, that the termination of service in the circumstances alleged does not constitute retrenchment stricto sensu, would the termination be still valid ? 273 The answer is an emphatic No.
On the admission of the Railway administration, service was terminated on account of absence during the period appellant was on fast.
Absence without leave constitutes misconduct and it is not open to the employer to terminate service without notice and inquiry or at any rate without complying with the minimum principle of natural justice.
Further, rule 2302 clearly prescribes the mode, manner and methodology of terminating service of a temporary railway servant and admittedly the procedure therein prescribed having not been carried out, the termination is void and invalid.
Accordingly, the same conclusion would be reached even while accepting for the purpose of the facts of this case simultaneously rejecting it in law that the termination does not constitute retrenchment yet nonetheless it would be void and inoperative.
We would be guilty of turning a blind eye to a situation apart from being highly unethical, wholly contrary to constitutional philosophy of secio economic justice if we fail to point out that Rule 2501 which permits a man serving for 10, 20, 30 years at a stretch without break being treated as daily rated servant, is thoroughly opposed to the notion of socioeconomic justice and it is high time that the Railway administration brings this part of the provision of the Manual, antiquarian and antediluvian, in conformity with the Directive Principles of State Policy as enunciated in Part IV of the Constitution.
It may be necessary for a big employer like the railway to employ daily rated workmen but even here it is made distinctly clear that in case of casual labour, the daily wage is fixed by dividing monthly minimum wage by 26 so as to provide a paid holiday.
Maybe, for seasonal employment, or for other intermittent work daily rated workmen may have to be employed.
It may as well be that on projects workcharged staff may have to be employed because on the completion of the projects the staff may become surplus.
That was at a time when planning and projects were foreign to the Indian economy.
Today, Railways perspective plans spreading over decades.
If one project is complete another has to be taken over.
Railway administration has miles to go and promises to keep and this becomes clear from the fact that the appellant, a daily rated workman, continued to render continuous service for twenty years which would imply that there was work for daily rated workman everyday for twenty years at a stretch without break and yet his status did not improve and continued to be treated as daily rated casual labour whose service can be terminated at the whim 274 and fancy of the local satraps.
It is high time that these utterly unfair provisions wholly denying socioeconomic justice are properly modified and brought in conformity with the modern concept of justice and fairplay to the lowest and lowliest in Railway administration.
Now, if appellant had become at least a temporary railway servant he is entitled to many benefits set out in Rule 2303 onwards.
We have no doubt in our minds that the appellant whose case was on par with Shri K.N. Balakrishna who had already been offered regular employee status, would be entitled to be placed in the same category and that too from the date much earlier to the date of termination of his service.
In this situation termination of his service not being covered by any of the excepted categories and not after notice would be retrenchment within the meaning of the expression as used in the and for the failure to comply with the pre condition the termination of service would be void.
Assuming we are not right in holding that the appellant had acquired the status of a temporary railway servant and that he continued to belong to the category of casual labour, would the termination of the service in the circumstances mentioned by the Railway administration constitute retrenchment under the ? Section 25F of the 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 the conditions set out in are satisfied.
The expression 'workman ' is defined as under: "In this , unless there is anything repugnant in the subject or context: "Workman" means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment 275 has led to that dispute, but does not include any such person (i) who is subject to the , or the or the Navy (Discipline) Act, 1934, or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
" There is no dispute that the appellant would be a workman within the meaning of the expression in section 2(s) of the Act.
Further, it is incontrovertible that he has rendered continuous service for a period over twenty years.
Therefore, the first condition of section 25F that appellant is a workman who has rendered service for not less than one year under the Railway administration, an employer carrying on an industry, and that his service is terminated which for the reason hereinbefore given would constitute retrenchment.
It is immaterial that he is a daily rated worker.
He is either doing manual or technical work and his salary was less than Rs. 500/ and the termination of his service does not fall in any of the excepted categories.
Therefore, assuming that he was a daily rated worker, once he has rendered continuous uninterrupted service for a period of one year or more.
within the meaning of section 25F of the Act and his service is terminated for any reason whatsoever and the case does not fall in any of the excepted categories.
notwithstanding the fact that Rule 2505 would be attracted, it would have to be read subject to the provisions of the Act.
Accordingly the termination of service in this case would constitute retrenchment and for not complying with pre conditions to valid retrenchment, the order of termination would be illegal and invalid.
276 Accordingly, we allow this appeal, set aside the order of the High Court and declare that the termination of service of the appellant was illegal and invalid and the appellant continues to be in service and he would be entitled to full back wages and costs quantified at Rs. 2,000.
S.R. Appeal allowed.
| IN-Abs | The appellant joined service as a gangman in Southern Railway on July 1, 1948.
In course of his service he was transferred to various places.
While he was working as a Lascar at Ernakulam, he was transferred, some time in March 1970 by way of punishment for his Union activities in the capacity of General Secretary of the Southern Railway Construction Workers Union, Ernakulam, to Podannur in Tamil Nadu.
However, his transfer was cancelled and he joined duty on 20 2 1971 at Ernakulam.
The Ministry of Labour, Government of India, by its letter dated April 23, 1974 directed treatment of his entire period of absence from 8th March, 1970 to 19th February, 1971 as duty.
Later, the appellant approached the Labour Court for recovering some of his dues which remained pending for a long time.
As the appellant and those similarly situated were likely to reach the age of superannuation and by the unfair labour practice, namely, treating them only as 'daily rated labour ', of the Railway Administration, they were likely to be denied the full retirement benefits, appellant and several others filed a writ petition in the High Court of Kerala, praying for a direction that they should be treated at least as temporary railway servant with attendant benefits.
During the pendency of the matter, in connection with the demand for all the benefits granted by the Central Pay Commission being extended to the category of employees to which the appellant belonged the appellant undertook a fast, but broke the same on September 28, 1974 at the intervention of the Assistant Labour Commissioner.
Taking advantage of the appellant 's absence, the respondents terminated his service with retrospective effect, i.e., from 18 9 1974 on the ground of unauthorised absence.
A learned single Judge having dismissed the same, the matter was taken in appeal before the Division Bench.
In the appeal, it was contended that the termination of service of the appellant in the circumstances would constitute retrenchment within the meaning of section 25F of the and, therefore, the order of termination was invalid.
The matter was referred to the Full Bench which held that there was no retrenchment and dismissed the appeal.
Hence, the appeal by special leave.
Allowing the appeal, the Court 252 ^ HELD: 1.
The expression "termination of service for any reason whatsoever" in the definition "retrenchment" in section 2(oo) of the 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 sections 25FF and 25FFF.
The excepted categories are (i) termination by way of punishment inflicted pursuant to disciplinary action; (ii) voluntary retirement of the workman; (iii) 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; (iv) or termination of the services on the ground of continued ill health.
Once the case does not fall in any of the excepted categories, the termination of service even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of expression in section 2(oo) of the Act.
It must as a corollary follow that if the name of the workman is struck off the roll, that itself would constitute retrenchment.
[259 B C, 206 H, 261 A B] Delhi Cloth & General Mills Ltd. vs Shambhu Nath Mukherji, ; , followed.
State Bank of India vs N. Sundera Money, ; ; Hindustan Steel Ltd. vs Presiding Officer, Labour Court, ; ; Santosh Gupta v, State Bank of Patiala, at 892; Mohan Lal vs Bharat Electronics Ltd.; , , referred to.
There is neither apparent nor real conflict between the decision of the constitution bench in Hariprasad Shivshanker Shukla vs A.D. Divikar, [1957] S.C.R. 121 and the later five decisions commencing from Sundera Money and ending with Mohanlal 's case.
Re examining a contention over again so as to cover the familiar ground would, apart from giving a gobye to the doctrine of stare decisis, would be a sheer waste of time and mere lengthening of the judgment.
[260 C D] Surendra Kumar Verma & Ors.
vs Central Government Industrial cum Labour Court, New Delhi & Anr., , View of Pathak, J. held inapplicable.] 2:1.
Notice contemplated by clause (a) of section 25F would not be dispensed with, in view of the provision contained in proviso (b) of section 9A, which is an independent provision having no co relation with section 25F. [264 B] 2:2.
Section 9A imposes an obligation on the employer, who promises to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule to give notice as therein provided and the employer is precluded from effecting the change without giving to the workman likely to be effected by such change, notice in the prescribed manner of the nature of the change proposed to be effected, and the change cannot be effected within 21 days of the giving of such notice.
In order to attract section 9A the change proposed must be in the conditions of service applicable to 253 the workman in respect of any matters specified in the Fourth Schedule.
If the proposed change falls in any of the matters specified in the Fourth Schedule the change can be effected after giving notice in the prescribed manner and waiting for 21 days after giving such notice.
In order to attract section 9A the employer must be desirous of effecting a change in conditions of service in respect of any matter specified in Fourth Schedule.
If the change proposed does not cover any matter in Fourth Schedule section 9A is not attracted and no notice is necessary.
[262 E G] Workmen of Sur Iron & Steel Co. (P) Ltd. vs Sur Iron & Steel Company (P) Ltd., ; Tata Iron & Steel Company Ltd. vs Workmen, ; ; Assam Match Co. Ltd. vs Bijoy Lal Sen, ; , referred to.
Retrenchment to be valid must comply with three conditions set out in section 25F.
They are, (a) subject to the proviso to clause (a) one month 's notice in writing specifying the reasons for retrenchment or wages in lieu of notice: (b) compensation to be paid according to the measure provided in the clause, the payment to be simultaneous with the retrenchment; and (c) the notice in the prescribed manner to be served on the appropriate Government.
It was obligatory upon the employer, who wants to retrench the workmen to give notice as contemplated by clause (a) of section 25.
[262 C E] 2:4.
A careful reading of sections 9A and 25F makes it clear that when a workman is retrenched, no change in his conditions of service is effected.
No item in Fourth Schedule which sets out the conditions of service covers the case of retrenchment.
In fact retrenchment is specifically covered by item 10 of the Third Schedule.
If retrenchment which connotes termination of service, cannot constitute change in conditions of service in respect of any item mentioned in Fourth Schedule section 9A would not be attracted.
If section 9A is not attracted, the question of seeking exemption from it in the case falling under the proviso would hardly arise.
Therefore, neither section 9A nor the proviso is attracted in this case.
That apart, none of the other pre conditions to a valid retrenchment have been complied with, because the very letter of termination of service shows that services were deemed to have been terminated from a back date which clearly indicates no notice being given, no compensation being paid and no notice being given to the prescribed authority.
Therefore, termination of service, being retrenchment, for failure to comply with section 25F, would be void ab initio.
[263 D E, H, 264 A, C D] 3:1.
The test provided is that for the purpose of determining the eligibility of casual labour to be treated as temporary, the criterion should be the period of continuous work put in by each individual labour on the same type of work and not the period put in collectively by any particular gang or group of labourers.
It is thus abundantly clear that if a person belonging to the category of casual labour employed in construction work other than work charged projects renders six months ' continuous service without a break, by the operation of statutory rule the person would be treated as temporary railway servant after the expiry of six months of continuous employment.
It is equally true of even seasonal labour.
Once the person acquired the status of temporary 254 railway servant by operation of law, the conditions of his service would be governed as set out in Chapter XXIII.
The service of a temporary railway servant may be termined only as provided in Rule 2301.
[266 H, 267 A B, E] 3:2.
The underlying intendment of the Rule 2501(b) (i) has rendered six months ' continuous service would be placed in the category of temporary railway servant unless he is employed on work charged project.
Rule 2501(b) (i) clearly provides that even where staff is paid from contingencies, they would acquire the status of temporary railway servants after expiry of six months of continuous employment.
[271 E H] In the instant case: (i) the appellant acquired the status of temporary railway servant long before the termination of his service and, therefore, his service could not have been terminated under Rule 2505; (ii) he never worked on projects but on a construction Unit.
Construction Unit is a regular Unit and cannot be equated to Project.
Every construction work does not imply Project.
Project is correlated to planned projects in which the workman is treated as work charged.
Persons belonging to casual labour category cannot be transferred but the appellant was transferred on innumerable occasions; (iii) as a result of the appellant and others filing a writ petition, three co appellants were informed that they were treated as on regular employments and ceased to belong to the category of casual labour.
But for impugned termination orders the appellant also would have been treated as temporary and therefore, the appellant received discriminatory treatment offending Article 14 & 16 of the Constitution; and (iv) section 25F of the 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 the conditions set out in Act are satisfied.
The appellant would be a workman within the meaning of that expression in section 2(s) of the Act.
He has rendered continuous service for a period over twenty years.
Therefore, the first condition of section 25F that appellant is a workman who has rendered service for not less than one year under the Railway administration, an employer carrying on an industry, is satisfied.
His service is terminated which for the reasons herein before given would constitute retrenchment.
It is immaterial that he is a daily rated worker.
He is either doing manual or technical work and his salary was less than Rs. 500 and the termination of his service does not fall in any of the excepted categories.
Therefore, assuming that he was a daily rated worker, once he has rendered continuous uninterrupted service for a period of one year or more, within the meaning of section 25B of the Act and his service is terminated for any reason whatsoever and the case does not fall in any of the excepted categories, notwithstanding the fact that Rule 2505 would be attracted, it would have to be read subject to the provisions of the Act.
Accordingly the termination of service in this case would constitute retrenchment and for not complying with pre conditions to valid retrenchment the order of termination would be illegal and invalid.
[271 D, 272 A, G, 275 D G] 3:3.
Absence without leave constitutes misconduct and it is not open to the employer to terminate service without notice and inquiry or at any rate without complying with the minimum principle of natural justice.
Further 255 Rule, 2302 clearly prescribes the mode, manner and methodology of terminating service of a temporary railway servant and admittedly the procedure therein prescribed having not been carried out, the termination is void and invalid.
Accordingly, the same conclusion would be reached even while accepting for the purpose of the facts of this case simultaneously rejecting it in law that the termination does not constitute retrenchment yet nonetheless it would be void and inoperative.
[273 A C] OBSERVATION: Rule 2501 which permits a man serving for 10, 20, 30 years at a stretch without break being treated as daily rated servant, is thoroughly opposed to the notions of socio economic justice and it is high time that Railway administration brings this part of the provision of the Manual, antiquarian and antediluvian, in conformity with the Directive Principles of State Policy as enunciated in
|
tition Nos. 6443 44/80, 8829 30, 9123 24, 370 87, 777 796, 658 62, 732 63, 824 31, 847 62, 1080 1103, 1131 52, 8916, 9071 74, 9130 32, 9176 79, 8965, 8971 72, 9347 48, 9352 67 of 1981.
(Under Article 32 of the Constitution of India) AND Writ Petitions Nos.
14 19/82, 333 25, 458 96, 1307 17, 1410 13, 1595, 8268 72 of 1981 and 152 of 1982.
(Under article 32 of the Constitution of India) C.M. Lodha.
in W. P. No. 6443 44/80, Shanti Bhushan, in WP.
732 63, 3423 25/81 S.N. Kackar, in W.P. 777 96 & 1131 52 of 81; R.K. Jain, section Mitter, K.K. Mohan, N.S. Das Bahl, Rameshwar Dial and Madan Gopal Gupta for the Petitioners.
G.N. Dikshit and Mrs. Shobha Dikshit for Respondents.
Girish Chandra and Miss A. Subhashini for Union of India in W.P. Nos. 6443 44/80.
The Judgment of the Court was delivered by: DESAI, J.
Even an innocuous marginally regulatory measure affecting the sugar trade at fringes is sufficient for this powerful industry to invade the courts with petitions galore almost proclaiming that there should be hands off policy in respect of this trade.
The filimsty albeit untenable grievance made in this group of petitions would underscore the truth of what is just stated.
In exercise of the power conferred by clause (4) third proviso of the Sugarcane (Control) Order, 1966, (Control Order ' for short), the 2nd respondent State of Uttar Pradesh, with the permission of 376 the 1st respondent Union of India, issued Notification dated September 3, 1980, which is impugned in these petitions.
The impugned Notification reads as under: "Sr.
No. 398 A (Ka) 13 38 16, 56 Government Gazette, U.P. Extraordinary Legislative Supplement Part 4, Section (b) (Kha) .
Order Lucknow, Wednesday, 3rd September, 1980.
Notification P.As. 306 In exercise of the powers conferred by clause 4 proviso 3 of the Sugarcane Control Order, 1966, the Governor, with the permission of the Central Government, allows in Uttar Pradesh in respect of Khandsari units, producing Gur, rab or Khandsari sugar, where sugarcane is brought in bundles and is weighed as such, a rebate in regard to the binding material at 0.650 kilograms per quintal.
By Order, R. Basudev, Secretary" It was stated that there was a printing error in mentioning the figure '0.650 kg. ' and a corrigendum has been issued to correct it to '0.625 kg. ' per quintal in the Notification.
The allegations in all the petitions are identical and, therefore, we would state a few representative facts from the writ petition filed by M/s. Sukhnandan Saran Dinesh Kumar and Another.
The petitioners are producers of sugar by open pan process, the product being described as Khandsari sugar.
This term is to be understood in contra distinction to the marketable commodity called 'sugar ' which is produced by vacuum pan process.
The raw material for manu 377 facturing sugar or Khandsari sugar is sugarcane.
The petitioners have set up a factory for manufacturing khandsari sugar by open pan process.
The petitioners buy sugarcane from the sugarcane growers.
In order to extend protection to the farmers who have undertaken raising of sugarcane crop, the Central Government issued the Control Order in exercise of the power conferred by section 3 of the .
By clause 3 of this order, power was conferred on the Central Government to fix minimum price of sugarcane to be paid by producers of sugar for sugarcane purchased by them.
Clause 4 confers similar power to fix the minimum price to be paid by the producers of khandsari sugar for sugarcane purchased by them.
Other clauses of the Order for the present purpose are not relevant.
Clause 3A was introduced by GSR 815 (E)/ESS.
COM./Sugarcane dated September 24, 1976, which, inter alia, conferred power on the Central Government and various other authorities mentioned therein to allow a suitable rebate in regard to the weight of the binding material not exceeding 0.625 kg, per quintal of sugarcane, when sugarcane was purchased by the producer of sugar.
Subsequently, by Notification GSR 197 (E)/Ess.
Com./Sugarcane dated March 20,1978, Clause 4A with the marginal note "Robate that can be deducted from the price paid for sugarcane by producers of Khandsari sugar" was introduced.
Clauses 4 and 4 A are material for the present discussion and they may be extracted: "4.
Minimum price of sugarcane payable by producers of Khandsari sugar: The Central Government or a State Government, with the concurrence of the Central Government, may, by notification in the Official Gazette, from time to time, fix the minimum price or the price of sugarcane to be paid by producers of khandsari sugar or their agents for the sugarcane purchased by them: x x x Provided also that the Central Government or, with the approval of the Central Government, the State Government, may in such circumstances and subject to such con 378 ditions as it may specify allow a suitable rebate in the price so fixed." *"4A. Rebate that can be deducted from the price paid for sugarcane by producers of khandsari sugar: A producer of khandsari sugar or his agent shall pay, for the sugarcane purchased by him, to the sugarcane grower or the sugarcane growers ' co operative society, either the minimum price of sugarcane fixed under clause 4, or the price agreed to between the producer or his agent and the sugarcane grower or the sugarcane growers ' co. operative society, as the case may be (hereinafter referred to as the agreed price:) Provided that: x x x x x x (iii) Where the sugarcane is brought bound in bundles and weighed as such, the Central Government, or, with the approval of the Central Government, the State Government or the Director of Agriculture or the Cane Commissioner or the District Magistrate within their respective jurisdiction, may allow a suitable rebate in regard to the weight of the binding material not exceeding 0.625 Kilograms per quintal of sugarcane; and, x x x Clause 4 conferred power on the Central Government or a State Government with the concurrence of the Central Government to fix the minimum price or the price of sugarcane to be paid by producers of khandsari sugar or their agents for the sugarcane purchased by them.
The second and third proviso to clause 4 were simultaneously introduced with clause 4A. By the Third proviso to clause 4, power was conferred on the Central Government or 379 with the approval of the Central Government on the State Government to allow a suitable rebate in the price fixed in exercise of the power conferred by clause 4.
The purpose underlying the proviso is manifest.
If the minimum price or price of sugarcane to be paid by producers of khandsari sugar is fixed, it is incumbent upon the producers of khandsari sugar to pay that price and nothing less than that price on the pain of criminal prosecution.
The authorities clearly envisaged a situation where sugarcane may be brought in bundles to the unit manufacturing khandsari sugar and if the sugarcane is weighed with the binding material used, the minimum price or price fixed by the Government to be paid per quintal of sugarcane would ipso facto include the weight of the binding material and if the power to grant rebate is not conferred the producer of khandsari sugar will be under an obligation to pay the same price even if the part of the payment was for something other than sugarcane, namely, binding material.
The raison d 'etre behind conferring this power is thus clearly discernible.
Clause 4A made it obligatory to pay the minimum price of sugarcane if so fixed under clause 4 or in the absence of price fixation, the negotiated price.
Proviso (iii) to clause 4A confers power to allow rebate not exceeding 0.625 kg.
per quintal of sugarcane where sugarcane is brought in bundles and is weighed as such, i.e. with the binding material.
Armed with this power, the 2nd respondent after obtaining approval of the Central Government, as per letter dated September 6, 1979, issued the impugned notification directing that where sugarcane is brought in bundles and is weighed as such a rebate in regard to the binding material at 0.625 kg.
per quintal be allowed.
Before adverting to the contentions raised in this group of petitions it may be made distinctly clear that though clause 3A was inserted in the Control Order in 1976 conferring similar power on the Central Government or with the approval of the Central Government, on the State Government to allow rebate at 0.625 kg.
per quintal of sugarcane purchased by manufacturers of sugar, such rebate was being prescribed by the Central Government since 1968.
The Gazettes of India setting out the notifications for the years 1968, 1971, 1972 and 1975 were shown to us.
The notifications were issued in exercise of the power conferred by clause 3 of the Sugarcane Control Order, 1966.
By the notifications hereinabove referred to minimum price of sugarcane per quintal payable by each sugar mill enumerated in the Schedule to the notification was fixed.
380 While fixing this minimum price the Central Government authorised itself as also conferred power on the State Governments or the Commissioner or Director of Agriculture within their jurisdiction to allow a suitable rebate in regard to the weight of binding material not exceeding 0.625 kg.
per quintal of sugarcane.
It thus clearly transpires that the power to fix the minimum price of sugarcane comprehended the power to fix rebate to be allowed for binding material where sugarcane is brought to the factory or the producing centre bound in bundles.
However, to avoid any quibbling about the power to fix such rates of rebate, clause 3A was added in 1976 and an identical clause 4A was added in 1978 acquiring power to prescribe rebate to be allowed for binding material where sugarcane is brought to the khandsari sugar producing units bound in bundles and weighed as such.
This would at least show that since 1968 rebate at 0.625 per quintal of sugarcane purchased by producers of sugar is being allowed.
Sugarcane is a raw material both for sugar and khandsari sugar, the distinction between them being that when vacuum pan process is employed the end product is called sugar and when open pan process is employed the end product is called khandsari sugar.
In case of either of them, the grower of sugarcane has hardly anything to do with the end product.
After the grower sells his sugarcane, as far as he is concerned, it is immaterial whether the producer produces sugar or khandsari sugar or rab or jaggery or shakkar.
Therefore, clause 4A was introduced to avoid discrimination between producers of sugar and khandsari sugar in the matter of rebate to be allowed when the grower of sugarcane brings the same bound in bundles to be delivered to the producer.
The producers of sugar have without a murmur accepted this position but once the producers of khandsari sugar are brought within the purview of an identical provision, they have filed the present petitions.
Mr. C.M. Lodha who led on behalf of the petitioners contended that the power to prescribe rate of rebate under third proviso to clause 4 is conditional upon the fixing of minimum price or price of sugarcane, and as the pre condition to exercise of power is not satisfied, the authorities cannot exercise power to prescribe rate of rebate.
The submission is that where minimum price of sugarcane is fixed by the Government, in order to ensure that that price is paid for sugarcane and simultaneously to avoid any unauthorised deduction, the Central Government or the State Government may prescribe the rate of rebate to be allowed beyond which no deduction 381 under the camouflage of rebate for binding material can be resorted to by the purchaser; but if the power to fix minimum price or price of sugarcane is not exercised, there does not arise a situation in which the power to prescribe rebate to be allowed for binding material can be exercised.
It was urged that the power to fix price or minimum price of sugarcane and to prescribe rate of rebate are not independent but they are inter dependent and one cannot be exercised without exercising the other.
Clause 4 confers power on the Central Government or a State Government with the concurrence of the Central Government to fix the minimum price or the price of sugarcane to be paid by producers of khandsari sugar for sugarcane purchased by them.
Third proviso to clause 4 provides that the Central Government or with the approval of the Central Government, the State Government may in such circumstances and subject to such conditions as it may specify, allow a suitable rebate in the price so fixed.
If the provision were to end with clause 4, a serious contention would arise whether the power to determine rate of rebate can be exercised de horse the power to fix minimum price or price of sugarcane or can be unilaterally exercised.
Undoubtedly, if the power was exercised under clause 4 probably the pre condition to exercise of power of prescribing suitable rebate viz. fixing of minimum price or price of sugarcane if not satisfied, the power to prescribe rate of rebate could not have been exercised because the latter power for its exercise is dependent upon the power to fix price or minimum price.
Both the powers are interrelated as would be evident from the language of third proviso: ". as it may specify, allow a suitable rebate in the price so fixed.
" The rebate is thus co related to price fixed.
Therefore prima facie it appears that the power to fix rate of rebate under the third proviso to clause 4 cannot be exercised without exercising the power to fix price or minimum price.
It being a conditional power, the satisfaction of condition giving rise to the occasion to exercise of power is a must.
Therefore, before the rate of rebate is prescribed the price or the minimum price of sugarcane as provided in the substantive part of clause 4 will have to be fixed.
From the price so fixed a rebate has to be allowed and, therefore, the power was conferred by the third proviso to prescribe the rate of rebate.
The rebate contemplated by the third proviso to clause 4 is not necessarily confined to rate of rebate for binding material only but per 382 missible rate of rebate from the price or minimum price fixed under the substantive provision of clause 4 can be prescribed.
Clause 4A stands on an independent footing and it is independent of clause 4.
Clause 4A is neither inter dependent nor interrelated to clause 4.
Clause 4A provides that the producer of khandsari sugar or his agent shall pay for the sugarcane purchased by him to the sugarcane grower or the sugarcane growers ' cooperative society either the minimum price of sugarcane fixed under clause 4 or the price agreed to between the producer or his agent and the sugarcane grower or the sugarcane growers ' co operative society as the case may be.
Clause 4A thus visualises a situation in which either the minimum price of sugarcane is fixed under clause 4 or where no such price if fixed, the price agreed to between the sugarcane grower and the producer who purchased sugarcane and even in this latter situation the power to prescribe rate of rebate only in respect of binding material was conferred on the Central Government or the authorities set out in the third proviso to clause 4A. Therefore, fixing of the minimum price may be a pre condition to the exercise of power under the third proviso of clause 4, as far as clause 4A is concerned, even where the price to be paid by the producer to the sugarcane grower is the one negotiated between the two, the producer or his agent will have to allow that much rebate and no more for binding material if notified in exercise of the power conferred by the third proviso.
This literal construction accords with the intendment of the provision as would be presently pointed out.
Mr. Lodha urged that if the purchaser and seller of sugarcane are free agents to negotiate the price, what useful purpose would be served by prescribing the rate of rebate statutorily ? Says Mr. Lodha, that if higher rebate is to be allowed, the producer of khandsari sugar and the grower of sugarcane would work out the price accordingly and if less rebate is allowed, it will have a direct impact on the negotiated price.
This submission proceeds on the unwarranted assumption that a producer of khandsari sugar and the grower of sugarcane are capable of negotiating the price as free agents and stand on a footing of equality.
Sugarcane is a perishable commodity.
The grower of the sugarcane is at the mercy of producers of sugar or khandsari sugar.
It would be uneconomic for him to transport sugarcane to a long distance.
By the very nature of the product, it being perishable and transport 383 over a distance being uneconomic, the grower of sugarcane has limited choice in selecting the producer to whom it could be sold.
Between the producer of khandsari and the grower of sugarcane, the first one is primarily in a position to dominate and dictate and they do not operate on the level of equality.
Unquestionably, therefore, the grower of sugarcane in relation to the producer of the khandsari sugar would be weaker and it is he who requires to be protected.
Now, if the protection of fixing of minimum price is not resorted to because the authorities under the Control Order may have information before them that looking to the supply and demand and the demand and the market economy, the grower of sugarcane would be able to obtain a reasonably fair price for his labour, the only thing which is required to be protected against is iniquitous, unauthorised and impermissible deductions.
It appears that in the State of Uttar Pradesh and Bihar the weight of the binding material when sugarcane is brought in bundles to the producer has been a fruitful source for the producers of khandsari sugar to make deductions from the weight of sugarcane delivered to them in such an exorbitant quantity as to deny in real money worth the negotiated price.
This can be demonstrably established by the claim made in these petitions that the weight of binding material is 2.5 kg.
per quintal of sugarcane while the authorities have prescribed only 0.625 kg.
per quintal of sugarcane and the national average as worked out by National Sugar Institute, Kanpur is 0.741 kg.
per quintal of sugarcane.
If the price of sugarcane is fixed per quintal and the deduction is made as contended herein, it does not require imagination or mathematician 's intellect to work out the invisible loss inflicted by the subtle method on the growers of sugarcane.
Therefore, while retaining the power to fix minimum price or price to be paid and also in a given situation leaving it to the purchaser of sugarcane and grower of sugarcane to negotiate the price in order to eschew any exploitation of the weaker section between the two, the power to prescribe the rate of rebate was acquired and can be rightly enforced.
Therefore, viewed from either angle, there is no merit in the submission that unless the power to fix the price or minimum price is exercised there is no power to prescribe the rate of rebate.
Language of clause 4A on a literal or grammatical construction negatives the submission and it must as well be rejected looking to the intendment underlying this provision.
Mr. Shanti Bhushan, learned counsel appearing for the petitioners in Writ Petitions No. 732 to 763 urged that assuming that 384 power to prescribe rate of rebate under clause 4A read with the third proviso could also be exercised where price of sugarcane may be left to be negotiated between the growers of sugarcane and producers of khandsari sugar, yet the quantum as determined must at least have reasonable relation to the reality of market situation as well as prevalent trade practice.
He urged that viewed from this angle fixation of rate of rebate at 0.625 kg.
per quintal of sugarcane is unjust and unfair and therefore the Court should strike down the impugned notification on the ground that the determination is arbitrary and utterly unrelated to trade and practice.
Simultaneously he contended that assuming that national average of weight of binding material works out at 0.741 kg.
per quintal as submitted by the Respondents on the strength of the report of National Sugar Institute, Kanpur, there was absolutely no justification for reducing the same to 0.625 kg.
per quintal and therefore prescribed rate of rebate apart from being arbitrary is unrelated to trade and practice and deserves to be quashed.
In this connection, he referred to Paragraph 6 of the counter affidavit filed by Shri H.A.M.L. Vaz, Deputy Secretary, Ministry of Agriculture, Department of Food in which it is stated as under: "The limit of 625 grams per quintal was adopted, as it was allowed by the States of U.P. and Bihar before the Central Government took over the control over the price of sugarcane, and has continued since then.
Representations were received from the Associations of the vacuum pan sugar mills etc.
against that limit.
A survey was carried out by the National Sugar Institute, Kanpur, and the average weight of the binding material worked out to 0.741 kg., per quintal for the winter season of the selected factories spread over the whole country.
Subsequently, on receipt of a representation from the Madras State Federation of Co operative Sugar Factories, views of the State Governments in the matter were also called for, with the specific request that they might also ascertain the views of the cane growers.
The major sugar producing State Governments of U.P., Punjab, Rajasthan, Maharashtra, Karnataka, Andhra Pradesh, Pondicherry, West Bengal, Orissa, Madhya Pradesh, Kerala and Gujarat, recommended that the limit already prescribed was adequate and that there was no need to revise it.
The Bihar Government had already indicated the same view.
Hence fixation 385 of that limit cannot be said to be unreal and arbitrary or contrary to actualities of trade and practice.
" Petitioners countered it by the affidavit in rejoinder of Shri Prem Parkash Aggarwal; the relevant portion of para 4 reads as under: "With reference to Para 6 of the counter affidavit I say that to the best of my information no survey was carried out at any time after 1976.
It is to the best of my information that National Sugar Institute, Kanpur, conducted some kind of survey in 1964 or earlier.
" This half hearted lack of knowledge would not be sufficient to reject what Mr. Vaz stated in his counter affidavit.
However, to put this factual averment beyond the pale of controversy Mr. Girish Chandra, learned advocate who appeared for the Union Government produced a file of the Department of Food, Sugar Policy Desk, in which claim for upward revision of allowance for binding material presently allowed under Sugar (Control) Order, 1966 in the light of the suggestions received from Indian Sugar Mills Association as per its letter dated July 14, 1977 has been meticulously examined.
It appears that Indian Sugar Mills Association approached the Central Government requesting it for upward revision of the rebate for binding material till then granted under the Control Order.
Indian Sugar Mills Association appears to be the spokesman of the sugar industry.
Probably a grievance was voiced that while producers of sugar are under a statutory obligation to grant the prescribed rate of rebate, the producers of khandsari sugar are under no such obligation even though they purchase sugarcane from the the same market.
Accordingly while examining the question whether any upward revision in the rate of rebate should be allowed to the producers of sugar who purchase sugarcane, it was decided to simultaneously introduce an identical provision in respect of purchase of sugarcane by producers of khandsari sugar.
That is the genesis of the introduction of clause 4A in the Control Order.
The file meticulously examines the suggestion for upward revision of the rate of rebate.
It clearly transpires from the file that a circular letter was sent to all the governments of sugar producing states requesting them to intimate their view on the desirability or otherwise of any upward revision in the existing quantum of rebate of 0.625 kg.
per quintal in respect of the weight of the binding material 386 where sugarcane is brought bound in bundles and weighed as such.
It may be briefly mentioned that Punjab, Gujarat, Karnataka and U.P., did not consider it necessary to grant any upward revision.
On the other hand, Tamilnadu, Kerala, West Bengal, Pondicherry, Haryana, Rajasthan and Orissa were of the opinion that there is some justification for an upward revision not exceeding 1 kg.
per quintal.
The State of Bihar took a neutral stand stating that in Bihar, sugarcane is not supplied bound in bundles and therefore the question of giving any rebate in respect of binding material does not arise.
After ascertaining the views of the different State Governments, the department was of the view that since the views of the State Governments are sharply divided, a request may be made to Director, National Sugar Institute, Kanpur to carry out an independent study in regard to the quantum of rebate that should be given for binding material, to enable the Government to take a final decision, on the request of the industry for upward revision of the existing rebate of 0.625 kg per quintal.
This is the genesis of the report of the Director, National Sugar Institute referred to in Para 6 of the counter affidavit.
The summary of the report of the Director, National Sugar Institute, Kanpur was examined and it was observed that the percentage of the binding materials varies from State to State and ranges between 0.64 to 1.5% except in Orissa where it is found to be 3.00%.
When the matter was still under consideration of the Department, the present writ petitions were field.
It was observed that the present rate of rebate is in force for the last over 20 years, so far as the vacuum pan sugar manufacturers are concerned and the same can be applied to the khandsari sugar manufacturers also.
Probably further examination of the request for upward revision came to be stalled in view of the fact that the present writ petitions were filed.
In the light of the fact situation hereinabove set out, it is difficult to accept the submission that the fixation of rate of rebate for binding material at 0.625 kg.
for the whole country is either arbitrary or unreal or unrelated to trade and practice.
The rate of rebate seems to have been determined by the law of averages after collecting information from all over the country.
Coupled with this is the fact that the present rate of rebate is in vogue for over a quarter of a century.
It in itself is sufficient to negative the contention that the rate of rebate is fixed arbitrarily or unrelated to trade and practice.
387 The next submission is that assuming that the Central Government was influenced by the report made by the Director of the National Sugar Institute, Kanpur, the report suggests that the average works out at 0.741 kg, per quintal, being approximately the mean between 0.64 and 1.5%.
Therefore, it was vehemently urged that there was no justification for further reducing it to 0.625 kg.
When the determination has to be made on law of averages and applicable to the whole country, the final figure cannot be mathematically determined.
If the existing rate of rebate, determined on the national average is marginally higher or lower than the average worked out by a later study team, it cannot be said that the existing prescription is arbitrary or unrelated to trade or practice No doubt, if the range is wide, and the gap is unexplained, realistic redetermination may be directed.
According to the average worked out by the Director of the National Sugar Institute, all India average rate of rebate would work out at 0.741 kg.
per quintal while the Government has been fixing for over a quarter of a century the rate of rebate at 0.625 kg.
per quintal.
Thus the differential between what is prescribed and what is calculated by the study is not so wide as to render the prescribed rate arbitrary or unrealistic.
The differentials being within a narrow range, the one which is in vogue for over a quarter of a century cannot be rejected as arbitrary or unrelated to trade and practice.
Nor is the Court competent to work out the exact permissible rebate with mathematical accuracy.
A reference at this stage to a piece of evidence furnished by the petitioners would suffice to repel the contention of the petitioners that the average weight of binding material is 2.5 kg.
per quintal and, therefore, the prescribed rate is not merely marginally low but wholly unrealistic.
Annexure I to the rejoinder affidavit filed by Shri Prem Prakash Aggarwal, Secretary of Gur Khandsari Utpadak Sangh, Roorkee, dated December 24, 1981, purports to be a report of the Assistant Sugarcane Commissioner on his visit to M/s Anand Prakash Atulkumar, a Khandsari sugar producing unit on January 25, 1978.
He was accompanied by Shri Shanker Shukla, Khandsari Officer, Sarvashri S.D. Verma, R.C. Kureel, Deoband and Navin Chandra, Khandsari Inspectors.
In order to ascertain the average weight of binding material a truck loaded to its full capacity with sugarcane was weighed.
The gross weight was 37 quintals and 36 kgs.
Shri Shobha Ram, the owner of the sugarcane was directed to 388 remove the joon (binding material) of sugarcane.
The weight of M. Trolly was found to be 21 quintals and 40 kgs.
Subtracting the weight of trolly from the gross weight, the weight of sugarcane with binding materials worked out at 15 quintals and 96 kgs.
Then followed the calculation which may be extracted: "The above farmer (kastkar) also reported that the sugarcane was being purchased at Rs. 9.
10 p. per quintal.
Approximately about 1800 quintals cane was lying at site.
The weight of the joon (binding material) after it had been removed came to 32 kgs.
" If the actual weight of the binding material in respect of 1800 quintals of sugarcane turned out to be 32 kg., obviously per each quintal it would be much less than 0.625 kg.
Mr. Shanti Bhushan, however, attempted to urge that the last sentence in the Report is disjointed and misplaced and he wanted us to read the Report as meaning that the weight of sugarcane in the trolly was 15.96 kg.
and that the weight of the binding material in respect of the same was 32 kg.
and, therefore, on an average it would work out at 2 kg.
per quintal.
It is not possible to read the Report in the manner indicated by Mr. Shanti Bhushan.
In fact, the Report was produced on behalf of the petitioners and not a word has been stated in the affidavit to which it is annexed as to how the Report is to be read.
It would thus appear that the rate of rebate set out in the impugned Notification bears resemblance to the sample testing of actual weight of binding material used in binding sugarcane when brought in bundles to the khandsari factory.
Our rejection of the submission should not be interpreted to imply that no case is made out for upward revision of the rate of rebate for binding material.
There is by the law of average as recently worked out in 1980 81, an examinable case for revision up to at least 0.741 kg.
per quintal.
We do not purport to indicate the figure as a judicial pronouncement but we believe that the Central Government would continue its examination of the request made by Indian Sugar Mills Association, shelved because of these petitions, for upward revision and realistically examine the same as early as possible and before the next crushing season commences.
With this we reject the submission that the fixation of rate of rebate at 389 0.625 kg.
per quintal in the impugned notification is arbitrary or unrelated to trade and practice.
Mr. Kackar, learned counsel who appeared in Writ Petitions 777 796 and 1131 52/81 urged that the impugned notification places a restriction on the freedom of trade guaranteed to the petitioners under Article 19 (1) (g) and as it is neither shown to be reasonable nor imposed in public interest, it is violative of the freedom of trade and is, therefore, void.
Whenever it is contended that a regulatory measure imposes restriction upon the freedom of trade guaranteed by Articles 19 (1) (g), it must be shown that the restriction so imposed directly and proximately interferes in presenti with the exercise of freedom of trade.
If the alleged restriction does not directly or proximately interfere with the exercise of freedom of trade, the freedom guaranteed by Article 19 (1) (g) is not violated.
Petitioners contend that they have a right to carry on trade on manufacturing khandsari sugar and for facilitating the carrying on of this trade they have to buy the raw material called sugarcane.
When they buy sugarcane in the absence of minimum price for sugarcane the sugarcane grower and the producer of khandsari sugar are free to negotiate the price.
The negotiated price would take care of the condition in which sugarcane should be supplied.
It would be open to the producer of khandsari sugar to buy sugarcane from the grower who may be asked to bring sugarcane not bound in bundles.
The rebate for binding material is to be allowed only when sugarcane is brought to the khandsari sugar producing unit bound in bundles.
It is always open to the purchaser of sugarcane to insist upon the grower bringing the sugarcane not bound in bundles and he is free to negotiate the price when price or minimum price of sugarcane is not fixed and the impugned notification will not even remotely impinge upon his freedom to carry on his trade.
Therefore, the short answer is that the restriction complained of does not directly and proximately interfere with the exercise of freedom of trade and Article 19 (1) (g) is not attracted.
Assuming that the impugned notification making it obligatory to grant rebate for binding material when sugarcane is brought bound bundles to the extent prescribed in the impugned notifica 390 tion does impose a restriction on the freedom to carry on trade, the next question is, whether the restriction is reasonable and imposed in the interest of general public.
Once it is assumed that the impugned notification imposes a restriction on the freedom of trade, the burden is on those who support it, to show that the restriction imposed by the impugned law is reasonable and is imposed in the interest of general public.
In other words, the burden is on those who seek the protection of clause (6) of Article 19 not on the citizen who says that the restrictive enactment is invalid (see Saghir Ahmad vs The State of U.P. & Ors.,(1) Khyerbari Tea Co. Ltd. & Anr.
vs The State of Assam(2) and Vrajlal Manilal & Co. and Ors.
vs State of Madhya Pradesh & Ors.,(3).
It is of course not necessary to recall the dissent of Sarkar, J. in Khyerbari Tea Co. Ltd. case.
The learned judge was of the view that the whole theory of burden of proof rests on the assumption that clause (6) of Article 19 carves out an exception and that the burden to prove that the case is covered by the exception is on him who pleads the same, but it was observed that this way of reading the Constitution is not proper and one may legitimately say that there is no exception because the real fundamental right is what is left after the restriction has been imposed.
Consistently with the majority view, the burden will be on the authority who claims the protection of clause (6) of Article 19 to show that the restriction is a reasonable one and that is imposed in the interest of general public.
Having settled the question of burden, the passing submission made by Mr. Kacker may be dealt with.
It was urged that in the batch of petitions in which he appears neither the Union Government nor the State of Uttar Pradesh has filed counter affidavit and therefore, one can say that no attempt has been made to justify the restriction.
We are not disposed to accept this submission because the Union Government has filed counter affidavit in Writ Petitions Nos.
6443 6444 of 1980 and all the petitions in this batch raised identical contentions and were directed to be heard with Writ Petitions Nos.
6443 6444 of 1980.
Undeserved respect for processual justice may have persuaded us to direct the Union Government to file a copy of the counter affidavit in each petition which we 391 consider superfluous.
At any rate, the petitioners in the petitions in which Mr Kacker appears, were supplied a copy of the counter affidavit and therefore this passing submission must be negatived.
If freedom of trade postulates, inter alia, freedom to negotiate price for purchase and sale both the raw material and the finished product, the control order confers power to fix price of sugarcane and to that extent there is a restriction on freedom of trade.
But the restriction is not under examination here Even when he is left free to negotiate the price where either the Central Government or with the approval of the Central Government, the State Government does not fix minimum price or price of sugarcane there is a further restriction on his freedom of negotiating the price because he is statutorily bound to give rebate for the binding material as prescribed in the impugned notification.
To that extent one may give credence to the contention that there is a marginal restriction on the freedom of trade.
The statutory prescription of quantum of rebate for binding material has been prescribed for the benefit of sugarcane growers.
Producers of sugar and khandsari sugar constitute a powerful trade lobby, the fact of which one can take judicial notice.
Sugar being an essential commodity occasionally kept in short supply and being a commodity needed for consumption by almost the entire population, the powerful industry magnates in this field are in a position to dominate both the growers of sugarcane as also the consumers of the essential commodity.
Number of regulations have been enacted almost since the dawn of independence to regulate this powerful combination of manufacturers of sugar and khandsari sugar all over the country for the ultimate benefit of consumers on the one hand and on the other hand the farmers and the growers of sugarcane with their small holdings and raising a perishable food crop.
The marginal farmers, are unable to stand up against the organised industry.
It does not require long argument in this predominantly agricultural society that the farmers having small holdings need protection for selling at fair price their meagre agricultural produce.
As far back as 1953, the U.P. Legislature enacted U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953, for rational distribution of sugarcane to factories, for its development on the organised scientific line, to protect the interest of cane 392 growers and of the industry, etc.
Constitutionality of this Act was challenged on various grounds including one under Article 19 (1) (g) In Ch.
Tika Ramji & Ors.
vs The State of Uttar Pradesh & Ors.,(1) this Court repelled the challenge under Article 19 (1) (g) holding that the restriction which is imposed upon the cane growers in regard to sales of their sugarcane to the occupiers of factories in areas where the membership of the Cane growers Co operative Society if not less than 75 per cent of the total cane growers within the area, is a reasonable restriction in the public interest designed for safeguarding the interest of the large majority of growers of sugarcane in the area and works for the greatest good of the greatest number.
The proposition is now beyond the pale of controversy that the State can impose a restriction in the interest of general public on the right of a party to contract where in the opinion of the Government the contracting parties are unable to negotiate on the footing of equality.
Constitutional validity of statutes prescribing minimum wages has been founded on this proposition.
The principle can be effectively extended to the powerful sugar industry and the cane growers because the cane growers admittedly are at a comparative disadvantage to the producers of sugar and khandsari sugar who were described in the course of arguments as sugar barons.
It does not require an elaborate discussion to reach an affirmative conclusion that sugarcane growers who are farmers cannot negotiate on the footing of the equality with the producers of sugar and khandsari sugar.
The State action for the protection of the weaker sections is not only justified but absolutely necessary unless the restriction imposed is excessive.
Viewed from another angle, the impugned restriction is entirely reasonable.
If price or minimum price of sugarcane is fixed, the producers of sugar would try to circumvent the price by unrealistic and impermissible deductions.
The rebate for the weight of binding material seems to be a source for indulging in this nefarious, if not wholly fraudulent conduct.
It is equally well settled that the State can impose reasonable restrictions under clause (6) of Article 19 to prevent fraud or where advantage of a fraudulent conduct is sought to be taken (see M/s. Fedco (P) Ltd. vs S.N. Bilgrami(1).
The impugned restriction serves two fold purpose: (i) it ensures price of sugarcane avoiding impermissible deductions; (ii) it circumvents 393 possible fraud by making such deductions as would render illusory even the negotiated price, if not fixed price.
And it is indisputable that if the rebate is not statutorily prescribed the cane growers will be at the mercy of the producers of sugar and khandsari sugar.
If price or minimum price of sugarcane can be fixed by the State, because this power was never questioned before us, this very power comprehends the power to provide such incidenta land ancillary regulations which will ensure the price.
Price fixation measure is for protection of the farmer from the exactions of producers against which he cannot protect himself.
(See Lee Nebbia vs People of the State of New York)(1).
The impugned measure ensures price either fixed or negotiated and, therefore, it is a restriction which is undoubtedly reasonable and is imposed in the interest of general public and the guarantee of freedom of trade is not violated.
The last submission is that in order that the restriction may be reasonable it must have reasonable relation to the object which the statute seeks to achieve and must not be in excess of the object.
It was urged that the Sugarcane Control Order was issued in exercise of power conferred by section 3 of the .
One of the objects sought to be achieved by the , is to ensure availability at fair price the essential commodity to the consumers.
It was further urged that one can visualise that the power to fix minimum price or price of sugarcane may have a rational nexus to the object sought to be achieved, namely, availability of sugar to the consumers at fair price.
But it was urged that prescribing the rate of rebate for binding material has no relation with the aforementioned object.
This submission does not commend to us for the obvious reason that the restriction is imposed in the interest of the cane growers and the State while ensuring that sugar, a commodity of daily consumption by almost every one in this country, is available to everyone at a fair price simultaneously wanted to ensure that the grower of sugarcane, another weaker section of the society is not left to vagaries of the trade or the powerful sugar industry.
To strike the balance between the conflicting interests not only State acquired power to fix minimum price of sugar and khandsari sugar but that this wholesome effort may not work to the disadvantage of the sugarcane growers section of the society, the power to prescribe rate of rebate was acquired.
And the power to fix price or minimum price comprehends the power to 394 so regulate supply as to ensure the price so fixed and to ensure that in the name of unauthorised and unwarranted deduction the price fixed or negotiated is not rendered illusory.
Viewed from either angle the restriction is both reasonable and it is imposed in the interest of general public, and has a rational relation to the object sought to be achieved by the Control Order.
These were all the contentions in this batch of petitions and as none has merit in it, the petitions fail and are dismissed with costs; hearing fee in one set.
N.V.K. Petitions dismissed.
| IN-Abs | The raw material for manufacturing sugar or Khandsari sugar is sugarcane.
When the vacuum pan process is employed the end product is called sugar and when the open pan process is employed the end product is called Khandsari sugar.
In order to extend protection to the farmers who had undertaken raising of sugarcane crop, the Central Government issued the Sugarcane (Control) Order 1966.
Clause 3 of this Order conferred power on the Central Government to fix minimum price of sugarcane to be paid by producers of sugar for sugarcane purchased by them.
Clause 4 conferred similar power to fix the minimum price to be paid by the producers of khandsari sugar for the sugarcane purchased.
Clause 3A which was introduced on September 24, 1976 conferred power on the Central Government and various other authorities to allow a suitable rebate in regard to the weight of the binding material not exceeding 0.625 Kg.
per quintal of sugarcane, when sugarcane was purchased by the producer of the sugar.
Later, Clause 4A was introduced on March 20, 1978 to provide for the rebate that can be deducted from the price paid for sugarcane by producers of khandsari sugar.
The State Government issued a notification on September 3, 1980 to provide that where sugarcane is brought in bundles and is weighed as such, a rebate in regard to the binding material at 0.625 Kg.
per quintal should be allowed.
As there was a printing error in mentioning the figure '0.650 kg. ' a corrigendum was issued to correct it, to '0.625 kg ' per quintal in the notification.
The petitioners in the writ petitions who were manufacturing khandsari sugar by the open pan process assailed the decision of the State Government allowing rebate.
They contended that: (1) the power to prescribe the rate of rebate under the third proviso to clause 4 is conditional upon the fixing of the minimum price of sugarcane and as the pre condition for exercise of that power was not satisfied, the authorities cannot exercise power to prescribe the rate of 372 rebate, (2) if the purchaser and seller of sugarcane are free agents to negotiate the price no useful purpose would be served by prescribing the rate of rebate statutorily.
If higher rebate is to be allowed, the producer of khandsari sugar and the grower of sugarcane would work out the price accordingly and if less rebate is allowed, it will have a direct impact on the negotiated price, (3) assuming that the power to prescribe the rate of rebate under clause 4A read with the third proviso could also be exercised where the price of sugarcane was left to be negotiated between the growers of sugarcane and the producers of khandsari sugar, the quantum of rebate determined must have a reasonable relation to the reality of market situation as well as to prevalent trade practice, (4) assuming that the Central Government was influenced by the report made by the Director, National Sugar Institute the report suggests that the average works out at 0.741 kg per quintal, and consequently there was no justification for further reducing it to 0.625 kg, (5) the notification places a restriction on the freedom of trade guaranteed under Article 19(1) (g) and as it is neither reasonable nor imposed in public interest, it is violative of freedom of trade and therefore void, and (6) in order that a restriction may be reasonable it must have a reasonable relation to the object which the statute seeks to achieve and must not be in excess of that object.
Dismissing the writ petitions.
^ HELD: The State Government notification dated September 3, 1980 directing that where sugarcane is brought in bundles and is weighed as such a rebate in regard to the binding material at 0.625 kg per quintal be allowed, is valid and legal.
The rebate was statutorily prescribed to ensure that sugarcane growers were not at the mercy of the producers of sugar and khandsari sugar.
The statutory rebate serves two fold purpose: (i) it ensures price of sugarcane avoiding impermissible deductions and (ii) it circumvents fraud by making such deductions as would render illusory even the negotiated price, if not fixed price.
The restriction is undoubtedly reasonable and is imposed in the interest of the general public and the guarantee of freedom of trade is not violated.
[376 E; 392 H; 393 A C] 1.
(i) Though clause 3A was inserted in the Control Order in 1976 conferring power on the Central Government or with the approval of the Central Government, on the State Government to allow rebate at 0.625 kg.
per quintal of sugarcane purchased by manufacturers of sugar, such rebate was being prescribed by the Central Government since 1968.
[379 G] (ii) Clause 4 confers power on the Central Government or a State Government with the concurrence of the Central Government to fix the minimum price or the price of sugarcane to be paid by producers of khandsari sugar for sugarcane purchased by them.
Third proviso to clause 4 provides that the Central Government or with the approval of the Central Government the State Government to allow a suitable rebate in the price so fixed.
If the provision were to end with clause 4, the question may arise whether the power to determine rate of rebate can be exercised de hors the power to fix minimum price or price of sugarcane or can be unilaterally exercised.
But the language of the third proviso ". as it may specify, allow a suitable rebate of the price so fixed", indicates that the rebate is co related to the price fixed.
[381 C F] 373 (iii) The rebate contemplated by the third proviso to clause 4 is not necessarily confined to rate of rebate for binding material only but permissible rate of rebate from the price or minimum price fixed under the substantive provision of clause 4 can be prescribed.
[381 H; 382 A] (iv) Clause 4A stands on an independent footing and it is independent of clause 4.
Clause 4A is neither inter dependent nor interrelated to clause 4.
Clause 4A visualises a situation in which either the minimum price of sugarcane is fixed under clause 4 or where no such price if fixed, the price agreed to between the sugarcane grower and the producer who purchased sugarcane and even in this latter situation the power to prescribe rate of rebate only in respect of binding material was conferred on the authorities set out in the third proviso to clause 4A.
Therefore, fixing of the minimum price may be a pre condition to the exercise of power under the third proviso of clause 4, as far as clause 4A is concerned, even where the price to be paid by the producer to the sugarcane grower is the one negotiated between the two, the producer or his agent will have to allow that much rebate and no more for binding material if notified under the third proviso.
This literal construction accords with the intendment of the provision.
[382 B E; 383 G] 2.
(i) Sugarcane is a perishable commodity.
The grower of the sugarcane is at the mercy of producers of sugar or khandsari sugar.
It would be uneconomic for him to transport sugarcane to a long distance.
The product, being perishable and transport over a distance being uneconomic, the grower of sugarcane has limited choice in selecting the producer to whom it could be sold.
Between the producer of khandsari and the grower of sugarcane, the first one is primarily in a position to dominate and dictate and they do not operate on the level of equality.
The grower of sugarcane in relation to the producer of the khandsari sugar would therefore be weaker and requires to be protected.
If the protection of fixing of minimum price is not resorted to because the authorities have information that the grower of sugarcane would be able to obtain a reasonably fair price for his labour, the only thing which is required to be protected against is iniquitous.
unauthorised and impermissible deductions.
In the States of Uttar Pradesh and Bihar the weight of the binding material when sugarcane is brought in bundles to the producer has been a fruitful source for the producers of khandsari sugar to make deductions from the weight of sugarcane delivered to them in an exorbitant quantity so as to deny in real money worth the negotiated price.
[382 H; 388 A D] (ii) While retaining the power to fix minimum price or price to be paid and also in a given situation leaving it to the purchaser of sugarcane to negotiate the price in order to eschew any exploitation of the weaker section between the two, the power to prescribe the rate of rebate was acquired and it can be rightly enforced.
There is therefore no merit in the submission that unless the power to fix the price or minimum price is exercised there is no power to prescribe the rate of rebate.
[383 F G] 3.
The rate of rebate has been determined by the law of averages after collection information from all over the country, and the present rate of rebate 374 is in vogue for over a quarter of a century.
It is therefore difficult to accept the submission that the fixation of rate of rebate for binding material at 0.625 kg.
for the whole country is either arbitrary or unreal or unrelated to trade and practice.
[376 G H] 4.
(i) The differential between what is prescribed and what is calculated as average by the study of the National Sugar Institute is not so wide as to render the prescribed rate arbitrary or unrealistic.
The differentials being within a narrow range, the one which is in vogue for over a quarter of a century cannot be rejected as arbitrary or unrelated to trade and practice.
Nor is the Court competent to work out the exact permissible rebate with mathematical accuracy.
[387 D E] (ii) The rate of rebate set out in the impugned notification bears resemblance to the sample testing of actual weight of binding material used in binding sugarcane when brought in bundles to the khandsari factory.
[388 G] (iii) This does not however imply that no case has been made for upward revision of the rebate.
The Central Government may realistically examine the same before the next crushing season commences.
[388 G] 5.
(i) It would be open to the producer of khandsari sugar to buy sugarcane from the grower who may be asked to bring sugarcane not bound in bundles.
The rebate for binding material is to be allowed only when sugarcane is brought to the khandsari sugar producing unit bound in bundles.
It is always open to the purchaser of sugarcane to insist upon the grower bringing the sugarcane not bound in bundles and he is free to negotiate the price of sugarcane is not fixed and the impugned notification will not even remotely impinge upon his freedom to carry on his trade.
The restriction complained of therefore does not directly and proximately interfere with the exercise of freedom of trade and Article 19(1) (g) is not attracted.
[389 E G] (ii) Producers of sugar and khandsari sugar constitute powerful trade lobby, and this can be taken judicial notice.
Sugar being an essential commodity occasionally kept in short supply and being a commodity needed for consumption by almost the entire population, the powerful industry magnates are in a position to dominate both the growers of sugarcane as also the consumers of the essential commodity.
Number of regulations have been enacted to regulate this powerful combination of manufacturers of sugar and khandsari sugar all over the country for the ultimate benefit of consumers, the farmers the growers of sugarcane.
The marginal farmers, are unable to stand up against the organised industry and need protection for selling at fair price their meagre agricultural produce.
[391 D G] (iii) Sugarcane growers who are farmers cannot negotiate on the footing of equality with the producers of sugar and khandsari sugar.
The State action for the protection of the weaker sections is not only justified but absolutely necessary unless the restriction imposed is excessive.
If price or minimum price of sugarcane is fixed, the producers of sugar would try to circumvent the price or minimum price by unrealistic and impermissible deductions.
The rebate for weight of binding material seems to be a source for indulging in this nefarious, if not wholly fraudulent conduct.
375 6.
To strike the balance between the conflicting interests not only the State acquired power to fix minimum price of sugar and khandsari sugar but that this wholesome effort may not work to the disadvantage of the sugarcane growers another weaker section of the society, the power to prescribe rate of rebate was acquired.
And the power to fix price or minimum price comprehends the power to so regulate supply as to ensure the price so fixed and to ensure that in the name of unauthorised and unwarranted deduction the price fixed or negotiated is not rendered illusory.
[393 G H; 394 A]
|
Civil Appeals Nos.
615 617/73,618 20/73 and 1850 to 1852 of 1972.
From the Judgment and Decree dated the 22nd June, 1962 of the Mysore High Court at Bangalore in Regular Appeal No. 157/56 Regular Appeal (B) No. 16/57 & RA (B) 6 of 1958.
U.R. Lalit, S.S. Javali D.P. Singh & Ravi Parkash, for the Appellants in CA.
1850 52/72, R 5 in CA.
615/73, R 2 in CA.
616/73, R 6 in CA.
617/73 and R 3 in CA.
Nos. 618 20/73.
B.D. Bal, R.B. Datar & Miss Madhu Moolchandani, for the Appellant in C.A. Nos. 615 617/73, R 5 in CA.
1850 52/72 & for R 1 in CA.
618 620/73.
S.T. Desai, K. N. Bhat & Nanjappa Ganesh for Appellant in CA.
618 620/73, RR 2 and 3 in CA.
1850 to 1851/72, RR.
2,3,17 & 18 in CA.
1852/72, RR 2,3 in CA.
616/73, RR 10 & 11 in CA.
616/73 & for RR 1, 2, 4,5 in CA.
617/73.
S.B. Bhasame, K.A. Naik, & M.R.K. Pillai for R 1 in CA.
1850 52/72, CA 615 16/73, R 14 in CA.
617/73 and R 2 in CA.
618 620/73.
K.R. Nagaraja & Alok Bhatacharya for R 12 in CA.
1850 52/72, CA.
615/73, R 9 in CA.
617/73, R 13 in CA.
617/73 and R 10 in CA, 618 620 of 1973.
345 P.R. Ramasesh, for RR 13, 15 (a) to (c) in CA.
1852/72, RR 15 & 17 in CA.
617/73 and RR 11, 14 (a) (c) and (d) in CA.
618/73.
The Judgment of the Court was delivered by SEN, J.
These nine consolidated appeals on certificate are directed from a common judgment and decree of the High Court of Mysore at Bangalore dated June 22, 1962 which affirmed, subject to a modification, the judgment and decree of the Civil Judge, Senior Division, Dharwar, dated July 5, 1956, substantially dismissing the plaintiff 's claim for declaration of title to, and possession of, certain watan properties and decreeing instead his alternative claim for partition and separate possession of his one sixth share therein.
The principal question in controversy in these appeals is whether sections 3 and 4 of the Bombay Paragana and Kulkarni Watans Abolition Act, 1950 (for short 'Act No. 60 of 1950 ') and sections 4 and 7 of the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 (for short 'Act No. 22 of 1955 '), which provided for abolition of watans and alienations in the merged territories, resumption of watan land and its re grant, to the holder for the time being, which brought about a change in the tenure or the character of holding as watan land, affect the other legal incidents of the property under personal law.
The suit out of which these appeals arise, was instituted by the appellant Nagesh Bisto Desai, as plaintiff, claiming against his two brothers Ganesh Bisto Desai and Gopal Bisto Desai defendants Nos.2 & 3, mother Smt.
Akkavva alias Parvathibai, defendant No. 4, brother Bhimaji Martand Desai, defendant No.5 who had gone in adoption to Martand, member of a junior branch and father 's brother ' son Khando Tirmal Desai, defendant No. 1, a declaration that the properties described in Schedules B and C appended to the plaint, called the Kundgol Deshgat Estate, situate in the district of Dharwar in the State of Karnataka, formed an impartible estate and governed by the rule of lineal primogeniture and that the plaintiff being the present holder of the office of Desai was entitled to remain in full and exclusive possession and enjoyment of the suit properties and that the other members of the family had no right, title or interest therein but were only entitled to maintenace and residence, for exclusive possession of the family residential house at Kundgol known as Wada described in Schedule B part 2 from the defendants Nos. 2 to 5, for exclusive possession of insignia of honour described in Schedule E and one third share in the family movables described 346 in Schedule D. Alternatively, in the event of the Court holding that the properties described in Schedule B, C and D, were properties belonging to the joint Hindu family, the plaintiff claimed partition and separate possession of his one sixth share therein.
It will be convenient, in the first place, to refer briefly to the history of the estate, to set out the pedigree showing the descent from a common ancestor and to show how the present case arose.
The plaintiff 's suit is brought on the allegation that the Deshgat family of Kundgol Paragana of which the plaintiff and the defendants 1 to 4 are members is a very ancient and respectable one in the State of Jamkhandi which later merged in the then Province of Bombay and is now in the State of Karnataka.
The lands and cash allowances described in Schedule B para (i) and (iii) are the emoluments of the district hereditary office of Desai.
Abkari is the compensation given to the Desai family by the British Government when it took over the control of today and liquor in Hanchinal Inam Village from the Deshgat family.
This amount, together with the cash allowance and the service lands appurtenant to the office of Desai and the houses and open sites form the impartible estate called the Kundgol Deshgat Estate, which was partly located within the territory of former feudatory State of Jhamkhandi and party in the territories of the then British India.
The first inam was granted at the time of Thimappa in 1575.
All the properties constituting the Deshgat were acquired under grants made by the Sultans and Rulers of Bijapur during the period from 1575 A.D. to 1694 A.D. with a couple of other grants received from the Chief of Jamkhandi during the period from 1120 A.D. to 1826 A.D.
The watan has remained with the family which held the hereditary office of Desai for over four centuries.
In 1904, service appurtenant to the office of Desai was commuted by the imposition of a "judi" or quit rent.
Properties described in Schedules F and G have been in possession of the two junior branches descended from Gundopant and Lingappa from 1825 A.D. and 1854 A.D. respectively and are being enjoyed by them even now.
The plaintiff 's father, Bistappa, the last holder of the office of Desai died on July 27, 1931 leaving behind him his widow Smt.
Akkavva and four sons, Nagesh, Bhimrao, Ganesh and Gopal.
Out of them, Bhimarao had gone in adoption to Martand.
member of a junior branch.
Upon his father 's death the plaintiff Nagesh Bisto Desai was recognised to be the watandar.
The plaintiff 's cousin is Khandappa The subjoined genealogical table gives the relationship of the parties belonging to the senior branch descended from Thimappa.
347 GENEALOGICAL TABLE Thimppa | | | | Khanderao Pantoji Gundopant | | Thimappa Nilkant | | | | | | Ramappa Nagappa Mallappa | | | Bistappa | (adopted) | | | | Imnagappa Bistappa Mortand | (went in adoption) | | Bhimraw | (Adopted Deft.5) | | Bistappa(died 1931) Trimallappa =Smt.
Akkevva (Deft 4) | | Khandappa | (Deft. 1) | | | | Nagesh Bhimrao Ganesh = Smt.
Indirabai Gopal = (pantiff) (went adoption (Deft. 2) (Deft. 9) (Deft.3) to Martand) Smt.
Kashibai (Deft. 10) 348 It appears that after the death of the plaintiff 's father in 1931, in the mutation proceedings that followed, the plaintiff first made a claim that the watan being impartible according to the custom of the family, he became the exclusive owner of the entire watan properties.
Although his brothers Ganesh Bisto Desai and Gopal Bisto Desai, defendants 2 and 3 had at first consented to mutation of the watan in his name they later resiled from that position and the strongest opposition came from the plaintiff 's uncle Tirmal, father of Khando.
In consequence of this, the plaintiff accepted before the revenue authorities that the properties belonged to the joint Hindu family and refrained from making any claim on the footing of the properties being impartible.
In 1945, the plaintiff 's brother Bhimarao defendant No. 5 who had gone in adoption to Martand, started asserting a claim to 7 Mars of land and right of residence in the family Wada and this had the support of the plaintiff 's mother Smt.
Akkavva.
The defendant No. 5 Bhimarao in assertion of his claim brought Special Suit No. 51 of1949, in the Civil Court at Kundgol on the basis of the properties being impartible.
In June 1946, the plaintiff leased out some home farm lands to defendants 6, 7 and 8, and this gave rise to proceedings under section 144 of the Code of Criminal Procedure, 1898.
The Sub Divisional Magistrate Kundgol passed an order restraining defendants 2, 3 and 5 from disturbing the possession of defendants 6, 7 and 8 and this order was kept in force by the former State of Jamkhandi till merger in the former State of Bombay in August, 1948.
The State Government revoked the order with effect from December 15, 1948, as a result of which the defendents 6, 7 and 8 brought suits for injunction.
Due to discord in the family, the plaintiff left the ancestral residential house at Kundgol and started residing in his bungalow.
The plaintiff has admittedly been regranted all the watan land under sub section
(1) of section 4 of Act No. 60 of 1950 and section 7 of Act No. 22 of 1955 as if it were an unalienated land, being the holder of the watan to which it appertained, and he is deemed to be an occupant thereof within the meaning of the Bombay Land Revenue Code, 1879.
The defendants filed separate written statements and repudiated the plaintiff 's claim of impartibility.
They denied that the suit 349 properties formed an impartible estate and that succession to the estate was governed by the rule of lineal primogeniture.
The defendant No. 1 asserted that there had been at least three partitions in the family.
According to him, the allotment of the properties described in Schedules F and G to the two branches of Gundopant and Lingappa represented allotment of shares on partition.
He pleaded that all the properties described in Schedules B C D and E were joint family properties and claimed one half share therein.
The defendants Nos. 2 and 3, in their written statement, also asserted that the properties described in Schedules F and G to the two branches of Gundopant and Lingappa were shares allotted to them on partition.
The defendant No. 4 supported the case pleaded by her sons defendants Nos. 2 and 3.
The defendant No. 5, however, pleaded that there had never been a partition in the family and that the entire properties, that is to say, the properties described in the plaint Schedules B to G continued to be joint family properties wherein he claimed one fourth share.
The remaining defendants also denied that the suit properties were impartible.
The learned trial Judge rejected the plaintiff 's claim that he was entitled to remain in full and exclusive possession and enjoyment of the aforementioned properties being the watandar of the Kundgol Deshgat Estate and that other members had no right, title or interest therein except as to maintenance as junior members and held instead that properties belonged to the joint Hindu family and were, therefore, partible.
He further held that the properties described in Schedules F and G in possession of the junior branches of Gundopant and Lingappa were not allotted to them as their share on partition and therefore had to be put into the hotchpotch.
He accordingly passed a preliminary decree for partition, declaring the plaintiff 's share to be one twentyfourth of the entire estate and to other minor reliefs.
On appeal, the High Court upheld the judgment of the trial Judge, holding that the suit properties were not impartible and were therefore liable to partition, but it set aside 350 the direction with regard to Schedules F and G properties on the finding that the two branches of Gundopant and Lingappa had separated from the joint family.
It accordingly modified the decree of the learned trial Judge and held that the plaintiff was entitled to one sixth share in the properties described in Schedules B to E. Arguments in these appeals have been confined to the question as to whether, as a matter of law, even if it were assumed that the plaintiff had succeeded in proving that the Kundgol Deshgat Estate was an impartible estate, and that succession to it was governed by the rule of lineal primogeniture, the incident of impartibility of the watan as well as the rule of lineal primogeniture stand extinguished by Act No. 60 of 1950 and Act No. 22 of 1955, and it is no longer open to the plaintiff to make any claim on the basis of the alleged custom of impartibility or the rule of lineal primogeniture.
The questions that fall for determination in these appeals are, firstly, whether the impartibility of the tenure of a paragana watan appertaining to the office of a Hereditary District (Paragana) officer in respect of which a commutation settlement has been effected, regulating succession to the property, by reason of family custom or a local custom being the incidents of such watan stands abolished by virtue of section 3 of Act No. 60 of 1950 or section 4 of Act No. 22 of 1955, and, secondly, whether the watan lands lost the character of being joint family property with the resumption of the watan under section 3 of Act No. 60 of 1950 or s.4 of Act No. 22 of 1955 and re grants thereof were exclusive to the plaintiff under section 4 of Act No.22 of 1955, by reason of his status as the watandar and therefore, they belonged to the plaintiff and were not capable of partition There is no merit in any of these submissions.
It is argued that impartibility of the tenure was not an incident of the grant but the watan was impartible by custom and succession to it was governed by the rule of lineal primogeniture.
Our attention is drawn to the averment contained in paragraph 3 of the plaint: "The Kundgol Deshgat Estate, along with the estates of two other District Hereditary offices of Nadgir and 351 Deshpande of Kundgol is impartible by custom and succession to it is governed by the rule of lineal primogeniture.
This custom is ancient, invariable, definite and reasonable.
It is both a family custom and also a local custom prevailing in the families of Paragana Watandar of Kundgol . . . . . " It is urged that in case of an impartible estate, the right to partition and the right of joint enjoyment are from the very nature of the property incapable of existence and therefore, the courts below were in error dismissing the plaintiff 's claim for a declaration that being the present holder of the office of Desai he was entitled to exclusive possession and enjoyment of the suit properties.
It is further urged that even assuming that impartibility of the estate or the rule of primogeniture regulating succession were an incident of the watan the suit properties lost the character of being joint family property with the resumption of the watan and the re grants of the suit lands were exclusively to the plaintiff under sub section
(1) of s 4 of Act No. 60 of 1950 and sub section
(1) of section 7 of Act No. 22 of 1955, by reason of his status as the watandar and, therefore, they exclusively belonged to the plaintiff and they were not capable of being partitioned.
There is no merit in the submission.
The decision of these appeals must turn on the question whether the impartibility of the estate and the rule of lineal primogeniture by which succession to it was governed makes the suit properties the self acquired or exclusive properties of the plaintiff and, therefore, cannot be partitioned by metes and bounds between the members of the joint family.
In Martand Rao vs Malhar Rao,(1) the Privy Council ruled as follows : "If an impartible estate existed as such from before the advent of British Rule, any settlement or regrant thereof by the British Government must, in the absence of evidence to the contrary, and unless inconsistent with the express terms of the new settlement, be presumed to continue the estate with its previous incidents of impartibility and succession by special custom.
" It also held in that case : 352 "When there is a dispute with respect to an estate being impartible or otherwise the onus lies on the party who alleges the existence of a custom different from the ordinary law of inheritance, according to which custom the estate is to be held by a single member, and as such, not liable to partition.
In order to establish that any estate is impartible, it must be proved that it is from its nature impartible and decendible to a single person, or that it is impartible and descendible by virtue of a special custom." "Any such special custom modifying the ordinary law of succession must be ancient and invariable and must be established to be so by clear and unambiguous evidence.
" The courts below in their well considered judgments have considered minutely and elaborately the whole of the evidence, both oral and documentary, led by both the parties on the question of custom, and have come to a definitive finding that the evidence is of little or no assistance to establish the alleged custom pleaded by the plaintiff as to the impartibility of the estate or the rule of lineal primogeniture.
They have held in favour of the defendants on this basic issue and substantially dismissed the plaintiff 's suit claiming full and exclusive title.
That part of the judgment has rightly not been assailed before us, and the argument has proceeded on the footing that even if the Kundgol Deshgat Estate were an impartible estate, and that succession to it was governed by the rule of lineal primogeniture the incidents of impartibility of the watan as well as the rule of lineal primogeniture stand extinguished by Act No. 60 of 1950 and Act No. 22 of 1955.
It has always been the accepted view that the grant of watan to the eldest member of a family did not make the watan properties the exclusive property of the person who is the watandar for the time being.
In order to understand the arguments on this point, it is necessary to deal with the incidents of a Deshgat watan.
In the Bombay Presidency, it has always been treated to be the joint family property.
It may be worthwhile to refer to the decision of the Privy Council in Adrishappa vs Gurshindappa,(1) the headnote of which is that : 353 "Deshgat watan or property held as appertaining to the office of Desai is not to be assumed prima facie to be impartible.
The burden of proving the impartibility lies upon the Desai, and on his failing to prove a special tenure or a family or district or local custom to that effect, the ordinary law of succession applies.
" In a suit for partition of property forming part of a Deshgat estate brought by the younger brothers against their eldest brother who held the hereditary district office of Desai, partly within the State of Jamkhandi and partly within the territory of British India, the defence was that the watan was held by him as an impartible estate and that he was entitled being the watandar to be in full and exclusive possession thereof, subject to a right by custom, that a brother should receive maintenance out of the income derived from it.
The Court of first instance having found that there was no invariable rule against the partition of a Deshgat watan, the High Court refused to allow effect to be given to what had not been proved to be "the established governing rule of the family, class or district" sufficient to establish the impartibility of the estate and held that the watan in question was subject to the general Hindu law, including the presumption as to the right to partition belonging to the members of the family to which it had descended.
The Judicial Committee upheld the decision of the High Court holding that there was no general presumption in favour of the impartibility of an estate of this kind as to shift the burden of proof; the burden of proof was upon the Desai, who seeks to show that the property devolved upon him alone, in contravention of the ordinary rule of succession according to the Hindu law, and that no sufficient evidence had been given by the watandar either of family custom, or of district custom, to prevent the operation of the ordinary rule of law whereby the property would be partible.
In Vinayak Waman Joshi Rayarikar vs Gopal Hari Joshi Rayarikar & Ors.,(1) the Court of first instance held that by custom a Deshgat Inam had become impartible and hence dismissed the suit for partition.
On appeal, the High Court reversed upon the view that the mere fact that the management remained in the hands of the eldest branch was not sufficient to 354 establish the plea that the estate was impartible.
While affirming the decision of the High Court, the Privy Council followed its earlier decision in Adrishappa 's case (supra), and agreed with the conclusion arrived at by the High Court that : "Neither by the terms of the original grant nor of the subsequent orders of the ruling power, nor by family custom, nor by adverse possession (if such there could be in a case like this, the eldest branch of the family acquired a right to perpetual management of the village or in consequence to resist its partition).
" It is a trite proposition that property though impartible may be the ancestral property of the joint Hindu family.
The impartibility of property does not per se destroy its nature as joint family property or render it the separate property of the last holder, so as to destroy the right of survivorship; hence the estate retains its character of joint family property and devolves by the general law upon that person who being in fact and in law joint in respect of the estate is also the senior member in the senior line.
As observed by Sir Dinshaw Mulla in his celebrated judgment in Shiba Prasad Singh vs Rani Prayag Kumari Debi & Ors (1) "The keynote of the whole position, in their Lordships view, is to be found in the following passage in the judgment in the Tipperah case :(2) "Where a custom is proved to exist, it supersedes the general" law, which, however, still regulates all beyond the custom" "Impartibility is essentially a creature of custom.
In the case of ordinary joint family property, the members of the family have (1) the right of partition, (2) the right to restrain alienations by the head of the family except for necessity, (3) the right of maintenance and (4) the right of survivorship.
The first of these rights cannot exist in the case of an impartible estate, though ancestral, from the very nature of the estate.
The second 355 is incompatible with the custom of impartibility as laid down in Sartaj Kuari 's(1) case and the first Pittapur case;(2) and so also the third as held in the second Pittapur case.(3) To this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate though ancestral is clothed with the incidents of self acquired and separate property.
But the right of survivorship is not inconsistent with the custom of impartibility.
This right, therefore, still remains, and this is what was held in Baijnath 's case.(4) To this extent the estate still retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such property.
Though the other rights which a coparcener acquires by birth in joint family property no longer exist, the birth right of the senior member to take by survivor ship still remains.
Nor is this right a mere spes succession is similar to that of a reversioner succeeding on the death of a Hindu widow to her husband 's estate.
It is a right which is capable of being renounced and surrendered.
Such being their Lordships ' view, it follows that in order to establish that a family governed by the Mitakshara in which there is an ancestral impartible estate has ceased to be joint, it is necessary to prove an intention, express or implied, on the part of the junior members of the family to renounce their right of succession to the estate.
" Since the decision of the Privy Council in Shiba Prasad Singh 's case (supra), it is well settled that an estate is impartible does not make it the separate and exclusive property of the holder : where the property is ancestral and the holder has succeeded to it, it will be part of the joint estate of the undivided family.
The incidents of impartible estate laid down by the Privy Council in Shiba Prasad Singh 's case, supra, and the law as there stated, have been reaffirmed in the subsequent decisions of the Privy 356 Council and of this Court : Collector of Gorakhpur vs Ram Sundar Mal & Ors.!(1) Commissioner of Income Tax, Punjab.
vs Krishna Kishore(2) Anant Bhikappa Patil vs Shankar Ramchandra Patil (3) Chinnathavi Alias Veeralakshmi vs Kulasekara Pandiya Naicker & Anr(4).
Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur & Ors.
vs Shri Pushavathi Viseswar Gajapathi Raj & Ors.(5) Rajah Velugoti Kumara Krishna Yachendra Varu & Ors.
vs Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu & Ors.(6) and Bhaiya Ramanuj Pratap Deo vs Lalu Maheshanuj Pratap Deo & Ors.(7) In Collector of Gorakhpur vs Ram Sundar Mal 's Case, supra, it was observed that though the decision of the Board in Sartaj Kuari 's case and the First Pittapur 's case appeared to be destructive of the doctrine that an impartible zamindari could be in any sense joint family property, this view apparently implied in these cases was definitely negatived by Lord Dunedin when delivering the judgment of the Board in Baijnath Prasad Singh 's case.
In Commissioner of Income Tax, Punjab vs Krishna Kishore 's case dealing with an impartible estate governed by the Madras Impartible Estates Act, 1904, it was held that the right of junior members of the family for maintenance was governed by custom and was not based on any joint right or interest in the property as co owners.
In Anant Bhikappa Patil 's case supra, it was observed that an impartible estate is not held in coparcenary though it may be joint family property.
It may develove as joint family property or as separate property of the last male holder.
In the former case, it goes by survivorship to that individual, among those male members who in fact and in law are undivided in respect of the estate, who is singled out by the special custom e.g. lineal male primogeniture.
In the latter case, jointness and survivorship are not as such in point the estate devolves by inheritance by the last male holder in the order prescribed by the special custom or according to the ordinary law of inheritance as modified by the custom.
357 In Chinnathavi 's case.
supra, it was observed that the dictum of the Privy Council in Shiba Prasad Singh case, supra, that to establish that an impartible estate has ceased to be joint family property for purposes of succession, it is necessary to prove an intention, express or implied, on the part of the junior members of the family to give up their chance of succeeding to the estate.
The test to be applied is whether the facts show a clear intention to renounce or surrender any interest in the impartible estate or a relinquishment of the right of succession and an intention to impress upon the zamindari the character of separate property.
In Mirza Raja Gajapathi 's case, supra, it was observed that an ancestral impartible estate to which the holder has succeeded by the custom of primogeniture is part of the joint estate of the undivided Hindu family.
Though the other rights enjoyed by the members of a joint Hindu family are inconsistent in the case of an impartible estate, the right survivorship still remains.
In Rajah Velugoti Kumara Krishna 's case, supra, it was observed that the only vestige of the incidents of joint family property, which still attaches to the joint family property is the right of survivorship which, of course, is not inconsistent with the custom of impartibility.
In Bhaiya Ramanuj Pratap Deo 's case, supra, the principles laid down by the Privy Council in Shiba Prasad Singh 's case were reiterated.
In the course of argument, great reliance was placed on the two decisions of this Court in Mirza Raja Ganapathi 's case, supra and Raja Velugoti Kumara Krishna 's case, supra, for the proposition that the junior members of a joint family in the case of an ancient impartible joint family estate take no right in the property by birth and therefore have no right of partition having regard to the very character of the estate that it is impartible.
To our mind, the contention cannot be accepted.
Both the decisions in Mirza Raja Ganapathi 's case, supra, and Raja Velugoti Kumara Krishna 's case, supra, turned on the provision of the Madras Estates (Abolition & Conversion into Ryotwari) Act, 1948 and the Madras Impartible Estates Act, 1904.
There are express provisions made in sections 45 to 47 of the Abolition Act for the apportionment of compensation to the junior members of zamindari estates and sub.s (2) of section 45 thereof provides for payment of the capitalised value of the compensation amount to them on the basis of extinction of the estate.
The scheme of the Abolition Act therefore contemplates the continued existence of the rights of the holder of an impartible estate vis a vis the junior 358 members of such an estate.
The facts involved in those cases were also entirely different.
In Mirza Raja Ganapathi 's case, supra it was a suit for partition for Vizianagram Estate, an ancient impartible estate governed by the Madras Impartible Estates Act 1904.
The claim of the junior members regarding buildings which had been incorporated in the impartible estate as also their claim with regard to jewels treated as state regalia and therefore impressed with the family custom of impartibility was negatived.
It was held that despite the fact that Vizinagram Estate had been notified to be an estate within the meaning of s.3 of the Madras Estate(Abolition and Conversion into Ryotwari) Act, 1948, the extinguishment of the proprietary right, title and interest of the zamindar did not affect his right or title to the impartible properties outside the purview of that Act and governed by the Madras Impartible Estates Act, 1904, but as regards other properties falling within the zamindari including lands were held to be partible.
With regard to the buildings, it was held that the buildings in question were not partible by virtue of sub section
(4) of section 18 of the Act as the buildings falling within the section vested in "the person who owned them immediately before the vesting".
The expression "the person who owned" in sub section
(4) of section 18 of the Act was held to refer to the land holder and not to any other person.
Further, the buildings were outside the limits of the zamindari estate and therefore not covered by section 3 of the Abolition Act.
The claim with regard to jewels failed because they were part of the impartible estate.
In Raja Velugoti Kumara Krishna 's case, supra, it was a suit for partition by the junior members of Vankatgiri Estate, an ancient impartible estate governed by the Madras Impartible Estates Act, 1904.
The suit was principally confined to the claim for a share to the Schedule B properties.
The contention was that the impartibility was continued under that Act but ceased when the estate vested in the State Government under section 3 of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 and this had the effect of changing character of the properties in the B Schedule and making them partible.
It was said that the junior members had a present right in the impartible estate and were entitled to share in the properties once it lost its character of impartibility.
The Court had to consider the effect of the Abolition Act on the rights and obligations of the members of the family and held 359 that the Abolition Act has no application to properties which are outside the territorial limit of the Venkatgiri Estate.
The claim that failed was in relation to properties which did not form part of a `zamindari estate ' within the meaning of section 1 (16) and therefore did not come within the purview of section 3 of the Abolition Act but continued to be governed by the Madras Impartible Estates Act, 1904.
The contention that the plaintiff holding the District Hereditary Office of Desai and being the watandar of the Kundgol Deshgat Estate was entitled to remain in full and exclusive possession and enjoyment thereof to the exclusion of the other members of the joint Hindu family, runs counter to the scheme of the Bombay Hereditary Offices Act, 1874 (for short `the Watan Act '), and is against settled legal principles.
The plaintiff 's rights to such watan properties whatever they were, subject to the rights of the other members of the family.
The terms `Watandar ' is defined in section 4 of the Watan Act.
It reads : Watandar means a person having a hereditary interest in the Watan.
It includes a person holding watan property acquired by him before the introduction of British Government into the locality of the watan, or legally acquired subsequent to such introduction, and a person holding such property from him by inheritance.
It includes a person adopted by an owner of a watan or part of a watan subject to the conditions specified in sections 33 to 35".
If the words used in the definition are strictly and literally construed, it would mean that before a person can be said to be a watandar, he must have a hereditary interest both in the watan property and in the hereditary office, because it is these two that constitute the watan.
There is no basis whatever for such a strict construction.
The definition is undoubtedly in two parts : the first sets out what "watandar" means and the other states what is included in it and the question arises whether the primary definition i.e. the meaning portion of it should be regarded as primary and the inclusive part as illustrative or both the parts should be regarded as constituting one whole definition, the inclusive part being supplementary to the former.
The controversy arising from the rival constructions 360 placed on the definition of "watandar" in section 4 of the Watan Act was set at rest by the Full Bench decision of the Bombay High Court in Vijayasingrao Bala Saheb Shinde Desai vs Janardanrao Narayanrao Shinde Desai.(1) Prior to that decision, two conflicting constructions on the definition had been placed by two Division Benches of the Bombay High Court.
In Kadappa vs Krishtappa,(2) an alienation of watan land by a watandar to his bhaubandh for maintenance was challenged and Rangnekar and Divatia, JJ.
held that the alienation was valid beyond the life time of the watandar inasmuch as it was to a watandar of the same watan, in other words, the alience who was a bhaubandh to whom a watan land had been transferred for maintenance regarded as a watandar though he had no interest in the hereditary office and the rights and privileges attached to it.
It would, therefore, appear that in Kndappa 's case, supra; the entire definition of watandar in section 4 was looked upon as one, the latter part being supplementary and additional to what is contained in the first part.
In Smt.
Tarabai vs Murtacharya.(3) Sir John Beaumont C.J. and Wadia, J. however, struck a discordant note.
It was that a person who merely acquired a watan property without acquiring the office and without being under any obligation to perform services attached to the office was not a watandar within the meaning of the aforesaid definition; in other words, it held that the first part of the definition was exclusive and exhaustive, the latter part being merely illustrative and the illustrations given in the latter part should fall within the ambit of the exclusive definition given in the first part, that is to say, the primary definition of a "watandar" in s.4 was that he was a person having a hereditary interest in a watan, i.e. the office and a property if any, and the subsequent words were merely explanatory of the primary definition and did not curtail it.
In view of this conflict, the specific question referred to the Full Bench in Vijayasingrao 's case, supra, was "Whether the term `watandar ' as defined in section 4 of the Watan Act necessarily and always meant a person who had a hereditary interest not only in the watan property but also in the hereditary office".
And, on a consideration of the scheme and the relevant sections of the Watan Act and the two earlier decisions, the Full Bench preferred the construction 361 placed on the term 'watandar ' in Kadappa 's case, supra, and concluded that a person who acquired watan property or held hereditary interest in it without acquiring the hereditary office and without being under an obligation to perform the services attached to each office was also a "watandar ' within the meaning of the Watan Act.
There can be no doubt that the Watan Act was designed to preserve the pre existing rights of the members of joint Hindu family.
The word 'family ' is defined in section 4 of the Watan Act to include 'each of the branches of the family descended from an original watandar ' and the expression 'head of a family ' is defined therein to include 'the chief representative of each branch of a family '. 'Representative watandar ' defined in section 4 meant 'a watandar registered by the Collector under section 25 as having a right to perform the duties of a hereditary office '.
Section 5 of the Watan Act prohibited alienations of watan and watan rights.
Clause (a) of sub section
(1) of section 5.
thereof, referred to a watander in general and provided that it would not be competent to such a watandar to mortgage, charge, alienate or lease, for a period beyond the term of his natural life, any watan, or any part thereof, or interest therein, to or for the benefit of any person who is not a watandar of the same watan, without the requisite sanction.
The expression 'watandar of the same watan ' occurs in many sections of the Act.
As already indicated the term 'watandar ' as defined in section 4 includes the members of a joint Hindu family.
It must follow as a necessary corollary that the expression 'watandar of the same watan ' would include members of the family other than the watandar, who were entitled to remain in possession and enjoyment of the watan property.
It is necessary to emphasize that commutation of service had not the effect of changing the nature of the tenure.
The effect of the Gordon Settlement came up for consideration in The Collector of South Satara & Anr.
vs Laxman Mahadev Deshpande & Ors.(1) when the Court referred to the decision in Appaji Bapuji vs Keshav Shamrav.(2) and quoted the following passage from the judgment of Sargent, C.J., with approval: "What is termed a Gordon Settlement was an Arrangement entered into in 1864 by a Committee, of which Mr. 362 Gordon, as Collector, was Chairman, acting on behalf of Government with the watandars in the Southern Maratha Country, by which the Government relieved certain watandars in perpetuity from liability to perform the services attached to their offices in consideration of a 'judi ' or quitrent charged upon the watan lands. . the reports of Mr. Gordon 's Committee on the Satara and Poona Districts and their correspondence with Government can, we think, leave no doubt that the settlements made by that committee, unless it was otherwise, specially provided by any particular settlement, were not intended by either party to these settlements, to convert the watan lands into the private property of the vatandars with the necessary incident of alienability, but to leave them attached to the hereditary offices, which although freed from the performance of service remained intact.
" The Court continued: "But the Commutation settlement does not confer an indefeasible title to the grantee, for the right affirmed by the settlement under section 15(2) of the Watan Act is liable to be determined by lapse, confiscation or resumption (section 22 of the Watan Act).
The State having created the watan, is entitled to put an end to the watan i.e. to cancel the watan and to resume the grant (1): Bachharam Datta Patil vs Vishwanath Pundalik Patil.(1) Therefore if there be mere commutation of service, the watan office ordinarily survives without liability to perform service, and on that account the character of watan property still remains attached to the grant.
But the State Government may abolish the office and release the property from its character as watan property.
" The Court then dealt with the scheme of the Act No. 60 of 1950 and observed that in the light of the incidents of the watan and the property granted for remuneration of the watandar, that the relevant provisions of the Act had to be considered in regard to the right of the watandar to regrant of the watan lands.
It was observed that on a combined operation of sub section
(3) of section 3 and section 4 of the Act, the holder of the watan land is entitled to regrant of the land in occupancy rights as an unalienated land.
As to the effect of the 363 legislation, it was observed that section 3 in terms provides for abolition of the watan, extinction of the office and modification of the right in which the land is held.
The abolition, extinction and modification arise by operation of section 3 of the Act, and not from the exercise of the executive power of confiscation or resumption by the State, and it was then said: "Undoubtedly the power of resumption of a watan may be exercised under section 22 of the Watan Act and such a resumption may destroy the right of the holder both to the office and the watan land, and in the absence of any provision in that behalf no right to compensation may arise.
But where the abolition of the watan is not by executive action, but by legislative decree, its consequences must be sought in the statute which effectuates that abolition." As to the effect of the resumption of the watan lands under sub section
(3) of section 3 and their regrant under sub section
(1) of section 4 of the Act it was observed: "It must be remembered that the power which the State Government always possessed by the clearest implication of section 22 of the Bombay Hereditary Offices Act, 1874, of resumption is statutorily enforced by section 3 in respect of the Paragana and Kulkarni Watans.
The State Government having the power to abolish a watan office, and to resume land granted as remuneration for performance of the duties attached to the office was not obliged to compensate the watandar for extinction of his rights.
But the Legislature has, as a matter of grace, presumably because of settlement between the holders and the Government under the Gordon Settlement, provided by section 6 that cash compensation be awarded for loss of the right to cash allowance or remission of land revenue and has by section 4 conferred upon the holder of the watan land, for loss of his right, a right to regrant of the land as occupant and free from the obligation imposed by its original tenure as watan land. .
But the operation of section 3 all Paraganas and Kulkarni watans falling within the Act are abolished, the right to hold office is extinguished, and the land granted as remuneration for performance of service is resumed.
The holder of the land is thereafter liable to pay land revenue, and is 364 entitled, on payment of the occupancy price at the prescribed rate, to be regranted occupancy rights as if it is unalienated land.
The right so conferred is, though not a right to cash compensation, a valuable right of occupancy in the land.
By the resumption of watan land and regrant thereof in occupancy right, all the restrictions placed upon the holder of watan land are by the provisions of the Watan Act, and the terms of the grant, statutorily abolished.
But the right of occupancy granted by section 4 adequately compensates the holder for loss of the precarious interest of a watandar, because the land regranted after abolition of the watan, is held subject only to the restrictions imposed by sub section
(2) of section 4, and is freed from the incidents of watan tenure, such as restriction on alienation beyond the life time of the holder, devolution according to the special rule of succession, and the liability to consideration or resumption.
" It must therefore be observed that the commutation of service under sub section
(1) section 15 of the watan lands by which the watandars were relieved in perpetuity from liability to perform the services attached to their offices in consideration of 'judi ' or quit rent charged upon the watan land, unless where it was otherwise provided for, had not the effect of converting watan land into the private property of the watandars with the necessary incident of alienability but to leave them attached to the hereditary offices which, although freed from the performance of services, remained intact.
Despite commutation of service, the office of watandars ordinarily survived without liability to perform service, and on that account the character of the watan lands still remained attached to the grant.
By the end of the first half of the 19th century, the watandars had lost much of their raison d 'etre.
The British thought it expedient to dispense with their services and the watandars were given an offer to convert their watans into private property by the annual payment of a Nazrana but they were opposed to this.
At their own request, the Government agreed to continue their watans as unalienable after the service commutation settlements, subject to payment of 'judi ' or quit rent.
After the service commutation settlements and the appointment of Mamlatdars, the watandars had practically no function to perform but the watans were not discontinued till the Government decided upon their abolition.
365 It is said that although co ownership of the joint family may exist in impartible property, a distinction must be drawn between present rights and future rights of the members of a family.
This is because of the peculiar character of the property.
Thus, while the junior members have future or contingent rights such as right of survivorship, they have, apart from custom or relationship, no present rights, as for instance, a right to restrain alienation or to claim maintenance.
It is upon this basis that the submission is that the courts below manifestly erred in passing a decree for partition of the watan property described in Schedules B and C appended to the plaint.
We are afraid, these submissions based upon the alleged impartibility of the watan properties or the applicability of the rule of lineal primogeniture regulating succession to the estate cannot prevail, as these being nothing more than incidents of the watan, stand abrogated by sub section
(4) of section 3 Act No. 60 of 1950 and section 4 of Act No. 22 of 1955.
It seems plain to us that the effect of Act No. 60 of 1950 and Act No. 22 of 1955 was to bring out a change in the tenure or character of holding as watan land but they did not affect the other legal incidents of the property under personal law.
It will be convenient to deal first with the provisions of Act No. 60 of 1950.
Section 3 of the Act lays down that, with effect from, and on, the appointed day, notwithstanding anything contained in any law, usage, settlement, grant, sanad or order, all watans shall be deemed to have been abolished and all rights to hold office and any liability to render service appertaining to the said watans shall stand extinguished.
It further lays down that subject to the provisions of section 4, "all watan land is hereby resumed" and "shall be deemed to be subject to the payment of land revenue under the provisions of the Code and the rules made thereunder as if it were an unalienated land".
The term 'Code ' as defined in section 2 (b) means "the Bombay Land Revenue Code, 1879".
All incidents pertaining to the said watans stand extinguished from the appointed day.
Sub section
(1) of section 4 of the Act, insofar as material, provides: "4 (1).
A watan land resumed under the provisions of this Act shall. . be regranted to the holder of the watan to which it appertained, on payment of the occupancy price. . and the holder shall be deemed to be an occupant within the meaning of the Code in respect of 366 such land and shall primarily be liable to pay land revenue to the State Government in accordance with the provisions of the Code and the rules made thereunder; all the provisions of the Code and rules relating to unalienated land shall, subject to the provisions of this Act, apply to the said land.
" Clause (2) of Explanation to section 4 reads: "Explanation For the purposes of this section the expression "holder" shall include (i) all persons who on the appointed day are the watandars of the same watan to which the land appertained, and xx xx xx The provisions of Act No. 22 of 1955 are more or less similar.
Likewise, section 4 of the Act provides that, notwithstanding anything contained in any usage, settlement grant etc., with effect from the appointed day, all alienations shall be deemed to have been abolished and all rights legally subsisting on the said date in respect of such alienations and all other incidents of such alienation shall be deemed to have been extinguished.
Section 7 of the Act provides that "all land held under a watan is hereby resumed" and "shall be regranted to the holder in accordance with the provisions contained in sub sections (1) to (3) therein.
Clause (1) of Explanation to section 7 reads: "Explanation For the purpose of this section, the expression "holder" shall include (1) an alienee holding land under a watan, and (2) xx xx xx xx Upon a plain reading of sub section
(1) of section 4 of Act No. 60 of 1950 and of section 7 of Act No. 22 of 1955, it is clear that watan lands resumed under the provisions thereof, have to be regranted to the holder of the watan, and he shall be deemed to be an occupant within the meaning of the Code in respect of such land.
367 The expression 'holder ' as defined in cl.
(i) Explanation to section 4 of the former Act includes "all persons who, on the appointed day, are the watandars of the same watan" and cl.
(1) of Explanation to section 7 of the latter Act defines it to include 'an a lienee holding land under a watan".
The term "an alienee" is defined in section 2 (1) (iii) to mean "the holder of an alienation and includes his co sharer".
The Watan Act contemplated two classes of persons.
One is a larger class of persons belonging to the watan families having a hereditary interest in the watan property as such and the other a smaller class of persons who were appointed as representative watandars and who were liable for the performance of duties connected with the office of such watandars.
As already indicated, it would not be correct to limit the word "watandar" only to this narrow class of persons who could claim to have a hereditary interest both in the watan property and in the hereditary office.
Watan property had always been treated as property belonging to the family and all persons belonging to the watan family who had a hereditary interest in such watan property were entitled to be called "watandars of the same watan" within the Watan Act.
That being so, the members of a joint Hindu family must be regarded as holders of the watan land along with the watandar for the time being, and therefore the regrant of the lands to the watandar under sub section
(1) of section 4 of Act No. 60 of 1950 and under section 3 of Act No. 22 of 1955 must enure to the benefit of the entire joint Hindu family.
It appears that the same view has been taken in a Full Bench decision of the Bombay High Court in Laxmibai Sadashiv Date vs Ganesh Shankar Date(1).
A controversy had arisen as to the purport and effect of the non obstante clause contained in section 4 of the Bombay Inferior Village Watans Abolition Act, 1959.
Malvankar, J. in Dhondi Vithoba vs Mahadeo Dagdu(2) held that the effect of sub section
(3) of section 4 read with section 5 of the Act was to bring about a change in the tenure or character of holding as Watan land, but it did not affect the other legal incidents of the property under personal law.
The learned Judge therefore held that even though the watan was abolished and the incidents thereof were extinguished and the land resumed under 368 section 4, the Act maintained the continuity of the interest in the lands of persons before and after the coming into force of the Act provided, of course, the holder pays occupancy price in respect of the land.
In other words, the property continues to be the joint family property or the property held by the tenants in common, as the case may be.
In Kalgonda Babgonda vs Balgonda,(1) a Division Bench of the High Court took a view to the contrary and observed: "The words "all incidents appertaining to the said watans shall be and are hereby extinguished", must include every kind of incident, including the so called incident of a right to partition as claimed by the plaintiff in this case, even if such right existed.
Further, the lands were resumed by the Government on that date in law and vested in the Government till the lands were re granted under section 5 or 6, or 9 of that Act.
" xx xx xx xx "It is not possible for us to consider it reasonable to held that although the lands were resumed by the Government and the holder himself had lost all his rights till the lands were re granted to him except the right of asking, for re grant, the incidents of the property under personal law appertaining to impartible property would survive the extinguishment of the tenure and resumption of the land by the State.
" It was obviously wrong in reaching the conclusion that it did.
In Laxmibai Sadashiv Date 's case, supra, the Full Bench reversed the decision of the Division Bench and upheld the view taken by Malvankar, J. in Dhondi Vithoba 's case, supra, observed: "It is undoubtedly true that section 4 starts with a non obstante clause, but it is a well recognised canon of construction to give effect to non obstante clause having regard to the object with which it is enacted in a statute.
The non obstante clause is contained at the inception of section 4 and the sole object of section 4 is to abolish alienation and rights and incidents in respect thereof.
The right of a member of joint Hindu family to ask for partition of a joint family 369 property cannot be regarded as a right relating to grant of land as service inam or as an incident in respect thereof.
xx xx xx xx The object of section 4 was not to affect in any manner rights created under the personal law relating to the parties and if the property belonged to joint Hindu family, then the normal rights of the members of the family to ask for partition were not in any way affected by reason of the non obstante clause contained in section 4." These observations, in our opinion, are clearly in consonance with the true meaning and effect of the non obstanate clause.
It still remains to ascertain the impact of sub s (2) of section 4 of Act No. 60 of 1950 and sub section
(3) of section 7 of Act No. 22 of 1955, and the question is whether the occupancy of the land regranted under sub section
(1) of section 4 of the former Act and sub section
(2) of section 7 of the latter Act is still impressed with the character of being impartible property.
All that these provisions lay down is that the occupancy of the land regranted under sub section
(1) of section 4 of the former Act shall not be transferable or partible by metes and bounds without the previous sanction of the Collector and except on payment of such amount as the State Government may, by general or special order, determine.
It is quite plain upon the terms of these provisions that they impose restrictions in the matter of making alienations.
On regrant of the land, the holder is deemed to be an occupant and therefore the holding changes its intrinsic character and becomes Ryotwari and is like any other property which is capable of being transferred or partitioned by metes and bounds subject, of course, to the sanction of the Collector and on payment of the requisite amount.
It is the policy of the law to prevent the land working classes being driven into the state of landless proletariats so far as may be, and accordingly it is provided by these provisions that alienations of such holdings or partition thereof shall be ineffective unless the sanction of the Collector has first been obtained.
It is of the utmost importance that this important safeguard should be maintained in full force and effect so that the parties must exactly know what they have bargained for.
The condition for the grant of sanction by the Collector as a pre requisite for a valid transfer of a holding or the 370 making of a partition by metes and bounds, is to ensure that the actual tiller of the soil is not deprived of his land except for valid consideration, or that the partition effected between the members of a family is not unfair or unequal.
These provisions therefore do not create a statutory bar to a transfer or a partition once the conditions mentioned therein are fulfilled.
In the result, the appeals must fail and are dismissed.
There shall however be no order as to costs.
P.B.R. Appeals dismissed.
| IN-Abs | The plaintiff 's rather was the last holder of the office of Desai.
After his death the plaintiff, who was his eldest son, was recognised as the watandar.
In 1904 service appurtenant to the office of Desai was commuted by the imposition of 'judi ' or quit rent.
Under section 4 (1) of the Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950 and section 7 of the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 all the watan lands were re granted to the plaintiff and he was deemed to be the occupant thereof within the meaning of the Bombay Land Revenue Code.
The plaintiff (appellant) filed a suit against respondents who were members of a joint Hindu family holding properties described as Kundgol Deshgat Estate claiming a declaration that the estate formed an impartible estate governed by the rule of lineal primogeniture.
The plaintiff claimed that as the present holder of the office of Desai he was entitled to remain in full and exclusive possession and enjoyment of the suit properties and that other members of the family had no right, title or interest therein but were only entitled to maintenance and residence and in the alternative for partition and separation of 1/6 share therein.
Denying all the plaintiff 's claims the respondents pleaded that the entire properties belonged to the joint Hindu family and were therefore liable to be partitioned.
Rejecting all the claims of the appellant the Trial Court held that the properties belonged to the joint Hindu family and were therefore partible.
On appeal the High Court, subject to a modification, upheld the decree of the court of first instance.
The question at issue in the appeal to this Court was whether, (1) even assuming that the estate was impartible and governed by the rule of lineal primogeniture by custom as pleaded, the incidents of impartibility as well as the rule of 342 lineal primogeniture being nothing more than an incident of the watan, stood abrogated by section 3(4) of the 1950 Act and section 4 of the 1955 Act and as such it was not open to the plaintiff to make any claim on the basis of the alleged custom, (2) with the resumption of the watan and the re grant of the watan lands to him, the suit properties lost their character as being joint family property and had become, under the provisions of the 1950 and 1955 Acts, the plaintiff 's exclusive property by reason of his status as watandar and as such were not capable of being partitioned.
Dismissing the appeal, ^ HELD: It is well settled that property though impartible may be the ancestral property of the Joint Hindu Family.
The impartibility of the estate does not per se destroy its nature as joint family property or render it the separate property of the last holder, so as to destroy the right of survivorship; hence, the estate retains its character of joint family property and its devolution is governed by the rule of survivorship.
To establish that a family governed by the Mitakshara in which there is an ancestral impartible estate has ceased to be joint, it is necessary to prove an intention, express or implied, on the part of the junior members of the family to renounce their succession to the estate.
[354 C D] Martand Rao vs Malhar Rao, [1928] 55 IA 45: AIR 1928 PC 10: Adrishappa vs Gurushidappa, (1880) 7 IA 162: ILR 7 Cal.
LR 1 (PC); Vinayak Waman Joshi Rayarikar vs Gopal Hari Joshi Rayarikar, [1903] 30 IA 77: ILR 7 Cal.
WN 409; Shiba Prasad Singh vs Rani Prayag Kumari Debi, (1932) 59 IA 331: AIR 1932 PC 216: ; Collector of Gorakhpur vs Ram Sunder Mal, (1934) 61 IA 286: AIR 1934 PC 157: CIT vs Dewan Bahadur Dewan Krishna Kishore, (1941) 68 IA 155: ; Anant Bhikappa Patil vs Shankar Ramchandra Patil, (1943) 70 IA 232: AIR 1943 PC 196 and Chinnathayi vs Kulasekara Pandiya Naicker, ; ; , relied on.
Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur vs Shri Pushavathi Visweswar Gajapathi Raj, ; and Rajah Velugoti Kumara Krishna Yachendra Varu vs Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu, ; (1969) 3 SCC 281: ; , distinguished.
Neelkisto Deb Burmono vs Beerchunder Thakoor, (1867 69) 12 MIA 523; Rani Sartaj Kuari vs Rani Deoraj Kuari (1888) 15 IA 51: ILR (1888) 10 All 272 (PC); Rama Krishna Rao Bahadur vs Court of Wards, (1899) 26 IA 83: ILR ; Raja Ram Rao vs Raja of Pittapur, (1918) 45 IA 148: AIR 1918 PC 81; Baijnath Prasad Singh vs Tej Bali Singh, (1921) 48 IA 195: AIR 1921 PC 62 and Bhaiya Ramanuj Pratap Deo vs Lalu Maheshanuj Pratap Deo , referred to. 2.
The plaintiff 's contention runs counter to the scheme of the Bombay Hereditary offices Act, 1874, and is against settled legal principles.
The plain 343 tiff 's rights to such watan properties, whatever they were, were subject to the rights of the other members of the family.
[359 C D] In the former Bombay Presidency, a Desghat watan had always been treated to be the joint family property and the grant of watan to the eldest member of a family did not make the watan property the exclusive property of the person who was the watandar for the time being.
The definition of the term "watandar" as contained in section 4 of the Bombay Hereditary offices Act is in two parts: the first sets out what "watandar" means and the other states what is included in it, that is, the entire definition of watandar must be looked upon as one, the latter part being supplementary and additional to what is contained in first part.
Thus, a person who acquired watan property or held hereditary interest in it without acquiring the hereditary office and without being under an obligation to perform the services attached to such office was also a "watandar" within the meaning of the Watan Act.
There can be no doubt that the Watan Act was designed to preserve to pre existing rights of the members of a joint Hindu family.
The expression "watandar of the same watan" would include members of the family other than the watandar, who were entitled to remain in possession and enjoyment of the watan property.
[359 G H 361 F] Vijyasingrao Balasaheb Shinde Desai vs Janardanrao Narayanrao Shinde Desai, ; Kadappo Bapurao Desai vs Krishtappa Bachappa Desai, 37 Bom.
LR 599: AIR 1935 Bom.
380 and Laxmibai Sadashiv Date vs Ganesh Shankar Date, AIR 1977 Bom.
350, approved.
Tarabai Sriniwas Naik Guttal vs Murtacharya Anantacharya, , overruled.
The commutation of service under section 15(3) of the Watan Act by which the watandars were relieved in perpetuity from liability to perform the services attached to their offices in consideration of 'judi ' or quit rent charged upon the watan land unless where it was otherwise provided for, had not the effect of converting watan land into the private property of the watandars with the necessary incident of the alienability, but to leave them attached to the hereditary offices, which although free from the performance of services, remain in tact.
Despite commutation of service, the office of watandars ordinarily survived without liability to perform service, and on that account the character of the watan lands still remained attached to the grant.
[364 D F] Collector of South Satara vs Laxman Mahadev Deshpande, ; , relied on.
Appaji Bapuji vs Keshav Shamrav, ILR , referred to.
Bachharam Datta Patil vs Vishwanath Pundalik Patil, ; 1956 SCJ 721, referred to.
344 5.
The impartibility of the watan lands of the applicability or the rule of lineal primogeniture regarding succession to the estate, by the alleged custom as pleaded, being nothing more than an incident of the watan, stood extinguished by s.3(4) of the 1950 Act and s.4 of the 1955 Act.
The effect of these Acts was to bring out a change in the tenure or character of holding as watan lands but they did not affect the other legal incidents of the property under the personal law.
That being so, the members of a joint Hindu family must be regarded as holders of the watan land along with the watandar for the time being and therefore regrant of the lands to the watandar under section 4(1) of the 1950 Act and under section 3 of the 1955 Act must enure to the benefit of the entire joint Hindu family.
[365 C, E; 367 E] 6.
Section 4(2) of the 1950 Act and section 7(3) of the 1955 Act do not create a statutory bar to a transfer or a partition once the conditions mentioned therein are fulfilled.
[370 B] Laxmibai Sadashiv Date vs Ganesh Shankar Date, and Dhondi Vithoba Koli vs Mahadeo Dagdu Koli, AIR 1973 Bom.
323, approved.
Kalgonda Babgonda Patil vs Balgonda Kalgonda Patil, , overruled.
|
N: Criminal Appeal No. 329 of 1975.
From the Judgment & Order dated the 15th April, 1975 of the Allahabad High Court in Crl.
A. No. 1144 of 1971.
R.L. Kohli and S.K. Sabharwal for the Appellants.
D.P. Uniyal and R.K. Bhatt for the Respondent.
The following Judgments were delivered: FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated 15.4.1975 of the Allahabad High Court by which the Judges of the High Court while acquitting the accused, Anil Kumar and Satish Kumar, altered the conviction of Ram Karan, Sunil Kumar and Ved Prakash from one under sections 302 and 307 read with section 149 I.P.C. to one under sections 302 and 307 read with section 34, I.P.C. and confirmed the sentences of imprisonment for life imposed on these appellants.
The prosecution case has been detailed in the judgment of the High Court as also in the judgment of our learned Brother Varadarajan J. and it is not necessary to repeat the same.
So far as the question of occurrence is concerned that has been proved beyond reasonable doubt as pointed out by Brother Varadarajan, J. as also by the High Court.
We also agree with the appreciation of the evidence by Brother Varadarajan, J. and his conclusion that the two deceased died at the hands of the appellants.
The entire occurrence seems to have been the result of a chronic land dispute between the parties in which several commissions were issued and which ultimately proved futile.
The prosecution has no doubt proved that the two persons were killed at the hands of the accused and that the occurrence had taken place while the Commissioners were present at the spot though they were not able to see the actual assault and were, therefore, not in a position to depose the detailed manner in which the assault had taken place.
The only serious question on which we would like to sound a discordant note from our Brother Varadarajan, J. is as to the actual nature of the offence which had been committed by the appellants, Sunil Kumar and Ved Prakash.
It would appear from the evidence 398 of CW 1 as also other eye witnesses that the accused were also assaulted with knife and one of them, Chhotey Lal, died as a result of the injuries caused to him.
The medical evidence as also the evidence of CW 1 clearly shows that there was exchange of hot words, followed by the assault on the appellants which, according to the prosecution, was a result of the exercise of self defence by the prosecution party, particularly Dinesh Chandra.
In fact, the learned Sessions Judge and the High Court held that the accused were the aggressors and, therefore, they had no right of private defence.
In order to ascertain whether the accused had the right of private defence, the genesis of the incident has to be traced.
Now, in this case the prosecution witnesses being partisan, the only important injured witness Dinesh Chandra, PW 11 being the son of the deceased, it would be necessary to ascertain with accuracy the genesis of the quarrel as revealed from the evidence of Court witnesses not shown to be partisan.
CW 1, Prem Narain Mathur is the practising advocate and was appointed as a Commissioner.
He was accompanied by Mahesh Chandra, Vakil, CW 3, advocate appearing on behalf of the plaintiffs (accused Ram Karan) in the suit in which Commission was issued and Shri Jafar Imam, CW 2, learned advocate appearing for the defendants in the same suit.
C.W. 1 and C.W. 3 were at the house of accused 1 Ram Karan.
C.W. 1 says that several persons assembled at that time at the house of Ram Karan.
He is a bit vague but he says that at that time after tea was served and he was about to leave that place he saw a person lying on the pavement of the road.
This injured person was lying in front of the house of accused 1 Ram Karan.
This statement has not been questioned in cross examination nor adversely commented upon.
It gives a clue to the genesis of the occurrence.
After measurements were taken as directed by the Court, C.W. 1 and C.W. 3 came to the house of accused 1 Ram Karan.
Some persons collected there.
According to C.W. 1 injured persons were seen lying in front of the house of accused 1 and that was none else than the deceased.
If amongst those who collected at the house were the two deceased and P.W. 11 Dinesh Chandra, another injured witness on the side of the prosecution, it is crystal clear that the prosecution witnesses and the two deceased Prakash Chandra and Umesh Chandra had come to the house of accused 1 Ram Karan.
How, if one of them was armed with a knife, they must have come with a view to either picking up quarrel or to guard themselves.
The occurrence took place in front of the house of 399 accused 1.
On the side of the prosecution Prakash Chandra and Umesh Chandra received fatal injuries and Dinesh Chandra was also injured.
However, on the side of the accused Chhotelal, son of accused 1 Ram Karan, suffered six injuries one of which proved fatal and he died.
Accused Ram Karan himself was also injured.
Injuries on both sides appear to have been caused with sharp cutting weapon like knife.
It is easy to infer the genesis of the dispute.
Both the parties were completely exasperated with the litigation.
Accused 1 Ram Karan had summoned Commission on five to six occasions and his attempt to end the litigation was thwarted by objections being taken on the side of Prakash Chandra deceased.
Therefore, both sides were in an exasperated mood.
Suddenly at the spur of the moment there ensued a quarrel.
Prakash Chandra and Umesh Chandra on the side of the prosecution died and Chhotelal on the side of the accused died and each of them met a homicidal death.
On the side of the prosecution Dinesh Chandra was injured, on the side of accused Ram Karan was injured.
From this an irresistible inference ensues that exception 4 to section 300, I.P.C. would be attracted.
The exception provides that culpable homicide is not murder, if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.
All the ingredients of Exception 4 are satisfied.
Prakash Chandra and his two sons and others came to the house of accused 1 to protest for the work of the Commissioner.
Dinesh Chandra amongst them was armed with a knife.
May be, he may be usually carrying the same for his safety.
The incident occurred in front of the house of accused 1 upon a sudden quarrel by this confrontation with eyebrows having been raised because of a persistent litigation, the occurrence took place.
There is no clear evidence to show that any one took undue advantage or acted in a cruel or unusual manner.
Taking an overall view of the situation, we find no evidence of any intention to kill the two deceased on the part of the accused because the occurrence itself had taken place suddenly when, to begin with, the entire episode started for the particular purpose of partitioning the land by the Commissioners who had visited the village.
In these circumstances we are satisfied that Exception 4 of section 300, I.P.C. is attracted and the offence of murder would be reduced to culpable homicide in respect of accused Sunil Kumar and Ved Prakash and, therefore, they would be guilty of committing 400 an offence under section 304(1)/34 I.P.C. and they should be convicted accordingly.
To this extent, therefore, we are unable to agree with Brother Varadarajan, J. that the conviction of the appellants Sunil Kumar and Ved Prakash under section 302 read with section 34 of the I.P.C. should be confirmed.
We, therefore, allow this appeal to the extent that the conviction of Sunil Kumar and Ved Prakash are altered from one under section 302 read with section 34 of the I.P.C. to that under section 304(1)/34 I.P.C. and they are sentenced to rigorous imprisonment for seven years.
Conviction and sentences under section 307/34, I.P.C. are maintained and sentences awarded have already been directed to run concurrently.
We allow the appeal of Ram Karan as indicated by Brother Varadarajan, J. VARADARAJAN, J.
This Criminal Appeal by special leave is directed against the judgment of a Division Bench of the Allahabad High Court in Criminal Appeal No. 1144 of 1971, whereby the learned Judges, while acquitting two appellants Anil Kumar and Satish Kumar of the charges, altered the conviction of Ram Karan, Sunil Kumar and Ved Prakash, appellants in this Criminal Appeal, under section 302 and 307, both read with section 149 I.P.C., into one under sections 302 and 307 both read with section 34 I.P.C. and confirmed the sentences of imprisonment for life for each of the two counts of murder of Prakash Chandra and Umesh Chandra and rigorous imprisonment for four years for attempt to murder Dinesh Chandra (P.W. 11) to run concurrently and set aside the conviction of the appellant Ram Karan under section 147 and the other two appellants under section 148 I.P.C.
The first appellant Ram Karan is the father of other appellants Sunil Kumar and Ved Prakash and also of Anil Kumar and Satish Kumar, who have been acquitted by the High Court as well as of deceased Chhotey Lal.
The learned Sessions Judge who tried the case convicted Ram Karan and all his four sons, Sunil Kumar, Anil Kumar, Ved Prakash and Satish Kumar under section 302 read with section 149 I.P.C. (two counts) and section 307 read with section 149 I.P.C. and sentenced them to undergo imprisonment for life on each of the two counts under section 302 read with section 149 I.P.C. and to imprisonment for four years under section 307 read with section 149 I.P.C. He convicted Ram Karan under section 147 and his aforesaid four sons under section 148 I.P.C. and sentenced Ram Karan to undergo rigorous imprisonment 401 for one year and his sons to undergo rigorous imprisonment for two years under section 147 and section 148 I.P.C. respectively.
The case of the prosecution was this: The deceased Prakash Chandra was the father of the deceased Umesh Chandra and the injured witness Dinesh Chandra (P.W. 11) as well as of Gyan Chand (P.W. 1).
Prakash Chandra and his sons were living in Seohara town, Bijnor district.
The appellant Ram Karan and his five sons including the deceased Chhotey Lal were living in another house in the same town as the neighbours of Prakash Chandra and his sons.
Prakash Chandra and his sons built a new house on a vacant land which existed between these two houses about three years prior to the occurrence in this case which has taken place at about 1.00 p.m. on 6.9.1970.
The appellant Ram Karan and five others filed Civil Suit No. 34 of 1967 in the court of the Munsif, Nagina against Prakash Chandra and his brother Gopi Chandra and one Krishna Devi, alleging that while constructing the new house Prakash Chandra had encroached upon a portion of their land.
In that suit, Ram Karan got Commissioners appointed by the court on five or six occasions for taking measurements of the properties with the object of proving his case of encroachment by Prakash Chandra.
But those Commissioners ' reports were set aside on the objection raised by Prakash Chandra and the other defendents.
The last Advocate Commissioner Mr. Mathur (C.W. 1) visited the spot on 6.9.1970, accompanied by Mr. Zafar Hussain (C.W. 2) who appeared for Prakash Chandra and another and Mr. Mahesh Chand (C.W. 3) who appeared for Ram Karan.
After the completion of the survey work at about 12.30 p.m. all the three lawyers were standing and talking in front of Ram Karan 's baithak at about 1.00 p.m.
Then Prakash Chandra and Umesh Chandra came there to talk with the Commissioner.
Ram Karan, who was present there along with his five sons, did not like that interference of Prakash Chandra and Umesh Chandra with the Commissioner.
He stated that he has spent thousands of rupees for taking out the commissions and that the reports of the Commissioners were set aside on the objection of Prakash Chandra.
So saying, he instigated his sons to kill Prakash Chandra and his sons.
Thereupon, Chhotey Lal and Ved Prakash attacked Prakash Chandra with knives while Sunil Kumar, Anil Kumar and Satish attacked Umesh Chandra with knives.
On seeing Dinesh Chandra (P.W. 11) who rushed meanwhile from the eastern side to help his father and brother, Ram Karan instigated his sons to attack him and caught hold of him by 402 his waist, and all his five sons attacked him and inflicted injuries.
Then P.W. 11 took out a knife from his pent pocket and wielded it against Ram Karan and Chhotey Lal in self defence and they sustained injuries.
P.W. 11 received injuries and fell down.
Gyan Chandra (P.W. 1), who was seeing the occurrence, ran to his house along with some others and bolted the door when Sunil Kumar, Anil Kumar and Satish chased him for attacking him.
Abdul Wahid, P.W. 10, and others who were witnessing the occurrence raised an alarm, and Ram Karan and his sons ran away.
Gyan Chand, (P.W. 1) came out of his house sometime later and found his father Prakash Chandra and brother Umesh Chandra dead and Dinesh Chandra (P.W. 11) lying with injuries.
He prepared the report, exhibit Ka. 3 and proceeded in a jeep with his brother Dinesh Chandra (P.W. 11), to Seohara Police Station situate about half a mile away and handed over that report at 1.30 p.m. Dinesh Chandra (P.W. 11) was taken to Dhampur hospital after he was given first aid by a Doctor on the way.
He was examined at the Dhampur hospital by Dr. Bagchi, P.W. 3 who found on his person an abrasion and nine incised wounds of which injury No. 7 on the right side of the chest through which blood and air were coming out was serious and the rest were simple.
The dead bodies of Prakash Chandra and Umesh Chandra which were found lying in front of their house where blood also was found, were later sent for autopsy.
Ram Karan and Chhotey Lal went to the Government hospital, Bijnor where they were examined by Dr. Sarin (P.W. 2) at 4 p.m. and 4.15 p.m. respectively on 6.9.1970.
P.W. 2 found one punctured wound and four incised wounds on Chhotey Lal and three incised wounds on Ram Karan.
The injuries on both of them were fresh and those on Ram Karan were simple while injury No. 1 on Chhotey Lal, namely, a punctured wound which was lung deep and anterior to the left nipple, was grievous and the rest were simple.
The injuries on both could, in the opinion of P.W. 2, have been caused by knife.
P.W. 2 issued the wound certificates exhibit Ka. 12 and Ka. 13.
Ram Karan 's report was lodged at the Police Station at 10.30 p.m. on 6.9.1970.
Chhotey Lal died in the District hospital, Bijnor on 10.9.1970.
Dr. Zuber conducted autopsy on the bodies of Prakash Chandra and Umesh Chandra on 7.9.1970 and found nine antemortem, injuries, of which six were incised wounds, on the body of Prakash Chandra and six antemortem incised wounds on the body 403 of Umesh Chandra and he opined that the death of both of them was due to shock and haemorrhage resulting from the incised injuries.
exhibit Ka. 1 and Ka. 2 are the postmortem certificates relating to Prakash Chandra and Umesh Chandra issued by Dr. Zuber who was examined as P.W. 1 in the Committing Magistrate 's Court (exhibit Ka. 37).
Dr. Dua (C.W. 4) conducted autopsy on the body of Chhotey Lal on 11.9.1970 and found an abrasion and five incised wounds which were sufficient in the ordinary course of nature to cause death.
The prosecution 's case rests mainly on the evidence of Gyan Chand (P.W. 1), Abdul Wahid (P.W. 10) and Dinesh Chandra (P.W. 11).
As stated earlier P.Ws 1 and 11 are the sons of deceased Prakash Chandra and brothers of the other deceased Umesh Chandra.
P.W. 11 had received injuries during the occurrence and P.W. 1 is the witness who had lodged the First Information Report (exhibit K. 3) in the Seohara Police Station at the earliest opportunity at 1.30 p.m. soon after the occurrence which had taken place at about 1.00 p.m.
These three witnesses were put forward as eyewitnesses and they have deposed in support of the case of the prosecution.
The accused put forward their version of the case.
According to the accused, after the Commissioner (C.W. 1) finished his work and went to the house of the appellant Ram Karan, Prakash Chandra and his sons Umesh Chandra and Dinesh Chandra (P.W. 11) came to the baithak of Ram Karan and attacked Ram Karan and deceased Chhotey Lal with knives and thereupon they grappled with those three persons and wrested the knives from them and attacked them in self defence.
The accused examined D.W. 1 on their behalf.
The court examined the Commissioner and the counsel of the parties in the civil suit as C. Ws. 1 to 3 and the Doctor who conducted autopsy on the body of Chhotey Lal as C.W. 4.
The evidence of C.W. 1 is that after he completed taking measurements he went along with Ram Karan 's counsel Mr. Mahesh Chandra (C.W. 3) to the baithak of Ram Karan 's house, that both of them came out of the house 8 or 10 minutes later, that when he advanced from the door of the baithak he saw a person lying injured on the pavement of the road and another injured person standing there, that a third person came and struck the injured person who was standing, and that he and C.W. 3 left the place thereafter.
The evidence of C.W. 3 is that he and C.W. 1 who had gone to the baithak of Ram Karan 's house after C.W. 1 had 404 taken the measurements, came out of the baithak 5 or 7 minutes later, and saw Chhotey Lal grappling with a young man, that in the course of grappling Chhotey Lal fell down bleeding, that Chhotey Lal managed to get up and snatched the weapon of the assailant and struck him with it, that Prakash Chandra came to the rescue of the young man and Chhotey Lal struck him with the same weapon and both the young man and Prakash Chandra fell down after receiving injuries from Chhotey Lal, and that on account of the incident he went away along with C.W. has added that soon after he went and sat in the baithak of Ram Karan 's house, Zafar Hussain (C.W. 2) came and said something to C.W. 1 from beyond the door of the baithak.
The evidence of Zafar Hussain (C.W. 2) is that after measurements had been taken C. Ws. 1 and 3 went to the baithak of Ram Karan 's house while he sat in the verandah of the old haveli of Prakash Chandra, that he and Prakash Chandra 's son, who is now no more, thereafter went near the Commissioner (C.W 1) and he told C.W. 1 that he may hear what Prakash Chandra wanted to say, that after saying so he got back for meeting another person while Prakash Chandra and his son remained there, that after reaching the verandah of Prakash Chandra he went away with Mehboob Ali who was waiting for him to Mehboob Ali 's house and that no quarrel took place when he was present there though when he was returning to the verandah of Prakash Chandra 's house he heard some hot words being exchanged near the baithak of Ram Karan 's house.
The learned Sessions Judge has observed in his judgment that the evidence of C.Ws. 1 to 3 is contradictory, unnatural and not truthful.
He found that P.W. 1 's report (Ka. 3) was lodged in the Police Station at 1.30 p.m. soon after the occurrence had taken place at about 1.00 p.m. and that there has been no attempt at concoction in this case.
He rejected the contention that Abdul Wahid, (P.W. 10) had any reason to depose falsely against the appellant Ved Prakash and found his evidence to be reliable.
He observed that though Prakash Chandra had been working as an Engineer in a sugar mill at Seohara and P.W. 10 was employed in the engineering department, P.W. 10 was actually working under one Bachcha Lal and is an independent witness.
P.W. 1 has stated in his evidence that Prakash Chandra, Umesh Chandra and Ram Karan did not have any weapon at the time of the occurrence.
The evidence of the injured witness P.W. 11 is that when he returned home from Moradabad at about 12.30 p.m. on the day of occurrence 405 he saw his father Prakash Chandra and brother Umesh Chandra lying in a pool of blood and that on seeing him Ram Karan shouted that he also should be killed and caught hold of him by his waist and that he was attacked with knives by the accused persons including Ram Karan and he wielded in self defence the knife which he had purchased on that day for his work.
The learned Sessions Judge accepted the evidence of P.Ws. 1, 10 and 11 and commented upon Ram Karan and Chhotey Lal going to the hospital at Bijnor without arranging for a report being given at the Police Station at Seohara in time and held that the accused were the aggressors and that Dinesh Chandra (P.W. 11) caused injuries to Ram Karan and the deceased Chhotey Lal in the exercise of the right of private defence.
Accordingly he found the accused guilty and convicted them and sentenced them as mentioned above.
The High Court also rejected the defence theory that Chhotey Lal was attacked by three persons armed with knife, chura and khukhri having regard to the fact that he had only one lung deep punctured wound and the other four wounds were only skin deep and of very minor dimensions.
The learned Judges of the High Court found that the name of Anil Kumar is not mentioned in the First Information Report (exhibit Ka. 3) but instead the name of one Virendra is mentioned and that it appears from the evidence of P.W. 1 that Virendra is the name of Prakash Chandra 's brother.
They found that in the statement of P.W. 11 recorded as dying declaration, Sushil Kumar is mentioned instead of Satish Kumar.
In these circumstances the learned Judges found that there is reasonable doubt regarding the participation of the accused Anil Kumar and Satish Kumar and they gave the benefit of that doubt to those two appellants before them and acquitted them.
In other respects, the learned Judges accepted the evidence of P.Ws. 1, 10 and 11 regarding the occurrence and rejected the defence version and held the appellants guilty under section 302 read with section 34 in respect of the murder of Prakash Chandra and Umesh Chandra and under section 307 read with section 34 in respect of Dinesh Chandra, (P.W. 11) and convicted them accordingly and sentenced them to undergo imprisonment for life under section 302 read with section 34 I.P.C. and rigorous imprisonment for four years under section 307 read with section 34 I.P.C. 406 We perused the records and the judgments of the learned Sessions Judge and of the learned Judges of the High Court and heard the arguments of Mr. R.L. Kohli, Senior Advocate who appeared for the appellants and of Mr. D.P. Uniyal, Senior Advocate who appeared for the respondent State of U.P.
We were taken through the evidence of P.Ws. 1, 10 and 11.
The learned Sessions Judge has observed in his judgment that the evidence of the three lawyers C.Ws. 1 to 3 is contradictory, unnatural and not truthful and that if they had given honest evidence it would have been easier for the court to conclude which side was the aggressor.
This observation of the learned Sessions Judge appears to be too sweeping and not correct at least with reference to C.W. 2 who has professed ignorance about the actual occurrence in the case and has stated that he left after asking C.W. 1 from outside the baithak of Ram Karan 's house to hear what Prakash Chandra who had gone with him and his deceased son wanted to tell him because another person Mehboob Ali with whom he later went to his house was waiting for him in the verandah of Prakash Chandra 's house.
The evidence of C.W. 2 that no quarrel took place when he was present there though when he was returning to the verandah of Prakash Chandra 's house he heard some hot words being exchanged near the baithak of Ram Karan 's house, is, in a way, corroborated by the evidence of P.W. 1.
P.W. 1 has stated that when exchange of hot words started the Commissioner and Vakils of the parties moved from there to the road and that just when Ram Karan 's Vakil had gone a short distance from Ram Karan 's house, Ram Karan and others stated that "they have got our thousands of rupees spent over litigation.
We have become tired of getting commissions issued.
Kill them today so that the trouble may be ended for ever.
At that time all the five sons of Ram Karan, Chhotey Lal, Ved Prakash, Satish Kumar, Sunil Kumar and Anil Kumar were present, and when Ram Karan said so all five sons whipped out knives and started assulting. .".
This portion of the evidence of P.W. 1 is to the effect that the lawyers C.Ws. 1 3 were not present at the time of the actual assault on the deceased Prakash Chandra and Umesh Chandra as a well as on P.W. 11.
Even P.W. 10 has stated in his evidence that "when he reached near dharmshala at about 12.45 p.m. he heard the shouts of Ram Karan from his house situate at a distance of 30 paces, that when he reached the end of the road he was in a position to see the house of Ram Karan, that on hearing the shouts he proceeded towards the place from where they came and stood near 407 the wall and found three Vakils present and also Prakash Chandra and Umesh Chandra, that as soon as he reached the place, the Vakils left the place, that Ram Karan then stated that he got the Commissioner appointed 5 or 6 times and spent several thousands of rupees and he should be killed and that when Ram Karan said so his sons Chhotey Lal and Ved Prakash began to attack Prakash Chandra with knives, that Sunil Kumar and Ram Karan 's other sons began to assault Umesh Chandra with knives, that during the marpit Prakash Chandra and Umesh Chandra fell down after receiving injuries, that thereafter Dinesh Chandra, son of Prakash Chandra came from the eastern direction, and on seeing him Ram Karan shouted that he should also be done to death, and he caught hold of Dinesh Chandra by his waist, and that all the four boys and deceased Chhotey Lal began to assault Dinesh Chandra with knives, and Dinesh Chandra wielded his knife in self defence and caused injuries to Ram Karan and Chhotey Lal and thereafter fell down and became unconscious. ".
This portion of the evidence of P.W. 10 also shows that C.Ws. 1 to 3 left the place soon after exchange of hot words began between the two sides.
Therefore, I am of the opinion that there is no reason to reject the evidence of C.W. 2 that no quarrel took place when he was present near about the scene of occurrence.
In the circumstances of the case, it is very probable that before serious trouble started from the exchange of hot words, C.Ws. 1 to 3.
the Commissioner and the counsel for both the parties in the civil suit, left the place and were not present at the time of the actual occurrence as stated by P.Ws. 1 and 10.
Mr. R.L. Kohli drew our attention to some portions of the judgment of the learned Judges of the High Court and submitted that the observation of the learned Judges that from the side of the defence it was not suggested to any witness that Abdul Wahid (P.W. 10) was a different man and that he has been introduced because the real Abdul Wahid was not prepared to support the prosecution case is incorrect.
The learned counsel further submitted that the observation of the learned Judges that the presence of Gyan Chand (P.W. 1) at the time of the occurrence does not appear to have been challenged by the defence is also not correct.
This criticism of the learned counsel for the appellants appears to be well founded, for I find that a suggestion has been made to P.W. 10 in cross examination and he has admitted that there is also 408 another person named Wahid son of Abdul Rehman in his mohalla and that that person was an accused in a rioting case.
And in the cross examination of P.W. 1 it has been clearly suggested that he was not present at the spot and that he prepared the report exhibit Ka. 3 afterwards with some consultation.
P.W. 1 has no doubt denied that suggestion and stated that he was present at the spot and that he himself wrote the report exhibit Ka. 3 before he came out of the house by opening the door.
The learned Judges have stated in their judgment that after Ram Karan stated that he has spent thousands of rupees on commissions and every time the report of the Commissioner was set aside on the objection of Prakash Chandra and he instigated his sons to kill Prakash Chandra and Umesh Chandra, all the five sons of Ram Karan started giving knife blows to Prakash Chandra and Umesh Chandra and both of them fell down.
This portion of the judgment of the learned Judges is to the effect that all the five sons of Ram Karan including the deceased Chhotey Lal attacked the deceased Prakash Chandra and Umesh Chandra whereas it is the case of the prosecution as brought out in the evidence of P.W. 1 that after Ram Karan instigated his sons to open the attack only Chhotey Lal and Ved Prakash attacked Prakash Chandra with knives and only Sunil Kumar.
Anil Kumar and Satish Kumar attacked Umesh Chandra with knives.
It is unfortunate that these inaccuracies have crept into the judgment of the learned Judges of the High Court.
But on an overall consideration of the entire material on record and the evidence in the case in the light of the arguments of the learned counsel for the parties I am of the opinion that the appreciation of the evidence of P.Ws. 1, 10 and 11 by the learned Sessions Judge and the learned Judges of the High Court in so far as the appellants Sunil Kumar and Ved Prakash are concerned is correct and that the evidence of P.Ws. 1 and 10 proves beyond reasonable doubt that these two appellants Sunil Kumar and Ved Prakash attacked the deceased Prakash Chandra and Umesh Chandra with knives as a result of which both of them, who had no weapons died on the spot, and the evidence of P.Ws. 10 and 11 proves satisfactorily and beyond any reasonable doubt that these two appellants attacked P.W. 11 with knives with such intention that if he had died as a result of the injuries sustained by him they would be guilty of murder in furtherance of their common intention to murder.
The dead bodies of Prakash Chandra and Umesh Chandra and blood were found in front of the house of both the 409 deceased and P.W. 11.
Both the deceased had no weapons and they had been attacked before P.W. 11 arrived and wield his knife against Ram Karan and Chhotey Lal.
The main occurrence had taken place in front of the house of both the deceased and P.W. 11.
Before the trial court it was not submitted that the attack by the accused persons on both the deceased Prakash Chandra and Umesh Chandra and P.W. 11 was without any pre meditation in a sudden fight in the heat of passion upon a sudden quarrel.
Nor is it a case in which it could be said that the offenders had not taken undue advantage or had not acted in a cruel or unusual manner.
No such argument was put forward even before the High Court to bring the main occurrence under section 304 (Part I) I.P.C.
Since I have found that the occurrence has taken place in front of the house of the two deceased and P.W. 11 in this case and that the accused persons were the aggressors neither Exception 2 nor Exception 4 to section 300 I.P.C. would apply to the facts of this case and the offence cannot be brought under section 304 (Part I) I.P.C.
In these circumstances, I agree with the learned Sessions Judge that the appellants Sunil Kumar and Ved Prakash were the aggressors and find that they have been rightly convicted under section 302 read with section 34 I.P.C. for the offence of murder of those two persons and under section 307 read with section 34 I.P.C. with reference to P.W. 11.
But I am of the opinion, having regard to the age of appellant Ram Karan, who was about 70 years old at the time of the occurrence that there is a reasonable doubt as to whether he would have caught hold of the young man Dinesh Chandra (P.W. 11) by his waist and whether he would have asked all his sons to attack and kill Prakash Chandra and his son.
I therefore, give the benefit of this reasonable doubt to the appellant Ram Karan and set aside his conviction under section 302 read with s.34 (two counts) and under section 307 read with section 34 and acquit him and direct him to be set at liberty forthwith if he is in custody and his presence is not required in connection with any other case.
In other respects I dismiss the criminal appeal and confirm the conviction of Sunil Kumar and Ved Prakash and the sentences awarded to them.
In accordance with the opinion of the majority, the appeal is allowed to the extent that the conviction of Ram Karan under section 302 read with section 34 (two counts) and under section 307 read with section 34 of the Indian Penal Code is set aside and he is acquitted and that convictions of the appellants, Sunil Kumar and Ved Prakash, are 410 altered from one under section 302/34, I.P.C. to that under section 304(1)/34, IPC and they are sentenced to rigorous imprisonment for seven years.
Conviction and sentences under section 307/34, I.P.C. are maintained and sentences awarded have already been directed to run concurrently.
S.R. Appeal partly allowed.
| IN-Abs | The five accused Ram Karan, his sons Sunil Kumar, Ved Prakash, Anil Kumar, Satish Kumar and deceased son Chhoteylal filed a Civil Suit 34 of 1967 against the decased Prakash Chandra, his brother Gopi Chandra and one Krishan Devi, alleging that while constructing their new house Prakash Chandra had encroached upon a portion of their land.
In that suit appellant Ram Karan got Commissioners appointed by the court on five or six occasions for taking measurements of the properties with the object of proving his case of encroachment by Prakash Chandra, the deceased.
But these Commissioners ' reports were set aside on the objection raised by Prakash Chandra and the other defendants.
The last Advocate Commissioner Mr. Mathur (C.W. 1) visited the spot on 6 9 1970, the day of occurrence, accompanied by Mr. Zafar Hussain (C.W. 2) who appeared for deceased Prakash Chandra and Mr. Mahesh Chandra (C.W. 3) who appeared for Ram Karan.
After the completion of the survey work and measurements at about 1 P.M. when all the three lawyers were standing and talking in front of the house of the appellants deceased Prakash Chandra and Umesh Chandra came there to talk to the Commissioner, which interference was not liked by the appellants.
This resulted in a sudden quarrel, exchange of hot words later followed by assault with knife etc., on the appellants which, according to prosecution, was in the exercise of right of self defence by the prosecution party, particularly Dinesh Chandra (P.W. 11).
On the side of the appellants Ram Karan 's son Chhotey Lal (accused) died and on the side of the prosecution Prakash Chandra and his son Umesh Chandra died and Dinesh Chandra (P.W. 11) was grievously injured.
All the five accused were tried and convicted by the Sessions Judge for offences under sections 302/149 I.P.C. (two counts) and 307/149 I.P.C. and were sentenced to imprisonment for life and rigorous imprisonment for four years respectively.
Ram Karan was also convicted under section 147 and sentenced to undergo rigorous imprisonment for one year and his four sons were convicted under section 148 and sentenced to rigorous imprisonment for two years.
In appeal the 396 High Court acquitted Anil Kumar and Satish Kumar, set aside the conviction and sentence under sections 147 and 148 I.P.C. in respect of the rest and confirmed (a) their sentence of life imprisonment by altering the conviction one under sections 302/34 I.P.C. and (b) their sentence of four years rigorous imprisonment to one under sections 307/34 I.P.C. Hence the appeal by special leave by Ram Karan and his two sons.
Acquitting Ram Karan and allowing the appeal of the other two in part, the Court ^ HELD: Having regard to the age of the appellant Ram Karan who was about 70 years old at the time of the occurrence, there is a reasonable doubt as to whether he would have caught hold of the young man Dinesh Chandra (P.W. 11) by his waist and whether he would have asked all his sons to attack and kill Prakash Chandra and his sons.
The appellant Ram Karan is entitled to be set at liberty.
[409 D E] BY MAJORITY Per Fazal Ali, J. (and on behalf of D.A. Desai, J.) 1:1.
Exception 4 to section 300 I.P.C. provides that culpable homicide is not murder if it is committed without pre meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.
[399 D] 1:2.
In this case, the incident occurred upon a sudden quarrel and no one took undue advantage or acted in a cruel or unusual manner on either side.
Prakash Chandra and Umesh Chandra on the side of the prosecution died and Chhotey Lal on the side of the accused died and each of them met a homicidal death.
Therefore exception 4 to section 300 Indian Penal Code is clearly attracted and the offence of murder would be reduced to culpable homicide in respect of Sushil Kumar and Ved Prakash and, therefore, they would be guilty of committing on offence under section 304(1)/34 I.P.C. A sentence of rigorous imprisonment for seven years would be appropriate; conviction and sentence under sections 307/34 I.P.C. being in order would run con currently.
[399 B C, G H, 400 A] Per Varadarajan, J. (contra).
Sunil Kumar and Ved Prakash were the aggressors and they have been rightly convicted under section 302 read with section 34 I.P.C. for the offence of murder of Prakash Chandra land Umesh Chandra and under sections 307/34 I.P.C. with reference to P.W. 11.
Neither Exception 2 nor Exception 4 to section 300 I.P.C. would apply to the facts of the case and the offence cannot be brought under section 304 (Part I) I.P.C.
The evidence of P.Ws. 1, 10 and 11 proves beyond reasonable doubt that these two appellants Sunil Kumar and Ved Prakash attacked the deceased Prakash Chandra and Umesh Chandra with knives as a result of which both of them, who had no weapons died on the spot and these two appellants attacked P.W. 11 with knives with such intention that if he had died as a result of the injuries sustained by him they would be guilty of murder in furtherance of their common intention to murder.
Their conviction under section 307/34 is proper.
[408 F H, 409 C D] 397
|
Civil Appeal No. 1314 of 1978.
Appeal by special leave from the judgment and order dated the 23rd March, 1978 of the Allahabad High Court in Civil Revision No. 1906 for 1976.
WITH CIVIL APPEAL No. 2436 OF 1981 Appeal by special leave from the judgment and order dated the 20th August, 1981 of the Allahabad High Court in Civil Writ Petition No. 6909 of 1979.
AND CIVIL APPEAL No. 1710 OF 1981 From the judgment and Decree dated the 13th March, 1981 of the Allahabad High Court in Writ Petition No. 6167 of 1979.
AND SPECIAL LEAVE PETITION (CIVIL) NO.
3573 OF 1979 494 From the judgment and order dated the 3rd January, 1979 of the Allahabad High Court in Civil Revision No. 3714 of 1978.
G.L.Sanghi, Mrs. A. Verma and D.N. Mishra for the Appellant in CA.
No. 1314 of 1978.
J.P. Goyal, S.Markandeya and C.K.Ratnaparkhi for the Respondent in CA.
1314 of 1978.
A.K. Srivastava for the Appellant in CA.
1710/80.
R.B. Mehrotra for Respondent in CA.
1710/80.
Pramod Swarup and Mrs. section Markandeya for the appellant in CA.
2436 of 1980.
S.N. Kacker and K.K Gupta for the Respondent in CA.
2436 of 1980.
P.R.Mridul, Praveen Jain and K.B. Rohatgi for the Petitioner in SLP (Civil) No. 3573 of 1979 R.H. Dhebar for the Respondent.
The Judgment of the Court was delivered by MISRA J.
The first two appeals by special leave and the third by certificate and the special leave petition raise a common question of law and, therefore, we propose to dispose of them by a common judgment.
The pattern of facts in all these cases is similar.
We, therefore set out the facts of Civil Appeal No. 1314 of 1978 to bring out the point for consideration in these matters.
The appellant Om Prakash Gupta is a tenant of a shop on a monthly rent of Rs. 150/ .The respondent landlord filed a suit for the eviction of the tenant on the ground that the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act 13 of 1972 and hereinafter referred to as 'the Act ') did not apply to the shop and the tenant was liable to eviction.
The Judge, Small Causes Court, Mainpuri decreed the suit on the finding inter alia that the construction of the shop in suit was completed in the year 1967 and 495 that ten years having not elapsed since then, the provisions of the Act did not apply to the case.
The defendant went up in revision under section 25 of the Provincial Small Causes Courts Act against the judgment and decree of the trial Court but the same was substantially dismissed.
The defendant thereupon filed a revision under section 115 of the Civil Procedure Code in the High Court which came up for hearing before a learned Single Judge who remitted the following issue to the trial court: "On what date was the construction of the building in dispute completed within the meaning of section 2 (2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, and deemed to have been completed as contemplated by Explanation I (a) thereto.
" The Judge Small Causes Court by his order dated 26th of November 1977 returned the following finding: "The construction of the disputed shop will be deemed to have been completed on the date of the first assessment i.e. 1.4.68 within the meaning of section 2 (2) of the U.P. Urban Buildings Act, 1972.
" The finding returned by the trial court was sought to be challenged on behalf of the tenant on the ground that the date of occupation should be taken to be the date of completion of the construction of the shop and not the date of the first assessment.
In Tilak Raj vs Sardar Devendra Singh,(1) a learned Single Judge of the same High Court had the occasion to consider section 2 (2) of the Act.
He held: "It is apparent from this provision that for purposes of this Act, a building is to be deemed to be constructed, if it is subject to assessment, on the date with effect from which the first assessment is made.
It is immaterial whether the building was constructed actually prior to that date or it had come into occupation prior to that date.
The law recognised for the purposes of this Act, the date of assessment as the date of the completion of the building.
There is thus no error in the judgment of the court below.
" 496 The learned Single Judge before whom the revision in the instant case came up for hearing doubted the correctness of the above decision.
He, therefore, referred the case to a Division Bench.
There is no dispute that the first assessment of the shop took place on 1st of April, 1968.
It is also not in dispute that the shop in question was occupied by the defendant on 16th of June, 1967, and prior to his occupation the shop was in occupation of another tenant for about a month and a half.
The appellant sought the benefit of section 39 of the Act on the ground that if the date of occupation was taken to be the date of the completion of the construction of the shop, then ten years having elapsed during the pendency of the revision before the High Court, the Act would be applicable.
The Division Bench, however, over ruled the contention of the appellant and held that the construction of the shop in question would be deemed to have been completed on 1st of April 1968 and, therefore, the Act would not be applicable to the building till the date of the decision of the revision on March 23, 1968.
The defendant undaunted by the failure came to this Court to challenge the judgment of the High Court.
Mr. G.L. Sanghi, senior counsel.
appearing for the appellant strongly contended that on a correct interpretation of sub section (2) of section 2, the Act would be applicable to the shop in question.
It would be appropriate at this stage to extract sub section (2) of section 2 of the Act insofar as it is material for the purposes of the case: "Except as provided in sub section (5) of section 12, sub section (1 A) of section 21, sub section (2) of section 24, sections 24A, 24B, 24C or sub section (3) of section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed: Explanation I.
For the purposes of this sub section: (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction and in the case of a building subject to assessment the date on which the first assessment thereof 497 comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time :. " The precise contention on behalf of the appellant is that the exemption created by this sub section does not embrace buildings constructed prior to the enforcement of the Act.
In support of his contention, Mr. Sanghi, relied upon Rattan Lal Shinghal vs Smt.
Murti Devi.(1) The same contention was raised by him in that case also and a Division Bench of this Court accepted the contention and held that Act 13 of 1972 was prospective and applied only to buildings brought into being de novo after the Act came into force.
In that case there is no discussion except this bald observation.
This Court in a subsequent case Ram Saroop Rai vs Lilavati(2) held to the contrary.
It is on this account that the present appeals were referred to a larger Bench.
There is no ambiguity in the language of sub section (2) of section 2 and in the absence of any ambiguity there is no question of taking any external aid for the interpretation of the sub section.
In plain words the sub section contemplates that the Act shall not apply to a building during a period of ten years from the date on which its construction is completed.
It nowhere says that the building should have been constructed after the enforcement of the Act and to interpret it in the way the learned counsel for the appellant seeks to interpret it, we would be adding words to the sub section, which is not permissible.
Primarily the language employed is the determining factor of the intention of the legislature.
The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself.
The question of interpretation arises only when the language is ambiguous and, therefore, capable of two interpretations.
In the present case the language of sub section (2) of section 2 of the Act is explicit and unambiguous and it is not capable of two interpretations.
498 As a second limb to the first argument, it is contended that the building will be deemed to have been constructed on the date of occupation on 16th of June, 1967 and not on the date of the first assessment, and that if this be so, the appellant would be entitled to the benefit of section 39 of the Act on the date when the revision came to be decided by the High Court on 23rd of March, 1978.
In order to appreciate this argument it will be expedient to refer to Explanation I to sub section (2) of section 2 which has already been extracted.
Explanation I provides that the building shall be deemed to have been completed on the date on which completion thereof is reported to or otherwise recorded by the local authorities having jurisdiction, and in case of a building subject to assessment the date on which the first assessment thereof comes into effect and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied for the first time.
A perusal of Explanation I makes it abundantly clear that the date of occupation would be taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment, thereof.
If there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction and in that view of the matter the building had not become more than ten years ' old on the date when the revision came to be decided by the High Court, and therefore there was no question of giving the benefit of section 39 of the Act to the appellant.
Further, in order to attract section 39 the suit must be pending on the date of commencement of the Act which is 15th of July, 1972 but the suit giving rise to the present appeal was filed on 23rd of March, 1974 long after the commencement of the Act.
There is yet another reason why section 39 will have no application to the present case.
In view of sub section (2) of section 2 of the Act the Act is not applicable to a building which has not a standing of ten years and if the Act itself was not applicable, it would be absurd to say that section 39 thereof would be applicable.
Considered from any angle the Act has no application to the present case and the appellant could not be given the benefit of section 39.
The suit has, therefore, been rightly decreed by the courts below.
We find no force in either of the contentions raised by Mr. Sanghi.
The counsel for the appellants in the other appeals and 499 the petitioner in the special leave petition, adopted the arguments of Mr. Sanghi.
For the foregoing discussion the appeals and the special leave petition are dismissed.
There shall, however, be no order as to costs.
We, however, direct that the order of eviction in each case shall not be executed before 30th of June, 1982 on condition that each of the appellants in the appeals and the petitioner in the special leave petition files an undertaking in this Court within four weeks from today to the following effect: 1. that he will hand over vacant and peaceful possession of the suit premises to the landlord respondent on or before 30th of June, 1982; 2.
that he will pay to the respondent arrears of rent, if any, within a month from today; 3. that he will pay to the respondent future compensation for use and occupation of the suit premises for each calendar month by the 10th of the succeeding month; and 4. that he will not induct any other person in the suit premises as a sub tenant or licensee or in any other capacity whatsoever.
We further direct that in default of compliance with any one or more of the conditions of the undertaking or if the undertaking is not filed within the stipulated time, the decree of eviction shall become executable forthwith.
N.V.K. Appeal dismissed.
| IN-Abs | The U.P. Urban Buildings (Regulation of Letting, Rent and (Eviction) Act, 1972 provided by sub section (2) of section 2 that except as provided in the Act, the Act was not to apply to a building during a period of 10 years from the date on which its construction was completed.
Explanation I to the sub section provided that the building shall be deemed to have been completed on the date on which completion thereof is reported or otherwise recorded by the local authorities having jurisdiction, and in case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said date, and in the absence of any such report, record or assessment, the date on which it is actually occupied for the first time.
The appellant tenant was in occupation of a shop from the 16th June, 1967 and prior to his occupation the shop was in occupation of another tenant for about a month and a half.
The first assessment of the shop took place on Ist of April, 1968.
The respondent landlord filed a suit for the eviction of the tenant on the ground that the Act did not apply to the shop and the tenant was liable to eviction.
The Trial Judge finding that the construction of the shop was completed in the year 1967 and that 10 years having not elapsed since then, held that the provisions of the Act did not apply and decreed the suit.
The appellant 's 492 petition under section 25 of the Provincial Small Causes Courts Act was dismissed.
In his revision petition to the High Court under section 115 of the Civil Procedure Code the appellant contended that the date of occupation should be taken to be the date of completion of the construction of the shop and not the date of first assessment.
The High Court overruled the contention and held that the construction of the shop would be deemed to have been completed on 1st of April, 1968 the date of the first assessment and ten years not having elapsed, the Act would not be applicable to the building and dismissed the revision petition.
In the appeal to this Court it was contended on behalf of the appellant: (1) that by virtue of sub section (2) of section 2, the Act would be applicable to the shop in question and that the exemption created by the sub section did not embrace buildings constructed prior to the commencement of the Act and (2) that the building should be deemed to have been constructed on the date of occupation on 16th June, 1967 and not on the date of the first assessment.
and that the appellant was entitled to the benefit of section 39 of the Act.
Dismissing the appeal, ^ HELD: 1(i) The suit was rightly decreed by the Courts below.
The Act had no application and the appellant could not be given the benefit of section 39.
[498 G H] (ii) Primarily, the language employed is the determining factor of the intention of the legislature.
The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself.
The question of interpretation arises only when the language is ambiguous and, therefore capable of two interpretations.
[497 F] (iii) The language of sub section (2) of section 2 of the Act is explict and unambiguous and is not capable of two interpretations.
[497 G] In the absence of any ambiguity there is no question of taking any external aid for the interpretation of the sub section.
The sub section contemplates that the Act shall not apply to a building during a period of 10 years from the date on which its construction is completed.
It no where says that the building should have been constructed after the enforcement of the Act and to interpret it in such a way would be to add words to the sub section, which is not permissible.
[497 D F] 2 (i) Explanation I makes it abundantly clear that the date of occupation would be taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment thereof.
If there is an assessment, as in the instant case it will be the date of the first assessment which will be deemed to be the date of completion of the construction.
The building had not therefore become more than ten years 's old on the date when the revision came to be decided by the High Court and consequently there was no question of giving the benefit of section 39 of the Act to the appellant.
[498 D F] 493 (ii) In order to attract section 39 the suit must be pending on the date of the commencement of the Act which was 15th of July, 1972.
[498 F] In the instant case the suit was filed on 23rd of March 1974 long after the commencement of the Act.
[498 F] (iii) In view of sub section (2) of section 2, the Act is not applicable to a building which has not a standing of ten years.
If the Act itself was not applicable, it would be absurd to say that section 39 thereof would be applicable.
[498 G] Rattan Lal Shinghal vs Smt.
Murti Devi (1980)4 S.C.C. 258 and Ram Saroop Rai vs Lilavati ; , over ruled.
|
Civil Appeal No. 1825 of 1970.
From the Judgment an order dated the 28th August, 1969 of the Rajasthan High Court in D. B. Civil Writ No. 365 of 1962.
S.N. Kacker, K. K. Jain, P. Dayal & section K. Gupta for the Appellant.
Badri Das Sharma for the Respondent.
The Judgment of the Court was delivered by MISRA, J.
The present appeal by certificate granted under Article 133 (1) (a) of the Constitution is directed against the judgment of the High Court of Rajasthan dated 28th of August, 1969 dismissing writ petition No. 365 of 1962.
Thakur Sangram Singh, the father of the appellant was a jagirdar of Thikana Diggi in the erstwhile State of Jaipur.
His jagir was resumed on Ist of July, 1954 under section 21 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, hereinafter referred to as 'the Jagirs Act, 1952 '.
The Jagirdar became entitled to compensation on the date of resumption of his jagir under section 26 of the Jagirs Act.
The compensation was to be determined according to the principles laid down in the second schedule attached to that Act.
He filed his claim for compensation in August, 1954.
He claimed compensation on the basis of rent rates which were in force on the date of resumption.
It appears that settlement operations were going on under the Jaipur State Grants Land Tenures Act, 1947.
The rent rates proposed by the Settlement Officer were published in the Rajasthan Gazette dated 23rd of August, 1952.
The final proposals of the Settlement Officer were sanctioned by the Government on 25th of November, 1953.
The rent rates fixed were made applicable with effect from 1st of July, 1953.
Obviously, therefore, on the date of resumption, namely, Ist of July, 1954, rent rates assessed by the Settlement Officer and approved by the Government on 25th November, 1953 were in force.
Sangram Singh, however, challenged the validity of the rent rates fixed under the settlement by means of writ petition No. 308 of 477 1953, which was allowed by the High Court on 23rd of November, 1954, quashing the rent rates as they were in flagrant violation of section 82 (1) (a) and (b) of the Jaipur State Grants Land Tenures Act, 1947.
The High Court gave a direction for fresh rates to be proposed in accordance with the said provisions.
Pursuant to the order of the High Court dated 23rd November, 1954 the rent rates were revised and fresh rent rates were fixed by the Settlement Officer on 6th of June, 1955 and they were applied retrospectively from 1st of July, 1953.
The revised rent rates were substantially lower than the rent rates assessed in 1953.
According to the rent rates of 1953 the total rental income from the jagir was Rs.131,657.48 while according to the revised rent rates the rental income was reduced to Rs. 82,501.50.
The jagirder again filed a writ petition No. 135 of 1955 for a direction to the State Government not to apply the rent rates assessed in 1955 retrospectively with effect from 1st of July, 1953.
The High Court, however, held that it was open to the Settlement Officer to apply rent rates retrospectively under section 86 of the Jaipur State Grants Land Tenures Act, 1947.
But the High Court specifically left open the question whether or not the rent rates assessed in 1955 and applied retrospectively from 1st July, 1953 could form the basis for determining compensation payable to the jagirdar under the Act.
When the jagirdar filed his claim for compensation in August, 1954 his writ petition challenging the rent rates enforced by the Government order dated 25th of November, 1953 was pending.
The jagirdar, therefore, based his claim for compensation alternatively under sections 6 and 7 respectively of the Jagirs Act.
As pointed out earlier, on the basis of the settlement of 1953 the rental income from the jagir came to Rs. 1,31,657.48.
If on the other hand the jagir was taken to be unsettled, he was entitled to compensation on the basis of actual rental income for three years which came to about Rs. 3 lakhs.
The Jagir Commissioner by his order dated 25th of November, 1960 granted compensation on the basis of rent rates assessed in 1955.
The jagirdar preferred an appeal before the Board of Revenue but the same was dismissed.
Sangram Singh died in December 1961 and the order of the Board of Revenue was challenged by his son the petitioner appellant in the High Court of Rajasthan.
Two alternative contentions were 478 raised before the High Court on behalf of the petitioner: (1) that the compensation should have been assessed on the basis of rent rates determined in 1953 as they were the rent rates assessed on the jagir lands as entered in the revenue records of the village within the meaning of section 6 (3) (a) (i) read with the definition of 'settled village ' contained in section 2 (n) as it stood on the date of resumption; (2) that in the absence of a valid settlement on the date of resumption the jagir should be treated as not being a 'settled village ' and compensation should be assessed on the actual income from rents during the three agricultural years; 1949 50, 1950 51 and 1951 52, as provided in section 7 of the Act.
The High Court declined to accept either of the contentions.
The first contention was rejected by the High Court on the ground that the petitioner was estopped from taking up the position by his own conduct inasmuch as his father had challenged the rent rates assessed in 1953 by means of a writ petition which was allowed and the rent rates assessed in 1953 were quashed, and secondly because the rent rates assessed in 1953 were a nullity and in the eyes of law there were no valid rent rates assessed and entered in the revenue records on the basis of which compensation could have been determined.
The second contention was also negatived on the ground that fresh rent rates in accordance with the directions of the High Court were assessed in 1955 and were applied retrospectively with effect from 1st July, 1953 and, therefore, the jagir could not be taken to be an unsettled village.
The petitioner has now come to challenge the order of the High Court by the present appeal.
It may be pointed out that if the jagir was a settled one the compensation would be assessed on the basis of the rent rates as settled in settlement operations, which were prevalent on the date of resumption and as entered in the revenue records of the village within the meaning of section 6 (3) (a) (i) read with the definition of 'settled village ' contained in section 2 (n).
If on the other hand, the jagir was an unsettled one the compensation would have to be assessed on the actual income from the rents during the three agricultural years: 1949 50, 1950 51 and 1951 52 as provided in section 7 of the Act.
Shri S.N. Kacker has contended on behalf of the appellant that the rent rates settled in 1953 having been quashed by the High 479 Court, the jagir would be deemed to be an unsettled village and, therefore, the compensation should be determined in accordance with the provisions of section 7 of the Act and not in accordance with the rent rates determined in 1953.
From the observations made by the High Court itself it is evident that the rent rates notified in 1953 were quashed as invalid.
After the quashing of rent rates determined in 1953 it can by no stretch of imagination be said that the settlement made in 1953 still stood for the purpose of determining the compensation for the jagir in question.
Shri Badri Das Sharma appearing for the State on the other hand has contended that it is true that the determination of rent rates in 1953 had been quashed, but the High Court had directed re determination of the rent rates in accordance with the provisions of section 82 and, therefore, the direction of the High Court was for rectifying the mistake that had cropped in the determination of the rent rates of 1953 and if this be so, the rent rates determined in 1953 were still there and the compensation could be determined on that basis.
Having given our anxious consideration to the contentions raised on behalf of the parties we are of the positive view that after the quashing of the settlement made in 1953 it cannot be said that the settlement of the jagir still existed.
It is to be noted at this stage that the settlement of 1953 was quashed by the High Court on the ground that the procedure laid down in the statute had not been followed.
The quashing of such an order only means tabula rasa (clean slate) as if there was no determination of rent rates in 1953.
In this view of the matter the jagir would be taken to be an unsettled village on the date of resumption.
Shri Badri Das Sharma, however, contended that pursuant to the direction of the High Court in Writ No. 308 of 1953 fresh rent rates were assessed in 1955 which were made applicable with retrospective effect from 1st of July, 1953 and that, therefore, the rent rates assessed in 1955 will be taken to be the rent rates prevalent on the date of resumption and as such the Board of Revenue as well as the High Court were fully justified in taking the view that compensation was to be determined on the basis of the rent rates assessed in 1955.
In support of his contention Shri Sharma referred to the definition of the 'settled village ' in section 2 (n), which reads: 480 "(n) 'Settled ' when used with reference to a village or any other area, means the village or other area to which the rent rates determined during settlement operations have been made applicable whether prospectively or retrospectively, and the whole of such village or other area shall be deemed, for the purposes of this Act and the rules and orders made thereunder, to be so settled if such rates have been made so applicable to not less than three fourths of such village or other area.
" On the strength of this definition it is sought to be contended that the jagir in question would be deemed to be a settled village as it is open to the authorities to apply the settlement either prospectively or retrospectively, and it was made applicable by the Settlement Officer retrospectively.
We are afraid, the argument cannot be accepted.
The criterion to determine whether a particular jagir is a settled one or not is to see whether the rent rates determined in settlement operations have been made applicable.
It is only from the date of effectuation of a valid settlement of rent rates in respect of a particular jagir which makes the jagir a settled one.
Reliance was also placed on section 86 of the Jaipur State Grants Land Tenures Act, 1947, which runs thus: "86.
Any rent fixed by order of the Settlement Officer under this Act shall be payable from the first day of July next following the date of such order, unless the Settlement Officer thinks fit, for any reason to direct that it shall be payable from some earlier date.
" A plain reading of this section indicates that the rent fixed by the Settlement Officer shall normally be payable from 1st of July next following the date of such order.
The section, however, further authorises the Settlement Officer to direct that the same shall be payable from some earlier date.
The realisation of rent from a retrospective date will not make the jagir in question a settled one as from that date.
The settlement of rent rates is one thing and the realisation of rent on the basis of the settlement is quite another.
In case of a settled village the compensation would be determined on the basis of the rent rates settled during a settlement operation recorded in the revenue papers on the date of resumption.
Thus, it is the applicability of the rent rates determined during a settlement made prior to the date of resumption which would make the village a settled village as on that date.
481 There is yet another aspect from which the matter can be looked into.
The jagirdar became entitled to compensation on the date of resumption and, therefore, we have to examine the position as it stood on the date of resumption.
If the village was an unsettled village on the date of resumption he would be entitled to compensation on the basis of the village being unsettled.
The right of compensation vested in the jagirdar on the date of resumption and he could not be deprived of his right by a subsequent amendment unless the amendment in law specifically or by necessary implication provided or depriving the jagirdar of his vested right.
We do not find anything in the definition of the term 'settled ' under section 2 (n) of the Act or in section 86 of the Jaipur State Grants Land Tenures Act to indicate that the legislature intended to affect the vested right.
In this view of the legal position, the jagir Commissioner was not justified in assessing the compensation on the basis of the assessment of rent rates in 1955.
The only correct basis will be to treat the jagir in question as an unsettled one and determine the compensation in accordance with section 7 of the Act.
In the result the appeal is allowed with costs.
The orders of the High Court, the Board of Revenue and that of the Jagir Commissioner are set aside and the case is sent back to the Jagir Commissioner to determine the compensation afresh treating the jagir in question to be unsettled one and in accordance with the provisions of section 7 of the Act.
The appellant will also be entitled to interest at the rate of ten per cent per annum on the amount of compensation so determined, from the date of resumption till the date of payment of the compensation.
S.R. Appeal allowed.
| IN-Abs | Thakur Sangram Singh, the father of the appellant was a jagirdar of Thikana Diggi in the erstwhile State of Jaipur.
His jagir was resumed on 1st of July, 1954 under section 21 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 entitling him to compensation on the date of resumption of his jagir under section 26 of the Jagirs Act.
The compensation was to be determined according to the principles laid down in the Second Schedule attached to the Act.
If the jagir was a settled one the compensation would be assessed on the basis of the rent rates as settled in settlement operation which were prevalent on the date of resumption and as entered in the Revenue records of the village within the meaning of section 6(3) (a)(i) read with the definition of "settled village" contained in section 2(n).
If on the other hand, the jagir was an unsettled one the compensation would have to be assessed on the actual income from the rents during the three agricultural years: 1949 50, 1950 51 and 1951 52 as provided in section 7 of the Act.
Prior to the date of resumption settlement operation were going on under the Jaipur State Grants Land Tenures Act, 1947 in respect of the jagir.
The rent rates proposed by the Settlement Officer were published in the Rajasthan Gazette dated 23rd of August, 1952.
The rent rates fixed were made applicable with effect from Ist of July 1953 and, therefore, on the date of resumption, namely, on Ist July, 1955, rent rates assessed by the Settlement Officer and approved by the Government were in force, for the purpose of payment of compensation under the Jagirs Act.
Sangram Singh challenged the validity of the rent rates fixed under the settlement operation by means of a writ petition No. 308 of 1953.
The High Court quashed the order settling the rent rates being in flagrant violations of sec.
82 (1) (a) and (b) of the Jaipur State Grants Land Tenures Act, 1947 with a direction to settle fresh rent rates in accordance with the said provision.
Pursuant to the order of the High Court fresh rent rates were settled by the Settlement Officer on 6th of June, 1955 with retrospective operation from Ist July, 1953.
According to the new settlement the total rental income from the jagir was reduced from Rs. 1,31,657.48 to Rs. 82,501 50.
475 The Jagir Commissioner by his order dated 25th November, 1960 granted compensation on the basis of the rent rates assessed in 1955.
The Jagirdar unsuccessfully preferred an appeal before the Board of Revenue.
Sangram Singh died in the mean time so his son the appellant challenged the order of the Board of Revenue on two grounds: (1) that the compensation should have been assessed on the basis of rent rates determined in 1953 as it stood on the date of resumption.
(2) or in the absence of a valid settlement on the basis of actual income from rents during the three agricultural years.
Treating the Jagir as unsettled, the High Court rejected both the grounds.
Hence the appeal by certificate under Article 133 (1) (a) of the Constitution.
Allowing the appeal and remanding the case, the Court ^ HELD: 1.
As a result of the quashing of the order of Settlement of rent rates of 1953 by the High Court, the jagir would be taken as an unsettled one on the date of resumption.
The quashing of the order of Settlement only means tabula rasa (clean slate) as if there was no determination of rent rates in 1953.
[479 E F] 2.
The criterion to determine whether a particular jagir is a settled one or not is to see whether the rent rates determined in settlement operations have been made applicable.
It is only from the date of effectuation of a valid settlement of rent rates in respect of a particular jagir which makes the jagir a settled one.
[480 C D] 3.
Section 86 of the Jaipur State Grants Land Tenures Act, 1947 clearly indicates that the rent fixed by the Settlement Officer shall normally be payable from the first of July next following the date of such order and further authorises the Settlement Officer to make the same shall be payable from some earlier date.
The realisation of rent from a retrospective date will not make the jagir in question a settled one as from that date.
The settlement of rent rates is one thing and the realisation of rent on the basis of the settlement is quite another.
In the case of a settled village the compensation would be determined on the basis of the rent rates settled during the settlement operation recorded in the Revenue Papers on the date of resumption.
Thus it is the effectuation of the rent rates determined during the settlement made prior to the date of resumption which would make the village a settled village as on that date.
[480 F H] In the instant case, the jagirdar became entitled to compensation on the date of resumption.
If the village was an unsettled village on the date of resumption he would be entitled to compensation on the basis of the village being unsettled.
The right of compensation vested in the jagirdar on the date of resumption and he could not be deprived of his right by a subsequent amendment unless the amendment in law specifically or by necessary implication provided for depriving the jagirdar of his vested right.
There is nothing in the definition of the term "settled" under sec 2 (n) of the Act or in sec.
86 of the Jaipur State Grants Land Tenures Act to indicate that the Legislature intended to affect the vested right.
[481 A D]
|
Civil Appeal No. 303 of 1976.
Appeal by special leave from the Judgment and order dated the 30th October, 1974 of the Rajasthan High Court in D.B. Civil Special Appeal No. 247 of 1974.
Y.S. Chitale, Mrs. Sadhana Ramachandran & Parveen Kumar for the Appellant.
Badri Das Sharma for the Respondents Nos. 1 & 2.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
This appeal by special leave arises out of a writ petition filed by the appellant herein in the High Court of Rajasthan, challenging the legality of the action of the Rajasthan Public Service Commission in issuing of the appellant the Communication Annexure IV dated July 21, 1973, stating that the 446 appellant was not eligible for being considered for recruitment to the post of Lecturer in Forensic Medicine in the Government Medical Colleges in the state since he lacked the necessary academic qualifications specified in the advertisement and that consequently, the application of the appellant stood rejected.
There were also other incidental prayers in the writ petition for the issuance of an appropriate writ or direction to the Public Service Commission to refrain from finalising the selection without considering the case of the appellant, and for a direction being issued to the State Government of Rajasthan not to accept the recommendations of the Public Service Commission in making appointments to the post of Lecturer in Forensic Medicine to Medical Colleges in Rajasthan in case the appellant was not called for interview along with the other candidates.
A learned Single Judge of the High Court allowed the Writ petition holding that the Public Service Commission had acted illegally in treating the appellant as not possessing the requisite academic qualifications and in rejecting his candidature for the post of Lecturer in Forensic Medicine on the said ground.
The State of Rajasthan and the Rajasthan Public Service Commission carried the matter in appeal before a Division Bench of the High Court.
That appeal was allowed by a Division Bench by its judgment dated October 30, 1974, whereby the order passed by the learned Single Judge was set aside and the writ petition filed by the appellant was dismissed.
Aggrieved by the said decision, the appellant has preferred this appeal after obtaining special leave from this Court.
The appellant secured the M.B.B.S. Degree from the University of Rajasthan in the year 1954 and after undergoing houseman ship for one year, he was substantively appointed as Civil Assistant Surgeon in the Rajasthan State Medical Service with effect from May 26, 1956.
In 1962, the Rajasthan Medical Service was bifurcated into two branches, namely, (1) The Rajasthan Medical Service and (2) The Rajasthan Medical Service (Collegiate Branch).
Separate service rules known as the Rajasthan Medical Service (Collegiate Branch) Rules, 1962 (hereinafter called the Rules) were framed for the Collegiate branch and all appointments of teaching staff in the Government Medical Colleges in Rajasthan were thereafter governed by the said Rules.
Under the provisions of the Rules, the post of Lecturer is to be filled up only by direct recruitment.
It is laid down in Chapter IV of the Rules which prescribes the procedure for direct recruitment that the appointments are to be 447 made on the basis of selection by the State Public Service Commission.
Rule 12 lays down that "the candidate for direct recruitment to the post specified in Parts A, B and C of the Schedule shall possess such academic and technical qualifications and experience as is laid down, from time to time, by the Rajasthan University for the teaching staff in Medical Colleges".
The post of Lecturers is included in Part C of the schedule to the Rules.
Hence, for ascertaining the qualifications required for the post of Lecturer under the Rules one has to refer to the Rules relating to technical qualifications and experience laid down by the Rajasthan University for the teaching staff in Medical Colleges.
Clause (vii) of Ordinance No. 65 occurring in Chapter XX of the Handbook of the University of Rajasthan, Part II, Vol.
I, is the relevant provision wherein the University of Rajasthan has prescribed the academic and technical qualifications and experience required for eligibility for appointment as teachers in Medical Colleges.
That clause is in the following terms: "1.
All teachers must possess a basic University or equivalent qualification entered in Schedules to the , except in the non clinical departments of Antomy, Physiology, Biochemistry, Pharmacology, Microbiology where non medical teachers, to the extent of 30% of the total posts of the department may be appointed to posts other than that of the Director or Head of the Department, who must necessarily hold a recognised medical qualification.
Medical men must be registered under the State Central Medical Registration Act and non medical persons must be recognised as teachers with the University before appointments are made permanent.
All the teachers in Medical Colleges except Registrars and Demonstrators must possess the requisite post graduate qualification in their respective subjects.
50% of the time spent in recognised research under the Indian Council of Medical Research or a University or a Medical College, after obtaining the requisite Post graduate qualification be counted towards teaching experience for the post of Lecturer in the same or in allied subject 448 provided that 50% of the teaching experience shall be the regular teaching experience.
Equivalent qualification referred to above and in the recommendations below shall be determined by the University of Rajasthan.
In case of specialities under Medicine and Surgery the qualifications and experience should also be as scheduled below but in case the post has been advertised and suitable candidates are not available the qualifications can be reladed.
" This is followed by a tabular statement headed 'Requirements of Special Academic Qualifications and Teaching Experience '.
Column 1 of this table deals with the posts, Column 2 lays down the academic qualifications and Column 3 is about Teaching Experience.
The table has a number of sub headings according to the various specialities.
The speciality of Forensic Medicine is given at page 168 of the Handbook (1971 Edition).
The relevant provision regarding "Lecturer in Forensic Medicine" is as follows: "(d) Assistant M.D. (Path.), Two years Professor/ M.D. (Forensic of Medico Lecturer Medicine), Legal work.
Speciality Board of Pathology (USA), M.D./M.R.C.P./ F.R.C.P. (with Diploma D.F.M.), M.R.C.P. (with Forensic Medicine as Special Subject) or equivalent qualification or Post graduate degree or equivalent qualification in Medicine or Surgery.
" On March 3, 1972, the Rajasthan Public Service Commission (for short, the Commission) issued advertisements inviting appli 449 cations for the recruitment of two Lecturers in Forensic Medicine for Medical Colleges, Medical & Public Health Department in accordance with the Rules.
The appellant had, by then, obtained the M.D. Degree in Forensic Medicine from the University of Bihar, Muzaffarpur in 1970 and had been functioning as Lecturer in Forensic Medicine in one of the Government Medical Colleges in Rajasthan on a temporary and ad hoc basis from December 31, 1970 on wards.
In response to the aforesaid advertisement published by the Commission, the appellant applied for appointment to one of the two posts.
However, by the impugned letter (Annexure IV) dated July 21, 1973, issued by the Secretary of the Commission, the appellant was informed that his application for the post of Lecturer in Forensic Medicine was rejected since he did not possess the necessary academic qualification.
A representation made by the appellant to the Public Service Commission for reconsideration of the matter did not meet with any favourable response and hence the appellant approached the High Court by filing the writ petition under Article 226 of the Constitution out of which this appeal has arisen.
During the pendency of the writ petition, the Commission conducted the interview of the remaining candidates and selected respondents Nos. 3 and 4 for appointment to the two posts and on the basis of the said selection the State Government appointed respondents 3 and 4 as lecturers.
The appellant thereupon amended the writ petition by incorporating a further prayer that the High Court should issue an appropriate writ or direction cancelling the interview and selection conducted by the Commission as well as the consequential appointments given by the State Government to respondents 3 and 4 as Lecturers in Forensic Medicine.
The short point to be considered is whether the Commission was right in law in excluding the appellant from consideration on the ground that he did not possess the academic qualification prescribed by clause (vii) of Ordinance No. 65 of the Rajasthan University Ordinances for the post of Lecturer in Forensic Medicine.
The qualifications prescribed for the said post by clause (vii) of Ordinance No. 65 are: (1) A basic University (Degree ?) or equivalent qualification entered in Schedules to the .
450 (2) Registration under the State/Central Medical Registration Act.
(3) Post graduate qualification in the concerned subject.
(4) Two Years ' experience of Medico legal work.
The appellant is admittedly the holder of the basic Degree of M.B.B.S. from the Rajasthan University, which is a qualification entered in the First Schedule to the .
It is also not in dispute that he is duly registered under the Medical Registration Act.
The sole ground on which the appellant was treated by the Commission as ineligible for consideration was that the Post graduate degree in Forensic Medicine possessed by the appellant is not one awarded by the University of Rajasthan and the said Degree has also not been recognised by the University of Rajasthan as an equivalent qualification.
The University of Bihar at Muzaffarpur is one duly established by statute and it is fully competent to conduct examinations and award degrees.
The Degree of Doctor of Medicine (Forensic Medicine) M.D. (Forensic Medicine) of the University of Bihar is included in the Schedule to the as a degree fully recognised by the Indian Medical Council which is the paramount professional body set up by statute with authority to recognise the medical qualifications granted by any University or Medical Institution in India.
A Post graduate Medical Degree granted by a University duly established by statute in this country and which has also been recognised by the Indian Medical Council by inclusion to the Schedule of the Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout our country.
In the absence of any express provision to the contrary, such a degree does not require to be specifically recognised by other Universities in any State in India before it can be accepted as a valid qualification for the purpose of appointment to any post in such a State.
The Division Bench of the High Court was, in our opinion, manifestly in error in thinking that since the Post graduate degree possessed by the appellant was not one obtained from the University of Rajasthan, it could not be treated as a valid qualification for the purpose of recruitment in question in the absence of any specific order by the University of Rajasthan recognising the said degree or declaring it as an equivalent qualification.
It is common ground before us that the University of Rajasthan does not 451 conduct Post graduate examinations in the subject of Forensic Medicine and it does not award the degree of M.L. (Forensic Medicine).
In order that there should be scope for declaration of 'equivalence ' of a qualification obtained from another body, there should be a corresponding qualification that can be earned by virtue of passing an examination or test conducted by the concerned University.
There can be declaration of equivalence only as between a degree etc.
awarded by the concerned University and one obtained from a body different from the concerned University.
When the University of Rajasthan does not conduct any examination for the award of the degree of M.L. (Forensic Medicine), there cannot be any question of declaration of 'equivalence ' in respect of such a degree awarded by any University.
Unfortunately, the State Public Service Commission as well as the Division Bench of the High Court failed to notice this crucial aspect.
We may also point out that the declaration of 'equivalence ' referred to in Section 23A of the Rajasthan University Act as well as in clause (vii) of Ordinance No. 65 of the Rajasthan University Ordinances can only be in respect of qualifications other than basic or Post graduate degrees awarded by other statutory Indian Universities in the concerned subjects.
In the case of a Post graduate degree in the concerned subject awarded by a statutory Indian University, no recognition or declaration of equivalence by any other University is called for.
This is all the more so in the case of a medical degree basic as well as Post graduate that is awarded by a statutory Indian University and which has been specifically recognised by the Indian Medical Council.
Though a contention was taken by the respondents in the High Court as well as before us that the appellant did not also satisfy the requirement regarding "two years of Medico legal work", we don 't find any force in the said plea.
The certificates from the Principal and Heads of Departments of Forensic Medicine in the concerned Medical Colleges produced by the appellant in the High Court as annexures in his affidavit dated July 27, 1973 which are at pages 31 and 33 of the printed Paper Book, establish beyond doubt that the appellant had put in more than two years of Medico legal work in Dr. section N. Medical College and in the Dharbhanga Medical College, prior to the last date fixed by the Commission for receipt of the applications.
The conclusion that emerges from the aforesaid discussion is that the appellant was fully qualified for being considered for 452 appointment to the two posts of Lecturers in Forensic Medicine advertised by the Commission on November 16, 1972, and that the Commission acted illegally in treating the appellant as not being possessed of the requisite academic qualification and excluding him from consideration on the said ground.
Accordingly, we allow this appeal, set aside the judgment of the Division Bench of the High Court and restore the judgment of the learned Single Judge, subject to the modification that in carrying out the directions contained in the judgment of the learned Single Judge, the Commission should treat the appellant as a fully qualified candidate in the light of the finding recorded by us that at the relevant time the appellant possessed not merely the prescribed academic qualification but also the requisite experience of two years ' Medico legal work.
The appellant will get his costs throughout from respondents 1 and 2 in equal shares.
P.B.R. Appeal allowed.
| IN-Abs | The qualifications prescribed for the post of lecturer in Forensic Medicine under the Rajasthan Medical Service were (i) a basic university degree or equivalent qualification entered in the schedules to the ; (ii) Registration under the State Central Medical Registration Act; (iii) Post Graduate qualification in the concerned subject and (iv) two years experience of medico legal work.
The appellant was the holder of a M.B.B.S. degree from the Rajasthan University which was a qualification entered the first schedule to the .
He was registered under the Medical Registration Act.
He possessed a post graduate degree in Forensic Medicine from the University of Bihar.
The respondent 's application for the post of lecturer in Forensic Medicine was rejected by the State Public Service Commission on the ground that the post graduate degree in Forensic Medicine possessed by him was not one awarded by the University of Rajasthan and that the degree which he possessed had also not been recognised by the University of Rajasthan.
A single Judge of the High Court allowed the appellant 's writ petition impugning the order of the State Public Service Commission.
On appeal by the State a Division Bench of the High Court held that the post graduate degree in Forensic Medicine which the appellant possessed could not be treated as a valid qualification for recruitment to the post of lecturer because, firstly, it was not a degree from the University of Rajasthan and secondly, neither had the University of Rajasthan recognised it nor had the University declared it as a qualification equivalent to the post graduate degree in Forensic Medicine.
Allowing the appeal, 445 ^ HELD: 1.
A post graduate medical degree granted by a university duly established by statute in this country and which had been recognised by the Indian Medical Council by inclusion in the schedule of the Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout the country.
In the absence of any express provision to the contrary, such a degree does not require to be specifically recognised by other universities in India before it can be accepted as a valid qualification for appointment in any post in a State.
[450 F G] In the instant case the University of Bihar was duly established by statute.
It is fully competent to conduct examination and award degrees the degree of Doctor of Medicine (Forensic Medicine) of the University of Bihar is included in the schedule to the as a degree recognised by the Medical Indian Council, the peramount professional body set up by statute with authority to recognise medical qualifications granted by any university or medical institution in India.
[450 D E] 2.
There can be declaration of equivalence only as between a degree etc.
awarded by the concerned university and a qualification obtained from a body different from the concerned university.
When the University of Rajasthan does not conduct any examination for the award of the degree of Doctor of Medicine (Forensic Medicine) there cannot be any question of declaration of 'equivalence ' in respect of such a degree awarded by any university.
[451 B C] 3.
In the case of a post graduate degree in the concerned subject awarded by a statutory Indian University no recognition or declaration of equivalence by any other university is called for.
This is all the more so in the case of a medical degree awarded by a statutory Indian University and which has been specifically recognised by the Indian Medical Council.
[451 D E]
|
minal Appeal No. 135 of 1956.
188 Appeal by special leave from the judgment and order dated November 25, 1955, of the Allahabad High Court, in Criminal Appeal No. 702 of 1955 and Referred No. 77 of 1955 arising out of the judgment and order dated May 17, 1955, of the Court of Sessions Judge, at Moradavad in Sessions Trial No. 29 of 1955.
P. section Safeer, for the appellant.
G. C. Mathur and C. P. Lal, for the respondent.
November 21.
The Judgment of the Court was delivered by IMAM J.
The appellant was sentenced to death for the marder of Daya Ram by shooting him with a country made pistol.
He was also convicted for being in possession of an unlicensed firearm under the Arms Act for which offence he was sentenced to two years rigorous imprisonment.
He appealed to the High Court of Allahabad, but his appeal was dismissed and the conviction and sentence was affirmed.
Against the decision of the Allahabad High Court the appellant obtained special leave to appeal to this Court.
According to the prosecution, the occurrence took place at about midnight of July 4, 1954, when Daya Ram was sleeping on a cot on a platform.
Near him were sleeping Gokul, Doongar and Jai Singh, while two women Ratto and Bhuri slept in a room to the north of the platform and adjoining it.
The report of the shot fired woke up these people.
According to them, they saw the appellant running towards the east.
He was accompanied by three others who were armed with lathis.
Daya Ram died almost instantaneously as the result of the injuries on his chest and stomach from where pellets were recovered at the time of the post mortem examination.
Daya Ram had been shot from a close distance because the skin was charred over the entire area of the wound.
Near the cot, on which he slept, a cartridge exhibit I. was found which was handed over to the Police Officer when he arrived for investigation.
A first information report was lodged at the police station five miles away at 8 10 a. m. on July 5, 1954.
189 The motive for the murder, as alleged by the prosecution, was that on the death of one Bhai Singh the appellant hoped to become guardian of Ratto 's property, who, however, appointed Daya Ram to take charge of it.
The appellant resented this very much.
Three days before the murder of Daya Ram there had been a quarrel between the appellant and his wife on the one side and Ratto and Bhuri on the other.
The quarrel arose over an attempt by the appellant to construct a wall over Ratto 's land. ' The appellant uttered a threat that he would soon settle with the person on whom Ratto was depending, that is to say, the deceased Daya Ram.
According to the High Court, the defence did not seriously challenge these allegations and the appellant himself admitted that Ratto wanted him to be turned out of his house.
The appellant was arrested on the night between July 5 and July 6, 1954, at a village fourteen miles away from the village of "occurrence Dhakeri.
On July 7, he informed the Sub Inspector that he was prepared to produce the pistol exhibit III.
The SubInspector and the appellant went to village Dhakeri and Kartar Singh, Mahtab Singh and Khamani were invited to witness the events that might follow.
On reaching the appellant 's house, which adjoins the resid ential house of Ratto, the appellant stated that the pistol exhibit III had been concealed by him in a corn bin.
From a secret place he took out a key and opened the lock of his house with it.
He then took the SubInspector and the witnesses to a mud corn bin inside his house, which appeared to be freshly plastered at one place.
The appellant removed the plaster at this place and from inside took out the country made 12bore pistol exhibit III, and three live 12 bore cartridges.
The cartridge exhibit I, which was found near the cot of Daya Ram, and the pistol exhibit III were sent to Shyam Narain, a Deputy Superintendent of Police, who is ,a fire arms expert of the C. I. D. of Uttar Pradesh Government.
He made scientific tests.
He came to the conclusion as the result of the various tests made by him that the cartridge Ex, I was fired from the pistol exhibit III and no other fire arm.
190 While the Sessions Judge believed the testimony of the eye witnesses, the learned Judges of the.
High Court were of the opinion that they were unable to accept the assertion of the eye witnesses that they actually saw the appellant with a pistol by the bedside of the deceased.
The High Court, however, relied upon the circumstantial evidence in the case in upholding the conviction of the appellant.
There was motive for the crime and a few days before the killing of.
Daya Ram the appellant had held out a threat against him.
The appellant was arrested fourteen miles away from his village which is the place of occurrence.
He produced a pistol exhibit
III from his house in circumstances which clearly showed that he only could have known of its existence there.
The opinion of the fire arms expert clearly established that the cartridge exhibit 1, found near the cot of Daya Ram, was fired with the pistol exhibit III produced by the appellant.
All these circumstances, in the opinion of the High Court, left no doubt in the minds of the learned Judges of that Court that the appellant murdered Daya Ram by shooting him with his pistol.
The learned Advocate for the appellant urged that the appellant could not have placed the pistol in his house and it must have been planted there by someone because none of the witnesses stated that they had seen him going to his house after the murder and the appellant was certainly not found in his house in the morning.
According to the situation of the house of the appellant and where the witnesses were immediately after the occurrence, it was impossible for the appellant to have entered his house without being seen.
It was further unlikely that after having committed the murder, the appellant, after having run away, would return to his house.
Both the Courts below, however, found no reason to disbelieve the Sub Inspector and the witnesses that the appellant had produced the pistol exhibit III from the corn bin inside his house.
The appellant had the key of the house which was hidden in a secret place and the com bin was itself freshly plastered at one place.
These circumstances clearly showed that no one but the appellant could have 191 known of the existence of the pistol in the corn bin in his house.
As to whether the appellant could or.could not have gone to his house after the occurrence that is a matter of pure speculation.
It does not appear that any witness was asked anything about it.
The High Court found that the witnesses might have caught a glimpse of the people who were fast disappearing from the scene but who had no reasonable opportunity of marking their features.
In the confusion of the occurrence the witnesses may not have observed where the culprits had disa speared except that they were seen running towards the east.
On the record, there is nothing to show that to enter the appellant 's house, after the occurrence, the appellant had necessarily to go into his house within the view of the witnesses.
It is quite unnecessary to examine this matter any further because the evidence concerning the production of the pistol exhibit III by the appellant from his house is ' clear and reliable and, therefore, it is certain that the appellant did enter his house after the occurrence without being seen by anyone.
It was next urged on behalf of the appellant, that,it was impossible for a cartridge to have been near the cot of Daya Ram, because after the shot had been fired the cartridge would still remain in the barrel of the firearm.
This again is pure speculation.
That the cartridge was ejected from the fire arm is certain.
Why it was ejected none can say.
It may be that the miscreant reloaded his weapon to meet any emergency.
The evidence of the Sub Inspector is clear that on his arrival at the place of occurrence the cartridge exhibit I was handed over to him by the witness Khamani who cannot be said to be unfavorable to the appellant.
The Courts below had no reason to disbelieve the evidence in the case that the cartridge exhibit I was found near the cot of Daya Ram and we can find no extraordinary circumstance to justify us saying that the Courts below took an erroneous view of the evidence.
On the facts found there was a motive for the murder.
Apparently, for no good reason the appellant was not found at his house on the morning of July 5, but was 192 in a village fourteen miles away at the time of his arrest.
The appellant produced the pistol exhibit III in circumstances clearly showing that he had deliberately kept it concealed.
We have no reason to doubt the evidence in this respect.
The real question is, whether it is safe to act upon the opinion of the fire arms expert that the cartridge exhibit I was fired from the pistol exhibit III produced by the appellant and none other, because without that evidence the circumstantial evidence in the case would be insufficient to convict the appellant of the crime of murder.
The opinion of 'the fire arms expert, based on the result of his tests, does not seem to have been challenged in cross examination or before the High Court.
If there is no reason to think that there is any room for error in matters of this kind and it is safe to accept the opinion of the expert, then clearly it is established that the cartridge exhibit I, found near the cot of Daya Ram, was fired from the pistol exhibit III produced by the appellant.
To satisfy ourselves we have looked into the works of some authors dealing with the marks left on cartridges and shell cases by fire arms in order to ascertain that there is no error in the opinion of the fire arms expert in the present case.
Kirk in his book "Crime Investigation" at page 346 states: "Fired cases are less often encountered in criminal investigation than are bullets, but when found they are usually of greater significance because they receive at least as clear markings as do bullets, have a greater variety of such markings, and are not ordinarily damaged in firing. . . . . . . . .
The questions which may be asked as a result of finding such materials are similar to those that require answers when only bullets are located.
In the ordinary case, quite definite answers can be given.
This is true both of shotgun shells and of cartridge cases from pistols, revolvers, and rifles. . . . . .
In general, it is possible to identify a certain firearm as having fired a particular shell or cartridge.
It is often possible to identify the type or make of gun ' which fired it, though in many instances this must be tentative or probable identification only." ` 193 After :dealing with the marks left by breech block, firing pin impressions, marks from extractors and ejectors, marks due to expansion, magazine marks and loading mechanism marks,he states, "Summarizing, the cartridge or shell case us.
ally carries markings which are quite distinctive of the gun in which the charge is fired, and can be used for positive identification of the latter.
Those marks arise from a variety of contacts with various parts of the gun, an analysis of which is useful in, determining the type of weapon in case no suspected gun is available . . . .
Thus, the recovered shell or cartridge case is one of the most useful types of physical evidence which can be found in shooting cases.
" Soderman and O 'Connel in their book "Modern Criminal Investigation" also deal with the subject and they refer to the marks from the fire pin, the extractor, the. ejector and the breech block.
After referring to comparison being made of the cartridge or shell fired from a fire arm for the purpose of test, they state at page 200, If they are in the same position in relation to one another and their general appearance is the same, one may conclude that they have been fired from a pistol of the same make.
An absolute conclusion about the origin of the shells, however, can be reached only after a photomicrographic examination of the markings from the breech block on the rear of the shell. . . . . .
Identification, with the aid of the enlargement, should not prove difficult.
The characteristic scratches can be easily seen.
A photograph of the incriminating shell and one of a comparison shell should be pasted side by side on cardboard, and the characteristic marks should be recorded with lines and ciphers, following the same method as that used in the ' identification of fingerprints.
" In Taylor 's book on Medical Jurisprudence, Tenth Edition, Vol. 1, at page 459, it is stated, " It is never safe to say that a cartridge case was not fired from a given pistol unless the marks are quite 25 194 different, and a case which bears no marks at all may quite well have been fired from the same pistol as one which leaves well defined marks.
In general, however, though it is unlikely that all marks will be equally good, it is usually possible to obtain definite information from the marks of the firing pin, extractor, ejector, or breech block.
on the base or rim, or from grooves or scratches on the surface.
In weapons of the same manufacture, the marks are of the same general nature, but in each weapon there are individual differences which usually enable it to be definitely identified.
" The expert 's evidence in this case shows that he had fired four test cartridges from the pistol exhibit III He found the individual characteristics of the chamber to have been impressed upon the test cartridges Exs. 9 and 10 and that exactly identical markings were present on the paper tube of the cartridge exhibit 1.
He made microphotographs of some of these individual marks on Exs. 1 and 10.
In giving his reasons for his opinion, the fire arms expert stated that every fire arm has individual characteristics on its breach face striking pin and chamber.
When a cartridge is fired gases.
are generated by the combustion of the powder, creating a pressure of 2 to 20 tons per square inch.
Under the effect of this pressure the cap and the paper tube of the cartridge cling firmly with the breach face striking pin and chamber and being of a softer matter the individualities of these parts are impressed upon them.
By firing a number of test cartridges from a given fire arm and comparing them under a microscope with the evidence cartridge, it can definitely be stated, if the marks are clear, whether the evidence cartridges had been fired or not from that fire arm.
It seems to us that the fire arms expert made the necessary tests and was careful in what he did.
There is no good reason for distrusting his opinion.
The learned Judges of the High Court examined the micro photographs in question and were satisfied that there was no ground for distrusting the evidence of the expert.
They were accordingly justified in coming to the conclusion that the cartridge exhibit 1, found nor the cot of Dava Ram, 195 was fired from the pistol exhibit III produced by the appellant from his house.
There can, therefore, be no room for thinking, in the circumstances established in this case, that any one else other than the appellant might have shot Daya Ram.
He was, therefore, rightly convicted for the offence of murder.
The appeal is accordingly dismissed.
| IN-Abs | One Daya Ram had been murdered by shooting with a country made pistol.
The circumstantial evidence established against the appellant was (1) that he had a motive for the murder, (2) that three days before the murder the appellant had held out a threat to murder the deceased, (3) that a cartridge exhibit I was found near the cot of the deceased, and (4) that the appellant produced a country made pistol exhibit III from his house in circumstances which clearly showed that he alone could have known of its existence there.
The fire arms expert examined the recovered pistol and the cartridge and after making scientific tests was of the definite opinion that the cartridge exhibit I had been fired from the pistol exhibit III : Held, that the opinion of the fire arms expert conclusively proved that the cartridge exhibit I had been fired from the pistol exhibit III.
The circumstantial evidence was sufficient to establish the guilt of the appellant.
|
Civil Appeal No. 1981 N of 1970.
From the judgment and order dated the 21st May 1970 of the Punjab and Haryana High Court in Letters Patent Appeal No. 195 of 1966.
G.L. Sanghi, S.K. Metha, P.N. Puri and M.K. Dua for the Appellants.
O.P. Sharma and M.S. Dhillon for the Respondents.
The Judgment of the Court was delivered by KOSHAL, J.
This appeal by certificate is directed against the judgment dated May 21, 1970 of a Division Bench of the High Court of Punjab and Haryana accepting a Letters Patent Appeal and holding that in view of the provisions of sections 5, 5 A and 5 B of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Act), the concerned Collector had no jurisdiction to vary the reserved area of a land owner by including therein the lands sold by him to others.
593 2.
Most of the relevant facts are undisputed and may be briefly stated thus.
Sadh Singh, respondent No. 3, who is a displaced person from Pakistan, was allotted more than 60 standard acres of land in village Karyam, Tehsil Nawanshehar, District Jullundur, in lieu of the land left by him in Pakistan.
He also owned a little more than 1 standard acre of land in village Surwind, Tehsil Patti, District Amritsar.
About 3 years after the Act came into force, i e., on March 9, 1956, respondent No. 3 made an oral gift of some of his land in lieu of maintenance to his wife Nirmal Kaur, respondent No. 4, who entered into an agreement dated January 21,1957 with the three appellants for sale to them of the land gifted to her.
against a consideration of Rs. 4200.
The land covered by the gift was mutated in favour of respondent No. 4 on April 17,1957 and she conveyed the same to the three appellants by a registered sale deed dated August 8, 1957.
The agreement mentioned above as well as the sale deed following it were attested by respondent No. 3 as a marginal witness.
The proceedings for declaration of the surplus area out of the land owned by respondent No. 3 were initiated by the Collector on June 20, 1958.
They passed through various stages before the Collector and in appeal before the Commissioner.
Ultimately the Special Collector, Punjab, declared the surplus area of respondent No. 3 after hearing him and the appellants, through an order dated March 30, 1962, and while doing so, he included the land sold to the appellants by respondent No. 4 in the "select area" of respondent No. 3, as prayed for by the appellants.
The order was based on some rulings of the Financial Commissioner, Punjab, to the effect that all sales for valuable consideration effected by a land owner after the enforcement of the Act should be included in his "select area".
Respondent No. 3 unsuccessfully challenged the order in an appeal which was dismissed by the Commissioner as time barred.
The order of the Commissioner was upheld in revision by the Financial Commissioner.
It was then that respondent No. 3 knocked at the door of the High Court through a petition under article 226 of the Constitution of India which was dismissed by a learned Single Judge on the ground that the order of the Special Collector had become final by reason of the appeal taken against it being time barred.
The learned Judge observed that respondent No. 3 was not entitled to any relief in exercise of the extra ordinary jurisdiction of the High Court under the said article in view of the fact that he had failed to pursue diligently the remedy of appeal which was open to him.
594 In the appeal which respondent No. 3 filed under clause 10 of the Letters Patent, the Division Bench observed: "In accordance with section 5 of the Punjab Security of Land Tenures Act, 1953, the appellant intimated his reserved area in form E to the Collector before making the gift in favour of his wife.
This fact is not so stated in the pleadings, but the counsel of both the parties admit this fact to be so".
and after referring to the provisions of sections 5, 5 A and 5 B of the Act concluded: "The Collector has no jurisdiction to vary the reserved area of a landowner by including the land sold by him to others in his reserved area.
Under section 5 of the Act, the only jurisdiction with the Collector is to find out whether the reservation has been made in accordance with the directions contained in that section but the Collector has no jurisdiction to include an area in the reserved area of a landowner which is not covered by any of the clauses (a) to (f) of the proviso to section 5 of the Act." In coming to this conclusion.
the Division Bench relied upon three decisions of the High Court of Punjab and Haryana rendered by other Division Benches and reported as Bhagat Gobind Singh vs Punjab State and others, State of Punjab and others vs Shamsher Singh and others, and Mota Singh vs Financial Commissioner Punjab and if others.
An argument raised before it on behalf of the present appellants that the order of the Collector made in contravention of section 5 of the Act could at best be treated as an illegal order and not one passed without jurisdiction and therefore a nullity, was repelled.
In this connection, reliance was placed by the Division Bench on three judgments of this Court, namely, Nemi Chand Jain vs Financial Commissioner Punjab, Smt.
Kaushalya Devi vs K.L. Bansal, and Bahadur Singh vs Muni Subrat Dass, another.
In the result, the Division Bench held 595 that the order of the Special Collector dated March 30, 1962, directing a variation in the reservation made by respondent No. 3 without his consent was not only contrary to the provisions of the Act but was without jurisdiction and a nullity in as much as the Act vested no power of such variation in the Collector.
It further held that a petition under article 226 of the Constitution of India by respondent No. 3 with the prayer that the order of the Special Collector dated March 30, 1962, be quashed was competent, even though he had not exhausted his remedies of appeal and revision.
In the above premises, the Division Bench accepted the Letters Patent Appeal and set aside the order of the Special Collector dated March 30, 1962, as also those orders which followed and confirmed it, and directed the Collector to declare the surplus area of respondent No. 3 after excluding therefrom the area reserved by him as his Permissible area.
Mr. Sanghi, learned counsel for the appellants, has raised the following contentions before us: (a) The admission to the effect that respondent No. 3 had intimated his reserved area in Form E to the Collector before gifting the land to his wife was made before the High Court on behalf of the appellants on the basis of some misconception on the part of their counsel.
Actually no such reservation was ever made and the admission could at best be interpreted to mean that respondent No. 3 had sent an intimation in Form E to the Special Collector detailing therein the area selected by him as his permissible area in pursuance of the provisions of sub section (1) of section 5 B of the Act.
(b) If no reservation was made by respondent No. 3 the whole basis of the impugned judgment falls and the Collector would have jurisdiction to amend the permissible area of respondent No. 3 by way of adjustment of the equities arising in favour of the appellants.
After hearing Mr. Sanghi we find force in contention (a) but none in contention (b), as we shall presently show.
We may 596 mention here that respondent No. 3 has remained up represented before us in spite of service.
For a proper consideration of the two contentions, it is necessary to refer to certain provisions of the Act as they originally stood, the amendments made thereto in the year 1957 and the rules framed thereunder from time to time.
The Act was enforced on the 15th April 1953.
On that date section 5 thereof comprised 5 sub sections of which sub sections (4) and (5) were omitted in the year 1953 itself.
Sub sections (1) and (3) of that section are relevant and are reproduced below: "5.
(1) Any reservation before the commencement of this Act shall cease to have effect, and subject to the provisions of sections 3 and 4 any landowner who owns land in excess of the permissible area may reserve out of the entire land held by him in the State of Punjab as landowner, any parcel or parcels not exceeding the permissible area by intimating his selection in the prescribed form and manner to the patwari of the estate in which the land reserved is situate or to such other authority as may be prescribed: "Provided that in making this reservation he shall include his areas owned in the following order: (a) area held in a Co operative Garden Colony, (b) area under self cultivation at the commencement of this Act other than the reserved area, (c) reserved area excluding the area under a jhundimar tenant or a tenant who has been in continuous occupation for 20 years or more immediately before such reservation, (d) area or share in a Co operative Farming Society, (e) any other area owned by him, (f) area under a jhundimar tenant".
"(3) A landowner shall be entitled to intimate a reservation within six months from the date of commence 597 ment of this Act, and no reservation so intimated shall be varied subsequently whether by act of parties or by operation of law, save with the consent in writing of the tenant affected by such variation or until such time as the right to eject such tenant otherwise accrues under the provisions of this Act.
" The term 'reserved area ' was defined in clause (4) of section 2 thus: '(4) "Reserved area" means the area lawfully reserved under the Punjab Tenants (Security of Tenure) Act, 1950 (Act XXII of 1950), as amended by President 's Act, V of 1951, hereinafter referred to as the "1950 Act" or under this Act. ' The Act as originally framed did not contain any provision for the determination of what is now known as "surplus area" a term which was introduced into the Act for the first time in 1955 through the addition of clause (5 a) to section 2.
On the 19th May 1953 were promulgated the Punjab Security of Land Tenures Rules, 1953 (for short, the 1953 Rules), under rule 3 of which a landowner had to notify his reservation to the Patwari of the concerned estate in pursuance of the provisions of sub section (1) of section 5 of the Act in the Form designated as Annexure "B" to those Rules.
On the 27th April 1956 were promulgated the Punjab Security of Land Tenures Rules, 1956 (hereinafter referred to as the 1956 Rules).
It was by rule 4 thereof that Form E was for the first time prescribed.
That rule stated: "4.
Where a landowner has not reserved the area permitted for self cultivation, he will, at the same time as he submits the declarations prescribed in rule 3 above, intimate, in writing, to the Patwari/Patwaris of the Circle/ Circles in which his lands are situated, the land/lands selected by him for self cultivation.
This intimation shall be in Form E." This rule clearly indicates that a landowner was given the right to select an area for self cultivation only in case he had not reserved such area on or before the 15th October, 1953.
598 Sections 5 A and 5 B were added to the Act in the year 1957 with effect from 11th December 1957 by means of Punjab Act No. 46 of 1957.
They state: Section 5 A "Every land owner or tenant.
who owns or holds land in excess of the permissible area and where land is situated in more than one Patwar Circle, shall furnish, within a period of six months from the commencement of the Punjab Security of Land Tenures (Amendment) Act, 1957, a declaration supported by an affidavit in respect of the land owned or held by him in such form and manner and to such authority as may be prescribed." Section 5 B "(1) A land owner who has not exercised his right of reservation under this Act, may select his permissible area and intimate the selection to the prescribed authority within the period specified in section 5 A and in such form and manner as may be prescribed: "Provided that a land owner who is required to furnish a declaration under section 5 A shall intimate his selection along with that declaration. "(2) If a land owner fails to select his permissible area in accordance with the provisions of sub section (1), the prescribed authority may, subject to the provisions of section 5 C, select the parcel or parcels of lands which such person is entitled to retain under the provisions of this Act: "Provided that the prescribed authority shall not make the selection without giving the land owner concerned an opportunity of being heard".
Simultaneously the definition of 'surplus area ' contained in clause (5 a) of section 2 of the Act was amended to read thus: 599 '(5 a) "Surplus Area" means the area other than the reserved area, and, where no area has been reserved, the area in excess of the permissible area selected under section 5 B or the area which is deemed to be surplus area under sub section (1) of section 5 C and includes the area in excess of the permissible area selected under section 19 B, but it will not include a tenant 's permissible area: 'Provided that it will include the reserved area, or part thereof, where such area or part has not been brought under self cultivation within six months of reserving the same or getting possession thereof after ejecting a tenant from it, whichever is later, or if the landowner admits a new tenant, within three years of the expiry of the said six months. ' In consequence of these additions rule 4 of the 1956 Rules was also amended so as to contain a provision that an intimation under section 5 B (1) of the Act shall be furnished by a landowner in Form E. 6.
In relation to contention (a) the following propositions emerge from the various provisions of law just above set out: (i) Reservation of land was envisaged only in section 5 (1) of the Act and had to be intimated within six months from the date of commencement of that Act, i.e., on or before the 15th October 1953.
(ii) No provision was ever made in the Act or the rules framed thereunder fora reservation of land by a landowner who had failed to send an intimation thereof on or before the 15th October 1953.
(iii)What was provided by section 5 B was, inter alia, that a landowner who had not exercised the right of reservation under the Act could select his permissible area and send intimation thereof in Form E to the prescribed authority within a period of six months from the 11th December, 1957, i.e. on or before 11th May, 1958.
Reservation ' was something different from the 'Selection ' 600 of permissible area.
The two terms were not only not synonymous but were mutually exclusive. 'Selection ' of permissible area was allowed only to a landlord who had not exercised his right of 'reservation ' (iv) Form was meant only for intimation of selection of permissible area under sub section (1) of section 5 B and not for reservation under sub section (1) of section 5 which could be made only through an intimation in the Form in Annexure "B" to the 1953 Rules.
The propositions just above enunciated bring out incongruity from which the admission made before the High Court suffers.
There could be no reservation in Form E by respondent No. 3.
If he send an intimation in that Form it could only be about a selection of his permissible area under sub section (1) of section 5 B. That this was really so clearly appears from the following observation made in the order of the Special Collector dated 2nd March 1961: "The counsel for the owner argued that area sold was not included in Form E filed before the Special Collector and that he was not prepared to include it in the select area of 50 S.A. to which he is entitled".
The order from which this observation has been extracted was set aside by the Commissioner, Jullundur Division, on the 8th January, 1962 when the case was remanded to the Special Collector for a fresh decision after hearing the three appellants as well as respondents Nos. 3 & 4.
The Special Collector then heard all these parties and passed his order dated the 30th March 1962 which also unmistakably indicates that the intimation given by respondent No. 3 to the Special Collector was not in respect of any reservation but covered only a selection of the permissible area.
Reference in this connection may be made to the fact that twice in that order the Special Collector used the term "select area" in relation to the lands which respondent No. 3 could be allowed to retain in his possession .
In assuming (on the basis of the admission made at the bar) that respondent No. 3 had intimated his reservation in pursuance of sub section (1) of section 5, the High Court was thus in error and 601 the case has to be decided on the basis of the factual position that respondent No. 3 had failed to make any reservation under that subsection but that he has made a selection in Form E in pursuance of the provisions of sub section (1) of section 5 B. Contention (a) raised by Mr. Sanghi is, therefore, accepted in full.
We now proceed to consider contention (b) in the light of the provisions above extracted, a bare reading of which leads to the following conclusions in relation to that contention: (a) 'Surplus area ' is arrived at by excluding the reserved area from the total area of a land owner in case a reservation has been made by him lawfully.
(Clauses (4) and (5 a) of section 2.) (b) Where no area has been lawfully reserved by the land owner, surplus area is worked out under section 5 B or 5 C] (c) Under section 5, the landowner is entitled to reserve out of the entire land held by him in the State of Punjab as landowner, any parcel or parcels not exceeding the permissible area by intimating his selection in the prescribed form and manner to the patwari of the estate, etc.
In doing so he is legally bound to include in his reserved area such land as conform to the description of any of the 6 categories covered by clauses (a) to (f) of the proviso to sub section (1) of section 5.
(d) Once a reservation has been intimated within 6 months from the date of commencement of the Act, it cannot be varied either by act of parties or by operation of law, except with the written consent of the tenant affected by such variation.
(e) If a land owner has failed to reserve land in accordance with the provisions of section 5, he has another chance to select his permissible area within six months from the commencement of the Punjab Security of Land Tenures (Amendment) Act (Punjab Act No. 46 of 1957) in the prescribed manner.
602 (f) The prescribed authority is given the power to select the permissible area of a landowner under sub section (2) of section 5 B but the mandatory condition attached to the exercise of that power is that it shall be resorted to only if the landowner has failed to select his permissible area in accordance with the provisions of sub section (1) of that section.
In other words, if the concerned land owner has already selected his permissible area in accordance with the provisions of sub section (1) of section 5 B, sub section (2) of that section does not come into play at all and there is no occasion for the exercise by the prescribed authority of the power of selection.
These conclusions further lead to the inference that if the prescribed authority (in this case the Special Collector) exercises the power of selection in a situation to which sub section 5 B is not attracted, his order would be without jurisdiction and a nullity and that is precisely what has happened in this case.
As held by us earlier, respondent No. 3 had made a selection of his permissible area in accordance with the provisions of sub section (1) of section 5 B a selection which the prescribed authority had no power to vary either under sub section (2) of section 5 B or under any other provisions of the Act.
The order of the Special Collector dated March 30, 1962 must, therefore, be held to have been passed without jurisdiction and, therefore, to be a nullity.
In support of the proposition that the order of the Special Collector did not suffer from lack of jurisdiction, learned counsel for the appellants has relied upon the following observations in Gurcharan Singh and Others vs Prithi Singh and Others, wherein this Court defined the scope of powers of the Collector while acting under sub section (2) of section 5 B of the Act: "While it is true that a landowner who fails to reserve or select his permissible area within the prescribed period, cannot exercise that right subsequently, and thereafter it is for the Collector to determine the defaulter 's permissible and surplus areas, in exercising this power under section 5 B, the Collector has to act judicially.
He is bound to give notice to the landowner, and the transferees from him, 603 if known.
Thereafter he has to hear the parties who appear, and to take into consideration their representations and then pass such order as may be just.
In so exercising his discretion, the Collector may, subject to the adjustment of equities on both sides, include the transferred area in the 'permissible area ' or the 'surplus area ' of the landowner.
Thus, in the process the Collector is not to ignore altogether the wishes of the landowner.
He may accept them to the extent they are consistent with the equities of the case".
It is urged on the authority of these observations that the Collector has in all cases the power to alter the particulars of an area reserved or selected by a landowner so as to bring it in conformity with any equities that may arise in the attendant circumstances.
This proposition is wholly unacceptable to us for the simple reason that in Gurcharan Singh 's case (supra), the landowner had made neither a reservation nor a selection of his permissible area within the prescribed period, so that sub section (2) of section 5 B was undoubtedly attracted to his case.
The observations above extracted were obviously confined to a case of that type, and have nothing to do with a situation where the landowner concerned has selected his permissible area in accordance with the provisions of sub section (1) of section 5 B so that there is no occasion for the prescribed authority to exercise his powers under sub section (2) of that section.
Gurcharn Singh 's case, therefore, is of no assistance at all to the case of the appellants.
Nor do we see how any equities arise in favour of the appellants, such as would entitle them to have the land in question included in the permissible area of respondent No. 3.
It is not their case that any representation to the effect that land would be so included was made to them by either respondent No. 3 or respondent No. 4.
Furthermore they must be credited with full knowledge of the extent of the land owned by respondent No. 3 and of the consequences flowing therefrom in view of the provisions of the Act.
Thus they acquired the land with their eyes open and subject to all the liabilities and defects from which it suffered in the hands of their transferor (and also their transferor 's transferor).
In the absence of word of month of respondent No. 3 or his conduct to the contrary; they cannot now be heard to say that if respondent No. 3 exercises a right of selection of his permissible area which the Act confers on him, that right must be modified to suit their convenience.
604 In this connection we may also mention that the inclusion of the land in question in the surplus area of respondent No. 3 does not affect the right of ownership of the appellants.
Of course the result of such inclusion would certainly be that the concerned authorities would be enabled to settle tenants on the land as permitted by the Act and that is a risk which the appellants must be deemed to have bought with the land.
For the reasons stated we dismiss the appeal but with no order as to costs.
N.V.K. Appeal dismissed.
| IN-Abs | Respondent No. 3, a displaced person from Pakistan, was allotted more than 60 standard acres of land.
Out of this land he made an oral gift of some land in lieu of maintenance to his wife, respondent No. 4, who sold that land to the appellants.
In the proceedings for declaration of the surplus area of the land owned by respondent No. 3 the Special Collector included the land sold to the appellants in the "select area" of Respondent No. 3.
The appeal of Respondent No. 3 to the Commissioner was dismissed as time barred and this order was upheld in revision by the Financial Commissioner.
A single Judge dismissed his petition under Article 226.
In appeal, a Division Bench held that the order of the Special Collector, directing a variation in the reservation made by respondent No. 3 without his consent was not only contrary to the provisions of the Act but was without jurisdiction and a nullity in as much as the Act vested no power of such variation in the Collector.
In the appeal to this Court it was contended on behalf of the appellant, that: (1) the admission to the effect that respondent No. 3 had intimated his reserved area in Form E to the Collector before gifting the land to his wife was made before the High Court on behalf of the appellants on the basis of some misconception on the part of their counsel, that actually no such reservation was ever made and that the admission could at best be interpreted to mean that respondent No. 3 had sent an intimation in Form E to the Special Collector detailing therein the area selected by him as his permissible area in pursuance of the provisions of sub section (1) of section 5 B of the Act, and (2) If no reservation was made by respondent No. 3 the whole basis of the impugned judgment falls and the Collector would have jurisdiction to amend the permissible area of respondent No. 3 by way of adjustment of the equities arising in favour of the appellants.
Dismissing the appeal, ^ HELD: In assuming that respondent No. 3 had intimated his reservation in pursuance of sub section (1) of section 5, the High Court was in error 591 and the case had to be decided on the basis of the factual position that respondent No. 3 had failed to make any reservation under that sub section but that he had made a selection in Form E in pursuance of the provisions of sub section (1) of section 5 B. [600 H 601A] The inclusion of the land in question in the surplus area of respondent No. 3 does not effect the right of ownership of the appellants.
[604 A] 1.
(a) Reservation of land was envisaged only in section 5(1) of the Act and had to be intimated within six months from the date of its commencement i.e. on or before the 15th October, 1953.
[599 E] (b) No provision was ever made in the Act or the rules framed thereunder for a reservation of land by a land owner who had failed to send an intimation thereof on or before the 15th October, 1953.
[599 F] (c) What was provided by section 5 B was, that a landowner who had not exercised the right of reservation under the Act could select his permissible area and send intimation thereof in Form E to the prescribed authority within a period of six months from the 11th December, 1957 i. e. on or before 11th May, 1958. 'Reservation ' was something different from the 'Selection ' of permissible area.
The two terms were not only not synonymous but were mutually exclusive. 'Selection ' of permissible area was allowed only to a landlord who had not exercised his right of 'reservation '.
[599 G 600 A] (d) Form E was meant only for intimation of selection of permissible area under sub section (1) of section 5B and not for reservation under sub section (1) of section 5 which could be made only through an intimation in the Form in Annexure "B" to the 1953 Rules.
[600 B] 2.(a) 'Surplus area ' is arrived at by excluding the reserved area from the total area of a land owner in case a reservation has been made by him lawfully.
(Clauses (4) and (5 a) of section 2.) [601 C] (b) Where no area has been lawfully reserved by the land owner, surplus area is worked out under section 5B or 5C. [601 D] (c) Under section 5, the landowner is entitled to reserve out of the entire land held by him in the State as landowner, any parcel or parcels not exceeding the permissible area by intimating his selection in the prescribed form to the Patwari of the estates, etc.
In doing so he is legally bound to include in his reserved area such land as conforms to the description of any of the 6 categories covered by clauses (a) to (f) of the proviso to sub section (1) of section 5.
[601E] (d) Once a reservation has been intimated within 6 months from the date of commencement of the Act, it cannot be varied either by act of parties or by operation of law, except with the written consent of tenant affected by such variation.
(e) If a land owner has failed to reserve land in accordance with the provisions of section 5 he has another chance to select his permissible area within 6 months from the commencement of the Punjab Security of Land Tenures (Amendment) Act, 1937.
[601 G] (f) The prescribed authority is given the power to select the permissible area of a landowner under sub section (2) of section 5 B but the mandatory condition attached to the exercise of that power is that it shall be resorted to only if the landowner has failed to select his permissible area in accordance with the provisions of sub section (1) of that section.
In other words, if the concerned land owner has already selected his permissible area in accordance with the provision of sub section (1) of section 5 B, sub section (2) of that section does not come into play at all and there is no occasion for the exercise by the prescribed authority or the power of selection.
[602 A C ] In the instant case Respondent No. 3 had made a selection of his permissible area in accordance with the provisions of sub section (1) of section 5 B, a selection which the prescribed authority had no power to vary either under sub section (2) of section 5 B or under any other provisions of the Act.
The order of the Special Collector dated March 30, 1962 was therefore passed without jurisdiction and was a nullity.
[602 D E] Gurucharan Sing and Ors.
vs Prithi Singh and Ors. , distinguished.
|
Petition Nos.
3846/81, 6454 55/80, 230 249, 502 510, 524, 726 27, 777 96, 803, 1069, 1207 09,1326,439 40,1607,1691 93,1702,1703 7,1734.36, 1737 40, 1759 72, 1789 90, 1879, 1946 47, 1948, 1959, 1972 97, 2012 17, 2027 39, 2076, 2077 78, 2125 83, 2194 95, 2204 11, 2284 2326, 2361 62,2363 64, 2365 2404,2405 26, 2444 58, 2459 88,2497 2501, 2503 05,2513 19, 2520 25,2542 73, 2597, 2616 41,2642 48, 2661 63, 2665 66,2698 2700, 2702 21, 2723 26, 2730 44 2756 62, 2766 76, 2779 2802,2803 15, 2818 26, 2847 55, 2856 67, 2885 96, 2897 98, 2912 15,2917 26, 2968 76, 2980 3001, 3002 46, 3047 52, 3070 87, 3088 3102, 3165 3205, 3210 17, 3259 64, 3268 77, 3286, 3305 11, 3312 22,3325,3346, 3355,3357 70, 3371 91, 3403, 3477 82,3484 88, 3492 3504,3505 15, 3516,3517 34,3560, 3572 79, 3637, 3693 3730, 3732 36, 3757 75, 3899 3912,4053 69,4192 4229, 4261,4329, 4495, 4496 4508,4606 09, 4617 21,4622 69, 4846 75, 4978 86, 5218,5349, 5533 43, 5597 5609, 5623, 5626 42, 5728, 5746, 6577 81, 6814, 6934 42,7203, ,217 20,7409,7454 56,7484, 7641,7659,7773,7943, 7944, 8084,8089, 8090, 8192,8195, 8201, 8431, 8436, 8834, 8862, 8878 81, 8924 & 8979 of 1981.
(Under Article 32 of the Constitution) Shanti Bhushan, V.M. Tarkunde, P.A. Francis and G.N. Dikshit.
R.K. Jain, P.B. Jain, Pankaj Kaira, section Mittar, M.G. Gupta, J B.R. Kapoor, Miss, Bhajan Ram Rakhyani, S.R. Srivastava, B.V. Tawakley, Shobha Dikshit, B. Dutta, B.D. Sharma, Miss A. Subhashini, 513 N.N. Sharma, T.C Sharma, A. Ghosh, S.V. Tambwekar and Girish Chandra for the appearing parties.
A The Judgment of the Court was delivered by MISRA J.
In exercise of powers conferred by section 3 of the , Sugar Control order 1966 was issued by the Government of India, Ministry of Agriculture.
Clause S of that order empowered the Central Government to issue directions, inner alia, to recognised dealers regarding production, maintenance of stock, storage, sale, grading, packing, making weighment, disposal, delivery and distribution of sugar.
By Order No. GSR 410 E/Ess.
Com./Sugar dated the 14th of July, 1980 the Central Government issued the following directions: "In exercise of the powers conferred by clause 5 of the Sugar (Control) order, 1966, and in supersession of the order of the Government of India in the Ministry of 'Agriculture (Department of Food) No. GSR 60 (e)/Ess.
Com./Sugar, dated the 26th February, 1980, the Central Government hereby directs that no recognised dealer shall keep in stock at any time (1) Vacuum pan sugar, in the places mentioned below, in excess of the quantities mentioned against each (i) in Calcutta and extended area (a) recognised dealers who import sugar from outside West Bengal 3,500 quintals, (b) other recognised dealers 250 quintals; (ii) in other places (a) in cities and towns with a population of one lakh or more 250 quintals; (b) in other towns with a population of less than one lakh 100 quintals.
514 (2) Khandsari (open pan sugar) in excess of 250 quintals.
Provided that no recognised dealer shall hold any stock of Vacuum pan sugar or Khandsari (open pan sugar) for a period exceeding ten days from the date of receipt by him of such stock of sugar or Khandsari.
Provided further that nothing in this order shall apply to the holding of stocks of sugar (i) on Government account; or (ii) by the recognised dealers nominated by a State Government or an officer authorised by it to hold such stock for distribution through fair price shops; or (iii) by the Food Corporation of India.
Explanation: For the purpose of this order, "Calcutta and extended area" means the areas specified in the Schedule to the notification of the Government of West Bengal No. 7752 F.S./14 R 92/61, dated the 16th December, 1964.
" The petitioners in this groups of petitions, who are dealers in sugar, seek to challenge the constitutional validity of the said order on three grounds; (I) the impugned order is not covered by section 3 of the and is Ultra vires; (2) the impugned order imposes unreasonable restrictions on the right of the petitioners to carry on their trade and so it is violative of Article 19(2)(g) of the Constitution; (3) the impugned order is also violative of Article 14 of the Constitution for two reasons: (as the petitioners have been singled out for hostile treatment from other dealers of sugar at Calcutta, (b) the impugned order is unreasonable and impracticable.
Shri Shanti Bhushan, senior counsel appearing in one of the petitions viz., Writ Petition No. 3846 of 1981, took up the first point.
and urged that the impugned order is not covered by any of the clauses of section 3 of the .
Section 3 of the , insofar as it is material for the purposes of this case, reads: 515 "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 prohibition the production, supply and distribution thereof and trade and commerce therein (2) With prejudice to the generality of the powers conferred by sub section (1), an order made thereunder may provide (a) . . (b) . . (c). . (d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use of consumption of, any essential commodity.
" The language of section 3 (1) coupled with clause (d) of subsection (2) of section 3 is wide enough to cover the impugned order.
Section 3 (1) authorises the Central Government to pass an order for regulating or prohibiting the production, supply and distribution of an essential commodity and trade and commerce therein if it is of opinion that it is necessary or expedient to do so for securing the equitable distribution and availability.
at a fair price of the essential commodity.
The same power has been made more specific by clause (d) of sub section (2) of section 3, which provides for regulating by licences.
permits or otherwise, the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity.
Sugar, which term includes khandsari, is an essential commodity and over the years it has become a scarce commodity.
In the public interest it became essential to pass the impugned order to secure its equitable distribution and availability at fair prices.
To that end it became necessary to prevent hoarding and black marketing.
The expression "to secure their equitable distribution and availability at fair prices" is wide enough to cover the impugned order.
Likewise, the expression "storage and distribution" used in clause (d) of sub section (2) of section 3 should be given a liberal construction to give effect to the legislative intent of public welfare.
So construed, the impugned order is fully pro 516 tected and is not ultra vires section 3 of the , 195 5.
This leads us to the second contention, namely, the impugned order being violative of Article 19 (1) (g) of The Constitution inasmuch as it imposed unreasonable restriction on the right of the petitioners to carry on trade or business.
A person has a right to carry on any occupation, trade or business and only restriction on this unfettered right is the authority of the State to make a law imposing reasonable restrictions under clause (6).
The expression 'reasonable restrictions ' signifies that the limitation imposed on a person in enjoyment of that right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public.
No cut and dry test can be applied to each individual statute impugned, nor an abstract standard or general pattern of reasonableness can be laid down as applicable in all cases.
The Court in each case has to strike a proper balance between the freedom guaranteed by Article 19 (1) (g) and the social control permitted by clause (6) of Article 19.
By the impugned order the Central Government has only put an embargo on the dealers on keeping sugar in excess of the quantity specified.
It was passed only with a view to prevent hoarding and black marketing, and to ensure equitable distribution and availability of sugar at fair prices in the open market.
Reliance was placed by Shri Shanti Bhushan on State of Mysore vs H. sanjeeviah.(J) In that Case the State Government of Mysore had framed rules to regulate the transit of timber, firewood, charcoal and bamboos from all lands in exercise of powers conferred by section 37 of the Mysore Forest Act 11 of 1900.
By rule 2 framed on October 13, 1952, it was provided that no person shall import forest produce into, export forest produce from, or move forest produce within, any of the areas specified in Schedule A unless such forest produce is accompanied by permit prescribed in rule 3.
On April 15, 1959 the State of Mysore issued a notification adding a proviso to rule 2 which read as follows: 517 "Provided that no such permit shall authorise any person to transport forest produce between SUN set and sun rise in any of the areas specified in Schedule A." By another notification dated September 14, 1960 the State Government introduced the second proviso to rule 2 which read: "provided further that permission may be granted to timber merchants on their request to transport timber upto 10 p.m. (22 hrs) under the following conditions: (i) the party who wishes to avail of the concession should pay a cash deposit of Rs. 1000 as security for the compliance with the timber transit rules as in force; (ii) that the deposit may be forfeited to government for breach of any of the conditions of the timber transit rules.
" The dealers in timber challenged the two provisos on the grounds inner alia that they were beyond the rule making authority conferred upon the State Government by section 37 of the Mysore Forest Act 11 of 1900 and in any event the provisos imposed unauthorized restrictions on the freedom of trade, commerce and intercourse.
The High Court held that the State Government while seeking to regulate the transport of timber stopped transport altogether.
This Court upholding the order of the High Court observed: "Power to impose restrictions of the nature contemplated by the two provisos to r. 2 is not to be found in any of the clauses of sub section
(2) of section 37.
By sub section
(I) the State Government is invested with the power to regulate trans port of forest produce "in transit by land or water.
" The power which the Stale Government may exercise is however power to regulate transport of forest produce, and not the power to prohibit or restrict transport.
Prima facie, a rule which totally prohibits the movement of forest produce during the period between sun set and sun rise is prohibitory or restrictive of the right to transport forest produce.
A rule regulating transport in its essence permits transport, subject to certain conditions devised to promote trans port.
" 518 This Court further observed: "If the provisos are in truth restrictive of the right to transport the forest produce, however, good the grounds apparently may be for restricting the transport of forest produce, they cannot on that account transform the power conferred by the provisos into a power merely regulatory." The facts of the present cases are materially different from the facts of H. Sanjeeviah 's case (supra).
In that case the impugned provisos to rule 2 completely prohibited the transport of the forest produce between sun set and sun rise.
But in the cases in hand the direction enjoined a recognised dealer not to keep sugar in stock at any time in excess of the quantity specified therein.
It only seeks to regulate the limit of storage of sugar and does not prohibit its storage.
The case of H. Sanjeeviah, therefore, is not of much help to the petitioners herein.
In M/s. Laxmi Khandsari & Ors.
vs State of U.P. & ors.(l) this Court made the following observations about reasonable restrictions on the right conferred by Article 19 (1) (g) of the Constitution in the following terms: "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 and fast rule of universal application but in imposing such restrictions the State must adopt an objective standard amounting to a social control by restricting the right of the citizens where the necessities of the situation demand.
The restrictions must be in public interest and are imposed by striking a just balance between the deprivation of right and the danager or evil sought to be avoided.
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 519 interest and manifestly reasonable.
Further, 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.
Another important test is that restriction should not be excessive or arbitrary.
The court must examine the direct and immediate import 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 sub served.
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.
" Judged in that light and on an overall consideration of the various aspects of the matter, restrictions put by the impugned order can by no means be said to be unreasonable.
It is only regulatory and not prohibitory.
We now take up the last contention, namely, the impugned order being violative of Article 14 of the Constitution.
The learned counsel seeks to invoke Article 14 on two grounds: (1) the impugned order applies two standards, one for the dealers, at Calcutta, who had been authorised to keep 3,500 quintals at one time, while the dealers at other places have been authorised to keep only 250 quintals in cities with a population of one lakh or more, and only 100 quintals in other towns with a population of less than one lakh.
F The fixation of limits for storing sugar in Calcutta and other places is not arbitrary but is based on reasonable classification.
The government is the best judge of the situation in a particular State and that quantity of sugar will meet the exigencies of the situation at a particular place is purely a governmental function.
For one, Calcutta serves as a feeder line to meet the requirements of sugar to the eastern part of the country, and therefore, the stocks of sugar to be held by the dealers in Calcutta are not required for consumption in Calcutta alone Besides, Calcutta being far away from the sugar manufacturing units in Bihar and Uttar Pradesh, from where bulk of supplies are obtained, sugar is transported by the wholesale 520 dealers in railway wagons which take sometime unusually longer time in transit.
These and various other factors have been taken into consideration by the Government while fixing the storage limits of sugar for the dealers in Calcutta.
His second ground for invoking Article 14 of the Constitution is that the impugned order is unreasonable and impracticable in that no dealer can be sure of the sale of sugar on any particular day.
If per chance a dealer is not able to dispose of the excess sugar on a particular.
day he would expose himself to punishment under the Act.
No provision has been made in the order or in the rules for the purchase by the Government of the excess sugar.
For the State it was contended that similar orders with regard to wheat came up for consideration in this Court in Suraj Mal Kailash Chand Ors.
vs Union of India & Anr.
and Bishambhar Dayal Chandra Mohan Ors.
vs State of Uttar Pradesh & ors.
etc.(2) when this Court upheld the validity of these orders.
In view of the decision of this Court in those cases it is not open to Shri Shanti Bhushan to challenge the constitutional validity of the impugned order.
Shri Shanti Bhushan, however, refutes the argument and says that those decisions do not stand in the way of the petitioners.
The situation with regard to wheat was quite different inasmuch .
s clause 25 of the impugned order in Sutlaj Mal 's case (supra) provided that the State Government or the Collector or the Licensing Authority may issue directions to any dealer with regard to purchase, sale, disposal, storage or exhibition of the price and stock list of all or any of the trade articles.
But there is no such provision in the impugned order in the instant case and, therefore, the dealers can expose themselves to punishment merely because at any particular point of time the stock was in excess of the prescribed limits.
Bishambhar Dayal 's case (supra) also related to wheat.
There was a scheme for the procurement of wheat by the State Government but there is no such scheme in respect of sugar.
This fact distinguishes the present case for the facts of the aforesaid decision.
The argument though attractive cannot be accepted.
Over the years sugar has become a scare commodity and people have to 521 purchase it even at a prohibitive price.
In the circumstances it A cannot be expected that the dealers would not be able to sell the sugar in their stock.
There is absolutely no difficulty in selling the sugar at any time at the prevalent market price.
If in a rare case there is difficulty on that score we hope and trust that the concerned Government would allow a reasonable time within which the petitioners are permitted to dispose of the excess quantity of sugar, if any.
In any case, in some given case there may be some hardship but it cannot be said on that account that the impugned order is violative of Article 14 of the Constitution.
For the foregoing discussion the writ petitions must fail.
They are accordingly dismissed.
In the circumstances of the case there shall, however, be no order as to costs.
S.R. Petitions dismissed.
| IN-Abs | In exercise of powers conferred by section 3 of the , Sugar Control order 1966 was issued by the Government of India, Ministry of Agriculture Clause 5 of that order empowered the Central Government to issue directions, inter alia, to recognised dealers regarding production, maintenance of stock, storage, sale, grading, packing, making weighment, disposal, delivery and distribution of sugar.
By order No. GSR 410 E/Ess.
Com/Sugar dated 14 7 1980, the Central Government issued directions to the effect that no recognised dealer shall keep in stock at any time (a) Vacuum pan sugar in excess of, (i) in Calcutta and other extended area recognised dealers who import sugar from outside West Bengal, 3500 quintals; other recognised dealers 250 quintals; (ii) in other places in cities and towns with a population of one lakh or more 250 quintals and with a population of less than one lakh 100 quintal and (b) Khandsari (open pan sugar) 250 quintals.
Further no recognised dealer shall hold any stock of vacuum pan sugar or khandsari (open pan sugar) for a period exceeding 10 days from the date of receipt by him of such stock of sugar or khandsari.
The recognised dealers, there fore, assailed the constitutional validity of the said order on three grounds: (I) the impugned order is not covered by section 3 of the and is ultra vires (2) the impugned order imposes unreasonable restrictions on the right of the petitioners to carry on their trade and so it is violative of Article 19 (1) (g) of the Constitution: (3) the impugned order is also violative of Article 14 of the Constitution for two reasons: (a) the petitioners have been singled out for hostile treatment from other dealers of sugar at Calcutta: (b) the impugned order is unreasonable and impracticable.
Dismissing the petitions, the Court ^ HELD: 1, The order dated 14 7 1980 is not ultra vires section 3 of the .
The expression "to secure their equitable 511 distribution and availability at fair prices", is wide enough to cover the impugned order Likewise, the expression "storage and distribution" used in clause (d) of sub section (2) of section 3 of the essential Commodities Act, 1955 should be given a liberal construction to give effect to the legislative intent of public welfare.
Sugar, which term includes khandsari, is an essential commodity and over the years it has become a scarce commodity.
In the public interest it became essential to pass the order to secure its equitable distribution and availability at fair prices.
To that end it became 'necessary to prevent hoarding and black marketing.
[515 F H, 516 A E] 2.
Restrictions put by the impugned order can by no means be said to be unreasonable.
It is only regulatory and not prohibitory.
The direction enjoined recognized dealer not to keep sugar in stock at any time in excess of the quantity specified therein.
It only seeks to regulate the limit of storage of sugar and does not prohibit its storage.
By the Impugned order the Central Government sought to prevent hoarding and black marketing, and to ensure equitable distribution and availability of sugar at fair prices in the open market.[516 E, 519 D] A person has a right to carry on any occupation, trade or business and the only restriction on this unfettered right is the authority of tho State to make a law imposing reasonable restrictions under clause (6).
The expression reasonable restrictions ' signifies that the limitation imposed on a person in eojoyment of that right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public.
No cut and dry test can be applied to each individual statute impugned, nor an abstract standard or general pattern of reasonableness can be laid down as applicable in all cases.
The Supreme Court in each case has to strike a proper balance between the freedom guaranteed by Article 19 (1) (g) and the social control permitted by clause (6) of Article 19.
[516 B D] State of Mysore vs H. Sanjeeviah, , explained and distinguished.
M/s. Laxmi Khandsari & Ors.
vs State of U.P. & Ors., , followed.
The order is not violative of Article 14 of the constitution.
The fixation of limits for storing sugar in Calcutta and other places is not arbitrary but is based on reasonable classification.
The government is the best judge of the situation in a particular State and what quantity of sugar will meet the exigencies of the situation at a particular place is purely a governmental function.
For one, Calcutta serves as a feeder line to meet the requirements of sugar to the eastern part of the country, and therefore, the stocks of sugar to be held by the dealers in Calcutta are not required for consumption in Calcutta alone.
Besides, Calcutta being far away from the sugar manufacturing units in Bihar and Uttar Pradesh, from where bulk of supplies are obtained, sugar is transported by the wholesale dealers in railway wagons which take sometime unusually longer time in transit.
These and various other factors have been taken into consideration by the Government while fixing the storage limits of sugar for the dealers in Calcutta.
[519 F H, 520 A] 512 The fact that over the years sugar has become a scarce commodity and people have to purchase it even at a prohibitive price, the dealers would be able to sell the sugar in their stock without difficulty at any time at the prevalent market price.
In a rare exceptional case there may be some hardship on that score but it cannot be said, on that account, that the order is violative of Article 14 of the Constitution.
In such cases, we hope and trust that the concern ed Government would allow a reasonable time within which the dealers could dispose of the excess quantity of sugar, if any.
[520 G, 5 21 A C] Suraj Mal Kailash Chand & Ors.
vs Union of India & Anr., Writ Petitions Nos.
8334 48 of 1981 decided on September 25, 1981 (unreported case): Bishambhar Dayal Chandra Moharl & ors, etc.
vs State of Uttar Pradesh & Ors. etc.
Writ Petitions Nos.
2907 2908 of 1981 and connected writ petitions (a group of SOS writ petitions) decided on November S, 1981, followed.
|
Civil Appeal No. 2031 of 1977.
Appeal by special Leave from the judgment and order dated the 30th June, 1977 of the Andhra Pradesh High Court in Writ Petition No. 905 of 1975.
WITH Civil Appeal Nos. 136 & 137 of 1978.
From the judgment and order dated the 30th June, 1977 of the Andhra Pradesh High Court in Writ Petition Nos.
796 & 922 of 1975 respectively.
Ramachandra Reddy, Advocate General and B. Parthasarthi for the Appellants P. Rama Reddy and A.V.V. Nair for Respondent No. 2 in CA.
2031, R. 3 in 136 & R. 2 in 137.
A. Subba Rao for RR I & 2 in CA.
136/78.
A.K. Sen, e. Rajendra Choudhury, G.R. Subbaryan, I. Koti Reddy and Mahabir Singh for Respondent No. 1 in CA.
137/78.
B. Ranta Rao for Respondent No. 1 in CA.
2031/77.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
these three appeals arise out of a common judgment dated June 30.
1977 of a Division Bench of the High Court of Andhra Pradesh, setting aside the judgment of a learned single Judge dated November 18, 1975 in Writ Petitions Nos.
1539 of 1974 and 798 of 1975.
Civil Appeal No. 2031 (NCM) of 1977 is by special leave while the other two appeals are by certi 503 ficate granted by the High Court The question which these appeals involve is whether the appellant, the Government of Andhra Pradesh, has the power to evict the respondents summarily in exercise of the power conferred by the Andhra Pradesh Land Encroachment Act, 1905.
This question arises on the following facts: We are concerned in these appeals with three groups of lands situated in Habsiguda, Hyderabad East Taluk, Andhra Pradesh.
Those lands are: R.S.
No 10/1, which corresponds to plot No. 94 admeasuring 10 acres and 2 guntas, R.S. No. 10/2 which corresponds to plot No. 104 admeasuring 9 acres and 33 guntas; and R.S. Nos. 7, 8 and 9 which correspond to plot No. 111 admeasuring 26 acres and 14 guntas.
These lands belonged originally to Nawab Zainuddin and after his death, they devolved on Nawab Habibuddin.
Sometime between the years 1932 and 1937, certain lands were acquired by the Government of the Nizam of Hyderabad under the Hyderabad Land Acquisition Act of 1309 Fasli, the provisions of which are in material respects similar to those of the Land Acquisition Act, 1894.
The lands were acquired for the benefit of the osmania University which was then administered as a Department of the Government of Hyderabad.
The University acquired an independent legal status of its own under the osmania University Revised Charter, 1947, which was promulgated by the Nizam.
E The question whether the aforesaid three plots of land were included in the acquisition notified by the Government of Nizam became a bone of contention between the parties, the osmania University contending that they were so included and that they were acquired for its benefit and the owner, Nawab Habibuddin, contending that the three plots were not acquired.
On February 13, 1956 the osmania University filed a suit (O.S. No. 1 of 1956) against Nawab Habibuddin, in the City Civil Court, Hyderabad, claiming that the three lands were acquired by the Government for its benefit and asking for his eviction from those lands.
That suit was dismissed in 1959 on the ground that plot No. 111 was not acquired by the Government and that though plots Nos. 94 and 104 were acquired, the University failed to prove its possession thereof within twelve years before the filing of the suit.
In regard to plots Nos. 94 & 104, it was found by the trial court that Habibuddio had encroached thereupon in the year 1942, which was more than twelve years before the filing of the suit.
Civil Appeal No. 61 of 1959 filed by 504 the University against that judgment was dismissed on January 24, 1964 by the High Court which affirmed the findings of the trial court.
The State Government was not impleaded as a party to those proceedings.
On May 8, 1964 the osmania University wrote a letter to the Government of Andhra Pradesh, requesting it to take steps for the summary eviction of persons who were allegedly in unauthorised occupation of the 3 plots.
On December 8, 1964, the Tahsildar, Government of Andhra Pradesh, acting under section 7 of the Land Encroachment Act, 1905, issued a notice to Nawab Habibuddin to vacate the lands and on December 15, 1964 the Tahsildar passed an order evicting him iron the lands.
The appeal filed by Habibuddin to the Collector was dismissed in 1965 and the appeal against the decision of the Collector was dismissed by the Revenue Board in 1968 During the pendency of the appeal before the Revenue Board, the respondents purchased the plots from Habibuddin for valuable consideration and on the death of Habibuddin, they were impleaded to the proceedings before the Revenue Board.
They preferred an appeal from the decision of the Revenue Board to the Government but that appeal was dismissed on November 26, 1973.
On March 19, 1974, the respondents filed Writ Petitions in the High Court of Andhra Pradesh challenging the order by which they were evicted from the plots summarily under the provisions of the Act of 1905.
The learned single Judge dismissed those Writ Petitions observing: "The question whether the lands with which we are concerned in the writ petition were acquired by the Government or not and the question whether the Government had transferred its title to the University or not are questions which cannot properly be decided by me in an application under article 226 of the Constitution.
The appropriate remedy of the petitioners is to file a suit to establish their title.
" The learned Judge held that: "Though the title of the Government is not admitted by the alleged encroacher, there is a finding by the Civil 505 Court that there was encroachment by the alleged encroacher.
That is sufficient to entitle the Government to initiate action under the provisions of the Land Encroachment Act.
" Three appeals were preferred to The Division Bench against the judgment of the learned single Judge, two of them being by the petitioners in one writ petition and the third by the petitioner in the other writ petition.
The Division Bench, while setting aside the judgment of the learned single Judge, held: "The question whether the lands.
belong to osmania University or not will have to be decided as and when the Government comes forward with a suit for the purpose.
Even if we assume for the purpose of our judgment, as we are not pronouncing any conclusion as to whether the land vested in the Government or University, that the Government is the owner, the dispute going back from 1942 cannot be dealt with in summary proceeding under section 7 of the Land Encroachment Act.
" The summary remedy provided by section 7, according to the Division Bench, cannot be resorted to "unless there is an attempted encroachment or encroachment of a very recent origin" and further, that it cannot be availed of in cases where complicated questions of title arise for decision.
We are in respectful agreement with the view taken by the Division Bench, subject however to the observations made herein below.
The Andhra Pradesh Land Encroachment Act, 1905, was passed in order "to provide measures for checking unauthorised occupation of lands which are the property of Government.
" The preamble to the Act says that it had been the practice to check unauthorised occupation of lands which are the property of the Government "by the imposition of penal or prohibitory assessment or charge" and since doubts had arisen whether such practice was authorised by law, it had become necessary to make statutory provisions for checking unauthorised occupations.
Section 2 (1) of the Act provides that all public roads, streets, lands, paths, bridges, etc.
shall be deemed to be the property belonging to Government, unless it falls under clauses (a) to (e) of that section.
Section 2 (2) provides that all public roads and streets 506 vested in any public authority shall be deemed to be the property of the Government by section 3 (1), any person who is in unauthorised occupation of any land which is the property of Government, is liable to pay assessment as provided in clauses (i) and (ii) of that section.
Section S provides that any person liable to pay assessment under section 3 shall also be liable, at the discretion of the Collector, to pay an additional sum by way of penalty.
Sections 6 (1) and 7, which are relevant for our purpose, read thus: "Sec. 6 (1) Any person unauthorisedly occupying any land for which he is liable to pay assessment under section 3 may be summarily evicted by the Collector, Tahsildar or Deputy Tahsildar and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by him after such written notice as the Collection Tahsildar.
or Deputy Tahsildar may deem reasonable, be liable to forfeiture.
Forfeitures under this section shall be adjudged by the Collector, Tahsildar or Deputy Tahsildar and any property so forfeited shall be disposed of as the Collector, Tahsildar or Deputy Tahsildar may direct." "Sec. 7.
Before taking proceedings under section 5 or section 6, the Collector or Tahsildar or Deputy Tahsildar as the case may be shall cause to be served on the person reputed to be in unauthorised occupation of land being the property of Government, a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against under section S or section 6.
" It seems to us clear from these provisions that the summary remedy for eviction which is provided for by section 6 of the Act can be resorted to by the Government only against persons who are in 507 unauthorized occupation of any land which is "the property of Government".
In regard to properly described in sub sections (I) and (2) of section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction provided for in section 6.
A person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is in unauthorised occupation of property which is declared by section 2 to be the property of the Government and, therefore, it is in public interest to evict him expeditiously which can only be done by resorting to the summary remedy provided by the Act.
But section 6 (1) which confers the power of summary eviction on the Government limits that power to cases in which a person is in unauthorised occupation of a land "for which he is liable to pay assessment under section 3 ' '.
Section 3, in turn, refers to unauthorised occupation of any land "which is the property of Government" If there is a bond dispute regarding the title of the Government to any property the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by section 6 for evicting the person who is in possession of the property under a bona fide claim or title.
In the instant case, there is unquestionably a genuine dispute between The State Government and the respondents as to whether The three plots of land were the subject matter of acquisition proceedings taken by the then Government of Hyderabad and whether the osmania University.
for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation.
The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the properly more than twelve years before the date of the suit and the University was not in possession of the property at any time within that period.
Having tailed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible.
The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law.
The summary remedy prescribed by section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title.
That procedure is, therefore, not the due process of law for evicting the respondents.
508 The view of the Division Bench that the summary remedy provided for by section 6 cannot be resorted to unless the alleged encroachment is of "a very recent origin", cannot be stretched too far That was also the view taken by the learned single Judge him self in another case which is reported in Meherunnissa Begum vs State of A.P. which was affirmed by a Division Bench.(2) It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person.
What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide.
Facts " which raise a bond fide dispute of title between the Government and the occupant must be adjudicated upon by the Ordinary courts of law.
The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision.
But duration of occupation is relevant in the sense that a person who is hl occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bonafide claim to the property requiring an impartial adjudication according to the established procedure of law.
The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary inquiry contemplated by sections 6 and 7 of the Act.
The long possession of the respondents and their predecessors in title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddio from whom the respondents claim to have purchased it.
The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit.
May be, that the Government may succeed in establishing its title to the property but, until that is done, the respondents cannot be evicted summarily.
For these reasons, we uphold the judgment of the Division Bench of the High Court and dismiss these appeals with costs.
509 We do not propose to pass any orders on Civil Misc.
Petitions A Nos.
18974, 18975, 18976, 18497, 18498 and 18499 of 1981 which have been filed for adding certain parties as respondents to these appeals.
Those petitions involve the question of a Will alleged to have been made by Nawab Habibuddin in favour of Entashamuddin alias Anwar Siddiqui and his elder brother.
We cannot go into the validity of that Will and other incidental questions in these ap peals.
H.L.C. Appeals dismissed.
| IN-Abs | The Andhra Pradesh Land Encroachment Act, 1905 was enacted to check unauthorised occupation of government lands.
Under section 2 of the Act all public roads, streets, lands, paths, bridges etc, are deemed to be government property.
Any person who is in unauthorised occupation of any land which is the property of the government is liable to pay assessment as provided in section 3 of the Act.
Section 5 provides that any person, liable to assessment shall also be liable to pay an additional sum by way of penalty.
Under section 6(1) the Collector, Tahsildar or Deputy Tahsildar has the power to summarily evict any person unauthorisedly occupying any land for which he is liable to pay assessment under section 3 after issuing a show cause notice as provided in section 7.
Some time between the years 1932 and 1937 certain lands were acquired by the Government of Nizam of Hyderabad for the benefit of a University.
A question having arisen as to whether three specific plots of land had been included in the acquisition, the University filed a suit in 1956 praying for the eviction of the occupant.
This suit was dismissed in 1959 on the ground that one of the plots had not been acquired by the Government and in respect of the other two plots the University had failed to prove its possession within 12 years before the filing of the suit.
The trial court found that the heir of the original owner of the plots had encroached on the said two plots in 1942.
The judgment of the trial court was confirmed by the High Court in 1964.
The State Government was not a party to those proceedings.
The University activated the State Government for summary eviction of the heir of the original owner from the three plots of lands.
The Tahsildar initiated action and passed an order of eviction under section 6(1) of the Act on December 15, 1964.
Appeals against the order were rejected by the Collector in 1965 and by the Revenue Board in 1968.
The respondents who purchased the plots during the pendency of the appeal before the Revenue Board were impleaded as parties 501 to the proceedings on the death of the heir of the original owner and.
their appeal from the decision of the Revenue Board was rejected by the Government in 1973 The respondents challenged the order of eviction by a petition under article 226 which was dismissed by a Single Judge of the High Court who held that the question of title to the property could not properly be decided by him under Article 226 but the fact that there was a finding by the Civil Court that there was encroachment by the alleged encroacher was sufficient to entitle the Government to initiate action under the provisions of the Land Encroachment Act.
The appeal of the respondents was allowed by the Division Bench which held that a dispute relating to as far back as 1942 could not be dealt with in summary proceedings under the provisions of the Land Encroachment Act.
The summary remedy could not be resorted to unless there was an attempted encroachment or encroachment of a very recent origin; nor could it be availed of in cases where complicated questions of title arose for decision.
Dismissing the appeals, ^ HELD: (I) The summary remedy for eviction provided by section 6 of tho Act can be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government.
If there is a bonafide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that tho property belongs to it and on that basis take recourse to the summary remedy provided by s 6.
In the instant case there was unquestionably a genuine dispute , between the State Government and the respondents as to whether the three plots of land bad been the subject matter of acquisition proceedings taken by the then Government of Hyderabad, and whether the University for whose benefit the plots were alleged to have been acquired had lost title to the property by operation of the law of limitation.
The respondents had a bonafide claim to litigate and they could not be evicted save by the due process of law.
The summary remedy prescribed by section 6 was not the kind of legal process which was suited to adjudication of complicated questions of title.
That procedure was, therefore, not the due process of law for evicting the respondents.
[506 H; 507 A; 507 D H] 2.
The view of the Division Bench that the summary remedy provided for by section 6 could not be resorted to unless the alleged encroachment was of "a very recent origin" cannot be stretched too far.
It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person.
What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bonafide.
Facts which raise a bonafide dispute of title between the Government and the occupant must be ad judicated upon by the ordinary courts of law.
The duration of occupation is relevant in the sense that a person who is in occupation of a property openly for 502 an appreciable length of time can be taken prima facie to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law.
In the instant case, the long possession of the respondents and their predecessors in title raised a genuine dispute between them and the Government on the question of title.
Whether the title to the property had come to be vested in the Government as a result of acquisition and whether the heir of the original owner had encroached upon that property and perfected his title by adverse possession had to be decided in a properly constituted suit.
[508 A D; 508 E G]
|
etition (Criminal) No. 9516 of 1981.
(Under article 32 of the Constitution) Bhim Singh, P.D. Sharma & Subash Sharma for the Petitioner.
M.N. Phadke and Altaf Ahmed for the Respondents, 524 The Judgment of the Court was delivered by DESAI, J.
On February 9, 1982 we made an order quashing the detention order dated July 11, 1981 made by the District Magistrate, Jammu in exercise of the power conferred by Section 8 of The Jammu and Kashmir Public Safety Act, 1978 ( 'Act ' for short) and we announced that the reasons would follow.
Here are the reasons.
The detenu Vijay Kumar was arrested on June 26, 1981.
A petition was moved on his behalf before the Chief Judicial Magistrate Jammu praying for releasing the detenu, on bail.
This petition for bail appears to have come up before the learned Magistrate on July 4, 1981 when the following order was made: "I have heard the advocate for the applicant and perused the C.D. File.
Put up for orders on 6.7.81.
" When the matter again came up on July 6, 1981, the learned Magistrate made the following order: "Although there was nothing in the C.D. File about his (Petitioner) involvement in E.A.O. (Enemy Agents ordinance) on 4.7.81, but today a detailed report has been presented in which one of the offences of which he is charged is u/s 3, E.A.O. which this Court is not competent to try.
Hence this application is returned to the applicant for presentation to the proper court alongwith report " The detenu thereupon moved an application for releasing him on bail before the learned Additional Sessions Judge, Jammu, who, we are informed, was competent to try the accused charged with an offence under Enemy Agents ordinance.
His petition for bail came up before the learned Additional Sessions Judge on July 11, 1981 when the following order was made: "This application pertains to Vijay Kumar accused who is involved for an offence under the Enemy Agents ordinance which is being investigated by the Counter Intelligence Police, Jammu.
The learned Chief Prosecuting officer and the learned counsel for the accused have been heard.
525 During the course of arguments an order has been A shown to me by the police that said Vijay Kumar accused has now been ordered to be detained under the Public Safety Act.
In view of this order, this bail application has become infructuous which is disposed of accordingly.
" The detenu was served with the detention order dated July 11, 1981 on the same day in jail because he was already in jail from June 25, 1981.
The grounds for detention were served on him on July 15, 1981.
The detenu submitted his representation dated July 29, 1981 addressed to the Secretary the Government Home Department to the Superintendent, Central Jail, Jammu where the detenu was detained.
One Shri K.D. Sharma, Incharge Superintendent, Central Jail Jammu has stated in his affidavit dated February 6, 1982 that the representation of the detenu dated July 29, 1981 was forwarded to the Government at Srinagar vide office letter No. 2595 dated July 29, 1981 and simultaneously a wireless message No. 2596 on the same day was also sent to the Government intimating that the representation of the detenu had been forwarded to the Government for appropriate action.
Mr. K section Salathia, Deputy Secretary to the Government of Jammu and Kashmir, Home Department, Jammu, in his affidavit dated February 9, 1982 has stated that the 1 representation of the detenu was received from the Superintendent, Central Jail, Jammu in the office of the Home Department at Srinagar on August 12, 1981.
The department also received the comments of S.P., C.I.D. Counter Intelligence, Jammu and thereafter the case was processed on August 24, 1981 in the office of the Home Department at Srinagar and the file was placed before the Home Secretary on August 25, 1981, who recommended the same for approval on August 28,1981 to the Chief Minister (Home) From the same affidavit, it further transpires that the Chief Minister rejected the representation on August 31, 1981 and the same was communicated to the detenu on September 1, 1981.
In the meantime, the case of the detenu was referred to the Advisory Board on August 3, 1981.
The Advisory Board submitted its report to the Government on September 4, 1981.
one Rattanlal, the brother of the detenu moved Petition No. 31 of 1981 for writ of Habeas Corpus in the High Court of Jammu and Kashmir at Jammu.
The petition came up for hearing before 526 the learned Single Judge, who by his judgment dated December 7, 1981 rejected the same.
Thereafter the detenu by the present writ petition, moved this Court under Article 32 of the Constitution for a writ of Habeas Corpus.
Section 8 of the Act prescribes grounds for detention, one such ground being to prevent any person from 'acting in any manner prejudicial to the security of the State.
The impugned order of detention recites that the detenu is detained with a view to preventing him from 'acting in any manner prejudicial to the security of the State. ' The expression 'acting in any manner prejudicial to the security of the State ' has been defined in Section 8 (3) of the Act to mean making preparations for using, or attempting to use, or using or instigating, inciting, provoking or otherwise abetting the use offence, to overthrew or overawe the Government established by the law in the State.
The detenu contended before the High Court that accepting all the activities attributed to the detenu in the grounds of detention at their face value.
the alleged prejudicial activity would not fall within the ambit of the expression 'acting in any manner prejudicial to the security of the State. ' The definition of the expression as here in before extracted indicates that the person accused of 'acting in any manner prejudicial to the security of the State ' must be shown to be making preparations for using, or attempting to use, or using or instigating, inciting or provoking or otherwise abetting the use of force, and the intention or motive for the activity must be to overthrow or overawe the Government established by law in the State.
The learned judge of the High Court following an earlier Division Bench judgment of the same High Court in Kharotilal vs State,(1) negatived this contention of serving that where the Government accusation against the detenu is that he had been indulging in supplying information for Pakistan Army Intelligence and was passing on vital information pertaining to the Army department etc.
to that Agency, such activities were likely to assist Pakistan in any armed aggression against the State and were a threat to the security of the State.
This view needs examination but as the argument was not pressed before us, we refrain from examining the same.
Number of contentions were advanced at the hearing of this petition but we propose to deal with only two of them which in our 527 Opinion go to the root of the matter and which, when accepted, in our opinion, would result in invalidation of the order.
The first contention is that the order of the District Magistrate suffers from non application of mind inasmuch as the date on which he passed the impugned order of detention dated July li, 1981, the detenu was long before arrested and locked up in Jail on the allegation that he was suspected to have committed some offence under the Enemy Agents ordinance 8 of Samvat Year 2005, and, therefore there was no present apprehension that the detenu, if not detained, was likely to act in any manner prejudicial to the security of the State.
The District Magistrate passed the impugned order of detention on being satisfied that with a view lo preventing the detenu from acting in a manner prejudicial to the security of the State it was necessary to detain him.
The order ex facie does not show that the detaining authority was aware that the detenu was already arrested and kept in jail.
If the detaining authority was conscious of the fact that the detenu was already arrested and confined in jail, the order ex facie would have shown that even though the detenu was in jail, with a view to preventing him from acting in a manner prejudicial to the security of the State it was necessary to detain him.
There is a foot note in the order that the order was forwarded to the S P., C.I D. Counter Intelligence, Jammu for execution of the order under section 3 of the Act.
The further direction was that notice of the order shall be given to Vijay Kumar s/o Anant Ram, r/o H. No. 609, Peer Mitha, Jammu, by reading over and explaining the same to him in language he understands.
The detention order does not give the slightest indication that the detaining authority was aware that the detenu was already in jail yet on the material placed before him he was satisfied that a detention order ought to be made.
There is nothing in the order to show that to the knowledge of the detaining authority the detenu was already in jail for a period of more than lo days before the date on which he passed the order and that such detention in the opinion of the detaining authority was not sufficient to prevent the detenu from acting in a manner prejudicial to the security of the State, and therefore power under section 8 of the Act is required to be .
exercised.
The detenu in para 3 of his petition before this Court has specifically averred that he was arrested on June 26 1981, the correct 528 date being June 25, 1981, under a false and fabricated charge.
Shri K.S. Salathia, Deputy Secretary to Government of Jammu & Kashmir, Home Department, who has filed the counter affidavit has with reference to the averments made in para 3 of the petition made a very very ambiguous statement that for the purpose of J and K Public Safety Act the petitioner was arrested on July 11, 1981, pursuant to the detention order.
It is no where suggested that the detaining authority was aware of the fact that the detenu was already in jail and that keeping in view the fact the detenu was already locked up in jail yet it was considered necessary for preventing him from acting in a manner prejudicial to the security of the State to pass the detention order.
lt may further be pointed out that Shri A. Sahasranaman, the District Magistrate of Jammu who has made the impugned detention order, filed an affidavit on February 7, 1982.
Of course, in fairness to him it must be stated that this affidavit was for the limited purpose of pointing out as to how he dealt with the case of Hans Raj, another detenu whose detention was quashed by this Court subsequent to the order of this Court.
It may be noticed in passing that Hans Raj and the detenu were involved jointly in the activity, which led to the detention of the detenu.
Even though this affidavit was filed for the limited purpose, it came on record after the case was taken up for hearing by this Court and the affidavit at least does not throw any light on the vexed question whether the detaining authority was aware of the fact that the detenu on being suspected of having committed a serious offence, was already in jail for a period of more than a fortnight before the date of the impugned detention order.
Preventive detention is resorted to, to thwart future action.
If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State.
May be, in a given case there yet may be the need to order preventive detention of a person already in jail.
But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an or der of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made.
There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made.
This, in our opinion, clearly exhibits non application of mind and would result in invalidation of the order.
We, however, do not base our order on this ground.
529 The second contention which in our opinion goes to the root A of the matter is that there has been a violation of section 13 of the Act.
Section 13 provides as under: "13.
Grounds of order of detention to be disclosed to persons affected by the order: (I) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government.
" x x x The provision contained in section 13 (1) is on par with the constitutional protection conferred by Article 22 (5) of the Constitution of India.
The contention is that the obligation on the detaining authority to afford to the detenu the earliest opportunity of making representation against the order of detention, in order not to render it illusory simultaneously obliges the authority to whom the representation is made to consider the same expeditiously.
Submission is that a statutory right conferred on the detenu enabling him to make a representation which of necessity must be giving an opportunity to point out to the Government as to why the detention order was not justified and that it must be revoked and the personal liberty deprived under the detention order must be restored, is to convince the Government to take into consideration the facts and contentions set out in the representation, which must imply that the Government must consider the same.
The earliest opportunity to be afforded for making representation inheres the corresponding duty of the Government to consider the representation so received expeditiously.
The reason behind enacting this provision is manifest.
When power to detain without trial is exercised, the authority exercising the power must afford an opportunity to the detenu to convince the Government/detaining authority that the power was not justifiably exercised or no occasion arose for exercise of the power.
In a punitive detention which is the end product of a trial in which the convict participates and has full opportunity to present his side of the case while preventive detention ordinarily described as jurisdiction based on suspicion does not afford any opportunity to the detenu to explain his side of the matter before 530 he is deprived of the liberty and; therefore, so soon after the detenu is deprived of his personal liberty the statute makes it obligatory on the authorities concerned to afford him an earliest opportunity to represent his side of the case and which inheres the corresponding obligation on the authority to consider the same.
The word 'earliest ' which qualifies the opportunity must equally qualify the corresponding obligation of the State to deal with the representation if and when made, as expeditiously as possible.
The opportunity contemplated by the section is the opportunity to make a representation against the detention order to the Government and therefore ex hypothese soon after the person is deprived of his personal liberty he must be afforded the earliest opportunity to make a representation.
The representation is to be made tc.
the Government.
Therefore the detenu who has already been served with the detention order and thus deprived of his liberty would ordinarily be in a position to send his representation through the jail authorities.
The jail authority is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order.
The intermediary authorities who are communicating authorities have also to move with an amount of promptitude so that the statutory guarantee of affording earliest opportunity of making the representation and the same reaching the Government is translated into action.
The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transit.
If the Government enacts a law like the present Act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the Government and not the detaining authority, of necessity the State Government must gear up its own machinery to see that in these cases the representation reaches the Government as quickly as possible and it is considered by the authorities with equal promptitude.
Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order.
Reverting to the facts of this case, the detenu who in jail from June 25, 1981, was served with a detention order on July 11, 1981, the very day on which the detention order was made.
The grounds of detention were served upon him on July 15, 1981.
Admittedly the detenu submitted his representation to the Superintendent of Jail on July 29, 1981.
One K.D. Sharma, Medical officer, Central Jail, 531 Jammu, Incharge Central Jail, Jammu who has filed his affidavit dated February 6, 1982, has admitted that the detenu submitted his representation addressed to the Secretary to the Government, Home Department, on July 29, 1981.
He proceeds to assert that the said representation in original was forwarded by post to the Government in Srinagar vide his office No. 2595 dated July 29, 1981.
He further adds that a wireless message No. 2596 dated July 29, 1981, was also sent to the Government to intimate that the representation of the detenu had been forwarded to the Government for appropriate action.
Postal communication from Jammu to Srinagar hardly takes two days unless it is pointed out that there was some break down of communication.
Nothing to that effect was brought to our notice.
Now, Shri Salathia has stated in his counter affidavit that as no representation was received a wireless message was sent on August 6, 1981, making reference to the wireless communication from the Superintendent of Jail that the representation referred to in the wireless message of the Jail Superintendent has still not been received at Srinagar.
He requested the Superintendent to send a duplicate copy of the same by air consignment, and gave a further direction that in future all such communications should be sent through air consignment.
Be that as it may, he says that the representation was received in the office on August 12, 1981.
The comments from S.P., C.I.D., Counter Intelligence were called for on August 14, 1981.
He does not state the date on which they were received but he says that the case was examined and processed on August 24, 1981 in the office and the file was placed before the Home Secretary on August 25, 1981, who recommended the same for approval on August 28, 1981, and the Chief Minister (Home) rejected the representation on August 31, 1981, and the fact of rejection of the representation was communicated to the detenu on September 1, 1981.
There are two time lags which may be noticed.
Representation admittedly handed in the Superintendent of Jail on July 29, 1981 to at Jammu reached Srinagar, the summer capital of the State on August 12, 1981, which shows a time lag of 14 days.
The second lime lag is, from our point of view, more glaring.
Even though the concerned office was made aware of the fact by the wireless message of the Superintendent of Jail, Jammu, dated July 29, 1981, that a representation of the detenu has been sent by post, the .
first query about its non receipt came as per the wireless message dated August 6, 1981.
That can be overlooked, but it has one important message.
The concerned office was aware of the fact that a representation has 532 already been made and a duplicate was sent for.
With the background of this knowledge trace the movement of the representation from the date of its admitted receipt being August 12, 1981.
If the representation was received on August 12, 1981, and the same office disposed it of on August 31, 1981, there has been a time lag of 19 days and the explanation in that behalf in the affidavit of Shri Salathia is far from convincing.
In our opinion, in the facts of this case this delay, apart from being inordinate, is not explained on any convincing grounds.
In Khudi Ram Das vs State of West Bengal,(l) this Court held that one of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must afford the detenu the earliest opportunity of making a representation against the order of detention and this requirement would become illusory unless there is a corresponding obligation on the detaining authority to consider the representation of the detenu as early as possible.
Thus, in the facts of this case we are not satisfied that the representation was dealt with as early as possible or as expeditiously as possible, and, therefore, there would be contravention of section 13 of the Act which would result in the invalidation of the order.
These are the reasons which had prompted us to quash and set aside the detention order.
P.B.R. Petition allowed.
| IN-Abs | The petitioner has arrested on June 26, 1981 under the Enemy Agent ordinance.
The Chief Judicial Magistrate rejected his application for bail on the ground that he had no jurisdiction to try him.
The Addl.
Sessions Judge rejected his bail application on the ground that as ha was by then ordered to be detained under the J & K Public Safety Act the bail application has become infructuous.
The detention order dated July 11, 1981 was served on the detenue in jail on July 15, 1981.
His representation dated July 29, 1 981 was forwarded to the State Government on July 29, 1981 and simultaneously a wireless message was sent on the same day.
The representation was received by the Government on August 12, 1981.
After investigations the file was put up to the Chief Minister on August 28, 1981 for approval.
The Chief Minister rejected the representation on August 31, 1981 which was communicated to the petitioner in jail on September 1, ]981.
The detenu 's case was referred to the Advisory Board on August 3, 1981.
Its report was submitted on September 4, 1981.
In this petition under article 32 of the Constitution it was contended before this Court on behalf of the petitioner that as section 13 (1) of the Jammu & Kashmir Public Safety Act 1978 imposes an obligation on the detaining authority to give the detenu the earliest opportunity of making a representation against the detention order the long unexplained delay in this case had invalidated the order of detention.
Allowing the petition, ^ HELD: The petitioner 's representation had not been dealt with as expeditiously as possible.
There was therefore contravention of section 13 of the Act which invalidated the detention.
[532 D] Preventive detention, unlike punitive detention, does not afford an opportunity to the detenu to explain his side of the matter before he is deprived 523 Of his liberty and therefore the statute makes it obligatory on the authorities to A afford him the earliest opportunity to represent his case and a corresponding obligation on the authority to consider the representation.
The word "earliest" which qualifies the term "opportunity" must equally qualify the corresponding obligation of the State to deal with the representation if and when made as expeditiously as possible.
[529 H; 530 A B] The jail authorities who are merely a communicating channel have to move with promptitude so that sufficient guarantee of affording earliest opportunity of making the representation and the same reaching the Government is translated into action.
The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that time was lost in transit.
The State Government must gear up its own machinery to see that in these cases the representation reaches the Government as early as possible and is considered by the authorities with equal promptitude.
Any unexplained delay would be denial of the statutory protection given to the detenu.
[530 D G] In the instant case there were two time lags: the representation handed in to the Jail Superintendent on July 29, 1981 reached the Government on August 12, 1981 after a time lag of fourteen days and the representation was disposed of on August 31, 1981 after a time lag of nineteen days and the delay has not been explained on any convincing ground.
B] Khudi Ram Das vs State of West Bengal, ; , referred to.
Preventive detention is resorted to, to thwart future action.
If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State.
Where there is need to order preventive detention of a person already in jail the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made.
[528 F G] In the instant case there is nothing to indicate awareness of the detaining authority that the detenu was already in jail for more than 16 days and Yet the impugned order was made.
This clearly exhibits non application of mind and would result in invalidation of the order.
But the Court did not base its order on this ground.
[528 G H]
|
Civil Appeal No. 504 (N) of 1971.
Appeal from the Judgment and order dated the 24th April 1970 of the Madhya Pradesh High Court in Misc.
Petition No. 246 of 1967.
545 R.P. Bhatt, Ashok Mehta, J.B. Dadachanji and D.N. Misra for the appellant.
Gopal Subramanium and section A. Shroff for the respondents.
The Judgment of the Court was delivered by B TULZAPURKAR, J.
Two questions were raised for our determination in this appeal by a certificate: (a) Whether the Sugarcane Development Council, Sehore (respondent No. 2) can charge commission under section 21 (1) of the Madhya Pradesh Sugar Cane (Regulation of Supply & Purchase) Act, 1958 on purchases of sugarcane made by the appellant company from outside the "reserved area" ? and (b) Whether the Sugar Cane Growers Development Co operative Union Ltd., Sehore (respondent No. 3: the concerned Cane Growers Co operative Society) can charge commission under section 21 (l) (a) of the Act in respect of the purchases of sugarcane made by the appellant through the Union when there is no quid pro quo by way of rendering any services by Union to the appellant company ? The short facts giving rise to the above questions may be stated: The appellant company crushes sugarcane in its factory at Sehore in Madhya Pradesh.
For its business it purchases sugarcane from "reserved area" as well as from outside both directly from the cane growers as well as through respondent No. 3, a Cane growers Co operative Society, Sehore.
Section 21 of the Act imposes an obligation upon the appellant company to pay commission on all its purchases of cane at prescribed rates and it has to pay such commission in respect of purchases made through the Society to the Society and the Development Council and in respect of purchases made directly from the cane growers to the Development Council.
According to the appellant company judicial decisions rendered by Madhya Pradesh High Court as well as this Court have settled the position that the commission chargeable under section 21 of the Act is in the nature of a fee the imposition of which is supported on the basis of quid pro quo in the shape of services rendered by the Development 546 Council to a factory (vide: Jaora Sugar Mills (P) Ltd. vs State of Madhya Pradesh and others.
It appears that during the seasons 1960 61 to 1964 65 the appellant company purchased cane directly from the cultivators of "reserved area" as well as from the cultivators of "non reserved area" and respondent No. 2 (Development Council, Sehore) made a demand of commission from the appellant company in respect of such purchases both from "reserved area" as well as from "non reserved area.
" Similarly, during the crushing seasons 1963 64 to 1966 67 the appellant company made purchases of cane from or through respondent No. 3 (Co operative Society) in respect whereof a demand of commission was made by respondent No. 3 from the appellant company.
By a writ petition (being Misc.
Petition No. 246 of 1967) filed in the Madhya Pradesh High Court at Jabalpur the appellant company challenged the validity of the demand made by respondent No. 2 insofar as it related to purchases made from non reserved area on the ground that it (Council) was established for the reserved area of the appellant company 's factory and its functions were confined to that area and as such no commission (fee) could be recovered by it in respect of purchases made by appellant company from non reserved area; similarly, the demand made by respondent No. 3 (Co operative Society) was challenged on the ground that no services of any kind whatsoever were rendered by it to the appellant company, and the charge would be invalid in the absence of any quid pro quo.
The High Court negatived both the contentions and dismissed the petition.
It is this decision of the High Court that is challenged before us in the appeal and counsel for the appellant company raised the two questions mentioned at the commencement of the judgment.
Section 21, which deals with commission on.
purchase of cane, runs thus: "(1) There shall be paid by the occupier a commission for every one maund of cane purchased by the factory (a) where the purchase is made through a Cane growers ' Co operative Society, the commission shall be payable to the Cane growers ' Cooperative 547 Society and the Council in such proportion as the State Government may declare; and (b) where the purchase is made directly from the cane grower, the commission shall be payable to the Council.
(2) The Commission payable under clauses (a) and (b) of sub section (1) shall be at such rates as may be prescribed provided, however, that the rate fixed under clause (b) shall not exceed the rate at which the com mission may be payable to the Council under clause (a).
" Section 30 confers power on the State Government to make rules for the purpose of carrying into effect the provisions of the Act and under cl.
(j) of sub section
(2) such Rules may provide for "the rate at which and the manner in which commission shall be paid to the Cane growers ' Co operative Society on the supply of cane by them.
" Under the aforesaid provisions certain rules called the Madhya Pradesh Sugar Cane (Regulation of Supply and Purchase) Rules, 1959 have been framed by the State Government.
Rules 45 and 46 occurring in Chapter X of the Rules are material and they are as follows: "45.
The occupier of factory shall pay a commission for the cane purchased at the following rates namely: (i) Where the purchase is made through a Cane growers ' Co operative Society, at the rate of 5 Naya Paise per maund out of which 2 Naya Paise shall be payable to the Society and 3 Naya Paise to the Council; (ii) Where the purchase is made directly from the cane growers, at the rate of 3 Naya Paise per maund, payable to the Council.
In determining the proportion to which payments out of commission shall be made to the Council and the Cane growers ' Co operative Society of an are the State Government may take into consideration the 548 financial resources and the working requirements of the Council and the Cane growers ' Co operative Society.
" It is thus clear from the aforesaid statutory provisions that every factory is under an obligation to pay commission on all its purchases of cane at the prescribed rates and it has to pay such commission at the rate of 2 Naya Paise per maund to the Society and 3 Naya Paise to the Council in respect of purchases made through a Cane growers ' Co operative Society and at the rate of 3 Naya Paise per maund to the Council where the purchases are made directly from the cultivators or cane growers.
It cannot be and was not disputed by Counsel on behalf of the respondents that the levy under section 21 of the Act though called "commission" is really in the nature of a fee, the imposition of which is supportable only on the basis of quid pro quo in the shape of rendition of services to the factory in the matter of cane purchased by it and Counsel accepted this position as emerging from this Court 's decision in Jaora Sugar Mills ' case (supra).
Now, turning to the first question raised before us Counsel for the appellant company contended that respondent No. 2 Council has been established for the "reserved area" of the appellant 's factory so declared under section 15 of the Act, that respondent No. 2 Council is required to discharge its statutory functions and duties under section 6 of the Act confined to the "reserved area" meant for the appellant 's factory and as such the demand for commission (fee) in respect of purchases of cane made by the appellant factory from non reserved areas (which it is entitled to make along with its purchases from the "reserved area") would be illegal and without any authority of law because in respect of such purchases there is no quid pro quo in the shape of rendering of services by respondent No. 2 to the appellant factory.
It is not possible to accept this contention for more than one reason.
In the first place there are no qualifying words to be found in section 21 of the Act which limit the imposition of commission (fee) to purchases of cane made by a factory from reserved area only; the imposition is on every maund of cane purchased by factory irrespective of the area from where such purchases may have been made.
Secondly, and this is important, if the relevant provisions of sections 5 and 6 of the Act are carefully examined it will appear that the functions and duties of the Development Council are not confined to the "reserved area" of a factory as 549 urged by the Counsel for the appellant company.
Under section 5 "there shall be established, by notification, for the reserved area of a factory a Cane Development Council which shall be a body cooperate provided that where the Cane Commissioner so directs, the Council may be established for a larger or smaller area "than the reserved area of a factory" and sub section
(2) provides that "the area for which a council is established shall be called a Zone".
In other words, the Zone area of operation) of a Council could be larger than the "reserved area" of a factory i.e. would, include area outside the reserved area of the factory.
Further, the functions and duties of the Council are indicated seriatim in cls.
(a) to (g) of sub section
(1) of section 6 and these include functions like considering and approving development programmes for the Zone, devising ways and means for execution of development plan in all its essentials such as cane varieties, cane seed, sowing programme, fertilizers and manures, taking steps for the prevention of diseases and pests and rendering all help in soil extension work, etc.
and it will be noticed that some of these functions under cl.
(b), (d) and (e) are of general character and not confined even to the Zone of the Council.
In other words, the functions and duties of the Council which are in the nature of rendering services in the matter of better cane production, distribution and supply thereof to the factory are not confined to the "reserved area" so declared for a factory under sec.
15 of the Act.
If that be so it is difficult to accept the contention that in the matter of cane purchases made by the appellant 's factory from non reserved areas no services are rendered by the respondent No. 2 Council to the appellant 's factory.
The quid pro quo being there the imposition of a fee on such purchases from non reserved areas would be proper and justified.
As regards the demand and recovery of commission (fee) by respondent No. 3 under section 21(1)(a) in respect of purchases of sugarcane made by the appellant 's factory through it, the contention of Counsel for the appellant company has been that respondent No. 3 is the concerned Cane growers ' Co operative Society in the area, one of the objects of which is to sell cane grown by its members to the appellant 's factory, that the said Society does not render any services to the appellant 's factory under the Act or otherwise and hence is not entitled to recover any fee from the appellant company.
It is pointed out that respondent No. 3 is meant for helping its members and in fact renders various types of services to its cultivator members 550 so that they are not exploited.
In fact in the matter of supplies of cane made through the respondent No. 3 it is the Society which deals with its members who receive their price from the Society.
Counsel pointed out that even in the return filed by respondent No. 3 to the writ petition, respondent No. 3 enumerated four types of services which it claimed was rendering to the appellant 's factory, namely, (a) it made arrangements for lump sum cane supply on lump sum demand from the factory; apart from convenience this resulted in economy to the factory as it had to maintain less staff; (b) it undertook equitable distribution of quota and the factory had not to undertake this function; (c) it undertook the maintenance of the records of individual growers for cane supplies and the factory had not to undertake this function and (d) it made payment to the suppliers though the factory is required to make payments for supplies effected immediately and in actual practice mostly the factory made payments late at its convenience but the Society made payments to the suppliers regularly according to the programme drawn by it; the appellant 's factory thus benefited by the existence of this Society.
But according to Counsel for the appellant company none of these items referred to above really amounts to rendering any service to the appellant 's factory by way of conferring on it some special benefit having a direct, close or reasonable correlation to its transactions of purchase of cane and, if at all, all these items referred to in the Return are really for the benefit of cultivator members of the Society and in this behalf, Counsel relied upon a decision of this Court in Kewal Krishan Puri 's case where in the context of enhanced market fee levied under Punjab Agricultural Produce Market Act, 1961 this Court has observed that the quid pro quo by way of rendering services must result in the conferral of some special benefits to the persons charged which have a direct, close and reasonable correlation between such persons and their transactions and that any indirect or remote benefit to them would in no sense be such benefit.
Counsel for the appellant company, therefore, urged that since in everything that is being done by it respondent No. 3 is rendering services to its own members and no services resulting in any special benefit to the appellant 's factory are rendered, no charge by way of any fee would be legally recoverable by respondent No. 3 from the appellant 's factory.
551 In our view having regard to the scheme of the Act and the activities which respondent No. 3 has been undertaking in the discharge of its normal functions it will be difficult to accept the contention urged by Counsel for the appellant 's factory that no services of any kind whatsoever resulting in conferral of special benefits on the appellant 's factory in regard to its transactions of purchases of cane are rendered by respondent No. 3 to the appellant 's factory.
The scheme of the Act is that under sections 15 and 16 a declaration of reserved and assigned areas for purchase and supply of sugarcane is made by the Cane Commissioner for every factory after consulting in the manner prescribed the occupier of the factory and the Cane growers ' Co operative Society, if any, in that area and upon declaration of such areas an obligation is cast upon the occupier of the factory, in the case of "reserved area", to purchase all cane grown in such area which is offered for sale and in respect of "assigned area" to purchase such quantity of cane grown therein and offered for sale for the factory as may be determined by the Cane Commissioner.
Further, under section 19 the State Government can by order regulate the distribution, sale and purchase of cane within any "reserved and assigned area" as also from areas other than "reserved and assigned areas" and under cl.
(b) of sub sec.
(2) such order made by the State Government may provide for the manner in which cane grown in the "reserved area" or the "assigned area" shall be purchased by the factory and the cane grown by a cane grower shall not be purchased except through a Cane growers ' Co operative Society.
In other words the scheme of Act contemplates situations where the appellant 's factory may have to purchase cane from within reserved or assigned areas only through the respondent No. 3 Society.
Moreover in its Return the respondent No. 3 has averred that under its bye laws the Society is established to develop scientific methods of sugar cane growing and calls on its members to introduce modern means of implements for cultivating sugarcane which unquestionably makes for assured bulk supply of uniformly good quality cane through its members to the appellant 's factory.
In other words this function undertaken by respondent No. 3 is of a nature or kind similar to that undertaken by the council and therefore it cannot be said that no services conferring special benefit on the appellant 's factory in the matter of its purchases of cane are rendered by respondent No; 3 to the appellant 's factory.
Having regard to the aforesaid position it is not possible to accept the contention that in respect of purchases of cane made through the respondent No. 3 Society there is no 552 element of quid pro quo in the shape of rendering services by respondent No. 3 to the appellant 's factory.
In the result both the questions are answered against the appellant company and the appeal is dismissed with costs.
H.L.C. Appeal dismissed.
| IN-Abs | Section 21 (1) of the Madhya Pradesh Sugar Cane (Regulation of Supply & Purchase) Act, 1958, imposes an obligation upon an occupier of a factory to pay commission at prescribed rates on all its purchases of sugarcane.
While in respect of purchases made through a Cane growers ' Cooperative Society the commission is payable to that Society and the Cane Development Council under section 21 (1) (a), in respect of purchases made directly from the cane growers the commission is payable to the Cane Development Council under section 21 (1) (b).
The appellant, a company which crushes sugar cane in its factory, purchased cane directly from the cultivators of 'reserved area ' as well as of 'non reserved area '.
Respondent No. 2, the Cane Development Council, demanded commission in respect of purchases made from both 'reserved ' as well as 'non reserved ' areas.
The appellant also purchased cane from or through respondent No. 3, a Cane growers ' Cooperative Society and in respect of those purchases, the demand for commission was made by that Society.
The demands for payment of commission were challenged by the appellant by a petition under article 226 which was dismissed by the High Court.
In appeal to this Court it was contended on behalf of the appellant that since the Cane Development Council had been established for the 'reserved area ' of the appellant 's factory so declared under section 15 of the Act and its statutory functions and duties were confined to that area under section 6 of the Act, its demand for commission on purchases made from 'non reserved area ' was illegal, there being no quid pro quo in the shape of rendering services in respect of purchases made from 'non reserved area '.
As Regards the demand of the Cane growers ' Cooperative Society for commission in respect of purchases made through it, the contention was that in everything being done by it, the Society was rendering services to its own members and since no services resulting in any special benefit to the appellant were being rendered by it in terms of the decision of this Court in Kewal Krishan Puri 's case; , , there was no quid pro quo and therefore no commission was legally recoverable by tho Society.
544 Dismissing the appeal, ^ HELD: 1.
The levy under section 21 of the Act though called 'commission ' is really in the nature of a fee and its imposition is supportable only on the basis of quid pro quo in the shape of rendition of services to a factory in the matter of cane purchased by it.
[548 C D] Jaora Sugar Mills (P) Ltd. vs State of Madhya Pradesh and Ors. , referred to.
The imposition of commission by the Cane Development Council on purchases of cane from 'non reserved area ' was proper and justified as there was quid pro quo in the form of rendering services in the matter of better cane production, distribution and supply thereof.
The area of operation or the 'zone ' of the Council could include areas outside the 'reserved area ' of the factory as a Council could be established for a larger or smaller area "than the reserved area of a factory" under section S of the Act, and its functions and duties under cls.
(a) to (g) of section 6(1) included functions like considering and approving development programmes for the zone, devising ways and means for execution of development plan in all its essentials such as cane varieties, cane seed, sowing programme, fertilizers and manures, taking steps for prevention of diseases and pests and rendering all help in soil extension work, etc.
Some of these functions mentioned in cls.
(b), (d) and (e) of section 6(1) are of general character and not confined to even the zone of the Council.
Further, section 21 of the Act does not contain any qualifying words limiting the imposition of commission to purchases of cane made by a factory from 'reserved area ' only; the imposition is on every maund of cane purchased by a factory irrespective of the area from where such purchases might have been made.
[549 A P] 3.
The contention that in respect of purchases of cane made through the Cane growers ' Cooperative Society there was no element of quid pro quo cannot be accepted having regard to the scheme of the Act and the activities undertaken by the Society in the discharge of its normal functions.
The scheme of the Act, particularly in sections 15, 16 and 19, contemplated situations where the appellant 's factory might have had to purchase cane from within reserved or assigned areas, only through the Society.
The Society had been established to develop scientific methods of sugar cane growing and it had called upon its members to introduce modern means of implements for cultivating sugarcane which unquestionably made for assured bulk supply of uniformly good quality cane through its members to the appellant 's factory.
It could not, therefore, be said that no services conferring special benefit on the appellant 's factory in the matter of purchases of cane were being rendered by the Society to the appellant 's factory.
[551 A H; 552 A]
|
l Misc.
Petitions Nos.
8774 of 1980 & 2581 of 1981.
IN Writ Petition No. 5352 of 1980.
(Under Article 32 of the Constitution) B. L. Das Petitioner in person.
K G. Bhagat and D. Goburdhan for the Respondent (State).
R.N. Poddar for the Respondent (CBI).
The order of the Court was delivered by CHANDRCHUD, C.J.
These Misc.
Petitions are an off shoot of the blindings of undertrial prisoners at Bhagalpur in the State of Bihar.
Truth has a strange habit of revealing itself and in spite of the veil of secrecy behind which the blindings of those prisoners lay concealed or suppressed, this Court and the country awoke one day to the incredible fact that, in Bhagalpur, undertrial prisoners were subjected to the most inhuman torture imaginable: their eyes were pierced with needles and acid poured into them.
Whether these barbarous acts were committed by members of the public after the prisoners were caught or by the police after they were arrested, is not a matter directly in issue before us.
The greater probability is that these acts may have been committed mostly by the police.
535 But this much is certain, that six prisoners were thus blinded between October 1979 and May 1980 and twelve between June 11 and July 25, 1980.
The petitioner Bachcho Lal Das, who has filed these Misc.
Petitions, had assumed charge as the Superintendent of the Bhagalpur Central Jail on April 19? 19791 On October 26, 1979 a prisoner by the name of Arjun Goswami was sent to the Bhagalpur Central Jail.
On November 20, 1979 he addressed an application to the Chief Judicial Magistrate, Bhagalpur, asking that an inquiry be held into the torture inflicted upon him, especially the blinding of his eyes.
That application was forwarded by the petitioner to the Chief Judicial Magistrate.
Later, eleven prisoners made similar complaints which were for warded by the petitioner to the learned Sessions Judge, Bhagalpur, On July 30, 1980.
The complaints made by these prisoners unquestionable demanded the most prompt and careful attention.
But, instead of directing a full and proper inquiry into the allegations made by the undertrial prisoners, the learned Sessions Judge, on August 5, 1980, sent a cold and indifferent reply to the petitioner 's covering letter, saying that "there is no provision in the Cr.
P.C. to provide a lawyer to any person for prosecuting a criminal case as a complaint" and that the petitions of the prisoners were forwarded to the Chief Judicial Magistrate, Bhagalpur, "for needful in accordance with law.
" E On October 9, 1980, ten blinded prisoners filed a Habeas Corpus petition in this Court (Criminal Writ Petition No. 5352 of 1980) asking that: (I) they should be produced in the Court, (2) they should be examined by a Medical Board, (3) they should be paid compensation for the damage done to their eyes and that (4) the police officers guilty of committing atrocities upon them should be suitably punished.
On October 10, 1980 a Bench of this Court consisting of one of us, (the Chief Justice), and Justice A.D. Koshal passed the following order in that petition: "We direct that the petitioners shall be examined by the Jail Doctor forthwith and a report shall be submitted to this Court expeditiously in regard to the allegation in the petition that their eyes have been damaged by certain police officers by putting acid therein.
The report shall be submitted within four weeks from today.
The W.P, be listed for hearing after the report is received.
" 536 By his letter dated October 31, 1980 the petitioner, who is respondent 2 in the Habeas Corpus petition, forwarded to this Court the report of the Jail Doctor on the condition of the eyes of the prisoners.
The remaining 2 prisoners were already released and could not therefore be examined.
The report of the Jail Doctor in regard to one of the prisoners, Anil Yadav, is representative of the condition of all the eight of them and may be extracted here: "(1) Presence of old burn scar around both the eyelids of both the eyes and on left cheek.
(2) Collapse of both the eye balls.
(3) Perception of light and projection of rays absent in both the eyes.
(4) Eye sight of both the eyes lost.
The cause is perforation of eye balls by burn with some corrosive substance and puncture by some sharp and pointed weapon.
From the records of Jail Hospital it is known that he was admitted in Jail Hospital on 8.7.1980 for acid burn injury of both the eyes. ' ' On December 1, 1980, the Court (the Chief Justice and Chinnappa Reddy, J.), while directing that the prisoners be brought to Delhi the following week and be examined at the Dr. Rajendra Prasad ophthalmic institute, New Delhi, passed the following order: "The report of the doctor which we had called for by our order dated October 10, 1980 shows that eight out of the ten petitioners before us have lost their eye sight totally or partially.
The report submitted by Dr. K.S. Roy in each individual case shows that: (i) most of the petitioners are suffering from collapse of one or both of the eye balls; (ii) the sight of one or both of their eyes is lost; 537 (iii) there is perforation of their eye balls by burn with a corrosive substance and that (iv) their eyes have been punctured by some sharp and pointed weapon.
The remaining two petitioners have been released and therefore no report could be sent regarding them.
The report of the doctor will shock the conscience of mankind.
There has been the most flagrant violation of the safeguards provided by Articles 19 and 21 of the Constitution.
There is nothing that the Court can do to restore the physical damage, which seems irreparable.
But the offenders must at all events be brought to book, at least in the hope that such brutal atrocities will not be committed again.
With that end in view, we direct the Superintendent D of the Bhagalpur Central Jail to file an affidavit in this Court within two weeks from to day stating: (a) the names of convicts and undertrial prisoners in the jail whose eyes have been damaged or impaired before or after their lodgement in Jail; (b) the names of policemen, police officers and the members of the jail staff who were in charge of those prisoners at the relevant time; (c) the names of doctors who were in charge of the jail dispensary or hospital at the relevant time; and (d) the names of doctors who have examined, from time to time, the petitioners and other prisoners whose eyes have been damaged or impaired after their lodgement in jail.
We direct that the Registrar of the Supreme Court and one other officer of the Court shall visit the Bhagalpur Central Jail during this week and obtain first hand the version of the petitioners and other prisoners similarly situated as regards the impairment or blinding of their eyes.
The two officers of the court shall be granted every facility 538 to meet the prisoners, to talk them beyond the hearing of any jail officer or police officer and to record the statements of the prisoners.
We direct the Jail Superintendent to ensure due and full compliance with these directions.
Issue notice to the State of Bihar asking it to show cause on the petition as also as to why the petitioners should not be released on bail on their personal recognizance.
" Shri R. Narasimhan, Registrar (Judicial) and Shri Y. Lal, Assistant Registrar of this Court visited the Bhagalpur Central Jail on December 3 and 4, 1980 and recorded the statements of 17 prisoners who were blinded.
These statements show that 15 out of the 17 prisoners were blinded by the police and the remaining 2, whose names appear at Serial Nos. 14 and 15 of the report of the Registrar, were blinded by the members of the public.
The method adopted for blinding the undertrial prisoners, as described by the prisoners themselves, was that a 'takwa ' (a long needle used for stitching gunny bags) or a barber 's nail cutter or a cycle spoke was poked into their eyes and acid was poured into the eyes, sometimes with the help of a dropper, sometimes with a syringe and sometimes directly from a bottle.
It is alleged that the prisoners were held firmly on the ground by policemen who either pulled the ropes tied to their feet or sat upon their feet.
The Registrar questioned the Petitioner, Bachcho Lal Das, in Delhi.
The petitioner stated to him that as many as 31 blinded prisoners were brought to the Jail under orders of remand issued by the Magistrate and that they were given medical treatment by the Jail Doctor.
According to the petitioner, he got a blinded prisoner Umesh Yadav examined by the Jail Doctor, since the report of the doctor was required by the learned District and Sessions Judge, Bhagalpur, in connection with a bail application filed by the prisoner.
The petitioner disclosed to the Registrar that he had made inquiries from Umesh Yadav, who told him that V.K. Sharma, D.S.P., had thrust a long needle in both of his eyes and had poured acid into the eyes.
The other blinded persons appear to have taken a cue from Umesh Yadav and submitted similar petitions for being forwarded to the District and Sessions Judge.
The petitioner disclosed to the Registrar the names of the police officers who 539 were involved by the prisoners as being responsible for their blindings.
It may be recalled that this Court by its order dated December 1, 1980 had directed the petitioner, who was then the Superintendent of the Bhagalpur Central Jail, to file an affidavit within two weeks on Points (a) to (d) mentioned in that order.
On that very day, the petitioner was suspended by the Government of Bihar on the ground the he was negligent in providing proper medical aid to the blinded undertrial prisoners inside the Jail and that he had failed to make proper entries in the Jail Register as regards the physical condition of the undertrial prisoners.
On December 10, 1980 the petitioner filed the main Misc.
Petition in this Court in the Writ Petition filed by the blinded prisoners.
He prays that the order of suspension dated December 1, 1980 be quashed, since at was passed by the State of Bihar mala fide with the object of preventing him from filing an affidavit in pursuance of the direction issued by this Court on December 1, 1980.
D We would not have entertained a petition of this nature in the normal circumstances, because an order of suspension cannot be challenged in this manner in an incidental proceeding.
We, however, decided to hear the Misc.
Petitions filed by the petitioner for quashing the order of suspension, since he alleged which, at first blush, seemed plausible, that he was suspended in order to defeat the order passed by this Court on December 1, 1980.
The petitioner appeared in person before us and argued his case at great length.
We gave him all reasonable facilities to substantiate his contentions, which he did with the help of the voluminous record prepared by him.
Having considered the submissions of the petitioner and those of Shri K.G. Bhagat, who appeared on behalf of the State of Bihar, we are of the opinion that there is no merit in the complaint of the petitioner that he was suspended on December 1, 1980 in order to prevent him from complying with the order passed by this Court on that day and with the ulterior object of defeating that order.
, Shri Ambika Prasad Poddar, Assistant Inspector General of Prisons, Bihar, has filed an affidavit in this Court, setting out the circumstances in which and the reasons for which the petitioner was suspended by the Government of Bihar, The case made out in that 540 affidavit is that the petitioner failed to discharge his official functions enjoined upon him by Rule 474 (1) of the Bihar Jail Manual, in that he did not scrutinise and sign the entries made in the Admission Register maintained at the Central Jail, in order to satisfy himself whether those entries were correct and whether the relevant rules in regard to the admission of the prisoners were complied with.
It is stated in the affidavit that contrary to Rule 474 (2), the petitioner failed to record any 'special order ' regarding the medical treatment given or to be given to the blinded prisoners, with the result that they were not sent for examination to any eye specialist either in the Jail or at the Bhagalpur Medical College Hospital.
Though the District Magistrate, Bhagalpur, had given his approval on October 21, 1980 to the proposal for sending the blinded prisoners for specialised treatment at the Bhagalpur Medical College Hospital, the petitioner; it is alleged, neglected to discharge his duty and sent the prisoners for medical treatment to the Hospital ten days later on October 31, 1980.
According to Shri Ambika Prasad, Poddar, the petitioner omitted to make a report on the blindings of prisoners lodged in the Jail which was under his charge, he did not hold a parade of the prisoners nor did he make the weekly inspection of the Jail, and on the top of it all, he supplied to newspapermen his own one sided version.
Of the blindings.
The suspension order, according to Shri Poddar, was passed on the basis of the various rules and notifications governing the conditions of the petitioner 's service and was not passed in order to frustrate or defeat the order passed by this Court on December 1, 1980.
On a careful consideration of the aforesaid affidavit and the arguments advanced before us by the parties, we find it difficult to accept the petitioner 's contention that the order of suspension was passed by the Government of Bihar mala fide, that is to say, as a counter blast to the order passed by this Court on December 1, 1980 and to defeat it.
The question for.
inquiry in these Miscellaneous Petitions is very narrow and limited.
The question is not even whether the order of suspension is mala fide in a broad and general sense, covering the entire gamut of extraneousness.
The question before us is whether the motive behind the order was to frustrate the purpose of our direction calling upon the petitioner to file an affidavit, That charge is not substantiated and is difficult to accept.
It appears that officers of the State Government were enquiring into the blindings of the undertrial prisoners at least from November 27, 1980.
There is a report dated December 1. 1980 in the Government 541 files, which was produced before us by Shri K.G. Bhagat, by which Shri L.V. Singh, Deputy I.G.P. (Prisons), recommended that for reasons of dereliction of duty the petitioner should be suspended.
We find it quite difficult to accept the petitioner 's contention that the report of Shri Singh was prepared later and was antedated in order to justify the order of suspension.
We are also unable to appreciate how the State government could prevent the petitioner from filing an affidavit as directed by this Court, by placing him under suspension.
The petitioner would be free to file his affidavit in spite of the order of suspension and in fact he has filed an affidavit in this Court after he was suspended.
During the course of arguments before us, he produced photostat copies of quite a few documents, which also show: that the order of suspension is not calculated to interfere with the direction given by this Court, asking the petitioner to file his affidavit.
If we had found that by reason of the order of suspension the petitioner was prevented from filing his affidavit, we would not have hesitated to ask the Government of Bihar to supply copies of necessary documents to the petitioner in order to enable him to file a full and complete affidavit in compliance with our order.
The Miscellaneous petitions have therefore to be dismissed.
We would, however, like to state that we are not called upon to consider in these incidental proceedings, and we have in fact not considered, the question of the validity of the order of suspension dated December 1,1980.
The petitioner will be at liberty to challenge that order, if so advised, in a properly constituted proceedings, on such grounds as may be open to him including the ground that the order was passed mala fide.
We have only dealt with the narrow question as to whether the order of suspension was passed with the object of preventing the petitioner from filing an affidavit in this Court and on that question we have rejected the petitioner 's contention that the order of suspension was passed for that purpose.
We have not inquired into the question whether the order of suspension is vitiated by mala fides for any other reason.
It is desirable and but proper that the State Government ought not to visit the petitioner with any penalty or punishment for app 542 roaching this Court or for having attempted to lay before this Court, what according to the petitioner, was the truth of the matter in regard to the bizarre blindings of the under trial prisoners.
Order accordingly.
N.V.K. Petitions dismissed.
| IN-Abs | The second respondent who was the Superintendent of the Bhagalpur Central Jail was suspended by the State Government on the ground that he was negligent in providing proper medical aid to the blinded undertrial prisoners inside the jail and that he had failed to make entries in the jail register as regards the physical condition of the undertrial prisoners.
In a Miscellaneous Petition filed by him he claimed that his order of suspension be quashed as it was passed mala fide with the object of preventing him from filing the affidavit as directed by the Court.
The State Government contested the petition contending that the respondent was suspended for his failure to comply with the requirements of Rule 474 (1) of the Bihar Jail Manual in that he did not scrutinise and sign the entries made in the Admission Register maintained at the jail to satisfy himself whether those entries were correct and whether the relevant rules in regard to the admission of the prisoners were complied with.
He did not also record any 'special order ' under Rule 474 (2) regarding the medical treatment given or to be given to the blinded prisoners with the result that they were not sent for examination to any eye specialist.
He did not make a report on the blindings of the prisoners and, he supplied to newspapers his own version of the blindings.
Dismissing the petitions, ^ HELD: ordinarily an order of suspension cannot be challenged in an incidental proceeding but it was heard since the allegation was that the petitioner was suspended in order to defeat the order passed by this Court.
[539 E] 2.
The order of Suspension was not passed by the Government mala fide as a counter blast to the order passed by this Court on December 1, 1980 and to defeat it.
The allegation that the motive behind the order was to frustrate the purpose of the Court 's direction calling upon the petitioner to file an affidavit is not proved.
The evidence on record indicates that the State Government officials were enquiring into the blindings of the under trial prisoners and there is a report in the Government files recommending that the petitioner be suspended for dereliction of duty.
It cannot be said that this report was prepared later and antedated to justify the order of suspension.
[540 G H; 541 A B] 4.
By placing the petitioner under suspension the State Government could not prevent him from filing an affidavit in Court.
He was free to file his affidavit and in fact he filed an affidavit after suspension.
[541 C] 5.
The petitioner will be at liberty to challenge the order of suspension in a properly constituted proceedings on such grounds as may be open to him including the ground that the order was passed mala fide.
[541 F]
|
itions Nos.
4158 4182 of 1978.
(Under article 32 of the Constitution of India) F.S. Nariman, B.R. Agarwala and P.G. Gokhale for the Petitioners.
B. Sen, I.N. Shroff and H.S. Parihar for Respondents Nos. 1 & 2.
R.K. Garg, section Balakrishnan and M.K.D. Namboodiry for Respondent No. 3.
P.R. Mridul, Mrs. Shobha Dikshit and Mrs. Urmila Kapoor for the intervener.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
These are 25 petitions under Article 32 of the Constitution of India challenging the decision of the Reserve Bank of India as regards the introduction of common seniority and inter group mobility amongst different grades of officers belonging to Group I (Section A), Group II and Group III, with retrospective effect from May 22, 1974.
That decision or order is contained in Administration Circular No. 8 dated January 7, 1978 as also in Office Order No. 679 dated April 27, 1978 and has been acted upon in the draft combined seniority list of officers in Grade 'B ' (appointed as such prior to January 1, 1970) and in Grades 'C ', 'D ', 'E ' and 'F ' The contention of the petitioners is that the aforesaid circular, office order and combined seniority list are violative of their fundamental rights under Articles 14 and 16 of the Constitution, and are also ultra vires the power, jurisdiction and competence of the Reserve Bank of India, being without the authority of law and in contravention of the provisions of the .
The facts leading upon the impugned decision dated January 7, 1978, the office order dated April 27, 1978, and the draft combined seniority list are as follows: The Reserve Bank of India (Respondent No. 1) was established under the , hereinafter referred to as "the Act".
Under the Reserve Bank of India (Staff) Regulations, 1948 framed under section 58 of the Act, the terms and conditions of service of the staff (including officers) of the respondent Bank were 418 revised and regulated.
These Regulations were amended from time to time.
Provisions regarding record of service, seniority and promotion are contained in Regulations 27 to 30 (Chapter III), which read thus: "27.
Record of Service: A record of service shall be maintained by the Bank in respect of each employee at such place or places and shall be kept in such form and shall contain such information as may be specified from time to time by the Chief Manager.
Seniority: An employee confirmed in the Bank 's service shall ordinarily rank for seniority in his grade according to his date of confirmation in the grade and an employee on probation shall ordinarily rank for seniority among the employees selected along with him in the same batch according to the ranking assigned to him at the time of selection.
Promotion: All appointments and promotions shall be made at the discretion of the Bank and notwithstanding his seniority in a grade, no employee shall have a right to be appointed or promoted to any particular post or grade.
(1) An employee transferred from one appointment to another or confirmed in a grade or appointment higher than his substantive grade or appointment, shall be liable to be reverted with out notice at any time within one year of such transfer or confirmation.
(2) An employee who has been appointed to officiate in a higher grade or appointment, or whose confirmation in a higher grade or appointment is subject to his undergoing probation for any specified period or otherwise, shall be liable to be reverted without notice at any time when he is so officiating or undergoing probation.
(3) Nothing in sub regulations (1) and (2) shall affect the provisions of Regulation 47.
" 419 Ever since the date of the Staff Regulations of 1948 and even prior thereto, there were "groups" constituted for the different departments of the Reserve Bank, and officers were required to exercise irrevocable options for service in any particular Group.
Those who had opted for a service in a particular Group were to be normally eligible for promotion in that Group only.
The grouping was revised with effect from April, 1951 when employees were asked to exercise their option with regard to the Group of their choice.
In 1951, the various departments of the Bank were re classified into three Groups, Group I, Group II and Group III.
This system of grouping continued until 1955, in which year the Bank found it necessary to reorganise the Agricultural Credit Department.
Accordingly, the staff attached to the various departments were regrouped into Groups I, II, III and IV, with effect from April 1, 1957.
In each of these Groups, there are six grades of officers based on pay scales, namely, Grades A, B, C, D, E and F, the lowest being Grade A and the highest being Grade F.
Each Group had its own seniority List, that is to say, there were four separate seniority lists, one for each group.
The latest of such lists, prior to the impugned combined seniority list, is dated July 1, 1976.
The Reserve Bank had constituted a Cadre Review Committee in 1970, comprising Shri Justice J.L. Nain, then a sitting Judge of the Bombay High Court, Shri V. Isvaran, I.C.S. (Retd.) and Prof. N.S. Ramaswamy, a Management Expert.
The Committee submitted a report in October 1972, on the basis of which the Bank issued Administration Circular No. 15, dated May 22, 1974, specifying the decisions taken by it in the light of the recommendations made by the Committee.
One such decision which the Bank took was to prepare a common seniority list for and to provide for inter group mobility at the lowest level officers in each group, namely, Grade A officers, including those who were promoted to Grade B on or after January 1, 1970.
With regard to higher grades (including officers in Grade promoted prior to January 1, 1970), the Bank decided to retain the "group wise seniority as at present".
The inter group mobility in Grades C and D was to be introduced only to a limited extent, namely, "on a swap basis": It was first to be introduced in Grade C and thereafter to be extended "in due course" to the officers in Grade D.
The two higher Grades viz.
Grades E and F were left untouched and no intention was expressed in the above 420 circular to introduce either combined seniority or any scheme for inter mobility in these grades.
In accordance with the decisions expressed in the aforesaid circular dated May 22, 1974, the Bank published separate seniority lists of officers in Grade B and above for the years 1974, 1975 and 1976.
The petitioners, all of whom are officers in Group I, were given their due seniority as of July 1, 1976.
By the impugned Administration Circular No. 8, dated January 7, 1978, the Bank stated that it had decided to combine the seniority of all officers on the basis of their total length of service including officiating service) in Group I (Section A), Group II and Group III.
The seniority of all officers in each of the three Groups was to be combined with effect from May 22, 1974 on the basis of their total length of service, including officiating service, in the grade in which they were then posted on a regular basis.
The Circular introduced combined seniority with retrospective effect from May 22, 1974 (the date of Administration Circular No. 15) as it was "fair and equitable to the officers as a class".
Briefly stated, the effect of this decisions is that the group wise system of seniority which was in existence for more than 27 years stands substituted by a combined seniority for officers in Group I (Grade A) and in Groups II and III with retrospective effect.
That has adversely affected the existing seniority of officers, particularly of those in Group I, who are now placed many places below their existing position of seniority, some by several hundred places.
According to the petitioners, the Reserve Bank has no power, competency or jurisdiction to introduce the impugned scheme which discriminates against officers in higher posts, adversely affecting their vested and existing rights of seniority.
The scheme, according to them, is without any rational and far from furthering the efficient functioning of the Bank, it will affect it adversely by compelling officers to leave positions in which they had acquired long and valuable experience and work in posts for which they possess no expertise.
For example, for the Department of Banking Operations and Development (in Group II), the emphasis was laid on the commercial banking experience of officers whereas, for recruitment and selection in the Agricultural Credit Department (in Group III), the emphasis was on experience in co operation and agricultural finance.
That is why the Bank had laid the pre condition that the 421 selected officer should give a specific and irrevocable undertaking to serve in the Group for which he was selected.
Another grievance of the petitioners is that although the Bank has stated in paragraph 9.2.1 of the impugned Circular that the seniority of officers will be combined on the basis of their total length of service, the seniority list has in fact, been prepared in a very arbitrary and iniquitous manner.
In a large number of cases, it is alleged, the actual service rendered by the officers concerned has been arbitrarily reduced and adjusted in the length of service of other officers, and the latter have been nationally treated as officiating in higher grades from dates much prior to their actual promotions to those grades.
In some cases, on the other hand, officiation in higher posts has been wholly ignored.
This has generally resulted in accelerated and discriminatory benefit being conferred upon officers mostly belonging to Groups II and III, vis a vis the petitioners and the other officers in Group 1.
The petitioners apprehend that a large number of officers who have been promoted since January 1, 1976 against normal vacancies in their own departments on the basis of their experience and expertise of the relative work are likely to be reverted and replaced by officers from other groups, mostly from Group III, who were selected for the specific job requirements of that group and who have no experience of the work done in the Group 1 departments.
The petitioners also challenge the retrospective effect given to the impugned circular from May 22, 1974 as irrational and arbitrary.
Further, according to them, the said circular dated January 7, 1978, the Office Order dated April 27, 1978 and the combined seniority list are violative of the Reserve Bank (Staff) Regulations.
In reply to the writ petition, a counter affidavit has ceen filed on behalf of the Reserve Bank by Shri section L. Jathar, Deputy Manager in the Department of Administration and Personnel, Central Office, Bombay.
The case of the Bank, as disclosed in that affidavit is as follows: The Reserve Bank of India (Staff) Regulations, 1948, are not statutory in character, not having been framed under section 58 of the .
The said Staff Regulations did not provide for the division of the staff of the Bank into different groups but only categorised them as Officers, Personal Assistants, etc.
In view of the growing need for specialisation in departments handling research work and developmental activities, a functional segregation of departments into four groups, with group wise 422 seniority for Officers, was introduced in the year 1951.
Appendix XII to the Report of the 'Reserve Bank of India Cadre Review Committee ', which refers to the grouping of the departments from time to time, shows that the groupings were not static and fixed but were changed as and when necessary.
Group I was composed of General Departments dealing with the day to day operational functions of the Bank including accounts and organisational mattres, Group II of Departments dealing with regulatory and inspection functions over the money market; Group III of Departments dealing with the Co operatives and agricultural Credit institutions; and Group IV of Research Departments.
Each Department had a separate line of seniority and although the Bank had the right under the Staff Regulations to post any employee to any group, each group operated as an independent seniority unit and the employees were eligible for promotion within their group only.
It was, however, noticed that the group system had resulted in glaring inequalities in promotional opportunities in the various Departments, because of the accelerated pace of expansion of Departments in some of the Groups wherein relatively junior employees were able to secure earlier promotions and confirmations.
So far as the non officers staff was concerned, the Bank took several steps from time to time to equalise their chances of promotion.
Finally, in pursuance of an agreement with the All India Reserve Bank Employees ' Association, which is a representative Association of Class III employees of the Bank, the Bank introduced a combined scheme for clerical staff in May 1972 under which, the separate seniority lists of clerical employees in Class III were merged into one list with effect from 7th May, 1972, irrespective of their respective groups.
The validity of that Scheme was challenged in several High Courts and the matter came up on appeal to this Court from a decision of the Delhi High Court which has struck down the Scheme.
This Court, in Reserve Bank of India vs N.C. Paliwal(1) upheld the Scheme.
The 'Cadre Review Committee ' whose report was received by the Bank on October 11, 1972 recommended, broadly, the gradual introduction of inter mobility of officers in different groups and the framing of a common seniority list, except for officers in specialised groups like Economists, statisticians, Lawyers and Engineers.
According to the Committee, the most rational basis for drawing up a common seniority list was to go by the date of entry of each officer in a grade in a continuous officiating capacity.
The Bank announced its decision as regards the Committee 's recommendations, by the Administra 423 tive Circular dated May 22, 1974.
In December 1975, the Bank appointed a Departmental Committee under Shri C.L. Thareja, the then Chief Manager of the Bank, to work out the modalities of integration of the group wise seniority lists of officers in the higher grades which had not yet been integrated.
That Committee submitted its report on December 15, 1976.
It unanimously recommended simultaneous introduction of combined to seniority for all grades but, its members could not agree on the date to be adopted for integration of the group wise seniority lists.
The Chairman and one member favoured January 1, 1976 as the date of integration while the remaining two members favoured January 1, 1970.
A Committee of the Central Board of the Bank decided to appoint May, 22 1974 as the date for integration as a via media and also because, it was on that date that the Bank had announced to its officers its decision on combined seniority, mobility and interchangeability.
Fixation of January 1, 1970 as the date for integration would have adversely affected the interests of Group 1 officers while the other date January 1, 1976, would have adversely affected the interests of officers in other groups.
That is the answer made by the Reserve Bank to the petition.
Originally, the writ petition was filed against two respondents only; (1) The Reserve Bank of India and (2) the Chief Manager, Reserve Bank of India, Department of Administration & Personnel, Central Office, Bombay.
The petitioners did not implead to the petition any of the officers belonging to the other groups who are likely to be affected if the relief sought by the petitioners is granted.
Later, by an order dated July 24, 1978, respondents 3 and 4 were allowed to join in the petition on their own application.
Respondent 3, Shri M.P. Saxena, was then the Deputy Chief Officer, Department of Banking Operations and Development, New Delhi, while respondent 4, Shri section Acharya, was Deputy Chief Officer, Agricultural Credit Department, Chandigarh.
Respondent 3, whose counter affidavit has been adopted by respondent 4, has raised a preliminary objection to the maintainability of the writ petition on the ground that hundreds of officers similarly situated who are all specifically identifiable and who would be prejudicially affected if the prayers in the writ petitions are granted, have not been impleaded as respondents.
According to him, this is a case of a few privileged persons trying to retain their undue privileges at the cost of a scheme introduced to improve the 424 operational efficiency of the Institution and for the common good of the officers as a class.
Respondent 3 has also raised the objection that no writ petition can lie under article 32 to enforce or challenge service conditions which are purely contractual.
The contentions raised by respondent 3 in his counter affidavit may be summed up thus: Groupings and re groupings of departments have been undertaken by the Reserve Bank as and when the need arose in the context of changing requirements, and all such groupings and regroupings have been done as a result of administrative decisions and given effect to through appropriate Administration Circulars.
While the expedient of group wise promotions based on group wise seniority lists served the immediate convenience over a period of time, this artificial segregation resulted in compartmentalised approach to questions of policy, impairing thereby the overall efficiency of the institution as a whole.
Further, it also led to other anomalies and imbalances, more particularly in promotional opportunities of the staff attached to different groups.
In some groups, expansion was quicker and greater than in others.
It is in order to meet this situation that several measures were initiated by the Bank and by the Associations of employees of various categories.
Since these measures did not meet the situation adequately, the Bank initiated a dialogue with the respective Associations for introducing a combined seniority for the various grades in different groups.
For officers at the base level, namely, 'A ' Grade (direct recruits), the Bank had maintained a common list of seniority in place of group wise lists since 1968.
Thereafter, groupings and regroupings have been a continuous process to meet the needs of the changing situations, and the present scheme of combined seniority which is one such, has come about as a matter of administrative, and historical and functional necessity.
The implementation of the scheme of inter group mobility is being stalled by the Bank 's internal administration, which was controlled solely by a small section of officers drawn from Group I, which all along had unfair advantage of accelerated promotions as compared with officers in Groups II and III.
Thus, the petitioners ' plea is an attempt to perpetuate the unfair and unequal privileges which they had enjoyed over the years without any justification and with detriment to Bank 's interests a fact which has been recognised by an impartial tribunal like the Cadre Review Committee.
The Staff Regulations of 1948 are in the nature of standardised contractual conditions of service.
They were not framed under section 58 of the Act and 425 therefore, it is competent to the Bank to alter them by administrative circulars.
On these pleadings, the three main questions which arise for our consideration are, firstly, whether the Reserve Bank of India (Staff) Regulations, 1948 are statutory in character; secondly, whether it is competent to the Bank to provide for conditions of service of its staff by administrative circulars; and, thirdly, whether the impugned circular and seniority list offend against the provisions of articles 14 and 16 of the Constitution.
The contention of the petitioner is that the Regulations were framed under section 58 of the ; that they cannot be altered by administrative circulars; that conditions of service cannot be framed by administrative circulars but must be framed by Regulations made under section 58 of the Act; and that, the impugned circular and seniority list violate their right to equal treatment in the matter of their service conditions and career.
The Reserve Bank and the contesting respondents have joined issue with the petitioners on all these questions.
Turning to the first question, section 58(1) of the provides that: "The Central Board may, with the previous sanction of the Central Government, make regulations consistent with this Act to provide for all matter for which provision is necessary or convenient for the purpose of giving effect to the provisions of this Act.
" Sub section (2) of section 58 provides that in particular and without prejudice to the generality of the foregoing provision, such regulations may provide for all or any of the matters mentioned in the various clauses of that sub section.
Clause (j) refers to "the constitution and management of staff and supernnuation funds for the officers and servants of the Bank", while clause (r) refers to the subject: "generally, for the efficient conduct of the business of the Bank".
Sub sections (3) and (4) were inserted in section 58 by Act 51 of 1974.
By sub section (3), any regulation made under section 58 shall have effect from such earlier or later date as may be specified in it.
Sub section (4) requires that every Regulation shall, as soon as may be after it is made by the Central Board, be forwarded to the Central Government which, in turn, shall cause a copy of the same to be laid before each House of Parliament.
Thereafter, the 426 Regulation takes effect in accordance with the modifications, if any, made by the Parliament.
A side argument may be disposed of briefly.
It was suggested on behalf of the petitioners, though faintly, that the power to frame service conditions is derived from clause (j) of section 58 (2) of the Act.
It is impossible to accept this contention.
That clause cannot be split up to read: "the constitution and management of staff; and superannuation funds for the officers and servants of the Bank".
It hardly makes any sense that way.
What the clause means is: "the constitution and management of staff funds and superannuation funds for the officers and servants of the Bank".
An important subject like the service conditions of the staff could not have been provided for in such a dubious and indirect manner.
Nor indeed, could it have been described as "constitution and management of staff.
" A rule of seniority cannot properly fall under such a head.
We endorse the view taken by the Calcutta High Court in Reserve Bank Employees Association vs Union of India(1) that section 58 (2) (j) refers to staff funds and superannuation funds and that it cannot comprise service conditions.
But, the provisions of sub section (2) of section 58 cannot be taken to be exhaustive of the power of the Central Board to make regulations.
It is well settled that where a specific power is conferred without prejudice to the generality of a power already conferred, the specific power is only illustrative and cannot restrict the width of the general power.
(See Emperor vs Shibnath Barerjee;(2) Om Parkash vs Union of India(3).
Therefore, the ambit of the general power conferred by sub section (1) cannot be attenuated by limiting it to matters specified in sub section (2) of Section 58.
Section 58 (1) of the Act confers power on the Central Board of Directors of the Bank to make regulations in order to provide for all matters for which provisions is necessary or convenient for the purpose of giving effect to the provisions of the Act.
It seems to us clear that it is not only convenient but manifestly necessary to provide for the service conditions of the Bank 's staff in order to give effect to the provisions of the Act.
The Act was passed in order to constitute a Bank for achieving economic purposes of the 427 highest national importance: regulating the issue of Bank notes, keeping reserves with a view to securing monetary stability in India and generally to operate the currency and credit system of the country to its advantage.
It is, in our view, not open to any question either on the basis of reason or authority that the power to provide for service conditions of the staff is at least incidental to the obligation to carry out the purposes for which the Bank was constituted.
As observed in Armour vs Liverpool Corporation,(1) "To assist in removing from the minds of its employees the fear of an unprotected old age, to foster their happiness and contentment and to procure their good and efficient service, these are objects which, even if economic considerations alone count, are incidental, if not vital, to the proper carrying on of any undertaking as well by a municipal as any other corporation.
" The doctrine of ultra vires in relation to the powers of a statutory corporation has to be understood reasonably and so understood, "whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised ought not (unless expressly prohibited) to be held by judicial construction, to be ultra vires." (See Attorney General vs Great Eastern Ry.
Co.(2) The Central Board has, therefore, the power to make service regulations under section 58 (1) of the Act.
Shri Nariman pleads for such a power but his purpose in doing so is to urge that section 58 (7) is the sole repository of the power of the Central Board to provide for the conditions of service of the Bank 's staff.
He contends that statutory corporations like the Reserve Bank of India have no inherent or residuary powers and that they must seek and find their powers and obligations in the Charter of their creation Therefore, the argument proceeds, it is imperative that regulations governing terms and conditions of service of the Bank 's staff must be framed under section 58 (1) only and cannot be framed by administrative circulars issued in the exercise of any non statutory power authority.
In support of this submission, reliance is placed by the learned counsel on the statement of law contained in paragraphs 1326 and 428 1333 (pages 775 and 779) of Halsbury 's Laws of England, Fourth edition.
In paragraph 1326 it is stated that: "Corporations may be either statutory or non statutory and a fundamental distinction exists between the powers and liabilities of the two classes.
Statutory corporations have such rights and can do such acts only as are authorised directly or indirectly by the statutes creating them; non statutory corporations, speaking generally, can do everything that an ordinary individual can do unless restricted directly or indirectly by statute".
Paragraph 1333 says that: "The powers of a corporation created by statute are limited and circumscribed by the statutes which regulate it, and extend no further than is expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of its incorporation, or may be fairly regarded as incidental to, or consequential upon, these things which the legislature has authorised.
What the statute does not expressly or impliedly authorise is to be taken to be prohibited.
" There is no doubt that a statutory corporation can do only such acts as are authorised by the statute creating it and that, the powers of such a corporation cannot extend beyond what the statute provides expressly or by necessary implication.
If an act is neither expressly or impliedly authorised by the statute which creates the corporation, it must be taken to be prohibited.
This cannot, however, produce the result for which Shri Nariman contends.
His contention is not that the Central Board has no power to frame staff regulations but that it must do so under section 58 (1) only.
On that argument, it is material to note that section 58 (1) is in the nature of an enabling provision under which the Central Board "may" make regulations in order to provide for all matters for which it is necessary or convenient to make provision for the purpose of giving effect to the provisions of the Act.
This provision does not justify the argument that staff regulations must be framed under it or not at all.
The substance of the matter is that the Central Board has the power to frame regulations relating to the conditions of service of the Bank 's staff.
If it has that power, it may exercise 429 it either in accordance with section 58 (1) or by acting appropriately in the exercise of its general power of administration and superintendence.
The statement of law in Halsbury puts emphasis on the limitation on powers of statutory corporations in the light of the provisions of statutes under which they are constituted.
From that point of view, the provisions of section 7 (2) of the Act are important.
By that section, the general superintendence and direction of the affairs and business of the Bank are entrusted to the Central Board of Directors, which is empowered to exercise all powers and do all acts and things which may be exercised or done by the Bank.
Matters relating to the service conditions of the staff are, preeminently, matters which relate to the affairs of the Bank.
It would therefore be wrong to deny to the Central Board the power to issue administrative directions or circulars regulating the conditions of service of the Bank 's staff.
To read into the provisions of section 58 (1) a prohibition against the issuance of such administrative directions or circulars is patently to ignore the scope of wholesome powers conferred upon the Central Board of Directors by section 7 (2) of the Act.
Indeed, this section brings the impugned circular and seniority list within the rule mentioned in Halsbury; they have the authority of the statute.
In this behalf, reliance is also placed by Shri Nariman on a decision of a Constitution Bench of this Court in Sukhdev Singh vs Bhagatram,(1) Ray, C.J., who spoke for three members of the Bench, observes in his judgment that the powers of statutory bodies are derived, controlled and restricted by the statutes which create them and that any action of such bodies in excess of their power or in violation of the restrictions placed on their powers is ultra vires.
The concurring judgment of Mathew, J. also contains observations to the same effect (see pages 628, 630 and 659 of the Report).
This enunciation of law is to the same effect as in Halsbury and our answer is the same.
While issuing the administrative circular governing the staff 's conditions of service, the Central Board of Directors has neither violated any statutory injunction nor indeed has it exercised a power which is 430 not conferred upon it by the statute.
The circular is strictly within the confines of section 7 (2).
So long as staff regulations are not framed under section 58 (1), it is open to the Central Board to issue administrative circulars regulating the service conditions of the staff, in the exercise of power conferred by section 7 (2) of the Act.
In T. Cajee vs U. Jormanik Siem,(1) a District Council was constituted under the Sixth Schedule to the Constitution, for the United Khasi and Jaintia Hills District in the Tribal Areas of Assam.
The rules in the Sixth Schedule empowered the District Council to make laws with respect to various matters regarding the administration of the District, including the appointment or succession of Chiefs and Headmen.
No law was however made regulating such appointments.
Even so, it was held by this Court that the District Council had the power to appoint or remove administrative personnel under the general power of administration vested in it by the Sixth Schedule.
Delivering the leading judgment of the Bench, Wanchoo, J., said that where executive power impinges upon the rights of citizens, it will have to be backed by an appropriate law; but where executive power is concerned only with the personnel of the administration, it is not necessary that there must be laws, rules or regulations governing the appointment of those who could carry on the administration under the control of the District Council.
The District Council had therefore the power to appoint officers by virtue of the fact that the administration was vested in it.
In B.N. Nagarajan vs State of Mysore(2) Rule 3 of the Mysore State Civil Services (General Recruitment) Rules, 1957 provided that recruitment to the State Civil Services shall be made by a competitive examination or by promotion and that the method of recruitment and qualifications shall be as set forth in the Rules specially made in that behalf.
It was urged before this Court that no recruitment could be made to any service until the rules were made.
That argument was rejected on the ground that it is not obligatory under the proviso to article 309 to make rules of recruitment before a service can be constituted and that it was not necessary that there must be a law in existence before the executive is enabled to function.
It is true that reliance was placed in that case on the provisions of article 162, by which the executive power of a State extends to the matters with respect to 431 which the legislature of the State has power to make laws.
But the decision is useful for illustrating that the power to frame rules or regulations does not necessarily imply that no action can be taken administratively in regard to a subject matter on which a rule or regulation can be framed, until it is so framed.
The only precaution to observe in the cases of statutory corporations is that they must act within the framework of their charter.
Its express provisions and necessary implications must at all events be observed scrupulously.
It may bear mentioning that any action taken by the Central Board of Directors under section 7(2) is subject to the directions given by the Central Government under section 7(1) just as any regulation framed by it under section 58 is subject to the previous sanction of the Central Government.
In either case, the Central Board has to abide by the decision or directions of the Central Government.
There can therefore, be no apprehension that, by taking action under section 7 (2), the Central Board may circumvent the condition on which the power conferred by section 58 can be exercised by it.
The overall authority of the Central Government acts as a restraining influence on any action taken by the Central Board, whether it acts under one or the other provision of the Act.
Having seen that the Central Board has the power to provide for service conditions of the staff by issuing administrative circulars, the next question for consideration is whether the Staff Regulations of 1948 were issued under section 58 of the Act.
The importance of this question lies in the fact that, quite clearly, if the 1948 Regulations are statutory, they cannot be altered by administrative circulars and, in that event, the impugned circular will not have the effect of superseding them.
Having considered the entire material on this subject including the correspondence that has transpired between the Reserve Bank and the Central Government, we find it difficult to take the view that the Staff Regulations of 1948 were framed in the exercise of power conferred by section 58.
One fact which stands out in this regard is that whereas section 58 (1) envisages the making of regulations "with the previous sanction of the Central Government", the Regulations of 1948 do not purport to have been made with such sanction.
Indeed, in so far as the ex facie aspect of the matter is concerned, the Regulations of 1948 do not purport to have been made under section 58 at all.
It is true that this by itself is not conclusive because, failure to mention the source of power 432 cannot invalidate the exercise of power, if the power is possessed by the authority which exercises it.
But, the common course of the manner in which the Central Board exercises its power when it purports to do so under section 58 is not without relevance and has an important bearing on the question under consideration.
The Employees ' Provident Fund Regulations of 1935, the Note Issue Regulations of 1935 the General Regulations of 1949, the Scheduled Banks ' Regulations of 1951 and the Guarantee Fund Regulations, which were all framed under section 58, contain a preamble reciting that they were framed under that section and that they were framed with the previous sanction of the Central Government.
By way of illustration, we may cite the preamble of the Reserve Bank of India General Regulations, 1949, which runs thus: "In exercise of the powers conferred by section 58 of the (II of 1934) and in supersession of the Reserve Bank of India General Regulations, 1935, the Central Board of the Reserve Bank of India, with the previous sanction of the Central Government, is pleased to make the following Regulations. " It is significant that such a recital is conspicuously absent in the Regulations of 1948.
That renders it safe and reasonable to accept the statement contained in the counter affidavit filed on behalf of the Reserve Bank by Shri Shamrao Laxman Jathar Deputy Manager in the Department of Administration and Personnel to the effect that the Staff Regulations of 1948 are not statutory in character, not having been made under section 58 of the Act of 1934.
The rejoinder affidavit dated July 16, 1979 filed on behalf of the petitioners by Shri Jamnadas Gupta reiterates the contention that the Regulations of 1948 were framed under section 58 (1) with the sanction of the Central Government.
Support is sought to that contention from the correspondence annexed to the affidavit filed in support of the writ petition and the correspondence annexed to the rejoinder.
Of particular importance is the statement contained in the 'Memorandum to the Central Board ' dated January 21, 1949, submitted by the then Governor of Reserve Bank, Shri C.D. Deshmukh, on the subject of "Reserve Bank of India Regulations".
That Memorandum contains a list of regulations which were made by the Central Board "with the approval of the Central Government".
The very first item in the list is "Reserve Bank of India (Staff) Regulations".
Having considered the correspondence bearing on the subject and particularly the aforesaid Memorandum, we see no reason to doubt 433 the contention of the Bank that the Regulations of 1948 were not framed under section 58 and that they were not made with the previous sanction of the Central Government.
The then Governor of the Reserve Bank of India, Shri C. D. Deshmukh, a distinguished Economist and Civilian, was perhaps justified in assuming from the correspondence that the Central Government has no objection to the proposed regulations, which explains his statement, that they were made with the "approval" of the Central Government.
But, it is one thing to infer that the Regulations had the approval of the Central Government since no objection was raised by it to the making of the regulations and quite another that they were made with its previous sanction.
The supplementary affidavit dated March, 1980 which was filed on behalf of the Reserve Bank by Shri Pradeep Madhav Joshi, Deputy Manager in the Department of Administration and Personnel, has dealt fully with the correspondence on the subject of previous sanction of the Central Government to the Regulations of 1948.
We are inclined to accept the statement contained in paragraph 9 of the said affidavit that the Memorandum of January 21, 1949 contains a "factual mistake" to the effect that the Staff Regulations, (which would include the Regulations of 1948) were made with the approval of Central Government.
We therefore conclude that the Reserve Bank of India (Staff) Regulations of 1948 were not made under section 58 of the Act and that, in fact, the Central Board had not obtained the sanction of the Central Government to the making of those Regulations.
The High Courts of Bombay,(1) Calcutta and Delhi(2) have all taken the view that the Staff Regulations of 1948 are not statutory, not having been framed under section 58 of the Act.
We endorse the correctness of that view.
Since the Staff Regulations of 1948 are in the nature of administrative directions, it was competent to the Central Board to alter or amend them by an administration circular.
No lack of statutory powers is involved in that process.
Under section 7 (2), the Central Board has the power to provide for service conditions of the Bank 's staff by administration circulars, so long as they do 434 not impinge upon any Regulations made under section 58 of the Act.
It now remains to be considered whether the impugned Administration Circular, No. 8, dated January 7, 1978; Office Order No. 679, dated April 27 1978; and the draft Combined Seniority List of officers prepared pursuant thereto, are violative of the petitioners ' right to equality in the matter of their service conditions.
The salient features of the impugned Administration Circular may be summarized thus: (a) A common seniority and inter group mobility is introduced simultaneously in all Grades of officers attached to Group I (Section A) and Groups II and III.
(b) The seniority of all officers is combined as on May 22, 1974, on the basis of their total length of service (including officiating service), in the grade to which they were then posted on a regular basis.
In doing so, the existing inter se seniority of the officers in the respective groups is maintained and the subsequent supersessions for promotion or confirmation in the respective groups are suitably reflected.
The date of confirmation is not taken into account for this purpose.
(c) The Circular covers all officers in Group I (Section A) and Groups II and III who were appointed to Grade 'B ' prior to January 1, 1970 as well as officers in the higher grades 'C ', 'D ', 'E ' and 'F '.
The Circular does not cover officers in Sections B to L of Group I, technical officers in Group III and officers attached to Group IV.
(d) All promotions to Grade 'C ' and above which were made on a provisional basis after January 1, 1976 are to be reviewed individually in order to ascertain as to which of the officers may be allowed to continue in the higher grade on the basis of their seniority and suitability.
Consequential adjustments are to be made in a phased and 435 gradual manner in order to ensure that the operational efficiency of the various departments and the Bank 's requirements of a specialised staff of officers are not adversely affected.
(e) Officers promoted to higher grades prior to January 1, 1976 are to be allowed to retain their existing grades, though not necessarily the same posts, and their seniority is to be adjusted under a common seniority scheme.
(f) Officers appointed to officiate in the higher grade on a provisional basis on or after January 1, 1976 and who are allowed to continue in such grade on the basis of their seniority and suitability, are to be considered for confirmation in the normal course.
(g) Officers who are in a lower grade but who rank higher in seniority in the common seniority list than those who are already officiating or confirmed in the higher grade, are to be considered for promotion on the basis of their suitability.
(h) All future promotions to Grade 'C ' and to the higher grades are to be made on the basis of the common seniority list, subject to selectivity.
(i) Wherever possible, the transfer of officers from one department or group to another in the same grade has to be encouraged in order to enable a broader diffusion of experience and to prepare a wider base for development of officers in different departments.
(j) All promotions from Grade 'B ' to 'C ' are to be made on the basis of seniority cum suitability, with greater emphasis on suitability.
The selections for this purpose are to be made by the Reserve Bank of India Services Board.
(k) Selections for promotions to Grade 'D ' and above are to be made by a Committee of the Deputy 436 Governors, who are to give greater consideration to merit apart from the aptitude and experience of the officers concerned.
Office Order No. 679, dated April 27, 1978 was issued in pursuance of the aforesaid Circular.
The Bank announced by it that the tentative Combined Seniority List of officers in Grade 'B ' (appointed prior to January 1, 1970) and Grades 'C ', 'D ', 'E ' and 'F ' would be available for inspection upto May 12, 1978.
Officers aggrieved by the tentative Seniority List were asked to submit their representations within fifteen days.
The tentative Combined Seniority List shows the proposed position occupied seniority wise by 644 officers belonging to Group I (Section A) and Groups II and III.
These writ petitions were filed by the petitioners on June 10, 1978 in order to challenge the Administration Circular, the Office order and the Combined Seniority List referred to above.
The 25 petitioners are all officers in Group I. The case of the petitioners is that the Administrative Circular and the draft Combined Seniority list are violative of their rights under articles 14 and 16 of the Constitution because; (a) The combined fixation of seniority has the effect of treating unequals as equals in so far as officers belonging to different groups are concerned, whose appointment, recruitment, promotion and seniority had all along been fixed, accepted and acted upon on a group wise basis; and (b) Recruitment, selection and promotion of officers having been made on a group wise basis from time to time and their seniority having been fixed accordingly, the seniority is now fixed retrospectively from an arbitrary date viz., May 22, 1974.
These contentions, particularly the first, have to be answered in the light of historical data governing the constitution and management of Services under the Reserve Bank, from time to time.
Without an awareness of the history leading to the events which the petitioners have challenged as unconstitutional, it will not be possible either to appreciate their contention or to provide an answer to it.
The Reserve Bank of India was constituted on April 1, 1935 under the .
The main purpose of constituting the Bank, as stated in the Preamble 437 of the Act was "To regulate the issue of bank notes and the keeping of reserves with a view to securing monetary stability in India and generally to operate the currency and credit system of the country to its advantage.
" In course of time, new functions came to be added as a result of new measures so as to meet the growing needs of an expanding economy.
During the first decade after the inception of the Bank in 1935, these functions were carried out through three departments: The Banking Department, the Issue Department and the Agricultural Credit Department.
The Agricultural Credit Department was trifurcated into three branches with effect from August 1, 1945: (i) the Agricultural Credit Department, (ii) the Department of Research and Statistics and (iii) the Department of Banking Operations.
The first two branches, which were of a specialised nature, were grouped together for the purposes of promotions of officers while the third branch was grouped for that purpose with the banking group on the General Side.
All promotions were made from two separate common seniority lists, one for the specialised or technical group and the other for the banking group.
The departments were regrouped again into three Groups, with effect from April 1, 1951.
Group I consisted of Staff attached to the Department of Research and Statistics, Group II of the Staff attached to the Department of Banking operations, the Department of Banking Development and the Agricultural Credit Department and Group III of the Staff attached to the other Departments on the General Side.
The Staff attached to the Agricultural Credit Department was reconstituted into a new Group, namely, Group IV with effect from April 1, 1955.
The Industrial Finance Department and the Department of Non Banking Companies were added to Group II in September 1957 and March 1966, respectively.
Group V was created for the staff of the Industrial Department Bank of India with effect from April 1, 1965.
The composition of the five Groups was readjusted on that date to ensure greater administrative efficiency.
This system of grouping had many drawbacks bearing on the promotional opportunities of Officers in the various Groups.
To mention but a few, the drawbacks were: (i) Unequal size of one Group as compared to another, (ii) Uneven expansion in one Group as compared to another, and (iii) Earlier confirmations of Officers in one Group as compared to those in another.
438 In 1955, Group I was the largest of all the three Groups on the basis of the total number of officers in Grades 'B ' and above in each of the three Groups.
The subsequent expansion in staff strength has been greater in Groups II and III than in Group I with the result that by the end of 1975, the total strength of Officers in Grade 'B ' and above was the smallest in Group I as compared to the other Groups.
The number of officers in Grade 'A ', however, continues to be the largest in Group I on account of the operational nature of its functions.
While the increase in the total number of officers in Grade 'B ' and above in Group I over a period of twenty years was 280%, the corresponding increase in Groups II and III was 451% and 1100% respectively.
However, the large expansion in Groups II and III was mainly at the junior officers 'level ' particularly in Grade 'B '.
As regards senior officers i.e. Officers in Grades 'D ', 'E ' and 'F ' while the expansion in Groups I and II could be regarded as more or less equal, the expansion in Group III, particularly in Grade 'D ' was marked.
In spite of this, the total number of posts of senior officers and the percentage of such posts as compared with those of junior officers continued to be smaller in Groups II and III.
Officers in Groups II and III also took a longer time generally for confirmation as the posts against which they were promoted were either initially sanctioned on a temporary basis and continued as such for quite sometime before they were made permanent or the vacancies were caused by deputation of regular officers to commercial banks, state co operative banks, etc.
for which no permanent vacancies were created.
On the other hand, Group I had more or less its normal growth during these years and there was a smooth flow of normal vacancies.
The officers recruited in the early years of the Bank had also gradually started reaching the age of superannuation and there was a regular flow of retirement vacancies.
The Officers in Group I had, therefore, their confirmation quickly and thereby derived distinct benefits.
Under the Bank 's rules, the seniority of an Officer in a particular grade was ordinarily dependent on the date of his confirmation in that grade and although for the purpose of promotion, the seniority of an officer was given weightage only within the same group for a notional comparison of seniority of officers in different Groups an officer who was confirmed earlier in one Group as compared with another who was confirmed later in another Group had an edge over the latter in matters of service benefits.
Such comparisons 439 arising from promotional imbalances in the various groups caused resentment among the affected officers.
This state of affairs had long agitated the minds of the officers in Groups II and III and they brought this state of affairs to the management 's notice by various representations beginning from 1968.
The Management of the Bank took several steps from time to time to correct the promotional imbalances but these steps did not touch even the fringe of the problem, especially since, the ad hoc schemes and proposals were mainly aimed at correcting imbalances that the lower level.
Ultimately, in face of growing discontentment amongst officers belonging to Groups II and III, the Management decided to refer the question to the Cadre Review Committee (CRC) a which was appointed by the Bank in May 1970.
The Committee was, among other things, required to examine and make recommendations for the changes desirable in the existing constitution of the cadres of officers; having due regard to the need to provide reasonable prospects of increments and promotion and to ensure such degree of inter changeability as administrative efficiency and exigencies of the Bank 's services demanded.
The Committee, under the Chairmanship of Shri J.L. Nain, a sitting Judge of the Bombay High Court, submitted its report in October 1972.
The Cadre Review Committee expressed the view that there was irrationality in the way the groupings had been done and the way in which seniority was being maintained group wise and that Group I had an unfair advantage in matters of promotion over Groups II and III.
The Committee further held that as certain departments were inordinately large as compared to others, this by itself, in the context of absence of inter group mobility brought about imbalances in promotional opportunities.
The Committee also recognised that mobility from one group to another would not only facilitate removing the imbalances in promotional opportunities but that it would also lead to "better operational efficiency".
The Committee stressed the need for a common seniority list for each grade of officers throughout the Bank, except in respect of the Economic and Statistics Departments and among lawyers, engineers and other technical sections of officers.
It recommended a system of promotion from a lower grade to higher grade which would ensure, among other things, to the largest extent possible, equality of opportunity of promotion among all officers in the same grade 440 and effective operation of mobility of officers between different departments and groups.
In regard to the operation of the combined seniority scheme, the Committee recommended its immediate introduction for 'A ' and 'B ' grades and within a period of two years for the 'C ' grade.
In regard to the rest of the grades, namely, 'D ', 'E ' and 'F ', the Committee recommended the application of this principle mutatis mutandis and left it to the discretion of the Bank to introduce it as and when it chose, taking into consideration the exigencies of the situation.
The Committee was also of the view that it was necessary that mobility and inter changeability as between groups among all grades of officers should be introduced in the shortest time possible.
Following the recommendations of the Cadre Review Committee, the Bank introduced through an administrative circular (No. 15, dated 22.5.1974), a combined seniority for 'A ' and part of 'D ' grades, with retrospective effect.
In regard to 'C ' and 'D ' Grades, the circular provided for mobility and interchangeability on a swap basis, but the Officers ' Association protested against it and demanded immediate and simultaneous introduction of combined seniority and interchangeability for the rest of the grades also.
Following the persistent demand made by the majority of the officers, the Bank appointed a Committee comprising Shri C.L. Thareja, the then Chief Manager, as Chairman, Shri K. Madhava Das, Chief Officer, Agricultural Credit Department, Shri P.N. Khanna, Chief Officer, Department of Banking Operations and Development, and Shri T.D. Katara, Manager, Bombay Office, to work out the modalities of the implementation of the combined seniority scheme for grades 'C ' to 'F ' and to determine the operative date for combining the seniority.
The Bank decided that pending the submission of the report by this Committee, all future promotions namely those effected from 1.1.1976, will be purely ad hoc and provisional.
The Thareja Committee, like the Cadre Review Committee, unanimously recommended the introduction of combined seniority simultaneously for all grades of officers.
However, on the question of the operative date, it was divided in its views.
Whereas Shri Thareja and Shri Katara, both Group I officers, recommended that the scheme be given retrospective effect from January 1, 1976, the 441 other two members representing Groups II and III, were of the view that it should be given effect from January 1, 1970.
The Bank, by the impugned circular, accepted May 22, 1974 as the date from which the combined seniority list was to have effect.
It is clear from this narration of historical events that the various Departments of the Reserve Bank were grouped and regrouped from time to time.
Such adjustments in the administrative affairs of the Bank are a necessary sequel to the growing demands of new situations which are bound to arise in any developing economy.
The group system has never been a closed or static chapter and it is wrong to think that the officers of the various groups were kept, as it were, in quarantine.
The group system has been a continuous process of trial and error and the impugned scheme of inter group mobility has emerged as the best solution out of the experience of the past.
Combined seniority has been recommended by two special committees, whose reports reflect the expertise and objectivity which was brought to bear on their sensitive task.
It is clear that inter group mobility and common seniority are a safe and sound solution to the conflicting demands of officers belonging to Group I on one hand and those of Groups II and III on the other.
Private interest of employees of public undertakings cannot override public interest and an effort has to be made to harmonize the two considerations.
No scheme governing service matters can be fool proof and some section or the other employees is bound to feel aggrieved on the score of its expectations being falsified or remaining to be fulfilled.
Arbitrariness, irrationality, perversity and mala fides will of course render any scheme unconstitutional but the fact that the scheme does not satisfy the expectations of every employee is not evidence of these.
Vested interests are prone to hold on to their acquisitions and we understand the feelings of Group I officers who have to surrender a part of the benefits which had accrued to them in a water tight system of grouping.
Combined seniority is indispensable for the smooth functioning of the Bank and no organisation can function smoothly if one section of its officers has an unfair advantage over others in matters of promotional opportunities.
The reports of the Cardre Review Committee and the Thareja Committee show that combined seniority has emerged as the most acceptable solution as a matter of administrative, historical and functional necessity.
We see no justification for undoing 442 what these committees have achieved after an objective and integral examination of the whole issue.
We may mention that the conclusion to which these committees came were considered by the Bank when Shri M. Narasimhan, later India 's Executive Director in the World Bank, was the Governor and it was after Dr. I.G. Patel, Formerly Secretary, Economic Affairs, Govt.
of India and Deputy Administrator, United Nations Development Programme, took over as Governor in December 1977 that the final decision was taken by the Central Board to introduce inter group mobility and combined seniority.
In Reserve Bank of India vs N.C. Paliwal, a Combined Seniority Scheme was introduced by the Reserve Bank of India, consisting of two parts, one part provided for the integration of the clerical staff of the General Departments with the clerical staff of the Specialised Departments, while the other provided for the switch over and integration of the non clerical staff with the clerical staff in all the Departments of the Bank.
The Delhi High Court set aside the Scheme on the ground that it violated Articles 14 and 16 of the Constitution.
While setting aside the judgment of the High Court, this Court held that the integration of different cadres into one cadre did not involve violation of the equality clause and that neither Article 14 nor Article 16 forbids creation of different cadres in Government service.
Whether there should be a combined seniority in different cadres or groups was, according to the Court, a matter of policy which did not attract the applicability of the equality clause.
The integration of non clerical with clerical services which was effectuated by the Combined Seniority Scheme was, in the circumstances, held to be not violative of the guarantee contained in Articles 14 and 16.
As regards the retrospective operation given to the Scheme with effect from May 22, 1974, it does appear that the Board has struck a via media between two extreme contentions advanced by officers belonging to Group I and those belonging to Groups II and III.
But that was inevitable and we consider it as the best solution in the peculiar circumstances of the case.
In order to rectify the imbalances and anomalies caused by the compartmentalised and group wise seniority, it was necessary to give retrospective effect to the Combined Seniority List.
Officers belonging to Group I urged that the Scheme should be brought into effect from January 1, 1976, while those belonging to Groups II and III wanted the Scheme to 443 be brought into effect from January 1, 1970.
The Central Board struck a balance by choosing the date May 22, 1974, because that was the date on which the decision in regard to combining the seniority retrospectively with effect from January 1, 1970 in regard to Grade 'A ' and part of Grade 'B ' officers was announced.
It was, again, on that date that the Bank had announced that a similar decision in regard to the remaining grade, of officers was under its considerations.
Thus, at least on May 22, 1974 it was known to officers of all grades that a combined seniority list was due to be brought into force.
If a certain section of officers succeeded in obtaining promotional benefits thereafter, the imbalance introduced thereby in the services of the Bank and the consequent dissatisfaction had to be rectified.
That could only be done by not recognising the accelerated promotions obtained in the intervening period by a certain class of officers.
Shri Nariman has drawn our attention to various individual cases of officers in Group I whose old seniority has gone down by several steps in the new Scheme.
As we have stated earlier, any scheme of seniority is bound to produce isolated aberrations.
That cannot justify the argument that the entire Scheme is for that reason violative of the guarantee of equality.
We are, therefore, of the opinion that the impugned Administration Circular, the Office Order and the Combined Seniority List are not violative of the rights of the petitioners under Articles 14 and 16 of the Constitution.
For these reasons, the Writ Petitions are dismissed, but there will be no order as to costs.
S.R. Petitions dismissed.
| IN-Abs | Under the Reserve Bank of India (Staff) Regulations, 1948 framed under section 58 of the , the terms and conditions of service of the staff (including officers) in the Reserve Bank were revised and regulated from time to time.
Ever since the date of the Staff Regulations of 1948 and even prior thereto, there were "groups" constituted for the different departments of the Reserve Bank, and officers were required to exercise irrevocable options for service in any particular Group.
Those who had opted for a service in a particular Group were to be normally eligible for promotion in that Group only.
The grouping was revised with effect from April 1951 when employees were asked to exercise their option with regard to the Group of their choice.
In 1951, the various departments of the Bank were re classified into three Groups, Group I, Group II and Group III.
This system of grouping continued until 1955, in which year the Bank found it necessary to reorganise the Agricultural Credit Department.
Accordingly, the staff attached to the various departments were regrouped into Groups I, II, III, and IV, with effect from April 1, 1957.
In each of these Groups, there are six grades of officers based on pay scales, namely, Grades A, B, C, D, E and F, the lowest being Grade A and the highest being Grade F.
Each Group had its own seniority list, that is to say, there were four separate seniority lists, one for each group.
The latest of such lists prior to the draft combined seniority list of 1978 is dated July 1,1976.
Earlier to the said list dated July 1, 1976, the Reserve Bank had constituted a Cadre Review Committee in 1970 followed by another Committee.
On the 412 basis of the report submitted by the Cadre Review Committee in October 1972, the Bank issued an Administrative Circular No. 15 dated May 22, 1974 specifying the decisions taken by it in the light of the recommendations made by the Committee.
One such decision which the Bank took was to prepare a common seniority list for and to provide for inter group mobility at the lowest level of officers in each group, namely, Grade A officers, including those who were promoted to Grade B on or after January 1, 1970.
With regard to higher grades (including officers in Grade B promoted prior to January 1, 1970), the Bank decided to retain the "group wise seniority as at present".
The inter group mobility in Grades C and D was to be introduced only to a limited extent, namely, "on a swap basis".
It was first to be introduced in Grade C and thereafter to be extended "in due course" to the officers in Grade D.
The two higher Grades, namely, Grades E and F were left untouched and no intention was expressed in the above circular to introduce either combined seniority or any scheme for inter mobility in these grades.
In accordance with the decisions expressed in the Administrative Circular dated May 22, 1974 the Bank published separate seniority lists of officers in Grade B and above for the years 1974, 1975 and 1976.
By the Administrative Circular No. 8 dated January 7, 1978, the Bank stated that it had decided to combine the seniority of all officers on the basis of their total length of service (including officiating service) in Group I (Section A), Group II and Group III.
The seniority of all officers in each of the three Groups was to be combined with effect from May 22, 1974 on the basis of their total length of service, including officiating service, in the grade in which they were then posted on a regular basis.
The Circular introduced combined seniority with retrospective effect from May 22, 1974 (the date of Administration Circular No. 15) as it was "fair and equitable to the officers as a class".
The effect of this decision is that the group wise system of seniority which was in existence for more than 27 years stands substituted by a combined seniority for officers in Group I (Grade A) and in Groups II and III with retrospective effect.
That has adversely affected the existing seniority of officers, particularly of those in Group I, who are now placed many places below their existing position of seniority, some by several hundred places.
Hence these twenty five petitions under article 32 by the petitioners, all of whom are officers in Group I, and who are given their due seniority as on July 1, 1976.
Dismissing the petitions, the Court ^ HELD: 1:1.
The Administrative Circular No. 8 dated 7 1 1978, the Office Order No. 679 dated 22 4 1978 and the draft combined seniority list are not violative of the rights of the petitioners under Articles 14 and 16 of the Constitution.
Whether there should be a combined seniority in different cadres or groups is a matter of policy which does not attract the applicability of the equality clause.
[442 D F] Reserve Bank of India vs N. C. Paliwal, ; , applied and followed.
413 1:2.
The historical events make it clear that the various Departments of the Reserve Bank were grouped and regrouped from time to time.
Such adjustments in the administrative affairs of the Bank are a necessary sequel to the growing demands of new situations which are bound to arise in any developing economy.
The group system has never been a closed or static chapter and the officers of the various groups were not kept, as it were, in quarantine.
The group system has been a continuous process of trial and error and the impugned scheme of inter group mobility has emerged as the best solution of the experience of the past.
Combined seniority has been recommended by two special committees, whose reports reflect the expertise and objectivity which was brought to bear on their sensitive task.
[441 B D] 1:3.
Inter group mobility and common seniority are a safe and sound solution to the conflicting demands of officers belonging to Group I on one hand and those of Groups II and III on the other.
Private interest of employees of public undertakings cannot override public interest and an effort has to be made to harmonize the two considerations.
No scheme governing service matter can be fool proof and some section or the other of employees is bound to feel aggrieved on the score of its expectations being falsified or remaining to be fulfilled.
[441 D E] Arbitrariness, irrationality, perversity and mala fides will of course render any scheme unconstitutional but the fact that the scheme does not satisfy the expectations of every employee is not evidence of these.
Vested interests are prone to hold on to their acquisitions and the Group I officers have to surrender a part of the benefits which had accrued to them in a water tight system of grouping.
Combined seniority is indispensable for the smooth functioning of the Bank and no organisation can function smoothly if one section of its officers has an unfair advantage over others in matters of promotional opportunities.
The reports of the Cadre Review Committee and the Thareja Committee show that combined seniority has emerged as the most acceptable solution as a matter of administrative, historical and functional necessity.
Further, the conclusion to which these committees came were considered by the Bank when Shri M. Narasimhan, later India 's Executive Director in the World Bank, was the Governor and it was after Dr. I.G. Patel, Formerly Secretary, Economic Affairs, Govt.
of India and Deputy Administrator, United Nations Development Programme, took over as Governor in December 1977 that the final decision was taken by the Central Board to introduce inter group mobility and combined seniority.
[441 E H, 442 A B] 2.
As regards the retrospective operation given to Scheme with effect from May 22, 1974, it does appear that the Board has struck a via media between two extreme contentions advanced by officers belonging to Group I and those belonging to Groups II and III.
But that was inevitable and it was the best solution in the peculiar circumstances of the case.
In order to rectify the imbalances and anomalies caused by the compartmentalised and group wise seniority, it was necessary to give retrospective effect to the Combined Seniority List.
Officers belonging to Group I urged that the Scheme should be brought into effect from January 1, 1976, while those belonging to Groups II and III wanted the Scheme to be brought into effect from January 1, 1970.
The Central Board struck a balance by choosing the date May 22, 1974, because that was the date on which 414 the decision in regard to combining the seniority retrospectively with effect from January 1, 1970 in regard to Grade 'A ' and part of Grade 'B ' officers was announced.
It was, again, on that date that the Bank had announced that a similar decision in regard to the remaining grades of officers was under its consideration.
Thus, at least on May 22, 1974 it was known to officers of all grades that a combined seniority list was due to be brought into force.
If a certain section officers succeeded in obtaining promotional benefits thereafter, the imbalance introduced thereby in the services of the Bank and the consequent dissatisfaction had to be rectified.
That could only be done by not recognising the accelerated promotions obtained in the intervening period by a certain class of officers.
Any scheme of seniority is bound to produce isolated aberrations and that fact cannot justify the argument that the entire scheme is for that reason violative of the guarantee of equality.
[442 F H, 443 A D] 3:1.
The power to frame service conditions is not derived from clause (j) of section 58(2) of the .
Section 58(2) (j) refers to staff funds and superannuation funds and it cannot comprise service conditions.
Clause (j) cannot be split up to read: "the constitution and management of staff: and superannuation funds for the officers and servants of the Bank".
It hardly makes any sense that way.
What the clause means is: "the constitution and management of staff and superannuation funds for the officers and servants of the Bank".
An important subject like the service conditions of the staff could not have been provided for in such a dubious and indirect manner.
Nor indeed, could it have been described as "constitution and management of staff".
A rule of seniority cannot properly fall under such a head.
[426 A D] Reserve Bank Employees Association vs Union of India, approved.
Where a specific power is conferred without prejudice to the generality of a power already conferred, the specific power is only illustrative and cannot restrict to width of the general power.
Therefore, the ambit of the general power conferred by sub section (1) cannot be attenuated by limiting it to matters specified in sub section (2) of section 58, the provisions whereof are not exhaustive of the power of the Central Board to make regulations.
[426 D F] Emperor vs Shibnath Banerjee, 72 I.A. 241; Omparkash vs Union of India, A.I.R. 1971 SC 771, 773, 774, referred to.
The doctrine of ultra vires in relation to the powers of a statutory corporation has to be understood reasonably and so understood, "whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised ought not (unless expressly prohibited) to be held by judicial construction to be ultra vires".
The Central Board of Directors of the Reserve Bank has the power to make service regulations under section 58(1) of the Act.
The Board is vested with power to make regulations in order to provide for all matters for which provision is necessary or convenient for the 415 purpose of giving effect to the provisions of the Act and it is not only convenient but manifestly necessary to provide for the service conditions of the Bank 's staff in order to give effect to the provisions of the Act.
It cannot be denied that the power to provide for service conditions of the staff is at least incidental to the obligation to carry out the purposes for which Bank was constituted.
[426 G H, 427 A D] Armour vs Liverpool Corporation, , 434, 435; Attorney General vs Great Eastern Ry.
Co., 5 Appeal Cases 473, quoted with approval.
There is no doubt that a statutory corporation can do only such acts as are authorised by the statute creating it and that, the powers of such a corporation cannot extend beyond what the statute provides expressly or by necessary implication.
If an act is neither expressly or impliedly authorised by the statute which creates the corporation, it must be taken to be prohibited.
But, section 58(1) being in the nature of an enabling provision under which the Central Board "may" make regulations in order to provide for all matters for which it is necessary or convenient to make provisions for the purposes of giving effect to the provisions of the Act, the Central Board has the power to frame regulation relating to the conditions of service of the Bank 's staff.
If it has that power, it may exercise it in accordance with section 58(1) or by acting appropriately in the exercise of its general power of administration and superintendence.
[428 E F, G H, 429A] 4:3.
By section 7(2) of the , the general superintendence and direction of the affairs and business of the Bank are entrusted to the Central Board of Directors, which is empowered to exercise all powers and do all acts and things which may be exercised or done by the Bank.
Matters relating to the service conditions of the staff are, pre eminently, matters which relate to the affairs of the Bank.
It would therefore be wrong to deny to the Central Board the power to issue administrative directions or circulars regulating the conditions of service of the Bank 's staff.
To read into the provisions of section 58 (1) a prohibition against the issuance of such administrative directions or circulars is patently to ignore the scope of wholesome powers conferred upon the Central Board of Directors by section 7 (2) of the Act.
While issuing the administrative circular governing the staff 's conditions of service, the Central Board of Directors has neither violated any statutory injunction nor indeed has it exercised a power which is not conferred upon it by the statute.
The circular is strictly within the confines of section 7 (2).
[429 A E,G H, 430 A] Sukhdev Singh vs Bhagatram, ; , reiterated.
So long as staff regulations are not framed under section 58 (1), it is open to the Central Board to issue administrative circulars regulating the service conditions of the staff, in the exercise of power conferred by section 7 (2) of the Act.
The power to frame rules or regulations does not necessarily imply that no action can be taken administratively in regard to a subject matter on which a rule or regulation can be framed, until it is so framed.
The only precaution to observe in the cases of statutory corporations is that they must act within the framework of their charter.
Its express provisions and necessary implications must at all events be observed scrupulously.
[430 A B, 431 A B] 416 T. Cajee vs U. Jormanik Siom, ; ; B.N. Nagarajan vs State of Mysore, , explained and applied.
Any action taken by the Central Board of Directors under section 7 (2) is subject to the directions given by the Central Government under section 7(1), just as any regulation framed by it under section 58 is subject to the previous sanction of the Central Government.
In either case, the Central Board has to abide by the decision or directions of the Central Government.
There can, therefore; be no apprehension that, by taking action under section 7 (2), the Central Board may circumvent the condition on which the power conferred by section 58 can be exercised by it.
The overall authority of the Central Government acts as a restraining influence on any action taken by the Central Board, whether it acts under one or the other provision of the Act.
[431 B D] 5:1.
A consideration of the entire material on the subject, including the correspondence that has transpired between the Reserve Bank and the Central Government and in particular the Memorandum of January 21, 1949, makes it clear that the Staff Regulations of 1948 were not framed in the exercise of power conferred by section 58 of the Act and that they were not made with the previous sanction of the Central Government.
Whereas section 58 (1) envisages the making of regulations "with the previous sanction of the Central Government", the Regulations of 1948 do not purport to have been made with such sanction.
Indeed, in so far as the ex facie aspect of the matter is concerned, the Regulations of 1948 have not been made under section 58 at all.
The statement contained in paragraph 9 of the counter affidavit of the Deputy Manager dated March 30, 1980 that the Memorandum of January 21, 1949 contains a "factual mistake" to the effect that the Staff Regulations (which would include the Regulations of 1948) were made with the approval of the Central Government, correctly clarifies the position.
It is one thing to infer that the Regulations had the approval of the Central Government since no objection was raised by it to the making of the Regulations and quite another that they were made with its previous sanction.
[431 F H, 433 B D] Reserve Bank Employees Association vs Union of India, ; Emperor vs Shibnath Barerjee; 72 I.A. 241; Om Parkash vs Union of India A.I.R. 1971 S.C. 771, 773, 774; Reserve Bank of India vs N.C. Paliwal,[1977] 1 SCR 377; Bimal Kumar Shome vs P.C. Bhattacharya, Misc.
Petition No. 206 of 1967 decided on August 6, 1969 (Bombay H.C.) R.M. Joshi vs The Reserve Bank of India, Civil Writ No. 876 of 1974 decided on March 19, 1980 by a Full Bench (Delhi H.C.), approved 5:2.
Since the Staff Regulations of 1948 are in the nature of administrative directions, it was competent to the Central Board to alter or amend them by an administrative circular.
No lack of statutory powers is involved in that process.
Under section 7(2), the Central Board has the power to provide for service conditions of the Bank 's staff by administration circulars, so long as they do not impinge upon any Regulations made under section 58 of the Act.
[433 F G, 434 A] 417
|
N: Criminal Appeal No. 439 of 1976.
Appeal by special leave from the judgment and order dated the 23rd April, 1976 of the Rajasthan High Court in Criminal Revision No. 300 of 1974.
K.K. Venugopal, S.S. Khanduja, and G.C. Mishra for the Appellant.
B.D. Sharma for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated June 29, 1974 of the Rajasthan High Court overruling a preliminary objection taken by the accused before the Sessions Judge to the effect that the Sessions Judge, Tonk was not competent to try the case as the accused Umesh Chandra was a child as contemplated by the provisions of the Rajasthan Children Act, 1970 (hereinafter referred to as the 'Act ') on the date of the alleged occurrence.
This Act appears to have been passed by the Rajasthan Legislature, but after receiving assent of the President was enforced in various districts from time to time.
Under the provisions of the Act any person below the age of 16 (sixteen) would be presumed to be a child and the trial of a delinquent child was to be conducted in accordance with the procedure laid down therein.
The objection taken by the appellant was that as he was below the age of 16 at the time of the occurrence on 12.3.1973, he could not be tried by the Additional Sessions Judge, Tonk or the Additional Sessions Judge, Jaipur city, to whom the case was transferred or 17.10.73 586 The Sessions Judge overruled the objection taken by the accused and therefore he filed a revision to the Rajasthan High Court against the order.
The High Court after considering the oral and documentary evidence came to the conclusion that the Act was not applicable to the appellant for two reasons (1) that it was not brought into force in Tonk at the time of the offence, and (2) that it was not proved by the accused that he was below the age of 16 on 12.3.1973, the date of the occurrence.
The accused was charged for offences punishable under sections 364 and 302 of the Indian Penal Code.
Aggrieved by the order of the High Court, the appellant moved this Court in special leave and at the time of granting special leave, this Court directed the High Court to return a finding of fact on the actual date of birth of the accused so that this Court may determine the applicability of the Act to the facts of the present case.
The High Court after reappraising the entire evidence oral and documentary by its Order dated 18.11.76 came to a clear finding that the age of Umesh Chandra at the time when the offence was committed was 16 years 5 months and 20 days and that the exact date of birth of the appellant was proved to be 22.9.1956.
After the finding of fact called for from the High Court was sent to this Court, the appeal was placed for hearing before us.
In support of the appeal, the learned counsel for the appellant has assailed the finding of the High Court that the age of the appellant was above 16 years and it was contended that the High Court has based its decision on wholly irrelevant material and has also committed errors of law in appreciating important documentary evidence.
Another point that was argued before us was as to the application of the Act to Tonk, where the offence was committed.
As, however, the Act has now been enforced in the entire State, this question no longer survives because where a situation contemplated by section 26 of the Act arises, an accused, who is found to be a child, has to be forwarded by the Sessions Court to the Children 's court which can pass appropriate sentence.
Where however proceedings against a child are pending before Sessions Judge, section 26 of the Act enjoins a duty on the Court in which the proceeding in respect of the child is pending on the date on which the Act is extended to the area to act in the manner therein prescribed.
In this eventuality, the Court is under an obligation to proceed With the trial and record 587 a finding as if the Act does not apply.
But after concluding the trial and recording a finding that the child had committed an offence, the Court cannot pass any sentence but the Court is under a statutory obligation to forward the child to the Children 's court which shall pass orders in respect of that child in accordance with the provisions of the Act, as if it has been satisfied on inquiry under the Act that the child bas committed the offence.
In view of this provision, section 21 would be attracted and the Children 's court will have to deal with the child under section 21.
Thus, the main point for consideration in this case is as to what is the exact date of birth of the appellant, Umesh Chandra.
The High Court appears to have brushed aside the documentary evidence produced by the appellant mainly on the ground that subsequent documents clearly proved that the father of the accused had not correctly mentioned the date of birth in the previous schools attended by him (accused) and later corrected his date of birth by an affidavit which was accepted by the High Court to be the correct date.
The High Court also rejected the oral evidence adduced by the appellant as also the horoscope produced by his father.
We agree with the High Court that in cases like these, ordinarily the oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity.
Oral evidence may have utility if no documentary evidence is forthcoming.
Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation.
To this extent, we agree with the approach made by the High Court.
Coming now to the facts on the basis of which the appellant sought protection to be tried only under the Act; according to the testimony of the father of the appellant he was.
born on 22.6.57 and was aged 15 years 9 months on 12.3.1973 the date of the occurrence.
It is, however, not disputed that at the time when the appellant was born, his father was posted in a small village (Dausa) where the maternal grandfather of the appellant had lived and perhaps he was not meticulous enough to report the birth of his children.
There is nothing to show the birth of the appellant nor any evidence has been produced on this aspect of the matter.
There is also nothing to show that the dates of birth of the other children of 588 Gopal (the father) were registered in any Municipal register or in chowkidar 's register.
We have mentioned this fact because the High Court seems to have laid special stress and great emphasis on the non production of any reliable record to prove that the birth of the appellant had been entered therein.
It is common knowledge that in villages people are not very vigilant in reporting either births or deaths and, therefore, an omission of this type cannot be taken to be a most damaging circumstance to demolish the case of the appellant regarding his actual date of birth.
The first document wherein the age of the appellant was clearly entered is Ext.
D 1 which is the admission form under which he was admitted to class III in St. Teressa 's Primary School, Ajmer.
In the admission form, the date of birth of the appellant has been show a as 22.6.1957.
The form is signed by Sister Stella who was the Headmistress.
The form also contains the seal of the school, DW, Ratilal Mehta, who proved the admission form, has clearly stated that the form was maintained in the ordinary course of business and was signed only by the parents.
The evidence of Ratilal Mehta (DW 1) is corroborated by the evidence of Sister Stella (DW 3) herself who has also endorsed the fact of the date of birth having been mentioned in the admission form and has also clearly stated on oath that the forms were maintained in regular course and that they were signed by her.
She has also stated that at the time when the appellant was first admitted she was the headmistress of St. Teressa Primary School, Ajmer.
The High Court seems to have rejected this document by adopting a very peculiar process of reasoning which apart from being unintelligible is also legally erroneous.
The High Court seems to think that the admission forms as also the School 's register (Ext.
D 3) both of which were, according to the evidence, maintained in due course of business, were not admissible in evidence because they were not kept or made by any public officer.
Under section 35 of the Evidence Act, all that is necessary is that the document should be maintained regularly by a person whose duty it is to maintain the document and there is no legal requirement that the document should be maintained by a public officer only.
The High Court seems to have confused the provisions of sections 35, 73 and 74 of the Evidence Act in interpreting the documents which were admissible not as public documents or documents maintained by public servants under sections 34, 73 589 or 74 but which were admissible under section 35 of the Evidence Act which may be extracted as follows: "35.
Relevancy of entry in public record made in performance of duty An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such books, register or record is kept, is itself a relevant fact." (Emphasis ours) A perusal of the provisions of section 35 would clearly reveal that there is no legal requirement that the public or other official book should be kept only by a public officer but all that is required is that it should be regularly kept in discharge of her official duty.
This fact has been clearly proved by two independent witnesses, viz., DW 1, Ratilal Mehta and DW 3, Sister Stella.
The question does not present any difficulty or complexity as in our opinion the section which would assist in this behalf is section 35 of the Evidence Act which provides for relevancy of entry in the public record.
In this connection we may refer to a decision of this Court in Mohd. Ikram Hussain vs State of U.P., where Hidayatullah, J. speaking for the Court, observed as under: "In the present case Kaniz Fatima was stated to be under the age of 18.
There were two certified copies from school register which show that on June 20, 1960, she was under 17 years of age.
There was also the affidavit of the father (here evidence on oath) stating the date of her birth and the statement of Kaniz Fatima to the police with regard to her own age.
These amounted to evidence under the Indian Evidence Act and the entries in the school registers were made ante litem motam." This topic has been elaborately dealt with particularly in regard to the entries in School Register and the admission forms in the case of Abdul Majid vs Bhargavam.
In these circumstances, 590 the view of the High Court with regard to section 35 is plainly untenable and sections 73 and 74 are utterly irrelevant.
Further, the High Court was of the view that as the documents produced by the Teressa Primary School were kept in loose sheets, no reliance can be placed on them.
This fact is admitted but the headmistress has explained that the admission forms were bound much after the date of birth was recorded and hence it cannot be presumed that the documents were not kept in the regular course of business.
Moreover, the School where the documents were maintained was an English public school and the record maintained by it was undoubtedly unimpeachable and authentic and could not be suspected or presumed to be tampered with.
At the time when the age of the appellant was first mentioned in the admission form, there was absolutely no dispute about the date of birth or for that matter the exact date on which he was born and there could not have been any motive on the part of the parents of the accused to give a false date of birth because it was his first admission to a school at a very early age.
Further, the school to which the appellant was admitted being a Public School enjoyed good reputation of authenticity.
In M/s. Gannon Dunkerlay & Co. Ltd. vs Their Workmen this Court made the following observations: "In fact, if the register had been prepared at one sitting for purposes of these cases, the Company would have taken care that no suspicious circumstance comes into existence and, if, by chance, any error was committed, it could have ' prepared another register in lieu of Ext.
The fact that this was not done shows that this register is the register kept in the course of business and, hence, there is no reason to doubt the entries made in it.
" These observations fully apply to the facts of the present case because if there had been any element of suspicion in giving the date of birth, the admission register and the Scholar 's register would have been corrected by the headmistress of the school.
591 Exts.
D 1 and D 2, mentioned above, are corroborated by subsequent documentary evidence.
It appears that an 1.7.65, the boy was admitted to 3rd standard (equivalent to 5th class) in St. Paul 's school, Jaipur after the appellant 's father was transferred from Ajmer to Jaipur.
Here also the document shows that the date of birth given was the same, namely, 22.6.1957.
Thus, consistently on two occasions, starting from 1963 and ending in 1965, the date of birth was mentioned in the relevant documents as 22.6.1957.
This Court in Mohd. Ikram Hussain vs State of U.P. & Ors.
(Supra) has held that copies of school certificates or the affidavit of the father constitute good proof of age, vide observations extracted herein before.
In the instant case also there are two documents of two different schools showing the age of the accused appellant as 22.6.57 and both these documents have been signed by his father and were in existence ante litem motam.
Hence, there could be no ground to doubt the genuineness of these documents and the High Court committed a serious error of law in brushing aside these important documents.
Another circumstance which weighed with the High Court was that when the boy was admitted in St. Paul 's school, no transfer certificate appears to have been taken.
This by itself is not sufficient to dislodge the case of the appellant unless a transfer certificate was taken and it had shown that the date of birth given there did not tally with the documents (Exts.
D 1 to D 4).
It appears that as the father of the appellant was subsequently transferred from Jaipur sometime in June 1966 to Dhausa and he was admitted to the Sanskrit Pathshala in Dhausa, for the first time in this school the date of birth of the appellant was changed from 22.6.57 to 22.9.56.
The explanation given by his father is that as by this time the boy had become almost 10 years of age and as clause 10 of Chapter XVIII of the Rajasthan Board of Secondary Education Regulations required that no candidate could take the Higher Secondary Examination until he had attained the age of 15 years on the 1st of October of the year in which the Examination was held, he had to give an affidavit to change this fact in order to enable his son (appellant) to appear in the Higher Secondary Examination.
This position was not disputed by the State.
The High Court seems to have made much of this lacuna and has gone 592 to the extent of labelling Gopal Sharma, appellant 's father, as a liar having gone to the extent of making a false affidavit.
Here also, we think the High Court has taken a most artificial and technical view of the matter.
In our country, it is not uncommon for parents sometimes to change the age of their children in order to get some material benefit either for appearing in examination or for entering a particular service which would be denied to a child as under the original date of birth he would be either under aged or ineligible.
Thus, the appellant 's father has given a cogent reason for changing the date of birth and there is no reason not to accept his explanation particularly because the offence was committed seven years after changing the date of birth, and, therefore, there could be no other reason why Gopal Sharma should have gone to the extent of filing an affidavit to change the date, except for the reason that he has given.
It was also argued that in the insurance policy, the appellant 's mother had shown his age as 10 years without giving the exact date of birth.
The age of the appellant was given as a rough estimate in the insurance policy but as the policy was not in the name of the appellant, nothing turns upon this fact particularly because by and large giving allowance for a few months this way or that way the boy was about 10 years old when the policy was taken.
The High Court, therefore, was wrong in attaching too great an importance to this somewhat insignificant fact.
For these reasons we are satisfied that these circumstances also do not put the case of the appellant out of court.
These are the main reasons given by the High Court for distrusting what, in our opinion, seems to be unimpeachable documentary evidence produced by the appellant to show that his exact date of birth was 22.6.57 and not 22.9.56 as altered by his father later.
Another question argued at the Bar was as to what is the material date which is to be seen for the purpose of application of the Act.
In view of our finding that at the time of the occurrence the appellant was undoubtedly a child within the provisions of the Act, the further question if he could be tried as a child if he had become more than 16 years by the time the case went up to the 593 court, does not survive because the Act itself takes care of such a contingency.
In this connection sections 3 and 26 of the Act may be extracted thus: "3.
Continuation of inquiry in respect of child who has ceased to be child.
Where an inquiry has been initiated against a child and during the course of such inquiry the child ceases to be such, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a child.
xx xx xx 26.
Special provision in respect of pending cases.
Notwithstanding anything contained in this Act, all proceedings in respect of a child pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the child has committed an offence, it shall record such finding and, instead of passing any sentence in respect of the child, forward the child to the children 's court which shall pass orders in respect of that child in accordance with the provision of this Act as if it has been satisfied on inquiry under this Act that the child has committed the offence.
" A combined reading of these two sections would clearly show that the statute takes care of contingencies where proceedings in respect of a child were pending in any court in any area on the date on which the Act came into force.
Section 26 in terms lays down that the court should proceed with the case but after having found that the child has committed the offence it is debarred from passing any sentence but would forward the child to the children 's court for passing orders in accordance with the Act.
As regards the general applicability of the Act, we are clearly of the view that the relevant date for the applicability of the Act is the date on which the offence takes place.
Children Act was enacted to protect young children from the consequences of their 594 criminal acts on the footing that their mind at that age could not be said to be mature for imputing mens rea as in the case of an adult.
This being the intendment of the Act, a clear finding has to be recorded that the relevant date for applicability of the Act is the date on which the offence takes place.
It is quite possible that by the time the case comes up for trial, growing in age being an involuntary factor, the child may have ceased to be a child.
Therefore, sections 3 and 26 became necessary.
Both the sections clearly point in the direction of the relevant date for the applicability of the Act as the date of occurrence.
We are clearly of the view that the relevant date for applicability of the Act so far as age of the accused, who claims to be a child, is concerned, is the date of the occurrence and not the date of the trial.
The High Court has failed to take notice that the Act being a piece of social legislation is meant for the protection of infants who commit criminal offences and, therefore, its provisions should be liberally and meaningfully construed so as to advance the object of the Act.
Bearing this in mind we have construed the documents in the instant case.
We, therefore, allow the appeal to the extent that while setting aside the judgment of the Sessions Judge, as affirmed by the High Court, we direct the Additional Sessions Judge, Jaipur, to try the accused and if he gives a finding that the accused is guilty, he shall forward the accused to the Children 's court for receiving sentence in accordance with the provisions of section 26 of the Act.
H.L.C. Appeal allowed.
| IN-Abs | The Rajasthan Children Act, 1970, provides that any person below the age of 16 years should be presumed to be a child and that a delinquent child should be tried by a Children 's court in accordance with the procedure laid down therein.
The appellant was charged under sections 364 and 302, I.P.C., in connection with an occurrence that took place in Tonk district on March 12, 1973.
A preliminary objection that the Sessions Judge was not competent to try the case of The appellant as he was a child under the provisions of the Children Act was overruled by the trial court.
The revision filed by the appellant against the decision of the trial court was dismissed by the High Court which held that the Children Act was not applicable to the appellant as that Act had not been enforced in Tonk district on the date of the occurrence.
The High Court further held that the appellant had failed to prove that he was below the age of 16 years.
On being directed by this Court to ascertain the actual date of birth, the High Court held that the date of birth of the appellant was September 22, 1956; and, therefore, he was over 16 years on the date of the occurrence.
The High Court rejected the documents produced from the first two schools attended by the appellant which showed his date of birth to be June 22, 1957, for the reason that those documents had not been kept or made by a public officer; it relied on an affidavit furnished by the father of tho appellant while admitting him to the third school in which the date of birth had been changed to September 22, 1956.
The explanation of the appellant 's father that the date of birth had been changed to fulfil the requirement of age under the Rajasthan Board of Secondary Regulations to enable the appellant to appear in the Higher Secondary Examination at the appropriate time was not accepted.
Allowing the appeal, 584 ^ HELD: 1.
(a) The relevant date for applicability of the Rajasthan Children Act, 1970 so far as the age of the accused, who claims to be a child, is concerned, is the date of the occurrence and not the date of the trial as is clear from the provisions of sections 3 and 26 of the Act.
[594 C] (b) At the time of the occurrence, the appellant was undoubtedly a child within the provisions of the Act.
[592 H] (c) The question whether the appellant could be tried as a child if he had become more than 16 years by the time the case went up to the court, does not survive as the Act has now been enforced in the entire State.
A combined reading of sections 3 and 26 clearly shows that the statute takes care of contingencies where proceedings in respect of a child were pending in any court on the date on which the Act came into force.
Section 26 in terms lays down that the court should proceed with the case but after having found that the child has committed the offence it is debarred from passing any sentence but is obliged to forward the child to the Children 's court for passing orders in accordance with the Act.
[592 H; 593 A; 593 F G] (d) The judgment of the Sessions Judge as affirmed by the High Court be set aside and the Additional Sessions Judge, Jaipur, be directed to try the accused and if he gave a finding that the accused was guilty, he shall forward the accused to the Children 's court for receiving sentence in accordance with the provisions of the Act.
[594 E] 2.
There is no legal requirement under section 35 of the Evidence Act that the public or other official book should be kept only by a public officer; all that is necessary is that the document should be maintained regularly by a person whose duty it is to maintain the document.
[588 G; 589 C] Mohd.
Ikram Hussain vs State of U.P., [1964] 5 S.C.R. 86, 100 & Abdul Majid vs Bhargavam, A.I.R. 1963 Ker. 18 referred to.
The Rajasthan Children Act being a piece of social legislation is meant for the protection of infants who commit criminal offences and, therefore, its provisions should be liberally and meaningfully construed so as to advance the object of the Act.
The Children Act was enacted to protect young children from the consequences of their criminal acts on the footing that their mind at that age could not be said to be mature for imputing mens rea as in the case of an adult.
[524 D; 593 H; 594 A] In the instant case there are two documents of two different schools showing the date of birth of the appellant as June 22, 1957 and both these documents have been signed by his father and were in existence ante litem motam.
Hence, there could be no ground to doubt the genuineness of these documents.
At the time when the age of the appellant was first mentioned in the admission form, there was absolutely no dispute about the date of birth and there could Dot have been any motive on the part of the parents to give a false date of birth because it was his first admission to a school at a very early age.
The school to which the appellant was admitted enjoyed good reputation of authenticity.
585 there had been any element of suspicion, the admission register and the scholar 's register would have been corrected by the headmistress of the school.
[591 D; 590 D; 590 H] M/s. Gannon Dunkerlay & Co. Ltd. vs Their Workmen, referred to.
The appellant 's father has given a cogent reason for changing the date of birth and there is no reason for not accepting his explanation particularly because the offence was committed seven years after changing the date of birth.
[592 C]
|
: Criminal Appeal No. 45 of 1982.
597 From the Judgment and Order dated the 9th July, 1981 of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No. 333 DB of 1981, AND S.L.P. (Crl.) No. 2948 of 1982.
R.L. Kohli and R. C. Kohli for the Appellants.
T.U. Mehta and A.G. Ratnaparkhi for Respondent No. 1.
N.C. Talukdar and R.N. Poddar for Respondent No. 3.
N.C. Talukdar and R.N. Poddar for the Petitioner in S.L.P. (Crl.) No. 2498/81.
D. D. Sharma for the State.
The Judgment of the Court was delivered by MISRA, J.
The appeal as well as the special leave petition are directed against the judgment of the High Court of Punjab and Haryana at Chandigarh dated 9th July, 1981.
Criminal appeal has been filed by the complainant while the special leave petition has been filed by the State of Himachal Pradesh.
Vinay Kumar and his mother Chhano Devi were convicted for the murder of Asha, the wife of Vinay Kumar by burning her alive and sentenced to life imprisonment by the learned Sessions Judge, Gurdaspur.
On appeal by the accused, the High Court acquitted them by the impugned judgment.
The prosecution case set up at the trial was that the deceased Asha was married with Vinay Kumar in July, 1972.
The marriage was an arranged marriage.
It did not prove to be a success, the apparent cause for the failure of marriage was that Asha was only a matriculate and not cultured enough to move about in the society with the husband.
To make up this deficiency the deceased again resumed her studies and started attending college at Nagrota Bhagwan.
While prosecuting her studies she was rebuked and abused and sometimes even thrashed, whenever she visited the house of her in laws.
She however, kept on suffering in the vain hope that in due course of time things might improve.
There was, however, no improvement and she was fed up with the maltreatment and 598 cruelty meted out to her in the in laws house.
She left the matrimonial home and started living with her parents sometime in the year 1975 or early 1976.
In 1977 Vinay Kumar filed a petition in the court of the District Judge, Kangra at Dharamshala under section 13 of the Hindu Marriage Act for the dissolution of his marriage with the deceased on various grounds including one of desertion.
The District Judge in the first instance tried for reconciliation between the spouse and as an interim arrangement Asha returned to her in laws house in June 1978 on trial basis, while divorce petition was kept pending and adjourned to July 29, 1978.
As the parties did not appear in the Court on the date fixed, it was presumed that they were living happily and the proceedings were, therefore, consigned to the record.
On 5th of August, 1978 at about 11 a.m.
Kanwal Nain P.W. 4, Bil Bhandur P.W. 14, employee of the Post office, which was just in front of the house of the accused at a distance of 10/12 feet, and a number of other persons saw smoke coming out of the window of the house of the accused.
When Bil Bhandur and others went to the house, they found the outer door locked.
There was no other means of ingress to the house.
After a short while one Raj brought the key from Chhano Devi accused with which the lock was opened and entry gained into the house.
Asha was found burning and after extinguishing the fire, she was removed to the local hospital.
Dr. O. P. Dutta attended her and sent an intimation of the incident to the Incharge local Police Post.
He recorded the statement of Asha on the out patient register 13x.
Meanwhile Kesar Singh, Assistant Sub Inspector, arrived there an d after getting a certificate from Dr. Dutta, he also recorded her statement exhibit PU.
From Civil Hospital, Kangra Asha was removed in a truck to a Civil Hospital in Dharamshala (H.P.) where she breathed her last.
The police suspected no foul play and did not register any case.
The father of the deceased Hanumant Dass, however, made a report on 7th August, 1978 and a case was registered on that basis.
The accused were sent up for trial.
When the case was pending in the Court of Sessions Judge, Dharamshala in Himachal Pradesh, the complainant moved an application to the 599 Supreme Court for transfer of the case from Himachal Pradesh to some other province.
The case was transferred to a Court of competent jurisdiction at Gurdaspur in Punjab.
The Sessions Judge, Gurdaspur convicted both the accused under section 302 read with section 34 of the Indian Penal Code and sentenced them to life imprisonment.
This conviction was based only on the circumstantial evidence.
Accused went up in appeal to the High Court.
The High Court in its turn set aside the order of conviction and acquitted the accused of the charge.
The complainant has filed the present appeal.
Shri Kohli appearing for the complainant has strenuously contended that the appeal before the High Court has been allowed in the absence of the State of Himachal Pradesh and without any notice to that State and as such the impugned judgment of the High Court is a nullity and should be set aside on that ground alone.
The accused had impleaded only the State of Punjab as a party and the High Court has issued notice to the Advocate General of Punjab.
As a second limb to this argument it has been contended by Shri Kohli that the appeal was filed in the High Court on 15th June, 1981 and while considering the application for bail on 22nd of June, 1981, posted the appeal for hearing on 6th of July, 1981 after service of notice on the Advocate General of Punjab and the appeal was decided on 9th July, 1981 without even summoning the record.
Thus the High Court was in a hot haste to dispose of the appeal even without reasonable opportunity being afforded to the counsel for the State and without impleading the appropriate State as a party to the appeal and without notice to the counsel for the State of Himachal Pradesh.
We may first deal with the criticism of the learned counsel about the undue haste in the disposal of the appeal by the High Court.
It appears that Shri M.R. Mahajan, counsel for the appellants while moving the application for bail made a statement before the High Court and it is on his statement that the case was posted for hearing at the earliest possible.
This will be apparent from the order dated 22.6.1981 passed by the High Court while disposing of the application for bail.
The order insofar as it is material for consideration of the point reads: ".
Mr. Mahajan, Advocate states that on the findings of fact recorded by the learned trial Judge, the conviction of the appellants cannot be sustained.
Notice for 6.7.81.
600 to the Advocate General, Punjab.
Copy of the grounds of appeal and the judgment rendered by the learned trial Judge be delivered in the office of the A. C. Punjab within two days, The case is likely to be disposed of on that date . " Therefore, the charge levelled against the High Court that it was in a hot haste to decide the appeal at the earliest possible appears to be uncalled for.
This leads us to the main contention raised by Shri Kohli that the transfer of the case from Dharamshala lying within the territorial jurisdiction of the High Court of Himachal Pradesh to Gurdaspur Lying within the jurisdiction of the Punjab and Haryana High Court, does not change the parties and the parties remain the same even after the transfer of the case from Dharamshala to Gurdaspur.
In this view of the legal position, the State of Himachal Pradesh where the offence was committed was a necessary party and should have been impleaded in appeal.
In the absence of the State of Himachal Pradesh as a party and in the absence of notice to the counsel for the State of Himachal Pradesh, the High Court was not justified in disposing of the appeal and its judgment is only a nullity.
This contention is based on section 385 of the Code of Criminal Procedure.
Insofar as it is material for the purpose of the case it reads : "385(1): If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given (i) to the appellant or his pleader; (ii) to such officer as the State Government may appoint in this behalf; (iii) if the appeal is from a judgment of conviction in case instituted upon complaint, to the complainant; (iv) if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.
601 (2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties: Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.
In the appeal before the High Court, State of Punjab was made a party and notice .
Of the appeal was also given to the Advocate General of Punjab.
According to Shri Kohli this does not satisfy the requirement of law.
It would be appropriate at this stage to refer to other relevant provisions of the Code: Section 225 provides that "In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.
" Section 2(4) defines public prosecutor "Public Prosecutor means any person appointed under section 24, and includes any person acting under the direction of a public prosecutor.
" Section 24 deals with "Public Prosecutors in the High Court": "24.
Public Prosecutors: (I) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. . . . . . .
Section 378 talks of an appeal in case of acquittal.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the , or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub sec.(3) to the High Court from the order of acquittal.
Section 432 authorises the appropriate Government to suspend or remit sentences. "432(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.
(2) Whenever an application is made to the appropriate Government for the suspension for remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion (3) .
. . (4). . (s) (6) The provisions of the above sub sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property, 603 (7) In this section and in section 433, the expression "appropriate Government" means (a) in cases where the sentence is for an offence against, or the order referred to in sub section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; (b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
From the various provisions extracted above it is evident that there shall be a Public Prosecutor for conducting any prosecution appeal or other proceeding on behalf of the Central Government or State Government in the High Court.
Shri Kohli, however, contends that occurrence in the instant case took place within the territorial limits of Himachal Pradesh.
That State, therefore, will continue to be a necessary party in the appeal irrespective of the fact that the appeal was filed in the Punjab High Court.
Section 432(7) extracted above defines "appropriate Government".
"Appropriate Government" means (a) in cases where the sentence is for an offence against, or the order referred to in subsection (6) is passed under any law relating to a matter to which the executive power of the Union extends, the Central Government; (b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
According to this section the appropriate Government is the Government of the State of conviction and not the Government of the State where the offence was committed.
A somewhat similar question came up for consideration in the State of Madhya Pradesh vs Ratan Singh & Ors.,(1) where the respondent was convicted and sentenced to imprisonment for life by a court in the State of Madhya Pradesh.
At his request he was transferred o a Jail in the State H 604 of Punjab, to which State he belonged.
He applied to the Government of Punjab that under the Punjab Jail Manual he is entitled to be released since he had completed more than 20 years of imprisonment.
The application was sent to the Government of Madhya Pradesh, which rejected it.
In a Writ petition filed by him the High Court of Punjab and Haryana held that the State of Punjab was the appropriate authority to release him and directed the State of Punjab to consider the matter.
This Court in appeal observed "a perusal of this provision clearly reveals that the test to determine the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government within the meaning of sec.
401 of the Code of Criminal Procedure.
Thus since the prisoner in The instant case, was tried, convicted and sentenced in the State of Madhya Pradesh, the State of Madhya Pradesh would be the appropriate Government.
to exercise the discretion for remission of the sentence under sec.
401(1) of the Code of Criminal Procedure. .
" That was a case based on section 401 of the old Criminal Procedure Code, but the Code of Criminal Procedure, 1973 has put the matter completely beyond any controversy and reiterated the provisions of section 402(3) in sub section (7) of section 432, Lastly it was contended that the appeal was disposed of by the High Court even without summoning the record.
There is no warrant for this assumption.
No specific allegation has been made in the special leave petition that the record was not summoned.
We have perused the Judgment of the High Court and the tenor of the judgment indicates that the record must have been there before the court.
There is copious reference to the materials on the record which could be possible only when the record was there before the court.
the counsel for the appellant made a statement before the court that on the finding of fact recorded by the High Court he was entitled to an acquittal and in this view of the matter even if the record had not been summoned (for which there is no basis) that would not be fatal, Proviso to sub section (2) of section 385 itself provides ". the court may dispose of the appeal without sending for the record.
" in a certain situation.
The rigour of subsection (2) of sec.
385, which provides that "the Appellate Court shall then send for the record of the case. " has been taken away by the proviso in a certain situation.
If the appellant himself says that the appeal can be allowed on the findings recorded by the Sessions Judge, the non summoning of the record, if it was at all so, 605 would not to our mind be fatal.
The complainant was present with his counsel, the State Advocate General was also present.
If there had been any grievance about the record, they would have raised an objection.
Their non objection on this point is also an indicator that the record was there or in any case, the summoning of the record was not thought to be necessary by the parties.
B Assuming for the sake of argument, that there were certain irregularities it the procedure the judgment of the High Court could not be set aside unless it was shown by the appellant that there has been failure of justice, as will be evident from section 465 of the Criminal Procedure Code which reads: "465.
no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
" We have perused the judgment of the High Court which was placed before us in full.
It shows that each and every aspect of the matter has been thoroughly discussed and the High Court has also referred to the error committed by the Sessions Judge in the approach of the case and also in making unwarranted assumptions.
on merits we fully agree with the appraisal of the evidence made by the High Court.
It is not necessary to repeat the same 606 over again.
There is no eye witness.
The fate of the case hinges upon the circumstantial evidence.
The High Court has dealt with the two dying declarations, one recorded by the Doctor and the other by the Assistant Sub Inspector.
The High Court also took into consideration the oral dying declaration on which the prosecution strongly relied.
But even that declaration does not implicate the accused.
The reason given by the High Court for acquittal in our opinion is cogent and plausible.
For the foregoing discussion, the criminal appeal and the special leave petition must fail and they are accordingly dismissed.
| IN-Abs | Vinay Kumar, the husband of the deceased Asha and his mother Chhano Devi were charged, convicted for the offence of burning alive the deceased and sentenced to life imprisonment on a complaint by Hanumant Dass the father of the deceased and the appellant in Criminal Appeal 45 of 1982 by the Sessions Judge Gurdaspur, Punjab.
The offence is alleged to have been committed within the territorial limits of the State of Himachal Pradesh, but on an application of the complainant the case was transferred by an order of the Supreme Court inasmuch as the accused were the brother in law and mother in law of a Judge of the High Court of Himachal Pradesh.
In appeal by tho accused the High Court of Punjab issued, on 22 6 1981, notice for 6 7 1981 to the Advocate General of Punjab only and on that date heard the appeal and acquitted both the accused.
Hence the appeal by the complainant and the special leave by the State of Himachal Pradesh.
Dismissing the appeal and the Special Leave Petition, the Court, ^ HELD: 1.
The charge levelled against the High Court that it was in a hot haste to decide the appeal at the earliest possible is incorrect in view of the order dated 22 6 1981 passed by the High Court of Punjab.
[600 B] 2:1.
Section 385 of the Code of Criminal Procedure is a mandatory provision and the requirement of the section must be satisfied.
In the appeal before tho High Court State of Punjab was made a party and notice of the appeal was also given to the Advocate General of Punjab.
From sections 2(4), 24, 225, 378 and 432 it is evident that there shall be a Public Prosecutor for conducting any prosecution appeal or other proceeding on behalf of the Central 596 Government or State Government in the High Court.
If notice has been given to the Public Prosecutor, namely, the Advocate General of Punjab the requirement of law has been fulfilled.
[601 B C, 603 C D] 2:2.
Section 432 of the Criminal Procedure Code defines "appropriate Government" as meaning (a) in cases where the sentence is for an offence against, or the order referred to in sub section (6) is passed under any law relating to a matter to which the executive power of the Union extends, the Central Government; (b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
According to this section the appropriate Government is the Government of the State of conviction and not the Government of the State where the offence was committed.
[603 C D] State of Madhya Pradesh vs Ratan Sing & Ors., [1976] Supp.
S.C.R. 552, applied.
To contend that the High Court disposed of the appeal even without summoning the record is incorrect.
No specific allegation has been made in the Special Leave Petition that the record was not summoned.
The tenor of the judgment of the High Court indicates that the record must have been there before the High Court.
There is copious reference to the materials on the record which could be possible only when the record was there before the court.
Besides, the counsel for the appellant made a statement before the court that on the finding of fact recorded by the High Court he was entitled to an acquittal and in this view of the matter even if the record had not been summoned that would not be fatal.
Further proviso to sub section (2) of section 385 itself provides ". the court may dispose of the appeal without sending for the record," in a certain situation.
The rigour of sub section (2) of section 385, which provides that "the Appellate Court shall then send for the record of the case. " has been taken away by the proviso in a certain situation.
If the appellant himself says that the appeal can be allowed on the findings recorded by the Sessions Judge, the non summoning of the record, if it was at all so, would not be fatal.
The complainant was present with his counsel, the State Advocate General was also present.
If there had been any grievance about the record, they would have raised an objection.
Their non objection on this point is also an indicator that the record was there or in any case, the summoning of the record was not thought to be necessary by the parties.
[604 E H, 605 A B] 4.
On merits also there is no case for the appellants since each and every aspect of the matter has been thoroughly discussed by the High Court which has referred to the error committed by the Sessions Judge in the approach of the case and also in making unwarranted assumptions.
There is no eye witness.
The fate of the case hinges upon the circumstantial evidence.
The High Court has dealt with the two dying declarations, one recorded by the Doctor and the other by the Assistant Sub Inspector.
The High Court also took into consideration the oral dying declaration on which the prosecution strongly relied.
But even that declaration does not implicate the accused.
[605 G H, 606 A B]
|
N: Criminal Appeal No. 669 of 1980.
Appeal by special leave from the judgment and order dated the 2nd February, 1979 of the Karnataka High Court in Criminal Revision Petition No. 320 of 1978.
B.R.L. Iyengar and N. Nettar for the Appellant.
A.L. Wahi and K.C. Dua for Respondent Nos.
Ram Jethmalani and Miss Rani Jethmalani for Respondent No. 4.
The Judgment of the Court was delivered by SEN, J.
In this appeal, by special leave, from the judgment of the Karnataka High Court, the only issue between the parties is as to the legality and propriety of the order of confiscation passed by the Deputy Commissioner, Belgaum, of a consignment of 7,200 kg.
of groundnut oil seized for contravention of sub cls.
(2) (a) and (b) of cl. 3 of the edible oil, edible oil Seeds and oil Cakes (Declaration of Stocks) order, 1976 hereinafter called the order).
Briefly stated the facts are these: on 6.6 1977 at about 11.30 a.m., the Sub Inspector of Police, Hukeri, intercepted a truck bearing registration No. MHL 2675 laden with 40 barrels of groundnut oil weighing 7,200 kg.
which were being transported from Kampli to Nippani, without furnishing a declaration in Form II to Tahsildar, Hospet, as required under sub cls.
(2) (a) and (b) of cl. 3 of the order.
The Sub Inspector of Police, after seizing the vehicle and the oil registered a case and thereafter reported the matter to the Deputy Commissioner, Belgaum.
He forwarded the report together with the seized vehicle and the oil to the Deputy Commissioner, Belgaum for taking action under section 6 A of the (hereinafter called the Act).
The truck was released to the owner on his executing an indemnity bond, and the groundnut oil released to the Respondent 4, Gopinath Manikchand Dharia, Proprietor, Messrs Anant Oil Mills, Nippani on his furnishing a bank guarantee for Rs. 70,000/ towards the price thereof.
The Deputy Commissioner gave notices as required under section 6 B of the Act to the parties concerned.
During the enquiry, the respondent No. 4 produced before him a copy of the invoice dated 5.6.1977 issued by Sri Satyanarayana Oil Mills, Bellary Road, Kampli, show 832 ing the sale of 7,200 kg.
of groundnut oil to Messrs Anant Oil Mills, Nippani.
He also produced a copy of the declaration in Form No. 39 prescribed under the Mysore Sales Tax Act, 1957.
The Deputy Commissioner, after affording the parties an opportunity of hearing, held that the respondents had contravened the provisions of sub cl.
(2) (a) and (b) of Cl.
3 of the order and accordingly confiscated 40 barrels of groundnut Oil and the truck bearing registration No. MHL 2675.
The respondents preferred an appeal under section 6 C of the Act before the II Additional Sessions Judge, Belgaum, who was the Appellate Authority.
But he, by his well considered judgment, confirmed the order of confiscation passed by the Deputy Commissioner under section 6 A of the Act.
Thereupon, the respondents preferred a revision before the High Court and a learned Single Judge has, by his judgment, set aside the order of the Appellate Authority as well as the Deputy Commissioner on the ground that there was substantial compliance of the requirements under sub cls.
(2) (a) and (b) of cl. 3 of the order inasmuch as the respondents had sent the prescribed declaration in Form II to the Tahsildar, Hospet on 7.6.1977.
According to the High Court, no such declaration could be furnished on 5.6.1977 as it was a holiday being Sunday.
Upon that view, the High Court set aside the order of confiscation passed by the Deputy Commissioner under section 6 A of the Act and directed restoration of all the properties to the persons concerned.
Hence this appeal by special leave.
The State was not interested in the confiscation of the truck and, therefore, special leave is confined to the question of the legality and propriety of the order of confiscation passed by the Deputy Commissioner under section 6 A of the Act in respect of the seized groundnut Oil.
On the admitted facts, there can be no doubt whatever that there was a contravention of sub cls.
(2) (a) and (b) of cl. 3 of the order.
Sub cls (2) (a) and (b) of cl. 3 are as follows: 3.
(2) A stock holder who transports Edible Oils, Edible Oil Seeds and Oil Cakes shall make a declaration in Form II to the officer specified in Sub Clause (I) in respect of such Edible Oils, Edible Oil Seeds and Oil Cakes, (a) at the place from where such Edible Oils, Edible Oil Seeds and Oil Cakes are transported, before such 833 Edible Oils, Edible Oil Seeds and Oil Cakes leave the said place; and (b) at every check post on the route, immediately after their arrival there: Provided that the declaration at a check post shall be made in person by the stock holder or by the person in charge of such Edible Oils, Edible Oil Seeds and Oil Cakes to such officer, as the Government may by special or general order specify.
The expression 'stock holder ' has been defined in the order as meaning "Every person who is in possession or control of 150 kilograms or more of groundnut oil. (b) 15 quintals or more of groundnut oil or cake. (c) 15 quintals or more of groundnut seeds. and (d) 20 quintals of groundnut shell.
The Explanation thereto provides that edible oil, edible oil seeds and oil cakes in transit shall be presumed to be under the control of the owner thereof.
D The order passed by the High Court setting aside the order of r confiscation made by the Deputy Commissioner under section 6 A of the Act can hardly be supported.
In reaching the conclusion that it did, the High Court observes that 5.6.1977 being Sunday, the declaration in Form II could not be delivered to the Tahsildar since the Taluka office was closed.
Nor could it be sent by registered post acknowledgement due as the Post office could not have been working on that day.
It then goes on to observe: Then, the question is, whether a stock holder should not at all transport his stock on a Sunday, though the contractual terms of his business of such transaction required that it should be done, as the stock should reach the consignee on a particular date.
It is impossible to conceive that law expects any citizen to perform what is impossible to be performed in law.
Now the fact that Form II has been received in the office of the Tahsildar on 7.6.1977, clearly indicates that it must have been sent by registered post on 6.6.1977.
Anyhow, when once it is seen that it was impossible for the stock holder (petitioner 4) to submit Form II on 5.6.1977 before transporting groundnut oil in that truck on that day, it cannot at all be said that petitioner 4 has committed any breach of the provisions of the order.
834 It is difficult to subscribe to the view expressed by the High Court.
When the parties were entering into a transaction of such magnitude there was a duty cast on them to comply with the requirements of sub cls.
(2) (a) and (b) of cl. 3 of the order before the consignment left the place.
If the consignment was to be loaded on 5.6.1977 which was a Sunday, nothing prevented the parties from furnishing a declaration on 4.6.1977.
The High Court appears to be labouring under a belief that there need be no strict observance of the laws on a Sunday.
There is no warrant for this view.
Faced with the situation that it was rather difficult, if not impossible, to support the view taken by the High Court, Shri Ram Jethmalani, learned counsel for the respondent No. 4 made a valiant effort to avert the order of confiscation passed under section 6 A of the Act, by advancing the following three contentions: (1) The power conferred on the Deputy Commissioner under section 6 A of the Act, by the use of the word 'may ', makes it a discretionary power which had to be used according to sound judicial principles.
It is urged that Messrs Anant Oil Mills to whom the groundnut oil belonged had committed no breach of sub cls.
(2) (a) and (b) of cl. 3 of the order and therefore, the order of confiscation of the entire consignment passed by the Deputy Commissioner was wholly arbitrary and excessive.
(2) The power of confiscation entrusted to the Deputy Commissioner under section 6 A of the Act is exercisable in relation to an essential commodity seized in pursuance of an order made under section 3.
There was nothing to show that the groundnut oil in question had been seized or that a report of such seizure had been made without unreasonable delay to the Deputy Commissioner under the order and, therefore, the Deputy Commissioner had no power to direct its confiscation under section 6 A of the Act.
(3) It is not established that the Deputy Commissioner had complied with the statutory requirements of section 6 B of the Act, by giving a show cause notice to the persons concerned against the action proposed to be taken or afforded them an opportunity of hearing and, therefore, the order of confiscation passed by him under section 6 A was a nullity.
We are afraid, none of these contentions can prevail.
As to point No. (1), it is axiomatic that the power of confiscation of an essential commodity seized for contravention of an order issued under cl. 3, is a discretionary power.
The use of the word 'may ', however, does not necessarily mean that the Deputy Com missioner cannot, in the given circumstances of a particular case, direct the confiscation of the entire consignment of an essential commodity in relation to which there is a contravention of any of the orders issued under section 3 of the Act.
It all depends on the facts 835 and circumstances of each case whether the confiscation should be of an entire consignment or part of it, depending upon the nature of the contravention.
The power conferred on the Deputy Commissioner under section 6 A of the Act, by the use of the word 'may ', makes the power coupled with a public duty.
Sometimes it may be in the public interest to direct confiscation of the entire consignment of an essential commodity when there is deliberate contravention of the provisions of an order issued under section 3 of the Act.
In the facts and circumstances of the present case, it cannot be doubted for a moment that the Deputy Commissioner acted in the public interest to direct confiscation of the entire consignment of the groundnut oil, as it was being transported from one place to.
another without furnishing the requisite declaration in Form II.
All systems of control, supply and distribution of essential commodities would fail unless the various control orders issued by the Central Government under section 3 of the Act in relation thereto are strictly observed.
These control orders are issued under section 3 when the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of essential commodities or for securing equitable distribution and availability at fair prices etc.
Sub cls.
(2) (a) and (b) of cl. 3 of the order enjoin that the stock holder shall make a declaration in From II in relation to movement of edible oil, edible oil seeds and oil cakes, to the Tahsildar in charge of the taluka of the place from where such edible oil, edible oil seeds and oil cakes are transported before such edible oil, edible oil seeds or oil cakes, leave the place.
The whole purpose is to maintain a control over the stock of such essential commodities at a place with a view to secure their equitable distribution and availability at fair prices.
The requirements of sub cls.
(2) (a) and (b) of cl. 3 of the order are clearly mandatory.
We fail to comprehend the contention that there was only a technical breach.
Under sub cls.
(2)(a) and (b) of cl. 3 of the order, a stock holder is required to furnish a declaration in Form II in relation to movement of edible oil, edible oil seeds and cakes, to the Tahsildar in charge of the taluka at the place from where such commodity is sought to be transported before such commodity leaves the place.
The definition of 'stock holder ' certainly means the consignor who holds such stock of edible oil, oil seeds and cakes and also may include a purchaser of such oil, seeds and cakes who is in possession or control thereof.
Explanation to the definition of 836 'stock holder ', by a legal fiction, treats the owner to have control over the edible oil, edible oil seeds and cakes, in transit.
The respondent No. 4, being the purchaser, also comes within the definition of 'stock holder ' by reason of the said Explanation.
There is nothing to show that the consignor had reserved the jus disponendi by the terms of the contract or appropriation and, therefore, the property in the goods passed to the respondent No. 4 on their delivery to a common carrier under section 25 of the .
The allegation in the complaint is that 40 barrels of groundnut oil weighing 7,200 kg. were being transported by the truck bearing No. MHL 2675 without furnishing the requisite declaration in Form II and it was intercepted at the Hukeri check post by the sub Inspector of Police.
In response to a notice issued by the Deputy Commissioner under section 6 B of the Act, the respondent No. 4 produced before him the documents of title in relation to the goods.
From these documents, it is clear that the consignor was Sri Satyanarayana Oil Mills, Kampli and the consignee was Messrs Anant Oil Mills, Nippani and that the truck was laden with the consignment.
These facts were also borne out by the particulars furnished in the declaration in Form 39 under the Mysore Sales Tax Act, 1957.
It appears from these documents that Sri Satyanarayana Oil Mills, after despatching the consignment, purported to furnish the declaration in Form II to the Tahsildar, Hospet, which was received by him on 7.6.1977, requesting for the release of the groundnut oil in question.
The respondent No. 4 contended before the Deputy Commissioner that there was substantial compliance of the requirements of sub cls.
(2)(a) and (b) of cl. 3 of the order and, therefore, the seized groundnut oil be released, but he rejected the contention on the ground that the declaration in Form II was required to be filed before the specified officer before the goods left the place.
The Deputy Commissioner requisitioned the form produced before the Tahsildar, but i t did not bear any date.
He was of the view that the declaration was not sent by registered post on 6.6.1977 as asserted, but had apparently been handed over in the Taluka office and acknowledgment obtained for the same.
The Deputy Commissioner observed that the requirement of law was that the declaration in Form II had to be produced at every check post during transit, and this was not done.
The driver of the truck did not have a copy of the declaration in Form II, but only the declaration in Form 39 which could not be taken to be in compliance of law.
Obviously, the stock holder, Sri Satyanarayana Oil Mills, after despatching the 837 consignment of groundnut oil, purported to furnish the declaration in Form II.
This was in complete breach of the requirements of sub cls.
(2) (a) and (b) of cl. 3 of the order.
The Deputy Commissioner, therefore, held that the respondents having contravened the provisions of sub cls.
(2) (a) and (b) of cl. 3 of the order, the seized truck alongwith the entire consignment of the groundnut oil was liable to be confiscated under section 6 A of the Act.
The learned Sessions Judge, in our opinion, rightly confirmed the order of confiscation passed by the Deputy Commissioner under section 6 A of the Act as it was unassailable.
At no point of time was there a contention raised that the Deputy Commissioner had failed to exercise his discretion as to the quantity of the groundnut oil liable to be seized.
It is now too late in the day to urge the point before this Court.
C As to point No. (2), there is no warrant for the submission that there was nothing to show that the groundnut oil had been seized and, therefore, the power of confiscation was not exercisable by the Deputy Commissioner under section 6 A of the Act, It is manifest from the order of the Deputy Commissioner that there was a contravention of sub cls.
(2) (a) and (b) of cl. 3 of the order and that the Sub Inspector of Police seized both the truck and the consignment of groundnut oil, and forwarded the same to him along with his report for taking action under section 6 A of the Act.
The contention of the Public Prosecutor before the Deputy Commissioner was that the seized truck and the groundnut oil were liable to be confiscated.
The very fact that the seized groundnut oil was released to the respondent No. 4 on his furnishing a bank guarantee for Rs. 70,000 for the price of the consignment of the groundnut oil clearly shows that it had been seized.
It is, therefore, idle to contend that the power of confiscation under section 6 A of the Act was not exercisable for want of seizure.
As to point No. (3), from the narration of facts above, it is amply clear that there was no breach of the requirements of section 6 B of the Act on the part of the Deputy Commissioner.
The record shows that the Deputy Commissioner, on receipt of the report of the Sub Inspector of Police mentioning the fact of contravention of sub cls.
G (2) (a) and (b) of cl. 3 of the order and forwarding the seized truck and the consignment of groundnut oil, issued notice to the parties concerned under section 6 B of the Act to show cause against their confiscation.
In response to the notice, the respondent No. 4 appeared before the Deputy Commissioner and filed a copy of the invoice together with a copy of the declaration in Form 39 under the Mysore 838 Sales Tax Act, 1957.
The Deputy Commissioner sent for the declaration in Form II as furnished to the Tahsildar which did not bear a date.
He also gave a hearing to the parties.
That being so, the validity of the order of confiscation under section 6 C cannot be challenged on the ground that the requirements of section 6 B had not been fulfilled.
The result, therefore, is that the appeal succeeds and is allowed.
The judgment of the High Court is set aside and that of the II Additional Sessions Judge, Belgaum, upholding the order of confiscation passed by the Deputy Commissioner, Belgaum, is restored, insofar as it relates to the confiscation of the consignment of groundnut oil weighing 7,200 kg.
under section 6 A of the .
P.B.R. Appeal allowed.
| IN-Abs | Clause 3(2)(a) of the Edible oil, Edible oil Seeds and oil Cakes (Declaration of Stocks) order, 1976 enjoins that before a consignment of oil leaves a place a stock holder who transports edible oils shall make a declaration in Form II to the specified officer of the place (in this case the Tehsildar of the) Taluk from where such edible oils are transported.
Clause (b) enjoins that the declaration shall be shown at every check post on the route immediately after arrival there.
A police officer seized in transit a truck carrying a large quantity of ground.
nut oil on the ground that the requisite declaration in Form II had not been furnished to the Tehsildar of the place of despatch of the consignment.
The Deputy Commissioner, after issuing a notice to the respondent under section 6B of the , released the truck and the consignment on taking from him an indemnity bond and a bank guarantee towards the price of oil.
The respondent however produced before the Deputy Commissioner a copy of the invoice issued by the seller and a declaration in Form 39 prescribed under the Mysore Sales Tax Act, 1957.
The Deputy Commissioner ordered confiscation of the truck and the oil on the view that the respondent had contravened the provisions of clause 3(2) (a) and (b) of the order.
On appeal the Sessions Judge affirmed this order.
A single Judge of the High Court in revision held that there was no contravention of the requirement of the order because the day on which the goods were despatched being a Sunday, it was impossible for the respondent to deliver on that day to Tehsildar the declaration in Form II and that the law would not expect a citizen to do the impossible.
The respondent in the State 's appeal to this Court contended that: (1) the confiscation of the entire consignment was arbitrary and excessive in that the use of the word "may" in section 6A made exercise of that power discretionary; (2) since there was nothing to show that the goods had been seized, the power of 830 confiscation under section 6A had not been properly exercised and (3) the order of confiscation was a nullity in that the Deputy Commissioner had not issued a proper show cause notice under section 6B of the Act.
Allowing the State 's appeal ^ HELD: 1 (a) The word "may" used in section 6A does not mean that the Deputy Commissioner could not order confiscation of the entire consignment of an essential commodity where he found contravention of any of the orders issued under section 3 of the Act.
The power conferred on the Deputy Commissioner under section 6A is a power coupled with public duty.
[834 H] (b) In directing confiscation of the entire consignment which was being transported without furnishing the declaration in Form II the Deputy Commissioner acted in public interest.
The whole purpose of the control order was to maintain control over the stock of essential commodities at a place with a view to securing their equitable distribution and availability at fair prices.
The requirements of clause 3 (2) (a) and (b) are mandatory.
[835 C D] (c) "Stock holder" as defined in the order includes the purchaser of oil who is in possession or control thereof.
By a legal fiction the explanation treats the owner to have control over the oil in transit.
Respondent 4 being the purchaser fell within the definition of "stock holder".
Moreover there was nothing to show that the consignor had reserved the jus disponendi by the terms of the contract or appropriation and, therefore, the property in the goods passed to respondent 4 (purchaser) on delivery to a common carrier under section 25 of the .
[836 A B] (d) The Deputy Commissioner was right in holding that the declaration in Form II was required to be filed before the specified officer before the goods left a place and that the declaration should be produced at every check post in transit as required by law.
The respondent having contravened the provisions of clause 3 (2) (a) and (b) of the order the truck and the consignment of oil were rightly confiscated.
[837 A C] (e) It is not correct to say that since the date of despatch of the goods was a Sunday there was no need to comply with the requirements of clause 3 of the order.
If the consignment had to be despatched on Sunday nothing prevented the parties from furnishing the declaration a day earlier.
In a transaction of such a magnitude a duty was cast on the party to comply with the requirements of the order before the consignment left the place.
[834 A B] 2.
The very fact that the seized groundnut oil was released only after the respondent furnished the requisite Bank guarantee clearly showed that the consignment had been seized.
Therefore power under section 6A had been correctly exercised.
[837 E F] 3.
There was no breach of the requirement of section 6B.
In response to the show cause notice issued by the Deputy Commissioner respondent 4 appeared before him and filed a copy of the invoice and declaration in Form 39 of the Mysore Sales Tax Act.
The Deputy Commissioner gave a hearing to the parties.
That being so, validity of the confiscation under section 6C could not be challenged.
[837 G H] 831
|
Appeal No. 85 of 1956.
20 154 Appeal from the judgment and order dated January 8, 1954, of the High Court of Saurashtra, at Rajkot, in Civil Misc.
Application No. 70 of 1952.
R. J. Kolah and A. C. Dave, for the appellant.
Porus A. Mehta and R. H. Dhebar, for respondent No. 1. 1956.
November 23.
The Judgment of the Court was, delivered by BHAGWATI J.
This appeal with a certificate of fitness granted by the High Court of Saurashtra raises an interesting question whether the agarias working in the Salt Works at Kuda in the Rann of Cutch are workmen within the meaning of the term as defined in the , hereinafter referred to as the Act.
The facts as found by the Industrial Tribunal are not in dispute and are as follows.
The appellants are lessees of the Salt Works from the erstwhile State of Dharangadhara and also hold a licence for the manufacture of salt on the land.
The appellants require salt for the manufacture of certain chemicals and part of the salt manufactured at the Salt Works is utilised by the appellants in the manufacturing process in the Chemical Works at Dharangadhara and the remaining salt is sold to outsiders.
The appellants employ a Salt Superintendent who is in charge of the Salt Works and generally supervises the Works and the manufacture of salt carried on there.
The appellants maintain a a railway line and sidings and also have arrangements for storage of drinking water.
They also maintain a grocery shop near the Salt Works where the agarias can purchase their requirements on credit.
The salt is manufactured not from sea water but from rain water which soaking down the surface becomes impregnated with saline matter.
The operations are seasonal in character and commence sometime in October at the close of the monsoon.
Then the entire area is parceled out into plots called pattas and they are in four parallel rows intersected by the railway 155 lines.
Each agaria is allotted a patta and in general the same patta is allotted to the same agaria year after year.
If the patta is extensive it is allotted to two agarias who work the same in partnership.
At the time of such allotment, the appellants pay a sum of Rs. 400/ for each of the pattas and that is to meet the initial expenses.
Then the agarias commence their work.
They level the lands and enclose and sink wells in them.
Then the density of the water in the wells is examined by the Salt Superintendent of the appellants and then the brine is brought to the surface and collected in the reservoirs called condensers and re tained therein until it acquires by natural process a certain amount of density.
Then it is flowed into the pattas and kept there until it gets transformed 'into crystals.
The pans have got to be prepared by the agarias according to certain standards and they are tested by the Salt Superintendent.
When salt crystals begin to form in the pans they are again tested by the Salt Superintendent and only when they are of a particular quality the work of collecting salt is allowed to be commenced.
After the crystals are collected, they are loaded into the railway wagons and transported to the depots where salt is stored.
The salt is again tested there and if it is found to be of the right quality, the agarias are paid therefore at the rate of Rs. 0 5 6 per maund.
Salt which is rejected belongs to the appellants and the agarias cannot either remove the salt manufactured by them or sell it.
The account is made up at the end of the season when the advances which have been paid to them from time to time as also the amounts due from the agarias to the grocery shop are taken into account.
On a final settlement of the accounts, the amount due by the appellants to the agarias is ascertained and such balance is paid by the appellants to the agarias.
The manufacturing season comes to an end in June when the monsoon begins and then the agarias return to their villages and take up agricultural work.
The agarias work themselves with their families on the pattas allotted to them.
They are free to engage extra labour but it is they who make the payments to 156 these labourers and the appellants have nothing to do with the same.
The appellants do not prescribe any hours of work for these agarias.
No muster roll is maintained by them nor do they control how many hours in a day and for how many days in a month the agarias should work.
There are no rules as regards leave or holidays.
They are free to go out of the works as they like provided they make satisfactory arrangements for the manufacture of salt.
In about 1950, disputes arose between the agarias and the appellants as to the conditions under which the agarias should be engaged by the appellants in the manufacture of salt.
The Government of Saurashtra, by its letter of Reference dated November 5, 1951, referred the disputes for adjudication to the Industrial Tribunal, Saurashtra State, Rajkot.
The appellants contested the proceedings on the ground, inter alia, that the status of the agarias was that of independent contractors and not of workmen and that the State was not competent to refer their disputes for adjudication under section 10 of the Act.
This question was tried as a preliminary issue and by its order dated August 30, 1952, the Tribunal held that the agarias were workmen within the meaning of the Act and that the reference was intra vires and adjourned the matter for hearing on the merits.
Against this order the appellants preferred an appeal being Appeal No. 302 of 1952, before the Labour Appellate Tribunal of India, and having failed to obtain stay of further proceedings before the Industrial Tribunal pending the appeal, they moved the High Court of Saurashtra in M.P. No. 70 of 1952 under articles 226 and 227 of the Constitution for an appropriate writ to quash the reference dated November 5, 1951, on the ground that it was without jurisdiction.
Pending the disposal of this writ petition, the appellants obtained stay of further proceedings before the Industrial Tribunal and in view of the same the Labour Appellate Tribunal passed an order on September 27, 1953, dismissing the appeal leaving the question raised therein to the decision of the High Court.
By their judgment dated January 8, 1954, the learned Judges 157 of the High Court agreed with the decision of the Industrial Tribunal that the agarias were workmen within section 2(.s) of the Act and, accordingly, dismissed the application for writ.
They, however, granted a certificate under article 133(1) (c) of the Constitution and that is how the appeal comes before us.
The sole point for determination in this appeal is whether the agarias working in the Salt Works of the appellants at Kuda are workmen within the definition of that term in section 2(s) of the Act.
" Workman " has been thus defined in section 2 (s) of the Act: "(s) 'Workman ' means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or ' reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the (Government).
" The essential condition of a person being a workman within the terms of this definition is that he should be employed to do the work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between employer and employee or master and servant.
Unless a person is thus employed there can be no question of his being a workman within the definition of the term as contained in the Act.
The principles according to which the relationship as between employer and employee or master and servant has got to be determined are well settled.
The test which is uniformly applied in order to determine the relationship is the existence of a right of control in respect of the manner in which the work is to be done.
A distinction is also drawn between a contract for services and a contract of service and that distinction is put in this way: " In the one case the master can order or require what is to be done while in the other case he can not only order or require what is to be done 158 but how itself it ,;hall be done." (Per Hilbery, J. in Collins vs Hertfordshire County Council (1).) The test is, however, not accepted as universally correct.
The following observations of Denning L.J., at pp. 110, III in Stevenson, Jordan and Harrison Ltd. vs Macdonald and Evans (2) are apposite in this context: "But in Cassidy vs Ministry of Health (3) Lord Justice Somervell, pointed out that test is not universally correct.
There are many contracts of service where the master cannot control the manner in which the work is to be done as in the case of a captain of a ship.
Lord Justice Somervell, went on to say: One perhaps cannot get much beyond this: 'Was the contract a contract of service within the meaning which an ordinary man would give under the words '? " I respectfully agree.
As my Lord has said, it is almost impossible to give a precise definition of the distinction.
It is often easy to recognize a contract of service when you see it, but difficult to say wherein the difference lies.
A ship 's master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of service; but a ship 's pilot, a taxi man, and a newspaper contributor are employed under a contract for services.
One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas., under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.
" We may also refer to a pronouncement of the House of Lords in Short vs J. & W. Henderson, Ltd. (4) where Lord Thankerton recapitulated the four indicia of a contract of service which had been referred to in the judgment under appeal, viz., (a) the master 's power of selection of his servant, (b) the payment of wages or (1) , 615.
(2) , Ill. (3) , 543 s.c. , 352 3.
(4)(1946)62T.L.R. 427,429.
159 other remuneration, (c) the master 's right to control the method of doing the work, and (d) the master 's right of suspension or dismissal, but observed: "Modern industrial conditions have so much affected the freedom of the master in cases in which no one could reasonably suggest that the employee was thereby converted into an independent contractor that, if and when an appropriate occasion arises, it will be incumbent on this House to reconsider and to restate these indicia.
For example, (a), (b) and (d) and probably also (c), are affected by the statutory provisions and ,rules which restrict the master ',% choice to men supplied by the labour bureaux, or directed to him under the Essential Work provisions, and his power of suspension or dismissal.
is similarly affected.
These matters are also affected by trade union rules which are atleast primarily made for the protection of wage earners.
" Even in that case, the House of Lords considered the right of supervision and control retained by the employers as, the only method if occasion arose of securing the proper and efficient discharge of the cargo as sufficiently determinative of the relationship between the parties and affirmed that " the principal requirement of a contract of service is the right of master in some reasonable sense to control the method of doing the work and this factor of superintendence and control has frequently been treated as critical and decisive of the legal quality of relationship.
The position in law is thus summarised in Halsburv 's Laws of England, Hailsham edition, Vol. 22, page 112, para. 191: " Whether or not, in any given case, the relation of master and servant, exists is a question of fact; but in all cases the relation imports the existence of power in the employer not only to direct what work the servant is to do, but also the manner in which the work is to be done.": and until the position is restated as contemplated in Short vs J. & W. Henderson Ltd., (supra), we may take it as the prima facie test for determining the relationship between master and servant, 160 The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at page 23 in Mersey Docks and Harbour Board vs Coggins & Griffith (Liverpool) Ltd., and Another (1), " The proper test is whether or not the hirer had authority to control the manner of execution of the act in question The nature or extent of control which is requisite to establish the relationship of employer and employee must necessarily vary from business to business and is by its very nature incapable of precise definition.
As has been noted above, recent pronouncements of the Court of Appeal in England have even expressed the view that it is not necessary for holding that a person is an employee, that the employer should be proved to have exercised control over his work, that the test of control was not one of universal application and that there were many contracts in which the master could not control the manner in which the work was done (Vide observations of Somervell, L.J., in Cassidy vs Ministry of Health (supra), and Denning, L.J., in Stevenson, Jordan and Harrison Ltd. vs MacDonald and Evans (supra).) The correct method of approach, therefore, would be to consider whether having regard to the nature of the work there was due control and supervision by the employer or to use the words of Fletcher Moulton, L.J., at page 549 in Simmons vs Health Laundry Company (2): " In my ' opinion it is impossible to lay down any rule of law distinguishing the one from the other.
It is a question of fact to be decided by all the circumstances of the case.
The greater the amount of direct control exercised over the person rendering the services by the person contracting for them the stronger the (1) ; 23.
(2) [1910] 1 K.B 543, 54 550.
9 161 grounds for holding it to be a contract of service, and similarly the greater the degree of independence of such control the greater the probability that the services rendered are of the nature of professional services and that the contract is not one of service.
" The Industrial Tribunal on a consideration of thes facts in the light of the principles enunciated above, came to the conclusion that though certain features which are usually to be found in a contract of service were absent, that was due to the nature of the industry and that on the whole the status of the agarias was that of workmen and not independent contractors.
It was under the circumstances strenuously urged before ,us by the learned counsel for the respondents that the question as regards the relationship between the appellants and the agarias was a pure question of fact, that the Industrial Tribunal had jurisdiction to decide that question and had come to its own conclusion in regard thereto, that the High Court, exercising its jurisdiction under articles 226 and 227 of the Constitution, was not competent to set aside the finding of fact recorded by the Industrial Tribunal and that we, here, entertaining an appeal from the decision of the High Court, should also not interfere with that finding of fact.
Reliance was placed on the observations of Mahajan, J., as he then was, in Ebrahim Aboobakar vs Custodian General of Evacuee Property (1) "It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong.
Indeed, it must be shown before such a writ is issued that the authority which passed the 'order acted without jurisdiction or in excess of it or in violation of the principles of natural justice.
But once it is held that the court has jurisdiction but while exercising it made a mistake, the wronged.
party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly. " (1) ; ,702.
21 162 There is considerable force in this contention of the respondents.
The question whether the relationship between the parties is one as between employer and employee or between master and servant is a pure question of fact.
Learned counsel for the appellants "relied upon a passage from Batt 's "Law of Master and Servant", 4th edition, at page 10: " The line between an independent contractor and a servant is often a very fine one; it is a mixed question of fact and law, and the judge has to find and select the facts which govern the true relation between the parties as to the control of the work, and then he or the jury has to say whether the person employed is a servant or a contractor.
" This statement, however, rests upon a passing observation of Mc Cardie, J. in Performing Right Society Ltd. vs Mitchell and Booker (Palais de Danse)(1) and is contrary to the oaten& of authorities which lays down that whether or not in any given case the relation of master and servant exists is purely one of fact.
(Vide Halsbury 's "Laws of England", Hailsham edition, Vol. 22, page 112, para.
191; Per Cozens Hardy, M.R. at page 547 and Per Fletcher Moulton, L.J. at page 549 in Simmons vs Heath Laundry Company (supra).
It is equally well settled that the decision of the Tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under article 226 of the Constitution unless at the least it is shown to be fully unsupported by evidence.
Now the argument of Mr. Kolah for the appellants is that even if all the facts found by the Tribunal are accepted they only lead to the conclusion that the agarias are independent contractors and that the finding, therefore, that they are workmen is liable to be set aside on the ground that there is no evidence to support it.
We shall, therefore, proceed to determine the correctness of this contention.
Apart from the facts narrated above in regard to which there is no dispute, there was the evidence of the Salt Superintendent of the appellants which was recorded before the Tribunal: (1) 163 "The panholders are allotted work on the salt pans by oral agreement.
The Company has no control over the panholders in regard to the hours of work or days of work.
The Company 's permission is nor sought in matter of sickness or in matter of going out to some village.
The Company has no control over the panholders as to how many labourers they should engage and what wages they should pay them.
The company 's supervision over the work of the panholders is limited to the proper quality as per requirements of the Company and as per standard determined by the Government in matter of salt.
, The company 's supervision is limited to this extent.
The Company acts in accordance with Clause 6 of the said agreement in order to get the proper quality of salt.
Panholders are not the workmen of the Company, but are contractors.
The men, who are entrusted with pattas, work themselves.
They can engage others to help them and so they do.
There is upto this day no instance that any penholder who is entrusted with a patta, has not turned up to work on it.
But we do not mind whether he himself works or not.
If any penholder after registering his name (for a patta) gets work done by others, we allow it to be done.
We own 319 pattas.
Some patta8 have two partners.
In some, one man does the job.
ID all the pans, mainly the panholders work with the help of their (respective) families.
" Clause 6 of the agreement referred to in the course of his evidence by the Salt Superintendent provided: " 6.
We bind ourselves to work as per advice and instructions of the officers appointed by them in connection with the drawing of brine or with the process of salt production in the pattas and if there is any default, negligence or slackness in executing it on our part or if we do not behave well in any way, the Managing Agent of the said Company can annul this agreement and can take possession of the patta, brine, well etc., and as a result we will not be entitled to claim any 164 sort of consideration or compensation for any half processed salt lying in our patta; or in respect of any expense incurred or labour employed in preparing kiwa patta, well bamboo lining etc.
" There was also the evidence of Shiva Daya, an agaria, who was examined on behalf of the respondents: " There is work of making enclosures and then of sinking wells.
The company supervises this work.
While the wells are being sunk, the company measures the density of the brine of wells.
In order to bring the brine of wells to the proper density, it is put in a condenser and then the Company tests this and then this brine is allowed to flow in the pattas.
The bottom of a patta is prepared after it is properly crushed under feet and after the company inspects and okays that it is alright, water is allowed to flow into it.
When salt begins to form at the bottom of a patta, an officer of the company comes and inspects it.
At the end of 21 months, the water becomes saturated, i.e., useless, and so it is drained away under the supervision of the company.
Then fresh brine is allowed to flow into the patta from the condenser.
This instruction is also given by the company 's officer.
" It was on a consideration of this evidence that the Industrial Tribunal came to the conclusion that the supervision and control exercised by the appellants extended to all stages of the manufacture from beginning to end.
We are of opinion that far from there being no evidence to support the conclusion reached by the Industrial Tribunal there were materials on the record on the basis of which it could come to the conclusion that the agarias are not independent contractors but workmen within the meaning of the Act.
Learned counsel for the appellants laid particular stress on two features in this case which, in his submission, were consistent only with the position that the agarias are independent contractors.
One is that they do piece work and the other that they employ their own labour and pay for it.
In our opinion neither of these two circumstances is decisive of the question.
As 165 regards the first, the argument of the appellants is that as, the agaria8 are under no obligation to work for fixed hours or days and are to be paid wages not per day or hours but for the quantity of salt actually produced and passed, at a certain rate,, the very basis on which the relationship of employer and employees rests is lacking, and that they can only be regarded as independent contractors.
There is, however, abundant authority in England that a person can be a workman even though he is paid not per day but by the job.
The following observations of Crompton, J. in Sadler vs Henlock (1) are pertinent in this behalf : " The test here is, whether the defendant retained the power of controlling the work.
No distinction can be drawn from the circumstances of the man being employed at so much a day or by the job.
I think that here the relation was that of master and servant, not of contractor and contractee." (See also Blake, vs Thirst (2) and Halsbury 's " Laws of England ", Hailsham edition, Vol. 22, page 119, para.
194, wherein it is stated that if a person is a worker and not a contractor, " it makes no difference that his work is piece work ".) As regards the second feature relied on for the appellants it is contended that the agaria8 are entitled to engage other persons to do the work, that these persons are engaged by the agaria8 and are paid by them, that the appellants have no control over them and that these facts can be reconciled only with the position that the agaria8 are independent contractors.
This argument, however, proceeds on a misapprehension of the true legal position.
The broad distinction between a workman and an independent contractor lies in this that while the former agrees himself to work, the latter agrees to get other persons to work.
Now a person who agrees himself to work and does so work and is, therefore, a workman does not cease to be such by reason merely of the fact that he gets other persons to work along (1) ; , 578 ; ; , 212.
(2) (1863) 32 L.J. (Exchequer) 188. 166 with him and that those persons are controlled and paid by him.
What determines whether a person is a workman or an independent contractor is whether he has agreed to work personally or not.
If he has, then he is a workman and the fact that he takes assistance from other persons would not affect his status.
The position is thus summarised in Halsbury 's 'Laws of England ', Vol. 14, pages 651 652: " The workman must have consented to give his personal services and not merely to get the work done, but if he is bound under his contract to work personally, he is not excluded from the definition, simply because he has assistance from others, who work under him." (See also Grainger vs Aynsley : Bromley vs Tams (1); Weaver vs Floyd (2) and Whitely vs Armitage (a).) In the instant case the agarias are professional labourers.
They themselves personally work along with the members of their families in the production of salt and would, therefore, be workmen.
The fact that they are free to engage others to assist them and pay for them would not,in view of the above authorities, affect their status as workmen.
There are no doubt considerable difficulties that may arise if the agarias were held to be workmen within the meaning of section 2 (s) of the Act.
Rules regarding hours of work etc., applicable to other workmen may not be conveniently applied to them and the nature as well as the manner and method of their work would be such as cannot be regulated by any directions given by the Industrial Tribunal.
These difficulties, however, are no deterrent against holding the agarias to be workmen within the meaning of the definition if they fulfil its requirements.
The Industrial Tribunal would have to very well consider what relief, if any, may possibly be granted to them having regard to all the circumstances of the case and may not be able to regulate the work to be done by the aqarias and the remuneration to be paid to them by the employer in (1) (1881) 6 Q.B.D. 182.
(2) (3) 167 the manner it is used to do in the case of other industries here the conditions of employment and the work to be done by the employees is of a different character.
These considerations would necessarily have to be borne in mind while the Industrial Tribunal is adjudicating upon the disputes which have been referred to it for adjudication.
They do not, however, militate against the conclusion which we have come to above that the decision of the Industrial Tribunal to the effect that the agarias are workmen within the definition of the term contained in section 2 (s) of the Act was justified on the materials on the record.
We accordingly see no ground for interfering with that decision and dismiss this appeal with costs.
Appeal dismissed.
| IN-Abs | The appellants were lessees holding a license for the manufacture of salt on the demised lands.
The salt was manufactured by a class of professional labourers known as agarias from rain water that got mixed up with saline matter in the soil.
The work was seasonal in nature and commenced in October after the rains and continued till June.
Thereafter the agarias left for their own villages for cultivation work.
The demised lands were divided into plots called Pattas and allotted to the a arias with a sum of Rs. 400/ for each Patta to meet the initial expenses.
Generally the same patta was allotted to the same aigaria every year and if a patta was extensive in area, it was allotted to two agarias working in partnership.
After the manufacture of salt the agayias were paid at the rate Of 5 as.
6 pies per maund.
At the end of each season the accounts were settled and the agarias paid the balance due to them.
The agarias who worked themselves with the members of their families were free to engage extra labour on their own account and the appellants had no concern therewith.
No hours of work were prescribed, no muster rolls maintained, nor were working hours controlled by the appellants.
There were no rules as regards leave or holidays and the agarias were free to go out of the factory after making arrangements for the manufacture of salt.
The question for decision was whether in such circumstances the agarias could be held to be workmen as defined by section 2(s) Of the Industrial Disputes Act of 1947, as found by the Industrial Tribunal and agreed with by the High Court or they were independent contractors and the reference for adjudication made by the Government competent under section 10 of the Act.
Held, that the finding of the Industrial Tribunal that the agarias were workmen within the meaning of section 2(S) of the Industrial Disputes Act of 1947 was correct and the reference was competent.
The real test whether a person was a workman was whether he had been employed by the employer and a relationship of employer and employee or master and servant subsisted between them and it was well settled that the prima facie test of such 153 relationship was the existence of the right in the employer not merely to direct what work was to be done but also to control the manner in which it was to be done, the nature or extent of such control varying in different industries and being by its nature incapable of being precisely defined.
The correct approach, therefore, was to consider whether, having regard to the nature of the work, there was due control and supervision of the employer.
Mersey Docks and Harbour Board vs Coggins & Griffith (Liver Pool) Ltd., and Another ; , and Simmons vs Heath Laundry Company , referred to.
The question whether the relation between the parties was one as between an employer and employee or master and servant was a pure question of fact and where the Industrial Tribunal having jurisdiction to decide that question came to a finding, such finding of fact was not open to question in a proceeding under article 226 of the Constitution unless it could be shown to be wholly unwarranted by the evidence.
Ebrahim Aboobakar vs Custodian General of Evacuee Property ; , referred to.
Performing Right, Society Ltd. etc.
vs Mitchell and Booker (Plaise De Danse) [1924] i K.B. 762, not followed.
A person could be a workman even though he did piece work and was paid not per day but by the job or employed his own labour and paid for it.
Sadler vs Henlock ; and Blake vs Thirst (1863) 32 L.J. (Exchequer) 188, referred to.
The broad distinction between a workman and an independent contractor was that while the former would be bound by agreement to work personally and would so work the latter was to get the work done by others.
A workman would not cease to be so even though lie got other persons to work with him and paid and controlled them.
Grainger vs Aynsley : Bromley vs Tams (1881) 6 Q.B.D. 182, Weaver vs Floyd (1825) 21 L.H., Q.B. 151 and Whitely vs Armitage , referred to.
As in the instant case the agayias, who were professional labourers and personally worked with the members of their families in manufacturing the salt, were workmen within the meaning of the Act, the fact that they were free to engage others to assist them and paid for them, could not affect their status as workmen.
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Special Leave Petition No. 416 of 1981.
From the judgment and order dated the 5th September, 1980 of the Punjab and Haryana High Court in Civil Writ Petition No. 1515 of 1980.
L.N. Sinha, Attorney General, K.S. Gurumoorthy & R.N. Poddar for the Petitioner.
The Order of the Court was delivered by PATHAK, J.
This petition for special leave to appeal by the Union of India is directed against the judgment and order of the High Court of Punjab and Haryana holding the respondent, a retired Judge of the High Court, entitled to the payment of the cash equivalent of leave salary in respect of the period of earned leave at his credit on the date of his retirement.
The respondent, Shri Gurnam Singh, was a member of the Superior Judicial Service in the State of Haryana.
On February 24, 1972 he was appointed a Judge of the High Court of Punjab and Haryana and retired on March 18, 1980 on attaining the age of 62 years.
On the date of retirement the respondent had to his credit earned leave which had not been availed of by him.
He claimed that he was entitled to receive the cash equivalent of leave salary in respect of the period of unutilised earned leave.
He also claimed dearness allowance for the period before retirement.
The claim being denied, the respondent applied to the High Court of Punjab and Haryana for relief under Article 226 of the Constitution.
The 702 writ petition was allowed by the High Court by its judgment and order dated September 5, 1980 and a direction was issued to the Union of India to pay the amount claimed.
During the course of the hearing the Union of India conceded the claim to dearness allowance in view of the order dated July 3, 1980 of the Government that the Judges of the High Court were entitled to draw dearness allowance from December 1, 1979.
As to the remaining claim, the High Court held the respondent entitled to the cash equivalent of the leave salary for the period of unutilised earned leave by giving him the benefit of rule 20 B, All India Services (Leave) Rules, 1955 by virtue of rule 2 of the High Court Judges Rules, 1956.
The order of the High Court is assailed before us.
In our opinion, the High Court is plainly right.
Article 221 of the Constitution provides for the payment of salaries and allowances to a Judge of a High Court.
Clause (2) of Article 221 declares: "(2) Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule: . . " The rights in respect of leave of absence to which a Judge is entitled may be determined by or under law made by Parliament.
Parliament enacted the , and sections 3 to 13 of that Act classify the kinds of leave admissible to a Judge, and provide for the maintenance of a leave account, the aggregate amount of leave which may be granted, the commutation of leave on half allowance into leave on full allowance, the grant of leave not due, special disability leave, extraordinary leave, the rate of leave allowances, allowance for joining time, for combining leave with vacation and the consequences of overstaying leave or vacation, It also specifies the authority competent to grant leave.
The Union of India says that these several provisions constitute a complete code and exhaustively set forth all the benefits relating to leave to which a Judge of a High Court is entitled, and that it is not permissible to proceed beyond those provisions to discover any further right in favour of a Judge.
That submission is inadmissible.
Sub section
(1) of section 24 of the same Act empowers of 703 Central Government to make rules to carry out the purpose of the Act.
And clause (a) of Sub section
(2) of section 24 specifically contemplates rules providing for "leave of absence of a Judge".
In other words, it is open to the Central Government to add to the existing statutory provisions by making rules in relation to leave of absence.
Sub section
(2) of section 24 in fact enables the Central Government to make rules in respect of several other matters, such as the pension payable to a Judge, travelling allowances, use of official residence, facilities for medical treatment and other conditions of service and "any other matter which has to be, or may be prescribed".
Now the Government of India enacted the High Court Judges Rules, 1956 and rule 2 comprehensively declares: "2.
The conditions of services of a Judge of a High Court for which no express provision has been made in the , shall be, and shall from the commencement of the Constitution be deemed to have been, determined by the rules for the time being applicable to a member of the Indian Administrative Service holding the rank of Secretary to the Government of the State in which the principal seat of the High Court is situated.
Provided that, in the case of a Judge of the High Court of Delhi and a Judge of the High Court of Punjab and Haryana the conditions of service shall be determined by the rules for the time being applicable to a member of the Indian Administrative Service on deputation to the Government of India holding the rank of Joint Secretary to the Government of India stationed at New Delhi.
Provided further that in respect of facilities for medical treatment and accommodation in hospitals the provisions of the All India Service (Medical Attendance) Rules, 1954, in their application to a Judge, shall be deemed to have taken effect from the 26th January, 1950.
Provided also that where at the request of the President, any Judge undertakes to discharge any function outside his normal duties in any locality away from of his headquarters, the President may, having regard to the nature of such function and locality, determine the facilities that may be afforded to such judge including accommodation, transport and telephone so long as he continues to dis 704 charge such function, either without any payment or at a concessional rate." Rule 2A sets forth the rights of a Judge who avails of an official residence and Rule 2B provides the scale of its free furnishing.
It is clear from Rule 2 of the High Court Judges Rules, 1956, that the conditions of service of a Judge of the High Court of Punjab and Haryana, where not expressly provided in the must be determined by the rules governing a member of the Indian Administrative Service of the rank of Joint Secretary to the Government of India stationed at New Delhi.
The All India Services (Leave) Rules, 1955 contain provision for leave in relation to members of the All India Services, including the Indian Administrative Service.
On the date when the respondent retired those rules included rule 20 B which provides: "20 B. Payment of cash equivalent of leave salary: (1) The Government shall suo moto sanction to a member of the service who retires from the service under sub rule (1) of rule 16 of the All India Services (Death cum Retirement Benefits) Rules, 1958, having attained the age of 58 years on or after the 30th September, 1977 the cash equivalent of leave salary in respect of the period of earned leave at his credit on the date of his retirement, subject to a maximum of 180 days.
(2) The cash equivalent of leave salary payable to a member of the Service under sub rule (1) above shall also include dearness allowance admissible to him on the leave salary at the rates in force on the date of retirement, and it shall be paid in one lump sum, as a one time settlement.
(3) The city compensatory allowance and the house rent allowance shall not be included in calculating the cash equivalent of leave salary under this rule.
(4) From the cash equivalent so worked out no deduction shall be made on account of pension and pensionary equivalent of other retirement benefits.
705 It is not disputed that Rule 20 B applies to a member of the Indian Administrative Service of the rank of Joint Secretary to the Government of India stationed at New Delhi.
The rule entitles him on retirement from service to the cash equivalent of leave salary in respect of the period of unutilised earned leave subject to a maximum of 180 days, inclusive of dearness allowance.
It is apparent that by virtue of Rule 2 of the High Court Judges Rules, 1956 this benefit must be read as a condition of service enjoyed by a Judge of the High Court.
It may be observed that although rule 20 B of the All India Services (Leave) Rules, 1955 is a provision of a scheme applicable to members of the All India Services, there is nothing in its nature and content which makes it inapplicable mutatis mutandis to the statutory scheme pertaining to leave enacted in the .
There is also nothing in the constitutional position of a Judge of a High Court which precludes Rule 20 B from inclusion in that scheme.
It is true that Rule 20 B revolves around the concept of earned leave, and the expression "earned leave" has been specifically defined by clause (d) of rule 2 of the All India Services (Leave) Rules, 1955 as "leave earned under rule 10".
But rule 10 merely lays down the rate and amount of earned leave.
The principle in which "earned leave" is rooted must be discovered from rule 4, which provides that "except as otherwise provided in these rules leave shall be earned by duty only".
The performance of duty is the basis of earning leave.
That concept is also embedded in the .
Under that Act, the time spent by a Judge on duty constitutes the primary ingredient in the concept of "actual service",(1) which is the reason for crediting leave in the leave account of a Judge.(2) Although the expression "earned leave" is not employed in the Act, the fundamental premise for the grant of leave to a Judge is that he has earned it.
He has earned it by virtue of the time spent by him on actual service.
That a Judge earns the leave which is credited to his leave account is borne out by the proviso to section 6 of the Act, which declares that the grant under section 6 of leave not due will not be mad "if the Judge is not expected to return to duty at the end of such leave and earn the leave granted" (emphasis provided).
The concept then on which rule 20 B proceeds is familiar to and underlies the statutory scheme relating to leave formulated in the Act.
It bears a logical and reasonable relationship to the essential content of that scheme.
On 706 that, it must be regarded as a provision absorbed by rule 2 of the High Court Judges Rules, 1956 into the statutory structure defining the conditions of service of a Judge of a High Court.
We may observe that even as a right to receive pension, although accruing on retirement, is a condition of service, so also the right to the payment of the cash equivalent of leave salary for the period of unutilised leave accruing on the date of retirement must be considered as a condition of service.
In our judgment, the High Court is right in upholding the claim of the respondent to the payment of the cash equivalent of the leave salary in respect of the period of earned leave at his credit on the date of retirement in accordance with the provisions of rule 20 B of the All India Services (Leave) Rules, 1955 read with rule 2 of the High Court Judges Rules, 1956.
The Special Leave petition is dismissed.
P.B.R. Petition dismissed.
| IN-Abs | On his retirement as Judge of the Punjab and Haryana High Court the respondent claimed cash equivalent of leave salary in respect of the unutilised earned leave standing to his credit.
His claim was rejected by the Government.
Allowing his petition under Article 226 of the Constitution the High Court directed the Government to pay the leave salary claimed by him.
In its petition for grant of special leave the appellant contended that the being a complete code governing the conditions of service of High Court Judges it would not be permissible to proceed beyond those provisions to discover any further rights in favour of the Judges of the High Court.
Dismissing the petition, ^ HELD : The High Court was right in upholding the respondent 's claim for payment of the cash equivalent of leave salary in respect of the period of unutilised earned leave at the credit of the Judge on the date of his retirement in accordance with the provisions of rule 20B of the All India Services (Leave) Rules 1955 read with rule 2 of the High Court Judges Rules 1956.
[706 B C] Section 24(2)(a) of the 1954 Act enables the Central Government to make rules in respect of, among others, "any other matter which has to be or could be prescribed." [703 B] The second proviso to rule 2 of the High Court Judges ' Rules, 1956 provides that, in the case of a Judge of the High Court of Punjab and Haryana, if no provision had been expressly made in the 1954 Act, as to the conditions of his service, they shall be determined by the rules applicable to a member of the Indian Administrative Service of the rank of Joint Secretary to the Government of India stationed at New Delhi.
Rule 20B of All India Services (Leave) Rules 1955, which is the rule applicable to a member of the Indian Administrative Service of the rank of Joint Secretary to the Government of India stationed at New Delhi, entitles him on retirement from service to the cash equivalent of leave salary in respect of the period of unutilised earned leave subject to a maximum of 180 days.
By virtue of rule 2 of the High Court Judges Rules 1956 this 701 benefit must be read as a condition of service enjoyed by a Judge of the High Court.
[704 B C, 705 A B] The concept of "earned leave" is embedded in the 1954 Act under which the time spent by a Judge on duty constitutes the primary ingredient in the concept of "actual service" which is the reason for crediting leave in the leave account of a Judge.
Although the expression "earned leave" is not employed in the 1954 Act the fundamental premise for grant of leave to a Judge is that he has earned it.
That a Judge earns the leave which is credited to his leave account is borne out by the proviso to section 6 of the 1954 Act.
The concept on which rule 20B proceeds is familiar to and underlies the statutory scheme relating to leave formulated in the Act.
It bears a logical and reasonable relationship to the essential content of that scheme.
On that it must be regarded as a provision absorbed by rule 2 of the High Court Judges ' Rules 1956 into the statutory structure defining the conditions of service of a Judge of the High Court.
[705 C H, 706A]
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Civil Appeal No. 1533 of 1980.
From the Judgment and Order dated the 20th February, 1980 of the High Court of Delhi at New Delhi in S.A.O. 149 of 1979.
S.K. Mehta for the Appellant.
Yogeshwar Prasad, Ravinder Bana and Mrs. Rani Chhabra for the Respondent.
The Judgment of the Court was delivered by 672 FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated February 20, 1980 of the Delhi High Court decreeing the landlord 's suit for ejectment of the tenant.
The facts giving rise to the present litigation are summarised in the judgments of the Rent Controller and the High Court and need not be repeated.
Shorn of details, the position seems to be that Baldev Singh took the premises on rent on May 12, 1961 at a monthly rental of Rs. 95/ .
At the time when the tenancy started, the tenant was living in the tenanted house with his father, mother, two sisters and a brother.
The tenant himself was at that time a bachelor but seems to have married subsequently.
One of his sisters was married in this very house.
As it happened, in 1971 the tenant went to Canada followed by his wife and children.
It is alleged that after having gone to Canada, the husband alongwith his wife took up some employment there.
Admittedly.
the tenant did not return to India after 1971.
While leaving for Canada the tenant had left his mother and brother in the house who were regularly paying rent to the landlord.
There is some controversy as to whether or not the mother and brother, who were left behind, were being supported by the tenant or were living on their own earnings or by the income of the property left by the tenant in India.
Such a controversy however, is of no consequence in deciding the question of law which arises for consideration in this case.
On September 27, 1972 the landlord filed an application for ejectment of the tenant on the ground of bona fide requirement and non residence of the tenant under clauses (d) and (e) of sub section (1) of section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the 'Act ').
The fundamental plea taken by the landlord was that with the exit of the tenant from the house it became vacant and his mother and brother who were left behind could not be treated as members of the family.
Hence, in the eye of law the tenanted premises must be deemed to have fallen vacant.
The suit was resisted by the mother, brother and sister of the tenant who averred that even if the tenant alongwith his wife and children had shifted to Canada, the non applicants were continuing to live in the tenanted premises and as they had been paying rent 673 to the landlord regularly, who had been accepting the same, no question of the tenancy becoming vacant arose.
Thus, the entire case hinges on the interpretation of the word 'family ' as also clauses (d) and (e) of section 141(1) of the Act.
So far as clause (e) is concerned, both the courts below found as a fact that the landlord was not able to prove his bona fide necessity.
Therefore, as far as ground (e) is concerned, the same no longer survives in view of the findings of fact recorded by the courts below.
The only question that remains to be considered is whether the landlord can bring his case for eviction within the ambit of clause (d) of section 14(1) which may be extracted thus: "14 (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: XX XX XX (d) that the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof; A close analysis of this provision would reveal that before the landlord can succeed, he must prove three essential ingredients (1) that the premises were let out for use as a residence, (2) that the tenant after having taken the premises has ceased to reside, and (3) that apart from the tenant no member of his family also has been residing for a period of six months immediately before the date of the filing of the application for ejectment.
674 It is manifest that unless the aforesaid conditions are satisfied the landlord cannot succeed in getting a decree for ejectment.
In the instant case, while it is the admitted case of the parties that the tenant had shifted to Canada alongwith his wife and children, yet he had left his mother, brother and sister in the house, hence the second essential condition of clause (d) continues to apply with full force.
The learned counsel for the appellant, however, submitted that the mother, brother and sister were undoubtedly living with the tenant and so long as they continued to reside in the tenanted premises, there could be no question of the premises falling vacant.
To this, the counsel for the landlord countered that neither the mother, nor the brother nor the sister could in law be treated as members of the family of the tenant after he had himself shifted to a country outside India.
Even though while he was living in Delhi, he was in Government service.
Thus, it was argued that in the eye of law, the so called family members would lose their status as members of the family of the tenant and would be pure trespassers or licensees or squatters.
While the suit of the landlord was dismissed by the Rent Controller, the Rent Control Tribunal allowed the appeal and directed eviction of the family members of the tenant under clause (d) of section 14(1) of the Act.
The family members of the tenant then went up in appeal to the High Court which also affirmed the findings of the Tribunal and upheld the order of eviction passed by it.
The High Court was also of the view that after the exit of the main tenant from India to Canada, neither the mother, nor the brother, nor the sister could be legally termed as a member of the family of the tenant.
We have heard counsel for the parties and given our anxious consideration to all aspects of the matter and we feel that the High Court has taken a palpably wrong view of the law in regard to the interpretation of the term 'member of the family ' as used in clause (d) of section 14(1) of the Act.
In coming to its decision, the High Court seems to have completely overlooked the dominant purpose and the main object of the Act which affords several intrinsic and extrinsic evidence to show that the non applicants were undoubtedly members of the family residing in the house and the migration of the main tenant to Canada would make no difference.
The word 'family ' has been defined in various legal dictionaries and several 675 authorities of various courts and no court has ever held that mother or a brother or a sister who is living with the older member of the family would not constitute a family of the said member.
Surely, it cannot be said by any stretch of imagination that when the tenant was living with his own mother in the house and after he migrated to Canada, he had severed all his connections with his mother so that she became an absolute stranger to the family.
Such an interpretation is against our national heritage and, as we shall show, could never have been contemplated by the Act which has manifested its intention by virtue of a later amendment.
Coming now to (the definitions, we find that in Words and Phrases (permanent Edition volume 16) at pp.
303 311 the word 'family ' has been defined thus: "The father, the mother, and the children ordinarily constitute a "family".
"The word "family" embraces more than a husband and wife and includes children." "A "family" constitutes all who live in one house under one head." "Father and mother of two illegitimate children, and children themselves, all living together under one roof, constituted a "family." (pp.
303 304) "The word "family" in statute authorizing use of income for support of ward and "family" is not restricted to those individuals to whom ward owes a legal duty of support, but is an expression of great flexibility and is liberally construed, and includes brothers and sisters in poor financial circumstances for whom the insane ward, if competent, would make provision." (p. 311) "The general or ordinarily accepted meaning of the word "family", as used in Compensation Act, means a group, comprising immediate kindred, consisting of the parents and their children, whether actually living together or not." (p. 343) (Emphasis ours) 676 Similarly, in Webster 's Third New International Dictionary, the word 'family ' is defined thus: "Family household including not only the servants but also the head of the household and all persons in it related to him by blood or marriage. a group of persons of common ancestry." (p. 821) (Emphasis supplied) In Chambers Twentieth Century Dictionary (New Edition 1972), the word 'Family ' has been defined thus: "family the household, or all those who live in one house (as parents, children, servants): parents and their children)" In Concise Oxford Dictionary (Sixth Edition), the same definition appears to have been given of the word 'family ' which may be extracted thus: "family Members of a household, parents, children, servants, etc.
set of parents and children, or of relations, living together or not; persons children.
All descendants of common ancestor.
" A conspectus of the connotation of the term 'family ' which emerges from a reference to the aforesaid dictionaries clearly shows that the word 'family ' has to be given not a restricted but a wider meaning so as to include not only the head of the family but all members or descendants from the common ancestors who are actually living with the same head.
More particularly, in our country, blood relations do not evaporate merely because a member of the family the father, the brother or the son leaves his household and goes out for some time.
Furthermore, in our opinion, the legislature has advisedly used the term that any member of the family residing therein for a period of six months immediately before the date of the filing of the action would be treated as a tenant.
The stress is not so much on the actual presence of the tenant as on the fact that the members of the family actually live and reside in the tenanted premises.
In fact, it seems to us that clause (d) of section 14(1) of the Act is a special concession given to the landlord to obtain possession only where the tenanted premises have 677 been completely vacated by the tenant if he ceased to exercise any control over the property either through himself or through his blood relations.
In fact, a controversy arose as to what would happen to the members of the family of the tenant if while residing in the premises he dies and in order to resolve this anomaly the legislature immediately stepped in to amend certain provisions of the Act and defined the actual connotation of the term 'members of the family '.
By virtue of Act 18 of 1976 the definition of "Tenant" was inserted so as to include various categories of persons.
Sub clause (iii) of clause (i) of section 2 of the Act actually mentions the persons who could be regarded as tenant even if main tenant dies.
This sub clause may be extracted thus: "(1) "tenant" means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable and includes (i) a sub tenant; (ii) any person continuing in possession after the termination of his tenancy; and (iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified, respectively, in Explanation I and Explanation II to this clause such of the aforesaid person 's (a) spouse, (b) son or daughter or, where there are both son and daughter, both of them, (c) parents, (d) daughter in law, being the widow of his predeceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include, . ." It would appear that parents were expressly included in sub clause (iii).
It has also been provided that apart from the heirs 678 specified in clauses (a) to (d) (extracted above), even those persons who had been ordinarily living in the premises with the tenant would be treated as members of the family.
The statement of objects and reasons for this amendment may be extracted thus: "There has been a persistent demand for amendments to the Delhi Rent Control Act, 1958 with a view to conferring a right of tenancy on certain heirs/successors of a deceased statutory tenant so that they may be protected from eviction by landlords and also for simplifying the procedure for eviction of tenants in case the landlord requires the premises bona fide for his personal occupation.
Further, Government decided on the 9th September, 1975 that a person who owns his own house in his place of work should vacate the Government accommodation allotted to him before the 31st December, 1975.
Government considered that in the circumstances, the Act required to be amended urgently.
" If this was the intention of the legislature then clause (d) of section 14(1) of the Act could not be interpreted in a manner so as to defeat the very object of the Act.
It is well settled that a beneficial provision must be meaningfully construed so as to advance the object of the Act, and curing any lacuna or defect appearing in the same.
There are abundant authorities to show that the term "Family" must always be liberally and broadly construed so as to include near relations of the head of the family.
In Hira Lal & Ors.
vs Banarsi Dass(1) even the learned Judge who decided that case had observed at page 472 that the term "members of the family" on the facts and circumstances of the case should not be given a narrow construction.
In Gobind Dass & Ors.
vs Kuldip Singh(2) a Division Bench of Delhi High Court consisting of H.R. Khanna, C.J. (as he then was) and Prakash Narain, J. while recognising the necessity of giving a wide interpretation to the word "family" observed as follows: "I hold that in the section now under consideration the word "family" includes brothers and sisters of the deceased 679 living with her at the time of her death.
I think that that meaning is required by the ordinary acceptation of the word in this connection and that the legislature had used the word "family" to introduce a flexible and wide term." In Mrs. G. V. Shukla vs Shri Prabhu Ram Sukhram Dass Ojha(1) Mahajan, J. (as he then was) observed as follows: "Therefore, it must be held that the word 'family ' is capable of wider interpretation, but that interpretation must have relation to the existing facts and circumstances proved on the record in each case.
" Even as far back as 1930, Wright, J. in Price vs Gould & Ors (2) (a King 's Bench decision) had clearly held that the word "family" included brothers and sisters and in this connection observed as follows: "I find as a fact that the brothers and sisters were residing with the deceased at the time of her death.
It has been laid down that the primary meaning of the word "family" is children, but that primary meaning is clearly susceptible of wider interpretation, because the cases decide that the exact scope of the word must depend on the context and the other provisions of the will or deed in view of the surrounding circumstances." . . "Thus, in Snow vs Teed (1870, 23 L.T. Rep. 303; L. Rep. it was held that the word "family" could be extended beyond not merely children but even beyond the statutory next of kin." In view, however, of the very clear and plain language of clause (d) of section 14(1) of the Act itself, we do not want to burden this judgment by multiplying authorities.
On a point of fact, we might mention that the Rent Controller had given a clear finding that the mother, younger brother (Davinder Kumar Bangia) and sister (Vijay Lakshmi) were undoubtedly residing in the disputed premises alongwith the main 680 tenant and continued to reside there even on the date when the action for ejectment was brought.
In these circumstances, we are satisfied that the view taken by the High Court is legally erroneous and cannot be supported.
The landlord has miserably failed to prove the essential ingredients of clause (d) of section 14(1) of the Act so as to entitle him to evict the members of the family of the main tenant.
We therefore, allow this appeal, set aside the judgment and order of the High Court and dismiss the plaintiff 's action for ejectment and restore the judgment of the Rent Controller.
In the peculiar circumstances of the case, there will be no order as to cost.
H.L.C. Appeal allowed.
| IN-Abs | A landlord is entitled to recover possession of the premises let for residential purpose under section 14(1)(d) of the Delhi Rent Control Act, 1958, if he can show that neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application.
The appellant took the house in question on lease in May, 1961 and lived there with his parents, sisters and a brother.
He went to Canada in 1971, leaving behind in the house, his mother and brother, who continued to pay the rent.
The landlord filed an application for ejectment of tenant under section 14(1)(d) of the Delhi Rent Control Act in September 1972 contending that with the migration of the tenant to Canada, his mother and brother could not be treated as members of the appellant 's family.
The application was dismissed by the Rent Controller who found that the mother, brother and sister of the appellant were undoubtedly residing in the disputed premises along with the appellant and continued to reside there even on the date when the action for ejectment was brought.
The landlord 's appeal against the order of the Rent Controller was allowed by the Rent Control Tribunal which ordered eviction of the family members of the appellant from the tenanted house.
The appeal of the family members against the order of eviction was dismissed by the High Court on the ground that after the exit of the main tenant to Canada, neither the mother nor the brother or the sister could be legally termed as a member of the family of the appellant.
Allowing the appeal, 671 ^ HELD: 1.
(a) The Act affords intrinsic evidence to show that the non applicants were undoubtedly members of the family residing in the house and the migration of the main tenant to Canada would make no difference.
[674 H] (b) The term 'family ' has to be given not a restricted but a wider meaning.
There are abundant authorities to show that the term 'family ' should always be liberally and broadly construed so as to include near relations of the head of the family.
A beneficial provision must be meaningfully construed so as to advance the object of the Act.
E] Price vs Gould and Ors., [1930] Vol.
143 Law Times 333; G.V. Shukla vs Shri Prabhu Ram Sukhram Dass Ojha, [1963] P.I.R. (Vol.
LXV) 256; Govind Dass and Ors.
vs Kuldip Singh, A.I.R. 1971 Delhi 151 and Hira Lal and Ors.
vs Banarsi Dass, [1979] 1 R.L.R. 466 referred to.
(c) The Act has manifested its intention by virtue of a later amendment.
The definition of 'tenant ' inserted in section 2(1) of the Act by the Amending Act 18 of 1976 expressly included 'parents ' in sub clause (iii) thereof and also indicated that apart from the heirs of the tenant specified therein, even those persons who had been ordinarily living in the premises with the tenant would be treated as members of the family.
[675 B; 677 H; 678 A] 2.
(a) The legislature has advisedly provided that any member of the family residing therein for a period of six months immediately before the date of the filing of the action would be treated as a tenant.
The stress is not so much on the actual presence of the tenant as on the fact that the members of the family actually live and reside in the tenanted premises.
Clause (d) of section 14(1) of the Act is a special concession given to the landlord to obtain possession only where the tenanted premises have been completely vacated by the tenant.
[676 G H; 677 A] (b) The landlord had failed to prove the essential ingredients of clause (d) of section 14(1) of the Act so as to entitle him to evict the members of the family of the main tenant.
It could not be said that when the appellant migrated to Canada, he had severed all his connections with his mother so that she became an absolute stranger to the family.
Such an interpretation is against our national heritage and could never have been contemplated by the Act.
[680 B; 675 B]
|
ition Nos 5880 82, 6176 A 77, 5921, 5922, 6220, 6426 27, 6355 56, 6264 70,6276, 6178 79, 6191, 1718 of 1980 and 220 22, 2113 of 1981.
(Under Article 32 of the Constitution) K K Venugopal, (6355 56 of 1980) (In W P. Nos. 6212, 6427 & 5880 82/80) F.S. Nariman, (In W.P. Nos. 6264 70/80) R.K Gargo, (In W.P. Nos. 6191 & 6426/80), S.N. Kackar, (In W.P.
Nos: 5921/80 & 220/81 and G.L. Sanghi, (In W.P. No. 1718/81) for the Petitioners.
C.S. Vaidyanathan, Vineet Kumar, Parthasarathi, A.T.M. Sampath.
Miss Lily Thomas, N.A. Subramanium, Naresh Kumar, Mahakir Singh and section Srinivasan for the Petitioners.
Lal Narayan Singh, Attorney General (In W.P.
No 5880180) M.R Banerjee, Addl.
Solicitor General (In W.P. No. 6355/80) R. Rrishnamoorthy, Adv.
T.N. (In W.P. Nos.
1718 & 6276/ 1980) for the Respondents.
D Dr. Y. section Chitale, (In W.P. No. 6426/80), L. M. Singhvi, (In W.P. 6264/80) Mr. Laxmi Kant Pandey and S.S. Ray, (In W.P. 6212 of 1980) for the Respondents.
A.V. Rangam, (In all matters) for the Respondents.
In these writ petitions, the petitioners who were holders of posts of part time village officers in the State of Tamil Nadu or associations of such persons have questioned the constitutional validity of the Tamil Nadu Abolition of posts of part time Village officers ordinance, 1980 Tamil Nadu ordinance No. 10 of 1980) (hereinafter referred to as 'the ordinance ') and the Tamil Nadu Abolition of posts of part time Village officers Act, 1981 (Tamil Nadu Act No. 3 of 1981) (hereinafter referred to as 'the Act) which replaced the ordinance.
The total number of posts abolished by the Act is 23,010 In Tamil Nadu, as in other parts of India, the village has been the basic unit of revenue administration from the earliest times of which we have any record.
The administration was being carried on at the lowest level by a chain of officers in regular gradation one above the other at the commencement of the Christian era.
The 634 same system has been in vogue uptil now.
It was generally known as the borabaluti system ordinarily consisting of twelve functionaries.
In Tamil Nadu, these functionaries were known as (I) headman, (2) karnan or accountant, (3) shroff or notazar, (4) nirganti, (5) toty or taliary, (6) potter, (7) smith, (8) jeweller, (9) carpenter, (10) barber, (11) washerman and (12) astrologer.
Of them, the first five only rendered service to Government.
The headman who goes by various names such as monigar, potail, naidoo, reddy, peddakapu etc.
is an important officer.
He represented the Government in the village, collected the revenue and had also magisterial and judicial powers of some minor nature.
As a magistrate he could punish persons for petty offences and as a Judge could try suits for sums of money or other personal property upto Rs. 10/ in value, there being no appeal against his decision.
With the consent of the parties, he could adjudicate civil claims upto Rs. 100 in value.
The headman has been generally one of 1 the largest landholders in the village having considerable influence over its inhabitants.
The karnam or the village accountant maintained all the village accounts, inspected all fields in the village for purposes of gathering agricultural statistics, fixation of assessment and prevention and penalisation of encroachments, irregular use of water and verification of tenancy and enjoyment.
The nirgantis guarded the irrigation sources and regulated the use of water.
The toty or taliary assisted the village accountant in his work.
By the end of the nineteenth century, two Acts were brought into force in the Presidency of Madras for the purpose of regulating the work of some of the village officers.
The Madras Proprietary states ' Village Service Act, 1894 (Madras Act No. II of 1894) dealt with three classes of village officers viz. village accountants, village headmen and village watchmen or police officers in permanently settled estates, in unsettled palaiyams and in inam villages.
It provided for their appointment and remuneration and for the prevention and summary punishment of misconduct or neglect duty on their part and generally for securing their efficiency.
The Madras Hereditary Village offices Act, 1895 (Madras Act No. III of 1895) regulated the succession to certain other hereditary village offices in the Presidency of Madras; for the hearing and disposal of claims to such offices or the emoluments annexed thereto; for the appointment of persons to hold such offices and the control of the holders thereof.
The Village officers dealt with by this Act were (i) 635 village munsifs, (ii) potels, monigars and peddakapus, (iii) karnams, (iv) nirgantis, (v) vettis, totis and tar dalgars and (vi) talayaris in ryotwari villages or inam villages, which for the purpose of village administration, were grouped with ryotwari villages.
Under both these statutes, the village offices were considered as hereditary in character and the succession to all hereditary village offices devolved on a single heir according to the general custom and rule of primogeniture governing succession to impartible zamindaris in Southern India.
When the person who would otherwise be entitled to succeed to a hereditary village office was a minor, such minor was being registered as the heir of the last holder and some other person qualified under the statutes in question to discharge the duties of the office was being appointed to discharge the duties of the office until the person registered as heir on attaining majority or within three years thereafter was qualified to discharge the duties of the office himself when he would be appointed thereto.
If the person registered as heir remained otherwise disqualified for three years after attaining majority, he would be deemed to have forfeited his right to office and on such forfeiture or on his death, the vacancy had to be filled up in accordance with the provisions of the statutes as if he was the last holder of the office.
It is stated that in cases to which the above two statutes were inapplicable, provision had been made by the Standing orders promulgated by the Board of Revenue which were known as the Board 's Standing orders for appointing village officers again generally on a hereditary basis.
Some of the other distinct features of the service conditions of the village officers appointed under the Madras Act No. II of 1894 of the Madras Act No. III of 1895 or the Board 's Standing orders were that they were part time employees of the Government; that the records maintained by them were allowed to be retained in their houses that there was no attendance register and no fixed hours of duty were prescribed in their case.
They were appointed directly by the Revenue Divisional officer and against his order, an appeal lay to the District Revenue officer and then a revision to the Board of Revenue and a second revision to Government.
They were not constituted into any distinct service, There was no provision for reservation of posts of village officers G for Scheduled Castes/Scheduled Tribes and backward classes There was no minimum general qualification prescribed prior to the year 1970 for persons to be appointed as village officers under the said statutes or the Board 's Standing orders.
It was enough if they were able to read and to write.
No period of probation was pres 636 cribed after they were appointed.
The Fundamental Rules applicable to all other State Government servants, the Pension Rules and the Leave Rules were not applicable to these village officers.
They could take up part time work or occupation after securing necessary permission from the concerned Revenue authorities.
There was no age of superannuation fixed in their case and they were not entitled to retirement benefits such as gratuity and pension.
All village head men including those who belonged to Scheduled Castes and Scheduled Tribes had to furnish security in the form of property or cash the estimated value of which was not less than half the amount of land revenue and loan demand of the village.
They could not be transferred outside their district.
In fact very rarely they were transferred.
During the period of leave, no honorarium was paid to them and during the period of suspension, no subsistence allowance was paid.
The honorarium paid to them was a fixed amount with no element of dearness allowance.
In M. Ramappa vs Sangappa & Ors.
where this Court had to consider whether the officers holding the hereditary village offices under the Mysore Village offices Act, 1908 which contained provisions similar to the provisions of the two Madras Acts referred to above were qualified for being chosen as members of the State Legislative Assembly, it was held that such officers who were appointed to their offices by the Government, though it might be that the Government had no option in certain cases but to appoint an heir of the last holder, held offices of profit under the State Government since they held their office by reason of appointment made by the Government and they worked under the control p and supervision of the Government and that their remuneration was paid by the Government out of the Government funds and assets.
Accordingly this Court came to the conclusion that such village officers were disqualified under Article 191 (I)(a) of the Constitution from contesting at an election to the State Legislative Assembly.
In Gazula Dasaratha Rama Rao vs The State of Andhra Pradesh & Ors this Court held that section 6(1) of the Madras Hereditary Village offices Act, 1895 (Madras Act No. 3 of 1895) which Provided that in choosing Persons to fill the new village offices of 637 an amalgamated village under that Act, the Collector should select the persons whom he considered to be the best qualified from among the families of the last holders of the offices in the villages which had been abolished as a consequence of such amalgamation was void as it contravened Article 16 (2) of the Constitution.
After the above decision, instructions were issued by the Madras Board of Revenue on March 12, 1962 to the effect that in respect of future vacancies in village offices governed by the Madras Act No. II of 1894 and the Madras Act No. III of 1895 the appointments should be made on temporary basis only following the procedure prescribed under the Board 's Standing order No. 156.
Since it was felt that the above two Madras Acts which contained provisions providing for appointment to village offices on hereditary basis were violative of Article 16 of the Constitution in view of the pronouncement of this Court in Gazula Dasaratha Rama Rao 's case (supra), the State Legislature passed the Madras Proprietary Estates ' Village Service and the Madras Hereditary Village offices (Repeal) Act, 1968 (Madras Act No. 20 of 1968) repealing the above two statutes viz. the Madras Act No. II of 1894 and the Madras Act No. III of 1895.
The said Act was brought into force with effect from December 1, 1968.
It extended to the whole of the State of Madras, except the Kanyakumari district and the Shencottah taluk of the Tirunelveli district (vide section I (2) of the Madras Act No. 20 of 1968).
Sub section (3) of Section 2 of that Act, however, provided that every holder of a village, office, appointed under the Acts repealed by it would, notwithstanding the repeal continue to hold office subject to such rules as may be made under the proviso to Article 309 of the Constitution.
Section 3 of that Act directed that any vacancy arising after the date of the commencement of that Act in the village once referred to in subsection (3) of section 2 thereof should be filled up in accordance with the provisions of the Rules made under the proviso to Article 309 of the Constitution.
On December 1, 1968, the Governor of Tamil Nadu promulgated a Rule under the proviso to Article 309 of the Constitution providing that "the Standing orders of the Board of Revenue applicable to non hereditary village offices shall apply to every holder of a village office to which the Madras Proprietary Estates Village Service Act, 1894 (Madras Act No. II of 1894) or the Madras Hereditary Village offices Act, 1895 (Madras Act No. Ill of 1895) was applicable immediately before the 1st day of December, 1968" on which date the Madras Act No. 20 of 1968 came into force.
Pursuant to section 3 of the Madras Act No. 20 of 1968, the Governor of Tamil Nadu 638 promulgated under the proviso to Article 309 of the Constitution the Tamil Nadu Village officers Service Rules, 1970 providing for the constitution of the Tamil Nadu Village officers Service consisting of (i) village headman, additional village headman, (ii) village karnam, additional village karnam and (iii) talayari and nirganti and the method of recruitment to the said posts.
The said Rules came into force on December 16, 1970 and they extended to the whole of the State of Tamil Nadu except the Kanyakumari District and the Shenootah taluk of the Tirunelveli district and the city of Madras.
Rule 18 of the said Rules, however, stated that nothing contained in them would apply to persons, who on the date of coming into force of the said Rules, were holding the posts of village headman or additional village headman, village karnam or additional village karnam either temporarily or permanently.
Consequently the said Rules were not applied to the holders of village offices who had been appointed temporarily or permanently under the two repealed Acts and under the Board 's Standing orders before the date on which the said Rules came into force.
These Rules prescribed that every person who made an application for appointment the post of village headman or additional village headman or village karnam or additional village karnam should possess the following qualifications, namely (i) he should have completed the S.S.L.C. Examination held by the Government of Tamil Nadu and (ii) he should have secured a pass in the special tests specified in cl.
(2) of the table given in Rule S thereof in respect of the posts specified in column (I) thereof.
On the same date, the Tamil Nadu Village officers (Classification, Control and Appeal) Rules, 1970 and the Tamil Nadu Village officers Conduct Rules, 1970 promulgated under the proviso to Article 309 of the Constitution by the Governor of Tamil Nadu came into force.
These Rules were applicable not merely to the village officers appointed after that date but also to those who had been appointed under the repealed Acts and under the Boards Standing order prior to December 16, 1970.
The Tamil Nadu Civil Services (Classification, Control and Appeal) Rules dealt with the disciplinary proceedings that might be instituted against the village officers governed by the them.
The Tamil Nadu Village officers Conduct Rules provided that the Tamil Nadu Government Servants Conduct Rules, 1960 as amended from time to time would apply to the village officers subject to the modification specified in rule 3 thereof which provided that the village officers being part time Government servants might take up part time work or occupation 639 provided that (I) such part time work or occupation did not interfere A with their legitimate duties as village officers and (2) the previous permission in writing had been applied for and obtained from the Revenue Divisional officer concerned if the work or occupation was confined to the charge village and from the District Collector concerned if the work or occupation extended beyond the charge village.
From November 15, 1973 all the three sets of Rules which came into force on December 16, 1970, as stated above, became applicable to the village officers in the Kanyakumari district and the Shencottah taluk of the Tirunelveli district also.
They, however, continued to be inapplicable to the city of Madras.
In the year 1973, the Administrative Reforms Commission headed by Mr. T.A. Verghese, I.C.S. recommended that the existing part time village officers should be replaced by regular whole time transferable public servants and that they should form part of the Revenue hierarchy, disciplined in the tradition of that department and motivated by the incentive of career advancement available in that department.
They also recommended that 16,585 survey villages in the State of Tamil Nadu should be grouped into 11,9554 revenue groups.
The Commission further recommended that the 11,954 revenue groups should be regrouped into larger village panchayats with a population of about 5,000 and the 8 annual panchayat tax demand of the order of Rs. 5,000.
The Commission envisaged that with some marginal adjustment the enlarged village panchayat would be of the order of 4,000 in the State of Tamil Nadu and that there should be a village officer, a village clerk and a village peon in respect of each such enlarged village panchayat and on appointment to these offices, the holders of village offices appointed under, the two repealed statutes and the Board 's Standing orders should be removed and the former village offices should be abolished since the Commission felt that "the administration at the grass root level, provided by the present generation of village officers with feudal traditions, is inconsistent with the egalitarian principles aimed at in our democratic constitution".
The Commission further felt that "the reform of village administration has high priority, as it would benefit the whole mass of rural population." The Commission, however, took note of the fact in paragraph 2.11 of its Report that the Government had, in the recent years, attempted to remedy the situation by repealing the Madras Hereditary Village offices Act, 1895 and by framing a set 640 Of new service rules for village establishment under Article 309 of the Constitution.
But it was of the opinion that the said Rules, however, did not go far enough as they were not applicable to the existing set of village officers.
It was of the view that full time officers could be expected to service a much larger area than the existing villages or groups of villages and such regrouping of villages into larger groups had to be done carefully taking into account local conditions such as compactness of the group, easy intercommunications, nature of land, number of holdings etc.
The Commission, however, was of the view that such of those among the existing village headmen and karnams, who had passed the S.S.L.C. Examination might be considered for the posts of the village officers and village clerks on their past performance.
Similarly as regards village officers working in the Kanyakumari district and the Shencottah taluk of the Tirunelveli district which came over to the State of Tamil Nadu from Kerala in 1956 on the reorganisation of States, the Commission observed that l most of the village officers of those transferred territories who were qualified and full time Government servants should be absorbed in the new set up as envisaged by the Commission.
On May 17,1975, the Governor of Tamil Nadu promulgated the Tamil Nadu Village officers (appointed under B.S. Os) Service Rules, 1974 under the proviso to Rule 309 of the Constitution in respect of the village officers appointed prior to December 16, 1970.
The above Rules were, however, kept in abeyance by an order made on July 1, 1975 on receipt of representations from the village officers in regard to the fixation of the age of superannuation at SS years.
On August 24,1977, the Chief Minister of Tamil Nadu announced on the floor of the Legislative Assembly that the Government proposed to set up a Committee to .
examine whether the posts of karnams could be dispensed with.
Thereafter on October 9,]978, the Tamil Nadu Village officers (appointed under B.S.Os) Service Rules, 1978 were issued fixing the age of retirement of the village officers at 60 years.
Sub rule (2) of & Rule I of the said Rules stated that the said Rules would apply to all village officers holding the posts of village headman or additional village headman, village karnam or additional village karnam, talayari, vetti or nirganti either permanently or temporarily on December 16, 1970 provided that at the time of their appointment, they were qualified under the Board 's Standing orders.
The Government thought that the said Rules would be applicable to all village officers who were holding village offices on December 16,1970 refer 641 red to in Rule 1(2).
But some of the holders of the village offices who had been appointed under the Madras Act No. III of 1895 prior to the decision of this Court in Gazula Dasaratha Rama Rao 's case (supra) which as rendered on December 6, 1960, filed writ petitions on the file of the High Court of Madras stating that the Tamil Nadu Village officers (appointed under the b.) Service Rules, 1978 which fixed the age of superannuation of village officers at 60 years were not applicable to them since on a true construction of the said Rules, they were inapplicable to them.
The High Court of Madras allowed the said writ petitions by its judgment dated August 18, 1980 holding: "We have already extracted sub rule (2) of rule 1 of the rules.
That rule expressly states that the rules will apply to village officers, who, at the time of their appointment, were qualified under the Board 's Standing orders applicable to them and their appointment had been made by the authority competent under the Board 's Standing orders.
In respect of these petitioners, who were appointed under the provisions of Madras Act 3 of 1895 before 6th December, 1960, there was no question of their being qualified to be appointed to the village office under the Board 's Standing orders applicable to them, and their qualifications and appointment rested solely on the provisions contained in Section 10 of the Act.
Consequently the petitioners herein will not answer the description contained in sub rule (2) of rule (1) of the rules.
If they do not answer the description contained in sub rule (2) of rules, the rules are not applicable to them and therefore, they can not be required to retire under rule 4 (1) of the rules.
" It would appear that some of the other village officers to whom the said Rules had been made applicable had also filed writ petitions on the file of the High Court questioning the validity of the Rules on the ground that the said Rules made a discrimination between them and the village officers who were holding office prior to December 16, 1970 to whom the said Rules were held to be inapplicable by the judgment of the High Court delivered on August 18, 1980 and those petitions were posted for hearing during the first week of December, 1 980.
Before the said petitions were taken up for hearing the Governor of Tamil Nadu issued the ordinance on November 13, 1980 abolishing the posts of part time village officers in the State of Tamil Nadu.
Immediately after the promulgation of the ordinance, steps were taken to take possession of all the records with the village officers who were holding offices on that day and to replace them by Officers appointed under 642 section 14 of the ordinance.
Immediately after the promulgation of the said ordinance, some of the village officers who were affected by it questioned its validity before this Court in Writ Petitions Nos.
5880 82 of 1980 and 5921 of 1980.
The other connected writ petitions came to be filed thereafter.
In the meanwhile the Tamil Nadu State Legislature passed the Act which is impugned in these petitions replacing the ordinance.
The petitioners have challenged in these writ petitions the Act also by seeking appropriate amendment of their petitions.
The broad features of the Act are these: The object of the Act is set out in its preamble.
Because the State Government was of the opinion that the system of part time village officers was outmoded and did not fit in with the modern needs of village administration and the State Government had after careful consideration taken a policy decision to abolish all the posts of part time village officers on grounds of administrative necessity and to introduce a system of whole time officers to be incharge of village administration, the Act came to be enacted with effect from November 14, 1980 in the place of the ordinance.
The Explanatory Statement attached to the ordinance also contained a statement to the same effect indicating the object of the Ordinance.
The expression 'part time village officers ' is defined in section 2 (e) of the Act as village headman (including additional village (headman village) karnam (including chief karnam and additional village karnam) or Triune officer (who was exercising functions of three different village officers) appointed under the Madras Act II of 1894, the Madras Act III of 1895, the Board 's Standing orders, the Tamil Nadu village Service Rules, 1970 officers Kuvalar, or any other law but does not include, Grama Kavalar Grama Paniyalar and Pasana Kavalar.
Village Administrative officer means an officer appointed under section 4(1) of the Act.
By sec.
3 of the Act, the posts of part time village officers were abolished with effect from November 14, 1980 and every officer holding post so abolished ceased to hold such post.
The Act provided for appointment of Village Administrative officers.
Section 5 of the Act provided for payment of compensation to those who ceased to be part time village officers calculated in accordance with the formula mentioned in it.
Section 10 of the Act provided that the Act would not apply to the posts of karnams which were held by whole time Government servants in the city of Madras and the posts of village officers and village assistants which were held by the whole 643 time Government servant in the Kanyakumari district and Shencottah taluk of the Tirunelveli districts.
Three principal points are urged before us by the petitioners in these petitions (i) that the ordinance and the Act are violative of article 19(1)(g) of the Constitution, (ii) that they are violative of Article 311 (2) of the Constitution and (iii) that they contravene Article 14 of the Constitution.
The State Government contends that since by the ordinance and the Act, certain posts have been abolished, the officials who were incumbents of the abolished posts cannot raise any of the grounds raised by them.
Entry 41 in List II of the Seventh Schedule to the Constitution confers the power on the State Legislature to make laws with respect to State public services subject to the provisions of the Constitution.
Article 309 of the Constitution provides that subject to the provisions of the Constitution, the State Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State.
Article 311 (2) of the Constitution states that no person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the State shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a L reasonable opportunity of being heard in respect of those charges.
Article 14 of the Constitution guarantees equality before the law and equal protection of the laws.
It is not disputed that any law that is passed in relation to a Government employee should not contravene any of these provisions Article 19 (1)(g), Article 311 (2) and Article 14 of the Constitution.
We shall now proceed to examine the case with reference to each of them.
The power to abolish a civil post is inherent in the right to create it.
The Government has always the power, subject, of course, to the constitutional provisions, to reorganise a department to provide efficiency and to bring about economy.
It can abolish an office or post in good faith.
The action to abolish a post should not be just a pretence taken to get rid of an inconvenient incumbent.
We have the following statement of the law in American Jurisprudence 2nd, Vol. 63 at Pages 648 649 : 644 "37.
Manner, sufficiency, validity, and effect.
It is not always easy to determine whether a public office has been abolished.
It is not sufficient merely to declare that a particular office is abolished, if in fact it is not abolished, and the duties thereof are continued.
An office is abolished when the act creating it is repealed.
But the repeal of the statute creating an office, accompanied by the re enactment of the substance of it, does not abolish the office.
Abolition of an office may also be brought about by a constitutional provision, or by a new constitution or a constitutional amendment.
A non constitutional office may be indirectly abolished as by legislating away the duties and emoluments of the office.
The legislature may not evade constitutional provisions by a sham or pretended abolition of an office, as where there is mere colorable abolition of the office for the purpose of getting rid of its incumbent.
This may happen where an office is abolished in terms and promptly recreated under the same or a different name, provided the legislature does not attach duties and burdens to the new office of a character such as to make it in reality a different office.
Where an office is duly abolished by the legislature or the people, it ceases to exist and the incumbent is no longer entitled to exercise the functions thereof, or to claim compensation for so doing, unless he is under contract with the state so as to come within the protection of the constitutional inhibition against impairment of the obligation of contract.
Since a de jure office is generally essential to the existence of a de facto officer, persons cannot act as de facto officers of an office which has been abolished.
" H. Eliot Kaplan writes in his book entitled "The Law of Civil Service" at pages 214 115 thus : "8. "Good Faith" in Abolition of Positions There of course, is no vested right to employment in the public service.
The notion, much too prevalent, that any one who has been appointed after a competitive examination is entit 645 led to be retained in the service is erroneous.
Where there is any reasonable justification for eliminating positions in the public service, even where such abolition of positions may be subject to judicial review, the inclination of the courts is not to interfere, avoiding substitution of judicial wisdom or judgment for that of the administrator.
A position is not lawfully abolished solely because it has been left vacant for a short period of time and subsequently filled by another appointee than the one laid off and entitled to re employment.
Good faith of a head of department in abolishing a position on alleged grounds of economy has often been challenged.
Most courts have held that the issue of good faith on the part of an administrative official is one of law solely for the court to pass on, and not an issue of fact which may be submitted to a jury for determination.
The jury may determine the facts, which the court in turn may find as a matter of law constitute bad faith; but a verdict by a jury that a department head had acted in bad faith in abolishing a position was set aside as a conclusion of law, and not properly finding of fact.
What constitutes bad faith as a matter of law in abolishing positions must be determined by the precise facts in each case.
As a general rule, where positions are purported to be eliminated and incumbents laid off, and thereafter identical or similar positions are re established and the positions filled by others not entitled under the Civil service law and rules to such employments, the courts will not hesitate to order re employment of the laid off employees.
" The above passages sum up the law on the question of abolition of posts in civil service as it prevails in United States of America.
In England too there is provision for compulsory premature retirement in the public interest on structural grounds, grounds of limited efficiency and redundancy.
(Vide paragraph 1303, Vol.
8 Halsbury 's Laws of England 4th Edn.) 646 In the instant case, the abolition of the posts of village officers is sought to be achieved by a piece of legislation passed by the State Legislature.
Want of good faith or malafides cannot be attributed to a Legislature.
We have only to see whether the legislation is a colourable one lacking in legislative competence or whether it transgresses any other constitutional limitation.
So far as the argument based on Article 19 (1) (g) of the Constitution is concerned, we are bound by the view expressed by the Constitution Bench of this Court in Fertilizer Corporation Kamgar Union (Regd), Sindri & Ors.
vs Union of India & Ors.
in which Chandrachud, C.J. has observed at pages 60 61 thus : "The right to pursue a calling or to carry on an occupation is not the same thing as the right lo 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 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 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 647 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 view of the above ruling, it is not possible to hold that the Act violates Article 19 (1) (g) as it does not affect the right of any of the incumbents of the posts to carry on any occupation of their choice even though they may not be able to stick on to the posts which they were holding.
We shall next examine the argument based on Article 311 (2) of the Constitution.
We have already seen in the Fertilizer Corporation Kamgar Union 's case (supra) the observation to the effect '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. ' It is said that the 'act of removing a person from a chair is different from the act of removal of the chair itself ' although the incumbent loses the chair in both the cases.
Since it is.
strenuously urged before us that there is some amount of contradiction in some of the rulings of this Court, we shall review the legal position to the extent necessary before reaching our own conclusion on the question.
The doctrine that the tenure of a holder of a civil post is dependent upon the pleasure of the Crown is peculiar to English law.
In India, Article 310 of the Constitution of India provides : "310 (1) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all India service or holds any post connected with defence or any civil post .
under the Union holds office during the pleasure of the President, and every Person who is a member of a civil 648 service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.
(2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor of the State, any contract under which a person, not being a member of a defence service or of an all India service or of a civil service of the Union or a State, is appointed under the Constitution to hold such a post may, if the President or the Governor, as the case may be, deems it necessary in order to secure the services af a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.
" While the doctrine of pleasure incorporated in Article 310 cannot be controlled by any legislation, the exercise of that power by the President or the Governor, as the case may be, is however made subject to the other provisions of the Constitution, one of them being Article 311, which is not made subject to any other provision of the Constitution and is paramount in the field occupied by it.
The contention urged before us is that every kind of termination of employment under Government would attract Article 311 (2) of the Constitution and a termination on the abolition of the post cannot be an exception.
While construing Article 311 (2) of the Constitution, as it stood then, in Parashotam Lal Dhingra vs Union of India, Das, C.J. Observed : "The Government cannot terminate his service unless it is entitled to do so (I) by virtue of a special term of the contract of employment, e.g., by giving the requisite notice provided by the contract or (2) by the rules governing the conditions of his service, e.g., on attainment of the age of superannuation prescribed by the rules, or on the fulfillment of rule conditions for compulsory retirement or subject to certain safeguards, on the abolition of the post or on being 649 found guilty, after a proper enquiry on notice to him, of misconduct, negligence, inefficiency or any other disqualification." (emphasis added) Again at pages 857 858 in the same judgment, the learned Chief Justice observed : "The foregoing conclusion, however, does not solve the entire problem, for it has yet to be ascertained as to when an order for the termination of service is indicted as and by way of punishment and when it is not.
It has already been said that where person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily, retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with article 311 (2).
" (emphasis added) It may be mentioned here that the words "subject to certain safeguards" found in the earlier extract are not used with reference to abolition of posts in the above extract.
Later on, Das, C.J observed that the Court should apply two tests namely (1) whether the servant had a right to the post or the rank or (2) whether he had been visited with evil consequences such as loss of pay and allowances, a stigma affecting his future career in order to determine whether the removal of an officer from a post attracted Article 311 (2).
The decision in Parshotam Lal Dhingra 's case (supra) was reviewed by a Bench of seven Judges of this Court in Moti Ram Deka etc.
vs General Manager, N.E.F. Railways, Maligaon, Pandu vs etc.
In that case the question which arose for consideration was whether Rules 148 (3) and 149 (3) of the Indian Railway Establishment Code violated either Article 311 (2), or Article 14 of the Constitution.
Sub rules (1) and (2) of Rule 148 dealt with temporary railway servants and apprentices respectively.
The relevant part of Rule 148 (3) read thus : 650 "148 (3) other (non pensionable) railway servant: The service of other (non pensionable) railway servants shall be liable to termination on notice on either side for the periods shown below.
Such notice is not however required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity.
" Rule 149 was brought into force in the place of Rule 148 in the case of pensionable servants in November, 1957.
Here again, sub rules (1) and (2) of Rule 149 dealt with temporary railway servants and apprentices.
Rule 149 (3) read thus: "149 (3) other railway servants: The services of other railway servants shall be liable to termination on notice on either side for the periods shown below.
Such notice is not however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity.
" The majority judgment in this case, however, observed that a Government servant on being appointed to a post permanently acquired a right to hold the post under the Rules until he attained the age of superannuation or was compulsorily retired or was found guilty of an act of misconduct in accordance with Article 311(2).
It disapproved the statement found in Parshotam Lal Dhingra 's case (supra) at pages 857 858 to the extent it recognised the removal of a permanent Government servant under a contract express or imp lied or a service rule.
After referring to one passage at page 841 and another at page 843 in Parsotam Lal Dhingra 's case, Gajendragadkar, J. (as he then was), who delivered the majority judgment in Moti Ram Deka 's case (supra) observed at pages 718 719 thus: 'Reading these two observations together, there can be no doubt that with the exception of appointments held under special contract, the Court took the view that wherever a civil servant was appointed to a permanent post substantively, he had a right to hold that post until.
he reach ed the age of superannuation or was compulsorily retired, 651 or the post was abolished.
In all other cases, if the services of the said servant were terminated, they would have to be in conformity with the provisions of article 311(2), because termination in such cases amounts to removal.
The two statements of the law to which we have just referred do not leave any room for doubt on this point." (emphasis added) It may be noticed that removal of a Government servant from a post on its abolition is recognised in the above passage as a circumstance not attracting Article 311(2) of the Constitution.
The Court after a review of all the decisions before it including the decision in Parshotam Lal Dhingra 's case (supra) held that the above two Rules 148 (3) and 149 (3) which authorised the removal officers holding the posts substantively by issuing a mere notice infringed Article 311 (2) of the Constitution.
The question of abolition of posts did not arise for consideration in this case.
The validity of removal of a Government servant holding a permanent post on its abolition was considered by Desai, J. and Chandrachud, J. (as he then was) in P.V. Naik & Ors.
vs State of Maharashtra & Anr.(1) The learned Judges held that the termination of service of a Government servant consequent upon the abolition of posts did not involve punishment at all and therefore did not attract Article 311(2).
Since much reliance is placed by the petitioners on the decision of this Court in State of Mysore vs H. Papanna Gowda & Anr.
etc.(2) it is necessary to examine that case in some detail.
The facts of that case were these: The respondent in that case was holding the post of a chemical assistant in the Agricultural Research Institute, Mandya in the Department of Agriculture of the State of Mysore.
Under the Mysore University of Agricultural Sciences Act, 1963 which came into force on April 24, 1964, the University of Agricultural Sciences was established.
Sub section (5) of section 7 of that Act provided: "7.
(5) Every person employed in any of the colleges specified in sub section (1) or in any of the institutions referred to in sub section (4) immediately before the appointed 652 day or the date specified in the order under sub section (4), as the case may be, shall, as from the appointed day or the specified date, become an employee of the University on such terms and conditions as may be determined by the State Government in consultation with the Board.
" The Board referred to in the above sub section was the Board of Regents of the University.
By a notification dated September 29, 1965 issued under section 7(4) and (5) of that Act, the control and management of a number of research and educational institutions under the Department of Agriculture were transferred to the University.
Alongwith them, the Institute in which the respondent was working was also transferred to the University.
The result was that the respondent ceased to be an employee of the State Government and became an employee of the University.
Thereupon he questioned the validity of sub sections (4) and (5) of section 7 of the said Act on the ground that they contravened Article 311(2) of the Constitution before the High Court of Mysore, which upheld his plea.
The State Government questioned the decision of the High Court before this Court in the above case.
This Court affirmed the decision of the High Court holding that Article 311(2) of the Constitution had been contravened as the prospects of the respondent in Government service were affected.
In this case the parties proceeded on the basis that there was no abolition of post as such as can be seen from the judgment of the High Court.
The only ground was whether when the post continued to exist though under a different master, in this case it being the University, it was open to the State Government to transfer its employee to the control of a new master without giving an option to him to state whether he would continue as a Government employee or not.
The court was not concerned about the consequences of abolition of a post as such in this case.
As can be seen from the judgment of the High Court in this case (vide Papanna Gowda vs State of Mysore(1) one serious infirmity about the impugned provisions was that whoever was holding the post in any of the institutions transferred to the University automatically ceased to be the Government servant.
Even if the case was one where abolition of the post was involved, the law should have made provision for the determition of the employees in the cadre in question who would cease to be 653 Government employees with reference to either the principle of 'last come, first go ' or any other reasonable principle and given them an option to join the service under the new master instead of just transferring all the employees who were then working in the institutions to the University.
The impugned provisions were not rules dealing with the age of superannuation or compulsory retirement.
Nor the case was dealt with on the principle of abolition of posts.
The decision in this case takes its colour from the peculiar facts involved in it.
One principle that may be deduced from this decision is that if a post is not a special post and its incumbent is a member of a cadre his rights as a member of the cadre should be considered before deciding whether he has cased to be a government employee on the abolition of the post.
It is likely that on such scrutiny the services of another member of the cadre may have to be terminated on its abolition or some other member of the cadre may have to be reverted to a lower post from which he may have been promoted to the cadre in question by the application of the principle of 'last come, first go '.
If, however, where the post abolished is a special post or where an entire cadre is abolished cadre and there is no lower cadre to which the members of the abolished can reasonably be reverted, the application of this principle may not arise at all.
In the circumstances, the petitioners cannot derive much assistance from this decision.
The question whether Article 311(2) would be contravened if Government servant holding a civil post substantively lost his employment by reason of the abolition of the post held by him directly arose for consideration before this Court in M. Ramanatha Pillai vs The state of Kerala & Anr.(1) Two points were examined in that case: (i) whether the Government had a right to abolish a post in a service and (ii) whether abolition of a post was dismissal or removal within the meaning of Article 311 of the Constitution.
The Court held that a post could be abolished in good faith but the order abolishing the post might lose its effective character if it was established to have been made arbitrarily, mala fide or as a mask of some penal action within the meaning of Article 311 (2).
After considering the effect of the decisions in Parashotam Lal Dhingra 's case (supra), Champaklal Chimanlal Shah vs The Union of India,(2) 654 Moti Ram Deka 's case (supra), Satish Chandra Anand vs The Union of India (1) and Shyam Lal vs State of U.P. and Union of India.(2) This Court observed in this case at page 526 thus: "The abolition of post may have the consequence of termination of service of government servant.
Such termination is not dismissal or removal within the meaning of Article 311 of the Constitution.
The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of abolition of post.
The abolition of post is not a personal penalty against the government servant.
The abolition of post is an executive policy decision.
Whether after abolition of the post, the Government servant who was holding the post would or could be offered any employment under the State would therefore be a matter of policy decision of the Government because the abolition of post does not confer on the person holding the abolished post any right to hold the post.
" The true effect of the decision in Moti Ram Deka 's case (supra) on the question of applicability of Article 311 (2) of the Constitution to a case of abolition of post has been clearly explained in this case and we have very little to say anything further on it.
Suffice it to say that the Moti Ram Deka 's case (supra) is no authority for the proposition that Article 311 (2) would be attracted in such a case.
The above view was followed by this Court in State of Haryana vs Des Raj Sangar & Anr.(1) to which one of us (Murtaza Fazal Ali, J.) was a party.
Khanna, J. speaking for the Court observed at pages 1037 38 thus: "Whether a post should be retained or abolished is essentially a matter for the Government to decide.
As long as such decision of the Government is taken in good faith the same cannot be set aside by the court.
It is not open to the court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be 655 abolished.
The decision to abolish the post should, however, as already mentioned, be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post.
In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the services of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside.
The termination of a post in good faith and the consequent termination of the services of the incumbent of that post would not attract Article 311.
" Before concluding our discussion on this topic, it is necessary to refer to a decision of the Jammu and Kashmir High Court in Abdul Khalik Renzu & Ors.
vs The State of Jammu and Kashmir(1) to which one of us (Murtaza Fazal Ali, J. (as he then was) was a party in which the validity of the abolition of posts constituting the special police squad of the State of Jammu and Kashmir was questioned.
In that case, the High Court while recognising the power of the State Government to abolish the posts and to terminate the services of the incumbents of such posts held that such action could be validly taken only subject to certain safeguards and in the absence of any such safeguards the abolition was bad.
The High Court did not clearly spell out the nature and extent of safeguards referred to therein.
The High Court relied on the words 'subject to certain safeguards, on the abolition of posts ' in the passage occurring at page 841 in Parshotam Lal Dhingra 's case (supra) which is extracted above to reach the conclusion that unless the abolition of posts was accompanied by such safeguards, Article 311 would be infringed.
With respect, it should be stated that the High Court did not notice that in another passage at pages 857 858 in the same decision, which is also extracted above, the abolition of posts referred to therein was unqualified.
In this passage there is no reference to any safeguards at all.
Probably the 'safeguards ' referred to in the passage at page 841 in Parshotam Lal Dhingra 's case (supra) meant an abolition of posts which was in good faith and not a pretence of abolition of a post resorted to in order to get rid of its incumbent and the creation of the same post with a different form or name with a new incumbent.
The above view of the High Court of Jammu and Kashmir is however, in conflict with the decision in Ramanatha 656 Pillai 's case (supra) and hence must be considered as having been overruled by this Court.
In modern administrations, it is necessary to recongnise the existence of the power with the Legislature or the Executive to create or abolish posts in the civil service of the State.
The volume of administrative work, the measures of economy and the need for streamlining the administration to make it more efficient may induce the State Government to make alterations in the staffing patterns of the civil service necessitating either the increase or the decrease in the number of posts.
This power is inherent in the very concept of governmental administration.
To deny that power to the Government is to strike at the very roots of proper public administration.
The power to abolish a post which may result in the holder thereof ceasing to be a Government servant has got to be recognised.
But we may hasten to add that any action legislative or executive taken pursuant to that power is always subject to judicial review.
It is no doubt true that Article 38 and Article 43 of the Constitution insist that the State should endeavour to find sufficient work for the people so that they may put their capacity to work into economic use and earn a fairly good living.
But these articles do not mean that every body should be provided with a job in the civil service of the State and if a person is provided with one he should not be asked to leave it even for a just cause.
If it were not so, there would be no justification for a small percentage of the population being in Government service and in receipt of regular income and a large majority of them remaining outside with no guaranteed means of living.
It would certainly be an ideal state of affairs if work could be found for all the able bodied men and women and everybody is guaranteed the right to participate in the production of national wealth and to enjoy the fruits thereof.
But we are today far away from that goal.
The question whether a person who ceases to be a Government servant according to law should be rehabilitated by giving an alternative employment is, as the law stands today, a matter of policy on which the Court has no voice.
On a fair construction of the provisions of Article 311 (2) of the Constitution and a consideration of the judicial precedents having a bearing on the question, we are of the view that it is not possible to hold that the termination of service brought about by 657 the abolition of a post effected in good faith attracts Article 311 (2).
An analysis of Article 311 (2) shows that it guarantees to a person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post the right to defend himself in any proceeding leading to his dismissal, removal or reduction in rank.
It requires that in such a case an inquiry should precede any such action, at that inquiry he should be informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
Where it is proposed after such inquiry to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.
The second proviso to Article 311 (2) of the Constitution sets out the circumstances when that clause would not apply.
These provisions show that Article 311 (2) deals with the dismissal, removal, or reduction in rank as a measure of penalty on proof of an act of misconduct on the part of the official concerned.
This fact is emphasised by the introduction of the words 'an inquiry in which he has been informed of the charges against him ' in article 311(2) when it was substituted in the place of the former clause (2) of Article 311 by the Constitution (Fifteenth Amendment) Act, 1963 which came into force on October 5, 1963.
In the circumstances, it is difficult to hold that either the decision in Moti Ram Deka 's case (supra) or the decision in Papanna Gowda 's case (supra) lays down that the provisions of Article 311 (2) should be complied with before the services of a Government servant are terminated as a consequence of the abolition of the post held by him for bona fide reasons.
In view of the foregoing, it cannot be said that the Act impugned in these petitions by which the village offices in the State of Tamil Nadu were abolished contravenes Article 311(2) of the Constitution.
We have now to consider the submission based on Article 14 of the Constitution.
This aspect of the case has to be examined from two angles (i) whether the step taken by the Legislature to abolish the village offices in question is so arbitrary as to conflict with Article 14 of the Constitution and (ii) whether unequals have been treated as equals by the Legislature.
While dealing with the first point it is to be observed that the posts of village officers which were governed by the Madras Act II of 1894, the Madras Act III of 1895 and the Board 's Standing Orders 658 were feudalistic in character and the appointments to those posts were governed by the law of primogeniture, the family in which the applicant was born, the village in which he was born, and the fact whether he owned any property in the village or not.
Those factors are alien to modern administrative service and are clearly opposed to Articles 14 and 16 of the Constitution.
No minimum educational qualifications had been prescribed.
It was enough if the applicants knew reading and writing in the case of some of them.
The posts were not governed by the regular service rules applicable generally to all officials in the State service.
Rightly therefore, the Administrative Reforms Commission recommended their abolition and reorganisation of the village service.
The relevant part of the Report of the Administrative Reforms Commission reads thus: "The concept of service was conspicuously absent in this relationship.
Village officers were part time employees and not subject to normal civil service discipline.
They do not function from public offices where they were expected to receive people and transact public business.
All accounts, survey and registry records were in their private custody.
Villagers had to go to the residences of Village officers and await the latter 's convenience for referring to public records or for getting extracts from them.
This reduced the accessibility particularly of "high caste" village officers to the poor farmers of the "backward and untouchable" communities.
Their emoluments for the part time service, were meagre and appeared to be an honorarium rather than a living wage.
Communications and living conditions in villages being difficult, subordinate inspecting officers were dependent on the private hospitality of village officers during their official visits.
These factors led to the village officers developing an attitude of condescension in their dealings with villagers.
Even though the hereditary principle was held to be unconstitutional recently, the members of their families still get preferential treatment, even if informally, in filling up vacant offices.
In recent times, village officers have generally ceased to be leading and affluent riots and are reduced to earn their livelihood largely through the misuse of their position.
" 659 The problems involved in the reorganisation of Revenue villages in Tamil Nadu were also discussed in the Report of Mr. S.P. Ambrose, I.A.S. submitted to the State Government in January, 1980.
In the course of the Report, he observed: "4.2 Reorganization of Revenue Villages 4.2.1.
In view of the considerable increases in the total beriz of villages, particularly those with extensive irrigated areas, new rules for the regulation and distribution of water in the project areas and in old ayacut areas, and the reduced work and responsibilities of the talayaris on account of the increase in the strength of the regular Police establishments the norms, for determining the strength of the villagee establishment, as laid down in B.P. Ms. No. 324, dated the 9th December 1910, read with B.P. Ms. No. 231, dated the 23rd February 1921, no longer held good.
4.2.2.
The size of the survey villages vary widely; 4.77 hectares is the extent of the smallest village and 20,947 hectares is the extent of the biggest village.
In terms of population, the smallest has population of 33, while the largest has a population of 12,777.
Even though survey villages have been grouped to form convenient revenue groups for purposes of village administration, the size of revenue groups also vary widely.
With the increases in the area cultivated, area irrigated (both from Government and private sources) and the number of pattas the work load in most villages has increased considerably now.
The question for consideration is whether a comprehensive exercise to reorganise the revenue villages into convenient and viable village administrative units with reference to the existing work load should be attempted, and thereafter to revise the strength of the village establishment by laying down fresh norms for determing its strength.
This will be a major administrative exercise.
If convenient village administrative units with, more or less, equal work load are to be constituted, several factors like area cultivated (gross and net), area irrigated, crop pattern, population, number of pattadars and beriz have to be taken into account 660 Before this is attempted, the major policy issue is whether to continue the present part time system of village officers or to have regular, transferable Government servants as Village Officers in charge of bigger administrative units as recommended by the Administrative Reforms Commission." Having regard to the abolition of similar village offices in the neighbouring States of Karnataka and Andhra Pradesh and the agitation in the State of Tamil Nadu for reorganisation of village service, it cannot be said that the decision to abolish the village offices which were feudalistic in character and an achronisms in the modern age was arbitrary or unreasonable.
Another aspect of the same question is whether the impugned legislation is a colourable one passed with the object of treating the incumbents of village offices in an unjust way.
A similar contention was rejection by this Court in B.R. Shankaranarayana and Ors.
vs The State of Mysore and Ors.(1) in which the validity of the Mysore Village Offices Abolition Act (14 of 1961) which tried to achieve more or less a similar object arose for consideration, with the following observations at pages 1575 1576: "(13) As pointed out by this Court in Gajapati Narayan Deo 's case; , , the whole doctrine of colourable legislation resolves itself into the question of competency of a particular legislature to enact a particular law.
If the legislature is competent to pass the particular law, the motives which impel it to pass the law are really irrelevant.
It is open to the Court to scrutinize the law to ascertain whether the legislature by device, purports to make a law which, though in form appears to be within its sphere, in effect and substance, reaches beyond it.
(14) Beyond attempting the argument that the impugned Act is a piece of colourable legislation, learned Counsel for the appellant has not succeeded in substantiating his contention that the Act and the rules made there under are merely a device for removing the present incumbents from their office.
The provisions of the Act and the 661 rules made thereunder plainly provide for the abolition of hereditary village offices and make those offices stipendiary posts.
The Act makes no secret of its intention to abolish the hereditary posts.
(15) It is argued that even after abolition, the same posts are sought to be continued.
It is no doubt true that the names of the offices have not been changed but there is a basic structural difference between the posts that have been abolished.
The posts created by the new Act are stipendiary posts.
They carry salaries according to the grades created by the rules.
The incumbents are transferable and their service is pensionable.
Different qualifications are prescribed for the new posts.
From a consideration of the incidents attaching to the new posts it is clear that the old posts have been abolished and new posts have been created and that the whole complexion of the posts has been changed.
(16) The result is that in our opinion the impugned Act cannot be held to be a piece of colourable legislation and as such invalid.
" A learned discussion on all the points raised in the above case is found in the judgment of the High Court of Mysore in B.H. Honnalige Gowda vs State of Mysore and Anr.(1) Hence the above contention has to be rejected.
The next contention of the petitioners which is of some substance and which is based again on Article 14 needs to be examined here.
It is seen from section 2 (e) of the Act that the expression 'part time village officer ' is defined as follows: "2.
(e) "part time village officer" means Village Headman (including Additional Village Headman, Village Karnam (including Chief Karnam and Additional Village Karnam) or Triune Officer appointed under 662 (i) the Madras Proprietary Estates ') Village Service Act, 1894 (Madras Act II of 1894) or the Madras Hereditary Village offices Act, 1895 (Madras Act III of 1895); (ii) the Board 's Standing orders; (iii) the Tamil Nadu Village officers Service Rules, 1970 or any other rules made under the proviso to Article 309 of the Constitution; or (iv) any other law, but does not include Grama Kuvalar, Grama Paniyalar and Pasana Kavalar;" By section 3 of the Act, the posts held by the part time village officers, as defined above, are abolished.
As a consequence of the above provision not merely posts of officers appointed under the Madras Act No. II of 1894, the Madras Act No. III of 1895 and the Board 's Standing orders prior to December 16, 1970 but also the posts held by officers appointed after that date under the Rules made under the proviso to Article 309 of the Constitution i.e. The Tamil Nadu Village Officers Service Rules, 1970 or any other rule made by the Governor have been abolished.
It is argued that the abolition of posts of officials appointed after December 16, 1970 under the Rules made under the proviso to Article 309 of the Constitution is violative of Article 14 of the Constitution.
We have given our anxious consideration to this submission.
Any classification should satisfy two tests (i) that there exists an intelligible differentia between those who are grouped together and those who are not included in the group and (ii) that there exists a reasonable nexus between the differentia and the object for which classification is made.
As stated earlier the object of the impugned legislation is to abolish posts which were part time in nature and which had come into existence under laws which were feudalistic in character and to replace them by posts held by new incumbents who are recruited under it.
The question for consideration is whether the grouping together of the part time posts mentioned in section 2 (e) of the Act is unconstitutional.
There is no dispute that upto December 16, 1970 all appointments to village offices were being made under the two Madras Acts referred to above and the Board 's 663 Standing orders on the basis of factors dealt with above.
But after December 16, 1970, recruitment was being made in accordance with the Tamil Nadu Village Officers Service Rules, 1970 By the said Rules a new service of part time village officers was constituted.
Rule 5 thereof prescribed the minimum educational qualification and the tests which an applicant had to be eligible for being appointed.
The Rules fixed the age of superannuation at 55 years.
But even under these Rules, the persons who were appointed were part time village officers who were paid a fixed amount every month by way of remuneration.
The nature of duties performed by them and the responsibilities they had to discharge were also the same.
The posts held by them were non pensionable posts.
Under the Act and the Rules framed thereunder, the village administrative officers to be appointed are to be recruited directly.
No person shall be eligible for appointment to the post of a village administrative officer unless he possesses the minimum general educational qualification referred to in Rule 12 (a) (i) of Part II of the Tamil Nadu State Subordinate Services Rules and prescribed Schedule I to the said Part II.
Every person appointed to the post has within a period of one year from the date on which he joins duty to undergo the training and pass the tests prescribed by Rule 9 of the Rules made under the Act.
Every person appointed as a village administrative officer is liable to be transferred from one place to another.
The age of superannuation is fixed at 58 years.
The said posts are no longer part time posts and the holders thereof are full time Government officials entitled to draw salary every month in the scale of Rs. 350 10 420 15 600 and other allowances and these posts are pensionable posts.
It is also to be seen from the recommendations of the Administrative Reforms Commission and other material placed before us that the revenue village will be reorganised so as to form viable administrative units which would require the services of a whole time village administrative officer.
The area under a village administrative officer is much larger than many of the existing revenue villages.
When such reorganisation of the village administration is contemplated, it would not be possible to allow charges of diverse sizes to continue to remain in any part, of the State of Tamil Nadu.
In these circumstances, even though the village officers appointed after December 16, 1970 are in a way different from the village officials appointed prior to that date, they too cannot be equated with the new village administrative officers who will be appointed under the Act and the Rules made thereunder.
664 It cannot, therefore, be held that Article 14 of the Constitution has been violated in abolishing the posts held by those appointed after December 16, 1970.
The petitioners in Writ Petitions Nos. 6191, 6355 and 6356 of 1980 who are holders of village offices in Tiruttani Taluk and Pallipatu area have questioned the impugned Act on the ground that the State Legislature could not pass the law without the previous approval of Central Government as required by the proviso to sub section (4) of section 43 of the (Central Act 56 of 1959).
The area in which these petitioners were working as village officials forms part of the transferred territories transferred from Andhra Pradesh to Tamil Nadu under the aforesaid Act.
Their contention is that since they were working as village officials in the said area prior to the commencement of the above said Act the conditions of their service could not be altered to their prejudice without obtaining the previous approval of the Central Government.
Section 43 of the reads: "43.
Provisions relating to services (1) Every person, who immediately before the appointed day, is serving in connection with the affairs of Andhra Pradesh or Madras shall, as from that day, continue so to serve, unless he is required by general or special order of the Central Government to serve provisionally in connection with the affairs of the other State.
(2) As soon as may be after the appointed day, the Central Government shall by general or special order, determine the State to which every person provisionally allotted to Andhra Pradesh or Madras shall be finally allotted for service and the date from which such allotment shall take effect or be deemed to have taken effect.
(3) Every person who is finally allotted under the provisions of sub section (2) to Andhra Pradesh or Madras shall, if he is not already serving therein, be made 665 available for serving in that State from such date as may be agreed upon between the two State Governments or in default of such agreement, as may be determined by the Central Government.
(4) Nothing in this section shall be deemed to affect, after the appointed day, the operation of the provisions of Chapter I of of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of Andhra Pradesh or Madras.
Provided that the conditions of service applicable immediately before the appointed day to the case of any person provisionally or finally allotted to Andhra Pradesh or Madras under this section shall not be varied to his disadvantage except with the previous approval of the Central Government.
(5) The Central Government may at any time before or after the appointed day give such directions to either State Government as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this section and the State Government shall comply with such directions.
" The answer of the State Government to the above contention is that the petitioners in these petitions are not allotted under section 43 (2) of the above said Act to the State of Tamil Nadu and hence the proviso to sub section (4) of section 43 is not applicable.
The petitioners have not shown any such order of allotment under section 43 (2).
Hence the proviso to sub section (4) of section 43 is not attracted.
Under section 43 (4) of the above said Act, the State Government is entitled to deal with all the officials in the areas transferred to them in accordance with Chapter I of Part XIV of the Constitution.
The above contention is, therefore, rejected.
In the course of the hearing on a suggestion made by the Court, the learned Attorney General filed a memorandum which reads as follows: 666 "All the erstwhile Village officers who possess the minimum general educational qualification as required under the Abolition Act and irrespective of their age (but subject to the rule of retirement framed under the Abolition Act and the Rules framed thereunder) will be screened by a Committee to be appointed by the Government.
They need not make any application and they need not also appear for any test conducted by the Tamil Nadu Public Service Commission for the post of Village Administrative officer.
Guidelines to the Committee will be as follows: (1) Punishment (2) Physical condition.
All the persons selected by the Committee will be appointed by the competent authorities and relaxation in respect of age will be given.
They will be new appointees under the Abolition Act and will be governed by the provisions of the Act and the rules made thereunder.
Compensation will not be available to those who are so appointed.
The remaining vacancies will be filled up from among the candidates already selected by the Tamil Nadu Public Service Commission.
" After the above petitions were filed under the interim order passed in these cases all the officials involved in these cases are being paid the honorarium by the State Government.
Those who fail in these petitions would have become liable to repay the amount which they have thus drawn in excess of the compensation, if any, they may be entitled to.
It is submitted by the learned counsel for the State of Tamil Nadu that the State Government will not take steps to recover such excess amount.
The above statement is recorded.
The attitude displayed by the State Government in filing the memorandum referred to above and in making a statement to the effect that the amount paid pursuant to the interim orders in in excess of the compensation payable the village officials concerned will not be recovered is a highly commendable one and we record 667 our deep appreciation for the laudable stand taken by the Government.
It was, however, strenuously urged by Shri R. K. Garg that those who have to vacate the posts would be without any work and some of them have large families and that compensation, if any, payable to them is very inadequate He urged that it was the duty of the State Government to make adequate provision pursuant to Article 38 and Article 43 of the Constitution.
These Articles are in Part IV of the Constitution.
They are not enforceable by the courts but they are still fundamental in the governance of the country.
The nature of the relationship that exists or ought to exist between the Government and the people in India is different from the relationship between the ruler and his subjects in the West.
A study of the history of the fight for liberty that has been going on in the West shows that it has been a continuous agitation of the subjects for more and more freedom from a king or the ruler who had once acquired complete control over the destinies of his subjects.
The Indian tradition or history is entirely different.
The attitude of an Indian ruler is depicted in the statement of Sri Rama in the Ramayana thus: Kshatrirairdharyate chapo nartshabdo bhavaideeti (Ramayana III 10 3) (Kshatriyas (the kings) bear the bow (wield the power) in order to see that there is no cry of distress (from any quarter).
The duty of the administrator, therefore, is that he should promptly take all necessary steps to alleviate the sufferings of the people even without being asked to do so.
While attending to his duties an administrator should always remember the great saying of the Tamil saint Tiruvalluvar: 668 Do nought that soul repenting must deplore, If thou hast sinned, "its well if thou dost sin no more.
(Let a minister never do acts of which he would have to grieve saying, "What is this I have done", (but) should he do (them), it were good that he grieved not.) (No. 655 in Tirukkural: Translation by Rev. Dr. G.U. Pope and others (Reprint 1970) p. 175).
An administrator 's actions should be such as he is not driven to repent for the mistakes he may have committed.
But if he has committed any mistakes in the past he should try to avoid a repetition of such mistakes.
It is significant that in Tamil language the equivalent of the word 'people ' is 'Makkal ' which is also sometimes used as the equivalent of 'children '.
It is for the State Government to consider what can be done to those who fail in the petitions.
This observation is made particularly in regard to those who were recruited after December 16, 1970 under the rules made under the proviso to Article 309 of the Constitution in view of the fact that their recruitment was not made on the hereditary principle.
Those who have passed S.S.L.C. examination amongst them come within the scope of the statement made by the learned Attorney General.
But those who have merely completed S.S.L.C. examination but not passed it fall outside the scope of that statement even though they have gained experience while they were in office.
We hope and trust that the State Government will look into this matter purely from a humanitarian point of view.
This is only a suggestion and not a direction.
In the result the petitions are dismissed subject to the following: (i) The State Government will give effect to the memorandum filed on its behalf which is incorporated in this judgment in the case of those who possess the minimum general qualifications prescribed under the Act and the Rules made thereunder and who were holding the posts of part time village officers immediately before the Act came into force.
The State Government shall re employ all such persons who have not crossed the age of superannuation and who are selected as per the 669 memorandum in the new cadre within four months from today.
Until they are so selected, they will not be paid any remuneration.
Even if they are re employed, the amount paid to them pursuant to the interim orders will not be recovered from them.
(ii) The compensation, if any, payable by the State Government under section 5 of the Act to those who cease to be village officers shall be adjusted against the amount paid pursuant to the interim orders passed in these cases.
The State Government will not recover from them any amount paid to them pursuant to the interim orders passed in these cases in excess of the compensation, if any, payable to them.
(iii) The interim orders stand vacated with effect from April 15, 1982.
(iv) No costs.
| IN-Abs | In the State of Tamil Nadu the administration was carried on at the village level by a chain of officers in regular gradation one above the other since the commencement of the Christian era.
This system known as the barabaluti system consisted of twelve functionaries :(1) headman, (2) karnam or accountant, (3) shroff or notazar, (4) nirganti, (5) toty or taliary, (6) potter, (7) smith, (8) jeweller.
(9) carpenter, (10) barber, (11) washerman and (12) astrologer.
The first five rendered service to the Government.
By the end of the nineteenth century, two Acts were enacted for the purpose of regulating the work of these village offices.
The Madras Proprietary States ' Village Service Act, 1894 (Madras Act No. 11 of 1894) dealt with three classes of village officers viz. village accountants, village headman and village watchman.
It provided for their appointment, remuneration and summary punishment of misconduct or neglect of duty.
The Madras Hereditary Village offices Act 1895 (Madras Act No. 111 of 1895) regulated the succession to certain other hereditary village offices and provided for the appointment of persons to hold such offices and the control of the holders thereof.
Under both these statutes, the village offices devolved on a single heir according to the general custom and rule of primogeniture governing succession to impartible zamidaris.
In cases to which the aforesaid two statutes were inapplicable provision was made by the Standing orders promulgated by the Board of Revenue, which were known as the Board 's Standing orders for appointing village officers on a hereditary basis.
629 The distinctive features of the service conditions of the village officers appointed under the aforesaid two Acts or the Board 's Standing orders were that they were part time employees of the Government, they were appointed directly by the Revenue officer, the records maintained by them could be retained in their houses, no fixed hours of duty were prescribed, they were not constituted into any distinct service, could not be transferred outside their district, and that they were paid honorarium for the services that they discharged.
The Fundamental Rules applicable to all other State Government employees, the Pension Rules, and the Leave Rules were not applicable to these village officers.
This Court in Gazula Dasaratha Rama Rao vs The State of Andhra Pradesh & ors.
; having held that section 6 (1) of the Madras Act No. 3 of 1895 was void as it contravened Article 16 (2) of the Constitution, instructions were issued by the Board of Revenue on March 12, 1962 that in respect of future vacancies in village offices governed by the Madras Act No. 2 of 1894, and the Madras Act No. 3 of 1895, the appointments should be made on a temporary basis, and the State Legislature enacted the Madras Proprietary Estates ' Village Service and the Madras Hereditary Village offices (Repeal) Act, 1968 repealing the 1894 and 1895 Acts.
Pursuant to section 3 of this Act, the State Government promulgated that Tamil Nadu Village officers Service Rules, 1970 which provided for the constitution of the Tamil Nadu Village officers Service, consisting of (i) Village headman, additional village headman, (ii) village karnam, additional village karnam, and (iii) talayari and nirganti and the method of recruitment to the said posts.
In the year 1973, the Administrative Reforms Commission set up by the State Government recommended that the existing part time village officers should be replaced by regular whole time transferable public servants who should form part of the Revenue hierarchy.
The State Government accepted this recommendation and promulgated on May 17, 1975 the Tamil Nadu Village officers (appointed under B.S. Os) Service Rules 1974.
Thereafter on October 9, 1978 the Tamil Nadu Village officers (appointed under B.S.Os) Service Rules 1978 were issued fixing the age of retirement of village officers at 60 years.
On November 13, 1980, the Tamil Nadu Abolition of posts of part time Village officers ordinance, 1980 was promulgated abolishing the posts of part time village officers in the State.
The ordinance was later replaced by the Tamil Nadu abolition of posts of part time Village officers Act 1981, which provided for the appointment of Village Administrative officers.
By section 3 of the Act, the posts of part time village officers were abolished with elect from November 14, 1980 and every officer holding a post so abolished ceased to hold such post, and section S provided for payment of compensation to those who ceased to be part time village officers.
The petitioners in their writ petition to this Court contended that the ordinance and the Act were violative of Article 19 (1) (g); Article 311 (2), and contravened Article 14 of the Constitution.
The State Government contested the petitions and contended that the State Government being of the opinion that the 630 system of part time Village officers was out moded and did not fit in with the modern needs of village administration, after careful consideration taken the policy decision to abolish all the posts of part time village officers on grounds of administrative necessity and to introduce a system of whole time officers to be incharge of the village administration.
To achieve this, the ordinance was promulgated on November 14, 1980 which was later replaced by the Act.
It was further contended, that since by the ordinance and the Act, certain posts had been abolished, the petitioners who were incumbents of the abolished posts could not raise any of the grounds raised by them.
Dismissing the petitions, ^ HELD: 1.
(i) The power to abolish a civil post is inherent in the right to create it.
The Government has always the power, subject to the constitutional provisions to reorganise a department to provide efficiency and to bring about economy.
It can abolish an office or post in good faith.
The action to abolish a post should not be just a pretence taken to get rid of an inconvenient incumbent.
[643 G] American Jurisprudence 2d vol.63 p. 648 649: H. Eliot Kaplan The Law of Civil Service pp 214 215 referred to.
In the instant case the abolition of the posts of village officers was sought to be achieved by a piece of legislation passed by the State Legislature, namely the Tamil Nadu Abolition of posts of part time Village officers Act, 1981.
Want of good faith or malafides cannot be attributed to the Legislature.
[646 A] (ii) The Act is not violative or Article 19 (1) (g) as it does not affect the right of any of the incumbents of the posts to carry on any occupation of their choice even though they may not be able to stick on to the posts which they were holding.
[647 C] Fertilizer Corporation Kamgar Union (Regd) Sindri & ors.
vs Union of India & ors.
; , referred to.
(i) The doctrine of pleasure incorporated in Article 310 cannot be controlled by any legislation; but the exercise of that power by the President or the Governor, is however made subject to the other provisions of the Constitution, one of them being Article 311, which is not made subject to any other provision of the Constitution and is paramount in the field occupied by it.
[648 D E] (ii) The termination of service of a Government servant consequent upon the abolition of posts does not involve punishment at all and therefore does not attract Article 311(2).
[654 B; 654 E] Parashotam Lal Dhingra vs Union of India ; at 841, Moti Ram Deka etc.
vs General Manager, N.E.F., Railways, Maligaon, Pandu etc. 631 ; and P.V. Naik 8.
vs state of Maharashtra & Anr., AIR 1967 Bom.
482, referred to.
(iii) If a post is not a special post and its incumbent is a member of a cadre his rights as a member of the cadre should be considered before deciding whether he has ceased to be a government employee on the abolition of the post.
On such scrutiny it is likely that the services of another member of the cadre may have to be terminated or some other member of the cadre may have to be reverted to a lower post from which he may have been promoted to the cadre in question by the application of the principle of 'last come, first go '.
If, however, where the post abolished is a special post or where an entire cadre is abolished and there is no lower cadre to which the members of the abolished cadre can reasonably be reverted, the application of this principle may not arise at all.
[653 C D] State of Mysore vs H. Papanna Gowda & Anr.
; , referred to.
(iv) In modern administration, it is necessary to recognise the existence of the power with the Legislature or the Executive to create or abolish posts in the civil services of the State.
The volume of administrative work, the measures of economy and the need for streamlining the administration to make it more efficient may induce the State Government to make alterations in the staffing patterns of the civil service necessitating either the increase or the decrease in the number of posts.
This power is inherent in the very concept of governmental administration.
To deny that power to the Government is to strike at the very roots of proper public administration.
This power to abolish a post which may result in the holder thereof ceasing to be a Government servant has got to be recognised, but any action legislative or executive taken pursuant to that power is always subject to judicial review.
(656 A)) M. Ramanatha Pillai vs The State of Kerala Anr.
; , Champaklal Chimanlal Shah vs The Union of India [1964] S S.C.R. 190, Satish Chandra Anand vs The Union of India ; , Shyam Lal vs State of U.P. and Union of India ; , State of Haryana vs Des Raj Sangar of Anr. ; , referred to.
Abdul Khalik Renzu & Ors.
vs The State of Jammu and Kashmir A.I.R. 1965 J & K 15, overruled.
In the instant case it cannot be said that the State Act by which the village officers in the State of Tamil Nadu were abolished, contravenes Article 311 (2).
[657 F] (v) The posts of village officers which were governed by the Madras Act II of 1894, the Madras Act III of 1895 and the Board s Standing orders were feudalistic in character and the appointment to these posts were governed by the law of primogeniture, the family in which the applicant was born, the village in which he was born, and the fact whether he owned any property in the village or not.
These factors are alien to modern administrative service and clearly 632 opposed to Articles 14 and 16.
The Administrative Reforms Commission rightly recommended their abolition and reorganisation of the village service.
[657 H; 658 A C] (vi) Having regard to the abolition of similar village offices in the neighbouring States of Karnataka and Andhra Pradesh and the agitation in the State of Tamil Nadu for reorganisation of village service, the decision to abolish the village offices which were feudalistic in character and an anachronism in the modern age cannot be said to be arbitrary or unreasonable.
[660 C] R. Shankaranarayana & Ors.
vs the State of Mysore & ors.
A.I.R. 1966 S.C. 1571.
B.H. Honnalige Gowda vs State of Mysore & Anr., A.I.R. , referred to.
(i) Any classification under Article 14 should satisfy two tests: (i) that there exists an intelligible differentia between those who are grouped together and those who are not included in the group, and (ii) that there exists a reasonable nexus between the differentia and the object for which classification is made.
[662 F] (ii) Upto December 16, 1970 all appointments to Village officers were being made under the two Madras Acts and the Board 's Standing orders on the basis of factors dealt with therein, but after December 16, 1970 recruitment was made in accordance with the Tamil Nadu Village officers Service Rules 1970.
By these rules a new service of part time Village officers was constituted and the;, persons who were appointed were paid a fixed amount every month by way of remuneration.
Under the Act Of 1981 and the Rules framed thereunder the Village Administrative officers were to be appointed and to be recruited directly.
The posts were no longer treated as part time posts and holders thereof were full time government officials entitled to draw salary every month.
Even though the Village officers appointed after December 16, 1970 were in a way different from the village officials appointed prior to that date the two cannot be equated with the new Village officers who were to be appointed under the 1981 Act and the rules made thereunder.
It cannot therefore be stated that Article 14 of the Constitution has been violated in abolishing the posts held by those appointed after December 16, 1970.
[662 H; 663 A E; 663 H; 664A] 4 (i) The State Government will give effect to the memorandum filed on its behalf in the case of those who possess the minimum general qualification prescribed under the Act and the Rules.
The State Government shall re employ all such persons who have not crossed the age of superannuation and who are selected in the new cadre.
Until they are so selected they will not be paid any remuneration.
Even if they are re employed the amount paid to them pursuant to the interim orders will not be recovered.
[668 G H; 669 A] (ii) The compensation, if any payable by the State Government under section s of the Act to those who cease to be village officers shall be adjusted against the amount paid pursuant to the interim orders, and any amount in excess of the compensation, shall not be recoverable.
[669 B C] 633
|
etition (Criminal) No. 8061 of 1981.
(Under article 32 of the Constitution of India.) Dr. N.M. Ghatate for the Petitioner.
O.P. Rana and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by SEN, J.
By this petition under article 32 of the Constitution, one Ashok Kumar seeks issuance of a writ of habeas corpus challenging the validity of the order of detention dated August 11, 1981, passed by the Commissioner of Police, Delhi under sub section
(2) of section 3 of the (for short 'the Act ') on being satisfied that his detention was necessary with a view to preventing him from "acting in any manner prejudicial to the maintenance of 710 public order".
The main issue is as to whether the activities of the petitioner fall within the realm of 'public order ' or 'law and order '.
It appears that on August 12, 1981 while the detenu was held at the Central Jail, Tihar in connection with some of the offences committed by him, he was served with the aforesaid order of detention passed a day earlier i.e. on August 14, 1981.
Two days later i.e. on August 14, 1981 he was furnished with the grounds of detention as well as with copies of documents and statements relied upon in the grounds of detention.
It seems that the Commissioner of Police forthwith made a report to the Administrator about the passing of the detention order together with the grounds of detention and all other particulars bearing on the same.
The said report and the other particulars were considered by the Administrator and he, by his order dated August 20, 1981, approved of the detention order under sub section
(4) and sent a report to the Central Government as required under sub section
(5) of section 3 of the Act.
The Administrator by his order dated August 20, 1981 informed the petitioner that his order of detention had been approved by him and that he had a right to make a representation.
The case of the petitioner was placed before the Advisory Board who was of the opinion that there was sufficient cause for the detention of the petitioner and accordingly the Administrator by his order dated September 15, 1981 confirmed the aforesaid detention order under sub section
(1) of section 12 and further directed under section 13 of the Act that the petitioner be detained for a period of 12 months from the date of his detention i.e. w.e.f. August 12, 1981.
In support of the petition, four points are canvassed.
First of these is that there was a denial of the constitutional imperatives of article 22(5) read with section 8 of the Act which cast a duty on the detaining authority to afford the detenu "the earliest opportunity of making a representation against the order of detention" inasmuch as there was unexplained delay of two days in furnishing the grounds of detention; secondly, there was a failure on the part of the Commission of Police as well as the Administrator to apply their mind and specify the period of detention while making the order of detention under sub section
(2) of section 3 of the Act and therefore the impugned order of detention is invalid; thirdly, the grounds of detention served on the detenu are not connected with "maintenance of public order", but they relate to "maintenance of law and order" and fourthly, the facts as set out in the grounds of detention did not 711 furnish sufficient nexus for forming the subjective satisfaction of the detaining authority and further they were vague, irrelevant and lacking in particulars.
We are afraid, none of these contentions can prevail.
There is no substance in the contention that there was denial of the constitutional imperatives of article 22(5) read with section 8 of the Act, because there was unexplained delay of two days in furnishing the grounds of detention and it was imperative that the detenu should be furnished with the grounds of detention along with the order of detention.
It is said that delay even for a day, if it remains unexplained ' means deprivation of liberty guaranteed under article 21, and this is impermissible except according to procedure established by law.
The contention that the constitutional safeguards in article 22(5) were not complied with merely because the detenu was not 'simultaneously ' furnished with the grounds of detention along with the order of detention and was thereby deprived of the right of being afforded 'the earliest opportunity of making a representation against the order of detention ' as enjoined by article 22(5) read with with section 8 of the Act, cannot be accepted.
The language of article 22(5) itself provides that where a 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.
Sub section
(1) of section 8 of the Act which is in conformity with article 22(5) provides that when a person is detained in pursuance of a detention order made under sub section
(1) or sub section
(2) of section 3 of the Act, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made.
Parliament has thus by law defined the words "as soon as may be" occurring in article 22(5) as meaning normally a period of five days.
The matter is no longer res integra.
Chandrachud, C.J. in A.K. Roy vs Union of India observed : "This argument overlooks that the primary requirement of section 8(1) is that the authority making the order of 712 detention shall communicate the grounds of detention to the detenu "as soon as may be".
The normal rule therefore is that the grounds of detention must be communicated to the detenu without avoidable delay.
It is only in order to meet the practical exigencies of administrative affairs that the detaining authority is permitted to communicate the grounds of detention not later than five days ordinarily and not later than 10 days if there are exceptional circumstances.
If there are any such circumstances, the detaining authority is required by section 8(1) to record its reason in writing.
We do not think that this provision is open to any objection.
" Under our constitutional system, therefore, it is not the law that no person shall be detained in pursuance of an order made under a law providing for preventive detention without being informed of the grounds for such detention.
The law is that the detaining authority must, as soon as may be, i.e. as soon as practicable, communicate to the detenu the grounds on which the order of detention has been made.
That period has been specified by section 8 of the Act to mean a period ranging from five to ten days depending upon the facts and circumstances of each case.
Admittedly, the detenu here was served with the grounds of detention within a period of two days i.e. within the period allowed by section 8 of the Act and that was "as soon as practicable".
This is not a case where the detenu alleges that his detention was for non existent grounds.
Nor does he attribute any mala fides on the part of the detaining authority in making the order.
The order of detention is therefore not rendered invalid merely because the grounds of detention were furnished two days later.
We find it difficult to conceive of any discernible principle for the second submission.
It is submitted by learned counsel appearing for the detenu that the right to make a representation under article 22(5) of the Constitution read with section 8 of the Act means what it implies, "the right to make an effective representation".
It is urged that unless the period of detention is specified, there can be no meaningful representation inasmuch as the detenu had not only the right of making a representation against the order for his detention but also the period of detention.
On this hypothesis, the contention is that the impugned order of detention is rendered invalid.
The 713 entire submission rests on the following observations of Chandrachud, C.J. in A.K. Roys case, supra : "We should have thought that it would have been wrong to fix a minimum period of detention, regardless of the nature and seriousness of the grounds of detention.
The fact that a person can be detained for the maximum period of 12 months does not place upon the detaining authority the obligation to direct that he shall be detained for the maximum period.
The detaining authority can always exercise its discretion regarding the length of the period of detention.
" The majority decision in A.K. Roys case, supra, as pronounced by Chandrachud, C.J. is not an authority for the proposition that there is a duty cast on the detaining authority while making an order of detention under sub section
(1) or (2) to specify the period of detention.
The learned Chief Justice made the aforesaid observations while repelling the contention advanced by learned counsel for the petitioner that section 13 of the Act was violative of the fundamental right guaranteed under article 21 read with article 14 as it results in arbitrariness in governmental action in the matter of life and liberty of a citizen.
The challenge to the validity of section 13 of the Act was that it provides for a uniform period of detention of 12 months in all cases, regardless of the nature and seriousness of the grounds on the basis of which the order of detention is passed.
In repelling the contention, the learned Chief Justice observed that there was no substance in that grievance because, any law of preventive detention has to provide for the maximum period of detention, just as any punitive law like the Penal Code has to provide for the maximum sentence which can be imposed for any offence.
In upholding the validity of section 13 the learned Chief Justice observed : "We should have thought that it would have been wrong to fix a minimum period of detention, regardless of the grounds of detention".
And then went on to say : "It must also be mentioned that under the proviso to section 13, the appropriate government has the power to revoke or modify the order of detention at any earlier point of time.
" 714 It would thus be clear that the Court was there concerned with the validity of section 13 of the Act and it is not proper to build up an argument or by reading out of context just a sentence or two.
There is no doubt in our mind that the Court has not laid down that the detaining authority making an order of detention under sub section
(1) or sub section
(2) of section 3 of the Act or the authority approving of the same, must specify the period of detention in the order.
It is plain from a reading of section 3 of the Act that there is an obvious fallacy underlying the submission that the detaining authority had the duty to specify the period of detention.
It will be noticed that sub section
(1) of section 3 stops with the words "make an order directing that such person be detained", and does not go further and prescribe that the detaining authority shall also specify the period of detention.
Otherwise, there should have been the following words added at the end of this sub section "and shall specify the period of such detention".
What is true of sub section
(1) of section 3 is also true of sub section
(2) thereof.
It is not permissible for the courts, by a process of judicial construction, to alter or vary the terms of a section.
Under the scheme of the Act, the period of detention must necessarily vary according to the exigencies of each case i.e. the nature of the prejudicial activity complained of.
It is not that the period of detention must in all circumstances extend to the maximum period of 12 months as laid down in section 13 of the Act.
The most crucial question on which the decision must turn is whether the activities of the detenu fall within the domain of 'public order ' or 'law and order '.
The contention is that the grounds of detention served on the detenu are not connected with 'maintenance of 'public order ' but they relate to 'maintenance of law and order ' and therefore the impugned order of detention purported to have been passed by the detaining authority in exercise of his powers under sub section (2) of section 3 of the Act is liable to be struck down.
It is urged that the facts alleged in the grounds of detention tend to show that he is engaged in criminal activities and it is an apparent nullification of the judicial process if, in every case where there is a failure of the prosecution to proceed with a trial or where the case ends with an order of discharge or acquittal, the Executive could fall back on its power of detention because the verdict of the Court goes against it.
Put differently, the contention is that resort cannot be had to the Act to direct preventive detention of a person under sub section
(2) of section 3 of the Act for the Act is not a law for the 715 preventive detention of gangsters and notorious bad characters.
The detention here, it is said, is not so much for the "maintenance of public order" but as a measure for the past criminal activities of the detenu.
It is further urged that the grounds of detention have no rational connection with the object mentioned in the Act for which a person may be detained.
Further, that there is no sufficient nexus between the preventive action and the past activities of the detenu which are not proximate in point of time but are too remote.
There is no substance in any of these contentions advanced.
The true distinction between the areas of 'public order ' and 'law and order ' lies not in the nature or quality of the Act, but in the degree and extent of its reach upon society.
The distinction between the two concepts of 'law and order ' and 'public order ' is a fine one but this does not mean that there can be no overlapping.
Acts similar in nature but committed in different contexts and circumstances might cause different reactions.
In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order.
The act by itself therefore is not determinant of its own gravity.
It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order.
That test is clearly fulfilled in the facts and circumstances of the present case.
Those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires.
Preventive detention is devised to afford protection to society.
The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing.
Justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence.
It follows that any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State.
It is a matter of grave concern that in urbanised areas like cities and towns and particularly in the metropolitan city of Delhi the law and order situation is worsening everyday and the use of knives and firearms has given rise to a new violence.
There is a constant struggle to control the criminal activities of the persons engaged in such organised crimes for the maintenance of public 716 order.
It is difficult to appreciate the argument that the detention here is with a view to punish the detenu for a series of crimes that he is alleged to have committed, but which the law enforcement agency is not able to substantiate.
There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose.
The prejudicial activities of the detenu leading to public disorder, as revealed in the grounds of detention, consist of a consistent course of criminal record.
Although the criminal activities of the detenu in the past pertained mostly to breaches of law and order, they have now taken a turn for the worse.
From the facts alleged it appears that the detenu has taken to a life of crime and become a notorious character.
His main activities are theft, robbery and snatching of ornaments by the use of knives and firearms.
The area of operation is limited to South Delhi, such as Greater Kailash, Kalkaji and Lajpat Nagar.
A perusal of the F.I.Rs. shows that the petitioner is a person of desperate and dangerous character.
This is not a case of a single activity directed against a single individuals.
There have been a series of criminal activities on the part of the detenu and his associates during a span of four years which have made him a menace to the society.
It is true that they are facing trial or the matters are still under investigation.
That only shows that they are such dangerous characters that people are afraid of giving evidence against them.
To bring out the gravity of the crimes committed by the detenu, we would just mention four instances.
On November 19, 1979 Smt.
Anupam Chander of B 5/10, Safdarjang Enclave reported that she was robbed of her gold chain near East of Kailash and on investigation the petitioner along with his associates was arrested for this high handed robbery and there is a case registered against them which is pending trial.
Just a month after i.e. on December 11, 1979, one Munna of Lajpat Nagar reported that he was robbed of his wrist watch and cash by three persons who were travelling in a three wheeler.
On investigation, the petitioner and his associate Rajendra Kumar were arrested and the police recovered the stolen property.
They are facing trial in these cases.
On July 18, 1981 717 Kumari G. Radha reported that she had been robbed of her gold chain and a pair of tops in Lajpat Nagar at the point of knife by persons in the age group of 21/22 years.
On investigation, the petitioner and his associate Rajendra Kumar were arrested and the entire booty was recovered.
The case is still under investigation.
It appears that the detenu was enlarged on bail and two days after i.e. on July 20, 1981, he was again arrested on the report of Smt.
Ozha that she was robbed of her gold chain near Shanti Bazar, Khokha Market, Lajpat Nagar by two persons in the age group of 21 25 years at the point of knife.
On investigation, the petitioner and his companion Rajendra Kumar were arrested and she identified them to be the culprits and the booty was recovered from them.
The case is under investigation.
There have been similar incidents of a like nature.
What essentially is a problem relating to law and order may due to sudden sporadic and intermittent acts of physical violence on innocent victims in the metropolitan city of Delhi result in serious public disorder.
It is the length, magnitude and intensity of the terror wave unleashed by a particular act of violence creating disorder that distinguishes it as an act affecting public order from that concerning law and order.
Some offences primarily injure specific individuals and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely.
The question is of the survival of the society and the problem is the method of control.
Whenever there is an armed hold up by gangsters in an exclusive residential area like Greater Kailash, Kalkaji or Lajpat Nagar and persons are deprived of their belongings like a car, wrist watch or cash, or ladies relieved of their gold chains or ornaments at the point of a knife or revolver, they become victims of organised crime.
There is very little that the police can do about it except to keep a constant vigil over the movements of such persons.
The particular acts enumerated in the grounds of detention clearly show that the activities of the detenu cover a wide field and fall within the contours of the concept of public order.
The contention that the facts alleged in the grounds of detention did not furnish sufficient nexus for forming the subjective satisfaction of the detaining authority and further that they were vague, irrelevant or lacking in particulars, cannot be accepted.
A bare perusal of the grounds of detention along with the particulars 718 of the 36 cases furnished in the accompanying chart, shows that the grounds furnished were not vague or irrelevant or lacking in particulars or were not adequate or sufficient for the subjective satisfaction of the detaining authority.
In the result, the petition must fail and is dismissed.
N.V.K. Petition dismissed.
| IN-Abs | The petitioner who was held at the Central Jail in connection with some of the offences committed by him, was served with an order of detention passed by the Commissioner of Police, under sub section (2) of section 3 of the , stating that his detention was necessary with a view to preventing him from "acting in any manner prejudicial to the maintenance of public order." Two days later he was served with the grounds of detention and copies of documents and statements relied upon in the grounds of detention.
The Commissioner made a report to the Administrator about the passing of the detention order together with the grounds of detention.
The Administrator approved the detention order and sent the report to the Central Government, and also informed the petitioner that the order of detention had been approved by him and that he had a right to make a representation.
The case of the petitioner was placed before the Advisory Board who was of the opinion that there was sufficient cause for his detention.
The Administrator confirmed the detention order under sub section (1) of section 12 and further directed under section 13 of the Act that the petitioner be detained for a period of 12 months from the date of his detention.
In his petition under Article 32 of the Constitution the petitioner contended that: (1) the unexplained delay of two days in furnishing the grounds of detention was a denial of the constitutional imperatives of article 22(5) read with section 8 of the Act which cast a duty on the detaining authority to afford the detenu "the earliest opportunity of making a representation against the order of detention", (2) there was a failure on the part of the Commissioner as well as the 708 Administrator to apply their minds and specify the period of detention while making the order of detention under sub section (2) of section 3 of the Act, and (3) the grounds of detention served were not connected with "maintenance of public order", but relate to "maintenance of law and order".
Dismissing the petition, ^ HELD: 1.
(i) Sub section (1) of section 8 of the Act which is in conformity with Article 22(5) provides that where a person is detained in pursuance of a detention order made under sub section (1) or sub section (2) of section 3 of the Act, the authority making the order shall, "as soon as may be", but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than ten days from the date of detention, communicate to him the grounds on which the order has been made.
Parliament has thus by law defined the words "as soon as may be" occurring in article 22(5) as meaning normally a period of five days.
[711 F] (ii) The law is that the detaining authority must, as soon as may be, i.e. as soon as practicable, communicate to the detenu the grounds on which the order of detention has been made.
That period has been specified by section 8 of the Act to mean a period ranging from five to ten days depending upon the facts and circumstances of each case.
[712 D] In the instant case, the petitioner was served with the grounds of detention within a period of two days i.e. within the period allowed by section 8 of the Act and that was "as soon as practicable.
" The order of detention is therefore not rendered invalid merely because the grounds of detention were furnished two days later.
[712 E F] (iii) In A.K. Roy vs Union of India, [1982] 1 S.C.C. 271 this Court has not laid down that the detaining authority making an order of detention under sub section (1) or sub section (2) of section 3 of the Act or the authority approving of the same, must specify the period of detention in the order.
[714 B] 2.
Under the scheme of the Act, the period of detention must necessarily vary according to the exigencies of each case i.e. the nature of the prejudicial activity complained of.
It is not that the period of detention must in all circumstances extend to the maximum period of 12 months as laid down in section 13 of the Act.
[714 E] 3.(i) The true distinction between the areas of 'public order ' and 'law and order ' lies not in the nature or quality of the act, but in the degree and extent of its reach upon society.
The distinction between the two concepts of 'law and order ' and 'public order ' is a fine one but this does not mean that there can be no overlapping.
Acts similar in nature but committed in different contexts and circumstances might cause different reactions.
In one case it might affect specific individuals only and therefore touch the problem of 'law and order ' while in another it might affect 'public order '.
The act by itself therefore is not determinant of its own gravity.
It is the potentiality of the act to disturb the even 709 tempo of the life of the community which make it prejudicial to the 'maintenance of public order. ' [715 C E] (ii) Preventive detention is devised to afford protection to society.
The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing.
Justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence.
It follows that any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State.
[715 F G] (iii) The Executive can take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose.
[716 B] (iv) What essentially is a problem relating to 'law and order ' may due to sudden sporadic and intermittent acts of physical violence on innocent victims in a metropolitan city result in serious 'public disorder '.
It is the length, magnitude and intensity of the terror wave, unleashed by a particular act of violence creating disorder that distinguished it as an act affecting 'public order ' from that concerning 'law and order '.
Some offences primarily injure specific individuals and only secondarily the public interest, while others directly injure the public interest, and affect individuals only remotely.
[717 D E] In the instant case the particular acts enumerated in the grounds of detention clearly shows that the activities of the detenu cover a wide field and fall within the contours of the concept of 'public order '.
[717 G]
|
Petition Nos.
528 529, 1645, 288,293, 362,363, 374, 388, 404 406, 510, 512 14, 644 46, 647, 663 65, 707, 710, 720 to 722, 745,793,1037 of 1979,341 43,344 47, 5257,519,5293, 3531 35, 4322 of 1980, 4824, 4825, 5246, 3236, 2963,3472 74,3415 17, 3420, 1363 65, 1327 28, 1337 41, 4101 2, 5326,4949 50 of 1981 and 311 of 1982.
(Under Article 32 of the Constitution of India) G.L. Sanghi, Dr. L.M. Singhvi, S.N. Kacker, Yogeshwar Prasad, Ashok Grover, V.N. Koura, S.C. Budhwar, L.K. Pandey, Ravindra Narain, D.N. Mishra, P. Krishna Rao, K.R. Nagaraja, Miss Kamini Jaiswal and Mrs. Rani Chhabra for the appearing Petitioners.
L,N. Sinha, Attorney General, S.C. Maheshwari, Additional Advocate General, O.P. Malhotra, G. N. Dikshit, H.R. Bhardwaj, B.P. Maheshwari, Suresh Sethi, Miss Asha Rani Jain, and Pravir Choudhary for the appearing Respondents.
The Judgment of the Court was delivered by TULZAPURKAR, J.
There is no substance in this group of writ petitions filed under article 32 of the Constitution whereby the petitioners, who carry on business, inter alia, of the wholesale vend of beer and Indian Made Foreign Liquor at various places in the State of U.P. on the strength of licences granted to them in Form FL 2 under the U.P. Excise Act, 1910, have challenged the constitutional validity of sections 1(2), 3 and (5) of U.P. Excise (Amendment) ordinance No. 4 of 1979 as also the constitutional validity of sections 1(2), 3 and 5 of U.P. Excise (Amendment) Act No. 13 of 1979 (which replaced the said ordinance No. 4 of 1979) as being violative of their fundamental rights under articles 14, 19 and 31 of the Constitution; the petitioners have also sought a declaration that section 30(2), proviso to cl.
(c) of section 41 and Explanations I and II to cl.
(c) of section 41 of the U.P. Excise Act 1910 as amended by sections 3 and 5 of the said ordinance No. 4 of 1979 as well as by sections 3 and 5 of the said Act No. 13 of 1979 and the provisions of sub section
(2) of section 1 of the said ordinance (No. 4 of 1979) as well as of the said Act (No. 13 of 1979) are ultra vires the Constitution and have prayed for the issuance of an appropriate writ, order or direction restraining the respondents (the State of U.P., the Excise Commissioner and other officers) either directly or through their agents, servants or otherwise from giving effect to the amended provision.
759 It may be stated that the aforesaid challenge to the U.P. Ordinance No. 4 of 1979, the U.P. Act No. 13 of 1979 and the concerned amended provisions of the U.P. Excise Act, 1910 has been made solely with a view to avoid the payment of the "assessed fee" which the respondents are seeking to recover from the petitioners in addition to the "fixed fee" (auction money) as and by way of consideration for the grant of licences in Form FL 2 for the wholesale vend of beer and Indian Made Foreign Liquor.
However, as it became clear during the hearing that even without the amendments affected in the U.P. Excise Act, 1910 (being the Principal Act) by the said ordinance No. 4 of 1979 and by the said Act No. 13 of 1979 the "assessed fee" in addition to the "fixed fee" (auction money) could be and was being recovered under the Principal Act of 1910 as amended by the U.P, Amending (Reenactment and Validation) Act 5 of 1976 and the Rules framed thereunder, the aforesaid challenge was given up and no arguments in support thereof were at all advanced by any of the counsel for the petitioners and the contentions centered round the question whether such "assessed fee" in addition to the "fixed fee" (auction money) could be levied and recovered under the Principal Act of 1910 as amended by the Act 5 of 1976.
It was not disputed before us that the grant of exclusive privilege of manufacture, supply or sale by wholesale or by retail of liquor was always governed by the provisions of the Principal Act of 1910 and the Rules framed thereunder and that licences for wholesale vend of beer and Indian Made Foreign Liquor were granted in Form FL 2 which contained the terms and conditions on which sales by wholesale of the said commodities could be effected by the grantees thereof.
It appears that prior to April 1976 these FL 2 licences were not settled under any auction system but were renewable from year to year and the licence fee was based on the quantity of beer and Indian Made Foreign Liquor actually sold from the concerned shop and was assessed and charged at the rate of Rs. 5 per quart bottle on spirits and 60 p. per quart bottle on beers.
But from April 1976 auction system was introduced whereunder FL 2 licences were auctioned under the provisions of paragraph 373 of the U.P. excise Manual Vol.
I and "fixed free".
being the highest bid (auction money) accepted at such auction came to be charged for the grant of FL 2 licences and this system was introduced on the strength of the amendments that were made in the Principal Act of 1910 by the Amending (Re enactment and 760 Validation) Act 5 of 1976.
Three or four amendments made by Act 5 of 1976 are material and we shall refer to these presently: A new section 24A dealing with the grant of exclusive or other privilege in respect of foreign liquor was introduced in the Principal Act, which reads as under: "24 A. Grant of exclusive or other privilege in respect of foreign liquor.
(1) Subject to the provisions of Section 31, the Excise Commissioner may grant to any person a licence or licences for the exclusive or other privilege: (a) of manufacturing or of supply by wholesale, or of both; or (b) of manufacturing or of supplying by wholesale, or of both and selling by retail; or (c) of selling by wholesale (to wholesale or retail vendors); or (d) of selling by retail at shops (for consumption 'off ' the premises); any foreign liquor in any locality.
(2) The grant of licence or licences under clause (d) of sub section (1) in relation to any locality shall be without prejudice to the grant of licences for the retail sale of foreign liquor in the same locality in hotels and restaurants for consumption in their premises.
(3) Where more licences than one are proposed to be granted under clause (d) of sub section (1) in relation to any locality for the same period, advance intimation of the proposal shall be given to the prospective applicants for every such licence.
(4) The provisions of Section 25, and proviso to Section 39 shall apply in relation to grant of a licence for an exclusive or other privilege under this section as they apply in respect of the grant of a licence for an exclusive privilege under Section 24," 761 Section 24 B which was also introduced by Act 5 of 1976 in the Principal Act reads thus: "24 B. Removal of doubts For the removal of doubts, it is hereby declared (a) that the State Government has an exclusive right or privilege of manufacture and sale of country liquor and foreign liquor; (b) that the amount described as licence fee in clause (c) of Section 41 is in its essence the rental or consideration for the grant of such right or privilege by the State Government; (c) that the Excise Commissioner as the head of the Excise Department of the State shall be deemed, while determining or realising such fee, to act for and on behalf of the State Government.
" By the same Act section 30 of the Principal Act was amended and the amended section 30 read thus: "30.
(1) Instead of or in addition to any duty leviable under the Chapter the State Government or on its behalf the Excise Commissioner may accept payment of a sum in consideration of the grant of licence for any exclusive or other privilege under section 24 or Section 24 A. (2) The sum payable under sub section (1) may be determined either by auction or by calling tenders or otherwise.
" Section 41 of the Principal Act which confers power on the Excise Commissioner to make Rules subject to the previous sanction of the State Government touching the matters or topics specified therein was amended by Act 5 of 1976 by substituting cl.
(c) thereby conferring power on the Excise Commissioner to frame Rules on the substituted matter or topic and the amended cl.
(c) runs thus: "(C) Prescribing the scale of fees or manner of fixing the fees payable for any licence, permit or pass including 762 any consideration for the grant of any exclusive or other privilege granted under Section 24 or Section 24 A or for storing of any intoxicant.
" In exercise of the power so conferred upon him under the amended cl.
(c) of section 41, the Excise Commissioner with the previous sanction of the State Government framed Rules called the U.P. Excise (Wholesale and Retail Vend of Foreign Liquor) (2nd Amendment) Rules, 1976 by issuing the Notification No. 27/Licence 3 dated 14th April, 1976, which were brought into force with effect from the date of publication in the Gazette, namely, 14th April, 1976, by this Notification the existing Rules 639, 641 and 642 as appearing in Excise Manual Vol.
I (1962 End.) were amended; Rule 639(2) as amended provides that "licences in form FL 2 shall be settled by public auction" while Rule 641 as amended provides that "the fee for a licence in Form FL 2 shall be the amount of money accepted at the auction of the licence as 'fixed fee ' together with an 'assessed fee ' charged on the basis of the scales of surcharge fee prescribed in the next paragraph following" and Rule 642 as amended runs thus: "642.
The scales of licence fee applicable to whole scale licences for the vend of foreign liquor shall be as follows: (i) For a licence in Form FL.1. (ii) For a licence in Form FL 2 The fixed fee obtained for the licence at the auction in addition to the assessed fees according to the following scales: (a) Spirits, Rs. 5.00 per wines, liquors reputed quart etc.
of all bottle on sale kinds.
to licensed vendors.
(b) Beer, Stout and Rs. 0.60 per other fermented reputed quart liquors.
bottle on sale to licensed vendors.
Note: The fixed fee in respect of licence FL 2: one fourth of the licence fee as obtained in the auction 763 shall be payable in advance immediately on the acceptance of the bid and the balance by such instalments as may be specified in the licence to be granted.
" By the very notification dated 14th of April, 1976 the Excise Commissioner added one more condition in the form of a proviso to the terms and conditions of FL 2 Licence and the said addition made after condition No. 1 (c), runs thus: "Provided that the assessment fee on the sales made on the licence in the prescribed manner at such scales of surcharge fee as may be prescribed by the Government and announced at the time of the auction, shall also be payable by the licencee." Obviously relying upon the aforesaid amendments made in the Principal Act of 1910, by Act 5 of 1976 (some of which were given retrospective effect from the date of the commencement of the Principal Act and others from 16th August 1972) and the said amended Rules 639, 641 and 642 and the insertion of the new condition in the FL 2 Licence (all of which came into force from 14th April, 1976), the respondents introduced the auction system for the grant of licences in Form FL 2 for wholesale vend of beer and Indian Made Foreign Liquor and started levying and recovering the "assessed fee" in addition to the "fixed fee" (auction money) from the grantees of the licences.
Question raised is whether such levy and recovery are legal and valid ? Before we deal with the question it will be desirable to set out the facts giving rise to it that lie in a narrow compass and it will suffice if the facts obtaining in Writ Petition No. 528 of 1979, being typically representative of the group, are stated.
The petitioners in that petition are liquor dealers and carry on business inter alia of wholesale vend of beer and Indian Made Foreign Liquor and for that purpose have wholesale depots in various districts in the State of U.P.
For the financial years 1976 77 and 1977 78 they acquired by auction bids wholesale vending rights in respect of Indian Made Foreign Liquor at Agra, Meerut, Varanasi, Kanpur, Bareilly and Dehradun; for the financial year 1978 79 they similarly acquired wholesale vending rights in Indian Made Foreign Liquor at Agra, Meerut and Varanasi and for the financial year 1979 80 they acquired by auction similar rights at Agra, Meerut, Ghaziabad 764 and Pilibhit.
In other words being the highest bidder at these places for these years licences for the wholesale vend of Indian Made Foreign Liquor in Form FL 2 were granted to them.
At the time of acceptance of their bids at these auctions the petitioners deposited the entire auction money called the "fixed fee" in respect of each of the said years with the respondents.
The petitioners ' case is that thereafter the respondents are seeking to levy and recover from them the "assessed fee" at the rate of Rs. 5 per quart bottle on spirits and 60 p. per quart bottle on beers actually sold during each of the financial years by their concerned shops or depots in addition the "fixed fee".
Such levy and recovery of the "assessed fee" by the respondents is challenged on two or three grounds indicated hereunder.
In the first place Counsel for the petitioners have contended that under section 30(2) of the Principal Act of 1910 prior to its amendment by U.P. Ordinance No. 4 of 1979 and U.P. Act 13 of 1979 it was open to the respondents to adopt either one or the other method of granting FL 2 licences and determine the licence fee payable by the grantee accordingly, that is to say the respondents could grant the licence "either by auction or by calling tenders" and once a particular mode was adopted it was incumbent upon them to apply the same for the purpose of determining the sum payable by the grantee; in other words the contention has been that it was not open to them to adopt a combination of two or more methods and claim "assessed fee" in addition to "fixed fee" and therefore the instant attempt on the part of the respondents to levy and recover the "assessed fee" in addition to "fixed fee" would be illegal and without authority of law.
According to the petitioners a combination of two or more methods became available to the respondents only under sec.
30(2) as amended by U.P. ordinance No. 4 of 1979 and by U.P. Act 13 of 1979.
Secondly, the petitioners have averred that at the time of the said auctions held for each of the said financial years the bidders were not informed that any "assessed fee" had been fixed by the State Government which would be payable by the successful bidder and therefore the persons who gave their bids including the petitioners whose highest bids were accepted were led to believe that no fee over and above the auction money would be charged and that the successful bidder would be granted FL 2 licence merely on payment of the auction money.
Counsel for the petitioners have therefore contended that the respondents ' attempt to levy and recover the "assessed fee" over 765 and above the "fixed fee" (auction money) is unwarranted and illegal in as much as the respondents cannot enhance the petitioners ' contractual liability which was limited to the payment of the auction money.
Yet another contention raised by Counsel for the petitioners has been that as per the newly inserted condition in FL 2 licence the "assessed fee" was required to be "prescribed by Government and announced at the time of auction" but in the instant case such "assessed fee" has been prescribed by the Excise Commissioner and not by the State Government and was not announced at the time of the auction and for this reason also the same would not be recoverable.
As will be shown presently none of these contentions has any merit and each one is liable to be rejected.
As regards the first contention a plain reading of section 30(2) prior to its amendment by U.P. Ordinance No. 4 of 1979 and by U.P. Act No. 13 of 1979 will show that there is no substance in it.
The said provision ran thus: "2.
The sum payable under sub sec.
(1) may by determined either by auction or by calling tenders or otherwise.
" In other words, the consideration for the grant of FL 2 licence could be determined either by auction or by calling tenders or otherwise.
The phrase "or otherwise" was sufficiently wide and conferred on its plain grammatical construction power on the State Government or the Excise Commissioner to grant the licence either by auction or by tenders or partly by auction and partly by tenders or even by adopting yet other methods than by auction or by inviting tenders.
In other words, the phrase "or otherwise" enabled the State Government or the Excise Commissioner to adopt a combination of one or more methods for granting the FL 2 licence and determine the licence fee accordingly.
Having regard to the phrase "or otherwise" occurring in the provision it is impossible to accept the contention that only one method to the exclusion of the others could be adopted by the respondents for granting the licence or that one type of fee appropriate to that method could alone be charged.
It is true that sub sec.
(2) of section 30 as amended by U.P. Ordinance No. 4 of 1979 or by U.P. Act No. 13 of 1979 runs thus: "2.
The sum payable under sub sec.
(1) may either be fixed by auction or inviting tenders or otherwise or be assessed on the basis of the sales made or quota lifted 766 under the licence or partly fixed and partly assessed in the aforesaid manner.
" But in our view it is manifestly clear that the aforesaid amended provision is clarificatory of the legal position which obtained under sec.
30(2) that was operative prior to the said amendment.
In this view of the matter the first contention has to be rejected.
The second contention has been that since at the time of holding the concerned auctions the bidders were not informed that any "assessed fee" had been prescribed by the State Government which would be payable by the successful bidder and since bids were offered on the representation that the successful bidder would be granted FL 2 licence merely on payment of the "fixed fee" (auction money) the respondents ' attempt to levy and recover the "assessed fee" over and above the "fixed fee" would be unwarranted and illegal because the respondents cannot enhance the contractual liability of the successful bidder which was limited to payment of the auction money.
There are two answers to this contention.
In the first place it was not disputed before us that to the knowledge of all the bidders these auctions for the grant of FL 2 licences were held under the provisions of the Principal Act of 1910 as amended by Act 5 of 1976 and the Rules framed thereunder which were then in force.
We have already referred to the provisions of the amended Rules 639(2), 641 and 642 which were published in the Gazette and brought into force with effect from 14th of April, 1976 and admittedly all auctions for the financial year 1976 77 were held subsequent to that date.
Under the amended Rule 641 it was clearly provided that the fee for the FL 2 licence shall be the amount of money accepted at the auction of the licence as "fixed fee" together with the "assessed fee" charged on the basis of the scales of Surcharge fee prescribed in the next following Rule and the amended Rule 642 prescribed the scales at which the "assessed fee" would be so charged.
In other words, the bidders who gave their bids must be deemed to have knowledge of the provisions of the aforesaid Rules subject to which the auctions were held and therefore it is difficult to accept the contention that the bidders including the successful bidder whose highest bid was accepted offered their bids believing that only "fixed fee" would be charged.
Secondly, the averment of the petitioners that at the time of these auctions the bidders were not informed that any "assessed fee" had been fixed or prescribed which would be payable by the successful bidder is not quite correct.
It has been admitted by the petitioners that at the time of these 767 auctions the new condition that was inserted by the Excise Commissioner in the FL 2 licence by his Notification dated 14th April, 1976 was read out and this newly inserted condition runs thus: "Provided that the assessment fee on the sales made on the licence in the prescribed manner at such scales of surcharge fee as may be prescribed by the Government and announced at the time of the auction, shall also be payable by licensee".
If admittedly the aforesaid condition inserted in FL 2 licence was read out at the time of the auction then it is clear that the fact that "assessed fee" on the sales made on the licence was also payable by the licensee was announced at the time of the auction.
The only grievance made by the petitioners has been that the prescribed scales of surcharge fee (under Rule 642) were not announced but that is neither here nor there, for, if once it was announced at the time of the auction that "assessed fee" on sales effected on the licence at the prescribed scales shall also be payable by the licensee then obviously the bidders were put on enquiry to find out what scales of surcharge fee had been prescribed under the relevant Rule.
In other words the bidders present at these auctions had full knowledge that "assessed fee" at prescribed rates will also be charged and it was with full knowledge of this position that they gave their bids.
If that be so, there is no question of the respondents ' attempting to enhance the contractual liability of the successful bidder.
It will be interesting to mention in this context that the respondents have stated in their counter affidavit that not only did the bidders know that "assessed fee" would be charged over and above the "fixed fee" (auction money) but many of the successful bidders to whom FL 2 licences were granted have actually passed on the "assessed fee" at the prescribed rates to and recovered the same from the retailers to whom they have effected sales of beer and Indian Made Foreign Liquor.
At least in the case of those petitioners before us who have done so the aforesaid plea put forward on their behalf cannot be regarded as honest.
The second contention therefore fails and is rejected.
The last contention is merely required to be stated to be rejected.
In support of that contention reliance was placed on the newly inserted condition in FL 2 licence which states that the assessed fee "at such scales of surcharge fee as may be prescribed by the Government" shall also be payable by the licensee while 768 actually the scales of surcharge fee have been prescribed by the Excise Commissioner by framing the amended Rule 642 in exercise of the powers conferred upon him by cl.
(c) of 41 of the Principal Act.
Counsel urged that scales of surcharge fee ought to have been prescribed by the Government.
In this connection we might refer to sec.
24B(c) which expressly declares that "the Excise Commissioner as the head of the Excise Department of the State shall be deemed, while determining or realising such fee, to act for and on behalf of the State Government".
It is thus clear that the Excise Commissioner has been statutorily declared to be the agent of the State Government and "while determining such fee" by framing the amended Rule 642 he acted for and on behalf of the State Government.
In other words, scales of "assessed fee" under Rule 642 must be deemed to have been prescribed by the State Government.
As regards the alleged non announcement at the time of the auctions we have already dealt with that aspect of the matter while dealing with and disposing of the second contention.
No other point was raised.
It is therefore clear that the levy and recovery of the "assessed fee" over and above the "fixed fee" by the respondents for granting FL 2 licences to all the petitioners would be legal and valid under the U.P. Excise Principal Act of 1910 as amended by Act 5 of 1976 and the amended Rules framed there under and all the petitions are liable to be dismissed.
We accordingly dismiss all the writ petitions with costs and quantify the costs payable by each of the petitioners separately at Rs. 5000.
S.R. Petitions dismissed.
| IN-Abs | In exercise of the power conferred upon him under the amended clause (c) of section 41, the Excise Commissioner with the previous sanction of the State Government framed Rules Called the U.P. Excise (Wholesale and Retail Vend of Foreign Liquor (2nd Amendment) Rules, 1976 by issuing the Notification No. 27/Licence 3 dated 14th April 1976, which were brought into force with effect from the date of publication in the Gazette, namely, 14th April 1976; by this Notification the existing Rules 639, 641 and 642 as appearing in Excise Manual Vol.
(1962 Edn.) were amended; Rule 639(2) as amended provides that "Licences in form FL 2 shall be settled by the public auction" while Rule 641 as amended provides that "the fee for a licence in form FL 2 shall be the amount of money accepted at the auction of the licence as 'fixed fee ' together with an "assessed fee" charged on the basics of the scales of surcharge fee prescribed in Rule 642.
By the very notification dated 14th of April, 1976 the Excise Commissioner added one more condition in the form of a proviso to the terms and conditions of FL 2 Licence and the said addition made after condition No. 1(c), runs thus: "Provided that the assessment fee on the sales made on the licence in the prescribed manner at such scales of surcharge fee as may be prescribed by the Government and announced at the time of the auction, shall also be payable by the licencee." Relying upon the amendments made in the U.P. Excise Act, 1910 by Act 5 of 1976 and the amended Rules 639, 641 and 642 and the insertion of the new condition in FL 2 licence, the respondents introduced the auction system for the grant of licence in form FL 2 for wholesale vend of beer and Indian Made 756 Foreign Liquor and started levying and recovering the "assessed fee" in addition to the "fixed fee" (auction money) from the grantees of the licences.
The Petitioners who were successful bidders and who had acquired vending rights in Indian Made Foreign Liquor for the financial years 1976 77, 1977 78, 1978 79 and 1979 80 challenged the levy of "assessed fee", in addition to the "fixed fee" on the following grounds: (i) Under Section 30(2) of the Principal Act of 1910 prior to its amendment by U.P. Ordinance No. 4 of 1979 and U.P. Act 13 of 1979 it was open to the respondents to adopt either one or the other method of granting FL 2 licences and determine the licence fee payable by the grantee accordingly, that is to say, the respondents could grant the licence "either by auction or by calling tenders" and once a particular mode was adopted it was incumbent upon them to apply the same for the purpose of determining the sum payable by the grantee; in other words it was not opens them to adopt a combination of two or more methods and claim "assessed fee" in addition to "fixed fee" and this would be illegal and without authority of law.
A combination of two or more methods became available to the respondents only under Section 30(2) as amended by U.P. Ordinance No. 4 of 1979 and by U.P. Act 13 of 1979; (ii) In as much as the petitioners were not informed that any "assessed fee" had been fixed by the State Government, which would be payable by the successful bidder, the respondent 's attempt to levy and recover the "assessed fee" over and above the "fixed fee" (auction money) was unwarranted and illegal in as much as the respondents could not enhance the petitioners ' contractual liability which was limited to the payment of auction money and (iii) as per the newly inserted conditions in FL 2 Licence the "assessed fee" was required to be "prescribed by the Government and announced at the time of auction" but in the instant case such "assessed fee" had been prescribed by the Excise Commissioner and not by the State Government and was not announced at the time of the auction and for this reason also the same would not be recoverable.
Dismissing the petitions the Court, ^ HELD: 1.
The levy and recovery of the "assessed fee" over and above the "fixed fee" by the respondents for granting FL 2 licences to all the petitioners would be legal and valid under the U.P. Excise Act of 1910 as amended by Act 5 of 1976 and the amended rules framed thereunder.
[768 D E] 2:1.
A plain reading of Section 30(2) of the Uttar Pradesh Excise Act 1910 prior to its amendment by U.P. Ordinance No. 4 of 1979 and by U.P. Act No. 13 of 1973 makes it clear that the consideration for the grant of FL 2 licence could be determined either by auction or by calling tenders or otherwise.
[765 C E] 2:2.
The phrase "or otherwise" was sufficiently wide and conferred on its plain grammatical construction, power on the State Government or the Excise Commissioner to grant the licence either by auction or by tenders or partly by auction and partly by tenders or even by adopting yet other methods than by auction or by inviting tenders.
In other words, the phrase "or otherwise" 757 enabled the State Government or the Excise Commissioner to adopt a combination of one or more methods for granting the FL 2 licence and determine the licence fee accordingly.
Having regard to the phrase "or otherwise" occurring in the provision it can not be said that only one method to the exclusion of the others could be adopted for granting the licence or that one type of fee appropriate to that method could alone be charged.
[765 E G] 2:3.
Sub section (2) of Section 3 as amended by U.P. Ordinance 4 of 1979 or U.P. Act 13 of 1979 is clarificatory of the legal position which obtained under Sec.
30(2) that was operative prior to the said amendment.
[765G, 766A B] 3:1.
The bidders who gave their bids must be deemed to have knowledge of the provisions of the relevant Rules subject to which the auctions were held and therefore, the bidders including the successful bidders whose highest bid was accepted did not offer their bids believing that only "fixed fee" would be charged, since it was to their knowledge that the auctions for the grant of FL 2 licence were held under the amended provisions of the Act of 1910 by the Amendment of 1976 and that Rule 641 of Excise Manual clearly provided that the fee for the FL 2 licence shall be the amount of money accepted at the auction of the licence as "fixed fee" together with the "assessed fee" charged on the scales of surcharge fees prescribed in Rule 642.
Further even according to the petitioners, the new condition inserted by the Excise Commissioner in the said licence was read out.
If admittedly the said condition inserted in FL 2 licence was read out at the time of auction then it is clear that the fact that "assessed fee" on the sales made on the licence was also payable by the licensee was announced at the time of auction.
[766 D H. 767 B C] 3:2.
If once it was announced at the time of the auction that "assessed fee" on the sales affected on the licence at the prescribed scales shall also be payable by the Licensee, then the bidders were put on enquiry to find out what scales of surcharge fees had been prescribed under the relevant Rule.
In other words the bidders presented at these auctions had full knowledge that "assessed fee" at prescribed rates will also be charged and it was with full knowledge of this position that they gave their bids.
If that be so, there was no question of the respondents ' attempting to enhance the contractual liability of the successful bidder.
Further admittedly, not only did the bidders know that "assessed fee" would be charged over and above the "fixed fee" (auction money) but many of them actually passed on the "assessed fee" at the prescribed rates to and recovered the same from the retailers to whom they effected sales of beer and Indian Made Foreign Liquor.
[767 C F] 4.
Section 24B(c) which expressly declares that "the Excise Commissioner as the head of Excise Department of the State shall be deemed, while determining or realising such fee, to act for and on behalf of the State Government, makes it clear that the Excise Commissioner has been statutorily declared to be the agent of the State Government and "while determining" such fees by framing the amended Rules 642 he acted for and on behalf of the State Government, in other words, scales of "assessed fee" under Rule 642 must be deemed to have been prescribed by the State Government.
[768 B C] 758
|
ition No. 3783 of 1978.
(Under Article 32 of the Constitution of India) R.K. Garg and V.J. Francis for the Petitioner.
M.M. Abdul Khader, Mrs. Shobha Dikshit and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by PATHAK, J.
The Petitioners are Radio operators Grade (lII) (Naik) in the Signals branch of the Central Reserve Police Force.
They complain that under the Central Civil Services (Revised Pay) Rules, 1973 they have been placed in the pay scale Rs. 225 308 when they were entitled to the pay scale Rs. 260 430.
3 When the writ petition came on for hearing in the first instance, a Bench of this Court made an order on December 19, 1979 providing an opportunity to the petitioners to put in a representation before the Government and requiring the Government to dispose of the representation.
The petitioners did make the representation and the Government considered it but the relief claimed by the petitioners was denied.
In accordance with the further directions contained in the order dated December 19, 1979 this writ petition has now come on for consideration on its merits.
The Central Reserve Police Force forms a part of the Ministry of Home Affairs in the Government of India, and it has a Signals branch in which one of the categories is that of Radio operators Grade III (Naik).
The petitioners say that Naik Radio operators are appointed either by direct recruitment, in which case the candidate is required to be a Matriculate or his equivalent, or by promotion from the rank of Constable, in which case the Constable should have passed the Radio operators Grade III course.
Originally, members of the Central Reserve Police Force of the rank of Naik enjoyed the pay scale Rs.85 110, and Naik Radio operators were given a special pay of Rs. 30 in view of their special qualifications and the specialised nature of their duties.
By its order dated April 23, 1970 the Central Government appointed the Third Pay Commission to make recommendations in regard to the structure of the emoluments and the conditions of service of different classes of Central Government employees.
The Commission submitted its final report to the Central Government on March, 31, 1973.
Paragraph 30 of Chapter 29 of Part I of Volume 2 contains the recommendations in respect of Radio Mechanics in the Central Reserve Police Force.
It states : "30.
Post of Radio Mechanic, Grade I in the CRP and Sub Inspector (Radio Mechanic) in the BSF are on the scale of Rs. 150 10 290 15 380, but the Diploma holders are given the scale of Rs. 180 10 290 15 380.
We recommend for these posts the scale of Rs. 380 560 but the Diploma holders working on these posts should be remune rated on the scale of Rs. 425 700.
Below this level, posts of Radio Mechanic, Grade II and.
the Radio operators are on 4 the scale of Rs.150 10 210 or on the scale of Rs. 125 3 131 4 155 with a special pay of Rs. 35 per month and we recommend that these posts should be given the scale of Rs. 330 480.
For the posts of Radio Fitter on the scale of Rs. 125 3 131 4 155 we recommend the scale of Rs. 320 400.
" Admittedly, no reference has been made therein to Radio operators Grade III (Naik).
Following the recommendations of the Third Pay Commission the Central Government framed the Central Civil Services (Revised Pay) Rules, 1973 which came into force on January 1, 1973.
The petitioners exercised their option in favour of the revised pay scales.
They were paid a salary of Rs. 250 with a special pay of Rs. 30 from January, 1975 for a few months, together with arrears on that basis for the years 1973 and 1974.
The petitioners accepted the revised pay and special pay although, they say, it fell short of the pay to which they were entitled.
Subsequently, in April 1975, the petitioners were placed in the revised pay scale Rs. 225 308 given to Naiks and the excess amount paid earlier to them was sought to be recovered by deducting from future payments of their salary.
Aggrieved by the refixation of their pay and the deduction of the excess already paid, they have filed the present writ petition.
So far as the deduction is concerned, this Court has already directed by its order dated December 19, 1979 that the Government should restore to the petitioners the excess amount already recover ed from them.
Nevertheless, it will be necessary to examine the validity of the refixation of the salary now paid to the petitioners inasmuch as that question is relevant for the period commencing from the date from which salary has been actually paid on the refixed basis.
The question whether the petitioners have been properly placed in the pay scale Rs. 225 308 must be examined, therefore, from two aspects; 1, Their claim to the Pay scale Rs. 260.430 and 5 2.
Alternatively, their claim to the pay of Rs. 250/ and the special pay of Rs. 30 paid to them before the refixation of their salary.
On the first point, a few facts may be briefly stated.
On the basis of the recommendations of the Third Pay Commission the pay scales of all Central Government employees, including personnel in the para military forces, were revised with effect from January 1, 1973.
Under the original pay scales, Naik Radio operators were placed on the scale Rs.85 110 with a special pay of Rs. 30 in view of their special qualifications and the specialised nature of their duties.
They were entitled to allowances calculated on the aggregate of their basic pay and special pay.
The Commission prescribed a scale of Rs. 225 308 for the post of Naik, but did not make any separate recommendation in respect of the post of Radio operator Grade III (Naik).
Inasmuch as before the revision of the pay scales the scale of a Naik and Radio operator Grade III (Naik) was the same, that is to say, Rs. 85 110, the revised pay scale for the post of Radio operator Grade III (Naik) was raised to the same level as that prescribed for the post of Naik, that is to say, Rs. 225 308, and in view of their special qualifications and the specialised nature of their duties Radio operators Grade III (Naik) were given a special pay of Rs. 30 also.
The petitioners urge that posts in other departments of the Central Government, for which the minimum qualification was the Matriculation examination and an additional requirement of training, carried the pay scale of Rs. 260 430 and since that requirement was also the basis of appointments to the post of Radio operators Grade III (Naik) they should also be held entitled to that pay scale.
Now the revised pay has been given with effect from January 1, 1973 and on that date the qualification in the case of a Naik was the Middle School examination, and it was only with effect from January 24, 19 75 that the qualification was raised to the Matriculation examination.
As Naiks and Radio operators Grade III (Naik) had been uniformly treated at par in the matter of that basic s qualification it is not open to the petitioners to base their claim with reference to a qualification which did not exist on January 1, 1973.
In support of their claim to the pay scale Rs. 260 430, the petitioners have drawn our attention to the circumstance that the 6 immediately next senior category, Radio operators Grade II, carries the revised scale Rs. 330 480 and, it is contended, the revised pay scale in the case of Radio operators Grade III should not be far below It is not for this Court, we think, to examine how far below should be the revised pay scale of the Radio operators Grade III.
If the Government has prescribed a particular pay scale in respect of them, all that the court can do is to merely pronounce on the validity of that fixation.
In the event that the court finds that the prescription is contrary to law it will strike it down and direct thee Government to take a fresh decision in the matter.
It is a very different case from one where this Court has sought to prescribe pay scales in appeals directly preferred from an award of the Labour Court dealing with such a matter.
In the latter case, this Court in its appellate jurisdiction can be regarded as enjoying all the jurisdiction which the Labour Court enjoys.
That is not so in the present case.
We are satisfied that Radio operators Grade III (Naik) have to be considered substantially on the same basis as Naiks in the Central Reserve Police Force, and it is because of their special qualifications and of the specialised nature of their duties that they have been provided a special pay in addition.
It may be mentioned that ever since 1975 Radio operators Grade III (Naik) are selected only from the rank of Constables on the General Duty Side The revised pay scale of Radio operators of the rank of Head Constable as well as Head Constables on General Duty is Rs. 260 350, with a special pay of Rs. 40 to Head Constables (Radio operators).
This post is the immediately next higher post above the rank of Naik, and it is apparent that there would be no justification of giving to the petitioners, who are junior in rank, the pay scale Rs. 260 430.
The petitioners have also contended that they should be paid at par with comparable Government employees on the civil side.
This claim is refuted by the respondents who point out that the petitioners are entitled to certain benefits not available to the others.
Learned counsel for the respondents bas listed before us a number of such benefits.
It is pointed out that the petitioners are entitled to casual leave for a period of twenty days as against casual leave for a period of twelve days for Government employees on The civil side, earned leave for a period of sixty days as against earned leave for a period of thirty three days for Government employees on the civil side, and rent free accommodation or house 7 allowance at 10% of the salary in contrast to Government employees on the civil side who are liable to pay 10% of the salary if accommodation is provided.
We are not satisfied that the petitioners are entitled to the pay scale Rs. 260 430.
The second point requires us to consider the validity of the refixation of the pay of the petitioners when they were receiving Rs. 250 with a special pay of Rs. 30 According to the recommendations of The Third Pay Commission, the existing pay scale of a Government servant drawing basic pay upto Rs. 1800 per month was to be augmented by an amount representing five per cent of the basic pay subject to a minimum of Rs. 15 and a maximum of Rs. 50.
The Government of India Memorandum No. F. 67/II/23/ 74 lC dated May 17, 1974 directed that special pay was not to be included in the existing emoluments for the purpose of determining the accretion where in addition to the revised pay the Government servant was to be given a special pay also.
The revised pay actually paid to the petitioners initially was computed in error inasmuch as when fixing the pay in the revised scale the special pay was taken into account for the purpose of computing the accretion.
It, therefore, became necessary to recompute the amount payable to the petitioners and to reduce it to the level now paid to them.
It has not been shown to us that the basis adopted for refixation of the pay is invalid.
In the result, this petition fails and is dismissed, but in the circumstances there is no order as to costs.
This will not affect the order dated December 19, 1979 directing the Government to restore to the petitioners the excess paid to them earlier and subsequently recovered from them.
H.L.C. Petition dismissed.
| IN-Abs | An identical scale of pay was being enjoyed by both Naiks and Radio operators Grade III (Naik) in the antral Reserve Police Force before the revision of scales of pay of Central Government employees with effect from January 1,1973 consequent upon the recommendations of the Third Pay Commission.
However, Radio operators Grade III (Naik) were entitled to a special pay of Rs. 30.
The Pay Commission recommended the scale of pay of Rs. 225 308 for the post of Naik but did not make any separate recommendation in respect of Radio operator Grade III (Naik).
The petitioners who were Radio operators Grade III (Naik) were initially paid a salary of Rs. 250 with a special pay of Rs. 30 from January 1,1973.
They were subsequently placed in tho revised scale of pay of Rs. 225 308 given to Naiks with a special pay of Rs. 30 and the excess amount paid earlier was sought to be recovered from them.
The petitioners contended: (i) that they were entitled to the scale of pay of Rs. 260 430 as that was the scale of pay prescribed for posts in other departments for which matriculation was the minimum qualification, (ii) that their scale of pay could not be far below the scale of pay of Rs. 330 480 prescribed for the next immediate senior post of Radio operator Grade II and (iii) that they should be paid at par with comparable government employees on the civil side.
In the alternative, the petitioners contended that they were entitled to the pay of Rs. 250 and the special pay of Rs. 30 paid to them before refixation of their salary.
Dismissing the petition, ^ HELD: 1.
The minimum qualification prescribed for the post of Naik as on January 1,1973 was Middle School Examination and it had been raised to Matriculation Examination only from January 24, 1975.
As Naiks and Radio operators Grade III (Naik) had been uniformly treated at par in the matter of that basic qualification, it was not open to the petitioners to base their claim with reference to a qualification which had not existed on January 1, 1973.
[5 E G] 2 2.
It was not for the Court to examine how far below should be the revised scale of pay of Radio operators Grade Ill as compared to that of Radio operators Grade II.
If the Government had prescribed a particular pay scale in respect of them, all that the Court could do was to merely pronounce on the validity of that fixation.
If the prescription was found contrary to law, the Court would strike it down and direct the Government to take a fresh decision in the matter.
This case was very different from one where the Court had sought to prescribe scales of pay in appeals directly preferred from an award of the Labour Court dealing with such a matter.
In the latter case, the Court in its appellate jurisdiction could be regarded as enjoying all the jurisdiction which the Labour Court enjoyed.
[6 A C] 3.
Radio operators Grade Ill (Naik) had to be considered substantially on the same basis as Naiks and it was because of their special qualifications and of the specialised nature of their duties that they had been provided with a special pay in addition.
Ever since 1975 Radio operators Grade III (Naik) had been selected only from the rank of Constables on the General Duty Side.
The revised pay scale of Radio operators of the rank of Head Constable as well as Head Constables on General Duty was Rs. 260 350 with a special pay of Rs. 40 to the former.
As this post was the next immediate higher post above the rank of Naik.
it was apparent that there was no justification for giving to the petitioners, who were junior in rank, the scale of pay of Rs. 260 430.
[6 D F] 4.
The petitioners could not claim to be paid at par with comparable government employees on the civil side as they were entitled to certain benefits which were not available to the latter.
[6 G H; 7 A B] 5.
The revised pay initially paid to the petitioners had been computed in error inasmuch as when fixing the pay in the revised scale the special pay had been wrongly taken into account.
[7 D E]
|
tition (Criminal) Nos.
271 272 of 1982.
(Under Article 32 of the Constitution of India) Ram Jethmalani and Miss Rani Jethmalani for the Petitioner.
R.K. Garg and A.V. Rangam, for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Richard Beale and Paul Duncan Zawadzki, two British nationals, said to be friends and collaborators in smuggling enterprises are now under detention under the provisions of the .
Richard Beale arrived at Madras from Singapore on December 11, 1981.
He brought with him a Mercedez Benz van.
On examination by the customs authorities, the van was found to have secret compartments and hidden cavities.
It was laced and lined, as it were, with all manner of electronic equipment and goods worth several lakhs of rupees.
Richard Beale was interrogated and made a statement.
He was arrested and produced before the learned Metropolitan Magistrate of Madras.
His friend and collaborator Paul Duncan Zawadzki, who had separately arrived in India and who attempted to contact Richard Beale, was also interrogated, later arrested and produced before the Metropolitan Magistrate.
Orders of detention under the COFEPOSA 771 were made against both of them on January 7, 1982 and grounds of detention were duly served on them.
The detenus moved the High Court of Tamil Nadu for their release from detention, but their applications were dismissed.
They have now come to this Court seeking Writs of Habeas Corpus under article 32 of the Constitution.
The two petitions were argued together by Shri Jethmalani and they may be conveniently disposed of by a single order.
The first submission of the learned Counsel was that the representation made by the detenus to the Central Government to revoke the orders of detention so long back as March, 1982 remained undisposed of till this day and on that ground alone, the detenus were entitled to be released.
Shri Jethmalani drew my attention to section 11 of the COFEPOSA which enables the Central Government to revoke or modify an order of detention made by the State Government or its officers and to the decisions of this Court laying down that delay by the Central Government in dealing with representations of the detenu would also entail the detention invalidating itself.
Apart from the fact that there is no proper foundation for the submission, I am not satisfied that there is any merit in the submission.
The Writ Petitions were filed on March 12, 1982 and there was then no hint of this submission.
The counter affidavit on behalf of the State of Tamil Nadu was filed on April 5, 1982.
Thereafter, the clerk of the learned Counsel for the Petitioners has sworn to an affidavit mentioning the facts giving rise to the present submission.
It appears from the affidavit that when the Prime Minister of India was recently in England, a Bout De Papier was presented to the delegation accompanying her, expressing concern about the detention without trial of Richard Beale and Paul Duncan Zawadzki and suggesting that the detention order might be 'lifted ' and the detenus either released or charged and brought to trial without delay.
It further appears that the British High Commission in India also addressed the Ministry of External Affairs, Government of India, and reminded them about the Bout De Papiere presented to the Prime Minister 's delegation in Britain during her visit to that country.
According to Shri Jethmalani, the Bout De Papiere presented to the Prime Minister 's delegation in Britain and the subsequent reminder by the British High Commission constitute a representation to the Central Government demanding their immediate consideration in terms of the provisions of the COFEPOSA.
I have no doubt that the Bout De Papier and the reminder, diplomatic 772 communications that they are between the Governments of the two countries, will be attended to and answered through appropriate diplomatic channels in proper time and with necessary expedition.
But I find it difficult to treat such diplomatic communications between one country and another as representations to the statutory authorities functioning under the COFEPOSA, as representations which require immediate consideration by the statutory authorities and which if not considered immediately, would entitle the detenus to be set at liberty.
Nor is it possible to treat the countless petitions, memorials and representations which are everywhere presented to the Prime Minister and other Ministers as statutory appeals or petitions, statutorily obliging them to consider and dispose of such appeals and petitions in the manner provided by statute.
No doubt the Prime Minister and other Ministers, as leaders in whom the people have reposed faith and confidence, will deal with such appeals and petitions with due and deserved despatch.
But quite obviously that will not be because they are discharging statutory obligations.
It is not also possible to treat representations from whatever source addressed to whomsoever officer of one or other department of the Government as a representation to the Government requiring the appropriate authority under the COFEPOSA to consider the matter.
I do not consider that the Bout de Papiere presented to the Prime Minister during her visit to Britain and the subsequent reminder addressed to the External Affairs Ministry by the British High Commission are representations to the Central Government which are required to be dealt with in the manner provided by the COFEPOSA.
It was next submitted by the learned Counsel that the Chief Minister, who according to the Rules of Business of the Government of Tamil Nadu, was required to deal with matters relating to preventive detention neither applied his mind to the making of the orders of detention, nor considered the representation of the detenus himself.
The relevant files have been produced by the learned Counsel for the State of Tamil Nadu and on perusing them, I find no substance in the submission of the learned Counsel.
The submission which was most strenuously urged by the learned counsel was that the detenus had been denied the right to 773 be represented before the Advisory Board by an Advocate or at least by a friend and that they were thus denied the right to make a proper and effective representation to the Advisory Board.
This was sufficient, said the learned Counsel, to vitiate the detention.
The learned Counsel urged that the detenus were foreign nationals and they were under a handicap being ignorant of the laws and procedures of this country.
To deny legal representation to them was an unreasonable exercise of the discretion vested in the Advisory Board to permit or not to permit legal representation.
According to the learned Counsel, this was a clear case where legal representation should have been permitted.
In any case, it was urged, the detenus ought to have been offered at least 'friendly ' representation, if not legal representation.
Reliance was placed upon the following observations of the Constitution Bench in A.K. Roy vs Union of India : "Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner.
Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend.
A detenu, taken straight from his cell to the Board 's room, may lack the ease and composure to present his point of view.
He may be "tongue tied, nervous, confused or wanting in intelligence" (see Pett vs Greyhound Racing Association Ltd., , and if justice is to be done, he must at least have the help of a friend who can assist him to give coherence to his stray and wandering ideas.
Incarceration makes a man and his thoughts dishevelled.
Just as a person who is dumb is entitled, as he must, to be represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law.
It may be that denial of legal representation is not denial of natural justice 774 per se, and, therefore, if a statute excludes that facility expressly, it would not be open to the Tribunal to allow it.
Fairness, as said by Lord Denning M.R., in Maynard vs Osmond , 253, can be obtained without legal representation.
But, it is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend.
Whenever demanded, the Advisory Boards must grant that facility.
" In the present case, the Advisory Board consisting of three Judges of the High Court of Tamil Nadu considered it unnecessary and inadvisable to allow legal representation to the detenus.
It was a matter for the decision of the Advisory Board and I do not think I will be justified in substituting my judgment in the place of their judgment.
The detenus were heard personally by the Advisory Board.
After seeing and hearing them personally also, the Board did not feel it necessary to provide legal representation to them which they would certainly have done if they had thought that the detenus appeared to require such representation.
Regarding representation by a friend, there was never any such demand by the detenus.
A 'friendly ' representation would certainly have been provided if it had been so demanded.
It was not for the Advisory Board to offer 'friendly ' representation to the detenus even if the latter did not ask for it.
Relying upon a sentence in the counter Affidavit of Shri Thiru Bhaskaran that representation not only by a lawyer, but by a friend was also considered not necessary by the Advisory Board, it was argued that the Advisory Board had, without warrant, refused even friendly representation.
Shri Thiru Bhaskaran was speaking for the State of Tamil Nadu and not for the Advisory Board.
I have perused the file of the Advisory Board which was produced before me and I have also perused the communications addressed by the Advisory Board to the Government of Tamil Nadu and to the detenus.
I do not find the slightest hint of a demand for 'friendly ' representation or its denial anywhere.
The Advisory Board was neither asked nor did the Board deny any 'friendly ' representation.
A charge was made against the Advisory Board that there was inequality of treatment.
It was said that while the detaining authority was allowed to be represented by its officers and advisers, the detenus were allowed no representation.
There is no substance 775 in this charge.
From the affidavit of the Chairman of the Advisory Board, I find that all that happened was that some customs officers were allowed to be present in the corridor so as to enable them to produce the relevant files whenever required for perusal by the Board.
The charge of inequality of treatment is, therefore, baseless.
Yet another submission of the learned Counsel was that the Advisory Board failed to consider the question whether the detention continued to be justified on the date of the report of the Advisory Board, even if it was justified on the date of the making of the order of detention.
The order of detention was made on 7.1.82 and the consideration by the Advisory Board was on 8.2.82.
The passage of time was not so long nor had any circumstances intervened to justify any compartment wise consideration of the justification for the detention on the date of the making of the order of detention and on the date of the report of the Advisory Board.
In the circumstances of the case, I think that the report of the Advisory Board that there was sufficient cause for the detention of Richard Beale and Paul Duncan Zawadzki necessarily implied that the detention was found by the Board to be justified on the date of its report as also on the date of the making of the order of detention.
A complaint was also made that the Advisory Board carried on its correspondence with the detenus through the Government.
This, it was stated, gave rise to a suspicion that everything was done by the Board at the behest or in consultation with the Government.
This complaint is wholly unjustified.
As already mentioned by me, the Advisory Board consisted of three Judges of the High Court of Tamil Nadu and as explained by the Chairman in his Affidavit, the correspondence etc.
is carried on through the Government because the Board has no separate administrative office of its own.
All the points urged on behalf of the detenus fail and the petitions are, therefore, dismissed.
N.V.K. Petitions dismissed.
| IN-Abs | The two petitioners who were British nationals and friends and collaborators in smuggling enterprises were detained under the provisions of the for smuggling electronic equipment and goods worth several lakhs of rupees in secret compartments and hidden cavities of a Mercedez Benz van.
The High Court dismissed their petitions for release from detention.
In their writ petitions under Article 32 it was contended that: (1) the representation made by them to the Central Government to revoke the orders of detention as long back as March 1982 remained undisposed of and on this ground alone they were entitled to be released; (2) the Bout De Papier presented to the Prime Minister of India during her visit to England pointing out that the order of detention passed against the petitioners might be lifted and the detenus be either released or charged and brought to trial without delay, had not been disposed of; and (3) that they had been denied the right to be represented before the Advisory Board by an Advocate or at least by a 'friend ' and thus they were denied an opportunity to make an appropriate and effective representation to the Advisory Board.
Dismissing the petitions, ^ HELD: (1) Representations from whatever source addressed to whomsoever officer of one or other department of the Government cannot be treated as representations to the Government under the COFEPOSA.
[772 D] (2) The Bout De Papier presented to the Prime Minister during her visit to Britain and the subsequent reminder addressed to the External Affairs Ministry by 770 the British High Commission are not representations to the Central Government.
They were merely diplomatic communications between the Governments of the two countries which will be answered through appropriate diplomatic channels in proper time.
Such diplomatic communications between one country and another cannot be treated as representations to the statutory authorities functioning under the COFEPOSA.
[771 G H; 772 A E] 3(i) The Advisory Board consisting of three Judges of the High Court considered it unnecessary and inadvisable to allow legal representation to the detenus.
That was a matter for decision of the Advisory Board and this Court would not be justified to substitute its judgment in place of the Boards judgment.
[774 C] (ii) A 'friendly ' representation would have been provided by the Board had it been demanded.
But it was not for the Advisory Board to offer 'friendly ' representation to the detenus without being asked for.
[774 D E] In the instant case the order of detention made on January 7, 1982 was considered by the Advisory Board on February 8, 1982 and its report showed that the detention was justified.
[775 C D]
|
ition (Criminals No. 126 of 1982.
(Under Article 32 of the Constitution of India) Ram Jethmalani, Miss Rani .
Jethmalani, Harjinder Singh and K. K. Sood for the Petitioner.
O.P. Rana and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by VARADARAJAN, J.
On 31st March, 1982, after hearing learned counsel for both the parties, we quashed the order of detention in this case, observing that our reasons will follow.
We proceed to give the reasons.
This Writ Petition under Article 32 of the Constitution of India is by Smt.
Bimla Dewan, wife of the detenu Shri Dev Raj Dewan, 44 resident of House, No. 53, Gadodia Road, 146/2 THAN Singh Nagar, Anand Parbat, Delhi, for quashing the order of detention dated 25.9.1981 issued by the Commissioner of Police, Delhi under section 3 (2) of the .
The detenu was detained from 26. 9. 1981.
The order of detention is said to have been approved by the respondent, Lieutenant, Governor, Delhi, by order dated 1.10.1981 under sec.
3 (4) of the Act.
The detenu had been detained in the Central Jail.
Tihar.
New Delhi.
It is alleged in the petition that the detenu is a social worker, who is in active politics, and had contested the Municipal Elections of the Municipal Corporation of Delhi from the Anand Parbat constituency in 1977 and was defeated by a Congress l candidate by a narrow margin of 360 votes, and due to political rivalry he has been involved from time to time in a number of false cases, in most of which he has succeeded in proving his innocence and was acquit ted.
It is further alleged in the petition that out of sheer political vendetta the detenu has been detained maliciously with full know ledge that the alleged activities of the detenu, even if true, do not fall within the concept of threat to public order.
The arrest or prosecution of the detenu, cannot by itself, be a ground of detention It is only the material on the basis of which the detenu is arrested, prosecuted or convicted that can constitute a ground of detention.
But no such material, including the blue film mentioned in item 28 of paragraph 2 of the grounds of detention has been supplied to the detenu and it has, therefore, become impossible for him to make any effective representation against his detention.
No opportunity was given to the detenu to make a representation to the detaining authority.
The detenu challenged his detention by filing Criminal Writ Petition No. 126 of 1981 in the High Court of Delhi on 13.10.1981.
But since no order had been passed in that petition though arguments were heard in November 1981, this writ petition has been filed in the Supreme Court on 3.3.1982.
It is alleged in the grounds of detention in which 32 instances have been given that those acts of the detenu show that he is a desperate and dangerous character who acts in a manner which is prejudicial to maintenance of public order, that his activities are hazardous to the community and he has not stopped his violent, anti social and criminal activities in spite of his prosecution in a number of cases, and that in these circumstances his detention under 45 section 3 (2) of the National security Act, 1980 has been considered A essential n order to stop his criminal activities.
In the counter affidavit it is stated at the outset that the High Court of Delhi has by an order dated 4.3.1982 dismissed Criminal Writ Petition No. 126 of 1981 which was filed for quashing the very same order of detention dated 25.9.1981 and that the present Writ Petition is consequently not maintainable and only an appeal to this Court against the judgment of the High Court could be filed.
It is contended that there is nothing on record to show that the detenu is a social worker.
The counter affidavit further proceeds to state that the criminal history of the detenu as disclosed in the grounds of detention goes to show that he has been a serious threat to maintenance of public order and that whenever any police officer or any other agency tried to interfere in the matter he had assaulted, obstructed or attempted to murder him and that detention under the Act is the only way to prevent him from indulging in activities which are prejudicial to maintenance of public order.
It is stated that copies of all first information reports mentioned in the grounds of detention were supplied to the detenu and that the detaining authority has specifically mentioned in the grounds of detention that the detenu has a right of representation to the Lieutenant Governor and the Advisory Board.
The respondent has prayed for dismissal of the Writ Petition for the aforesaid reasons.
Instances Nos.
I to 22, 24 and 28 relate to criminal cases, in all of which the detenu has been found to be not guilty and acquitted.
Instance No. 23 relates to a case in which the detenu has been discharged.
Instance No. 28 relates to a blue film of naked picture for public circulation/exhibition alleged to have been recovered on 23/24.6.1979 by the Police from the Karnal Restaurant of the detenu.
Since all these instances relate to cases in which the detenu has been found to be not guilty and acquitted none of these instances can legitimately be taken into consideration for detaining the detenu under section 3 (2) of the .
Mr. Ram Jethmalani, Senior Advocate who , appeared for the petitioner in this case submitted that in the there is no provision like section SA in COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Act) and, therefore, if one of the grounds Is bad the order of detention has to be quashed in its entirety and that as the detaining authority has based the order of detention on, 46 grounds Nos. 1 to 24 and 28 also, the order of detention is unsustainable.
The learned counsel for the respondent did not submit anything to controvert that submission of Mr. Ram Jethmalani.
We are of the opinion that since the detaining authority would naturally have been influenced by these grounds as well for coming to the conclusion that the detenu requires to be detained under the provisions of the Act, the entire order of detention ii unsustainable.
Before considering the other instances, it is necessary to note what Hidayatullah, C.J. has observed in Arun Ghosh vs State of West Bengal.(1) It is this: "Take the case of assault on girls.
A guest at a hotel may kiss or make advances to half a dozen chamber maids.
He may annoy them and also the management but he does not cause disturbance of public order.
He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only.
Take another case of a man who molests women in lonely places.
As a result of his activities girls going to colleges and schools are in constant danger and fear.
Women going for their ordinary business are afraid of being way laid and assaulted.
The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its effect upon the public tranquillity there is a vast difference.
The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order.
He disturbs the society and the community.
His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies." Instances Nos.
25 to 27 and 29 to 32 relate to criminal cases which are said to have been pending against the detenu on the date of order of detention.
We shall first consider instances Nos.
25 to 27 and 30 to 32.
Instances 25 and 27 relate to cases in which the detenu is alleged to have been arrested I for the reason that whisky was being served in a restaurant belonging to him.
instances No. 26 relates to the alleged recovery of a loaded English revolver and 5 live cartridges from the detenu 's Kamal Restaurant on 24.6.1979.
Instance No. 30 relates to a case in which the detenu is said to have.
(1) AIR.
1970 SC.
47 been arrested on the complaint of a lady that the detenu bad A conspired for the murder of her husband, who was murdered while he was returning after Seeing a cinema on 16.8.1981.
Instance No. 31 relates to a case arising out of a report sent by a Sub Inspector of Police, Anand Parbat against the detenu alleging that Smt.
Praveen Kapoor and Smt.
Shielawati Kapoor, members of the family of deceased Vinod Kapoor apprehended danger to their lives at the hands of the detenu.
Instance No. 32 relates to the arrest of the detenu on the complaint of Smt.
Sheilawati Kapoor that the detenu threatened her with dire consequences when she went to Tees Hazari Courts to see her son Ashok on 10.9.1981.
We are clearly of the opinion that these instances cannot in law amount to any interference with the maintenance of public order and could not constitute grounds for detention under the .
We now come to instance No. 29 which lates to the arrest of the detenu on the complaint of one Prem Kumar Narang Municipal Councillor that when the Corporation Staff wanted some persons for prosecution, one Ram Singh came to rescue them and that later on the detenu came alongwith 70 other persons and started throwing stones etc.
resulting in damage to a building.
On that complaint a First Information Report dated 28.12.1979 under sections 147, 148, 149 323 and 427 I.P.C. is said to have been submitted by the Police.
A mere allegation in the report of the Municipal Councillor, without anything more, cannot constitute a ground for detention under the There is no allegation in that instance that law enforcement authorities had any valid reason to believe the allegations made in the complaint to be true even while the case registered on that complaint was pending trial and posted to 29.10.1981.
There is no allegation in that instance that the building at which stones etc.
are alleged to have been thrown is situate in a public place and that the alleged act of the detenu and 70 other persons has caused apprehension in the minds of the residents of the locality in regard to maintenance of public order.
We are, there fore, unable to hold that this instance has any potentiality to interfere with and has effect upon the public tranquillity and order and, that it cannot constitute a ground for detention under the .
It is necessary to mention in passing the fact that it is admitted in the Writ Petition itself that Criminal Writ Petition No. 126 of 1981 had been filed in the High Court of Delhi on 13.10.1981 48 for quashing the very same order of detention dated 25.9.1981 and that arguments in that Petition had been heard in November 1981 itself.
In the counter affidavit it is stated that the High Court of Delhi has by an order dated 4.3.1982 dismissed that Writ Petition and, therefore, only an appeal against that order would lie to this Court and this Writ Petition is not maintainable.
Though the learned counsel for the respondent invited our attention to certain portions of that order dated 4.3.
1982 of a Division Bench of the Delhi High Court dismissing Writ Petition No. 126 of 1981 it was not contended by him that only an appeal against that order would lie to this Court and that this Writ Petition is not maintainable.
It is, therefore, unnecessary for us to go in detail into this ground of objection taken in the counter, affidavit.
For the reasons mentioned above we are of the opinion that the order of detention dated 25.9.1981 is unsustainable and liable to be quashed.
There will be no order as to costs.
H.L.C. Petition allowed.
| IN-Abs | The husband of the petitioner was detained by an order made under section 3(2) of the Act.
The grounds of detention in support of the order referred to a number of criminal cases involving the detenu in many of which he had been acquitted The allegations in cases pending against the detenu were: that a Municipal Councillor had complained that when the staff of the Corporation wanted to apprehend some persons for purposes of prosecution, the detenu along with 70 others had pelted stones etc.
resulting in damage to a building; that whisky was being served in his restaurant; that a loaded revolver along with live cartridges had been recovered from his restaurant; that a lady had complained that he had conspired for the murder of her husband; that a police officer had reported that two ladies of the family of a deceased person apprehended danger from him; and that a lady had complained that he had threatened her with dire consequences.
It was stated in the grounds that these acts of the detenu showed that he was a desperate and dangerous character who was prone to act in a manner prejudicial to the maintenance of public order and therefore his detention under the provisions of the Act had been considered essential.
The detenu had challenged his detention by I writ petition filed under Article 226 but the High Court which had heard the matter several months before the filing of the present petition under Article 32, had not passed any order thereon.
It was alleged in the petition that the detenu was a social worker who was active in politics, that due to political rivalry he had been involved from time to time in a number of false cases, that he had succeeded in proving his innocence in most of them and that he had now been detained on account of political vendetta.
It was submitted that the alleged activities of the detenu, even if true, did not fall within the concept of threat to public order.
Counsel for the petitioner contended that since the National Security Act did not contain a provision like section SA of the Conservation of Foreign Exchange and Prevention of Smuggling Act, if one of the grounds was bad, the order of detention had to be quashed in its entirety.
43 Allowing the petition.
^ HELD :1.
None of the instances in which the detenu had been found to be not guilty and acquitted could have legitimately been taken into consideration for detaining the detenu under section 3(2) of the National Security Act.
Since the detaining authority would naturally have been influenced by these grounds as well for coming to the conclusion That the detenu was required to be detained under the provisions of the Act, the entire order of detention was unsustainable.
[45 F G: 46 B] 2.
It is the potentiality of the act to disturb the even tempo of living in a community or society which makes it prejudicial to the maintenance of public order or public tranquillity.
A mere allegation in the complaint of the Municipal Councillor without anything more could not constitute a ground for detention under the Act.
There was no allegation in that instances that the law enforcement authorities had any valid reason to) believe that the allegations made in the complaint were true.
There was also no allegation that the building at which stones etc.
were alleged to have been thrown was situate in a public place and that the alleged act of the detenu and 70 other persons had caused apprehension in the minds of the residents of the locality in regard to maintenance of public order.
This instance could not constitute a ground for detention under the Act as it had no potentiality to interfere with or affect public order or public tranquillity.
The instances mentioned in other cases pending against the detenu could not in law amount to any interference with the maintenance of public order and could not constitute grounds of detention under the Act.[47G; 46E F; 47E G;47C] Arun Ghosh vs State of West Bengal, AIR 1970 S.C. 1228, referred to.
|
Civil Appeal No. 3032 of 1981.
Appeal by special leave from the judgment and order dated the 16th October, 1981 of the Bombay High Court in Appeal No. 102 of 1981.
V. section Desai, B. R. Agarwala and M.N. Shroff for the Appellant.
M C. Bhandare, Mrs. section Bhandare, Raj Guru Deshmukh and T. Sridharan for the Respondent.
The Judgment of the Court was delivered by AMARENDRA NATH SEN, J.
Whether the father or the mother should have the custody of their minor daughter now aged 11 years, is the question which falls for consideration in this appeal by special leave granted by this Court.
Irreconciliable differences between the father and the mother and embittered relationship between the two have resulted in a sad protracted litigation.
Unfortunately, in the various proceedings in Court between the father and the mother, the child had become the central figure and the child had appeared in Court on occasions for being interviewed by the learned Judges of the Bombay High Court.
The child, it appears, is quite bright and rather sensitive.
The unfortunate litigation between the father and the mother appears to have badly affected the normal and healthy growth of the child.
The situation appears to be all the more unfortunate, as the father and the mother both love the child dearly and the child is fond of both her parents.
It is, indeed, said that the parents who are both genuinely fond of their daughter and have her welfare in their hearts, could not compose their differences and work out a solution which would be most conducive to the welfare of the child.
The responsibility has, therefore, devolved on the Court.
The task of the Court is indeed difficult and delicate.
The Court in this case, is concerned with a human problem affecting the future of a little girl.
We feel that in a case of this nature a decision of the Court however, may not succeed in solving the real problem and in achieving the desired goal.
Anyway, as all attempts by Courts to bring about an agreed solution of the problem to the satisfaction of all concerned, have failed the Court must proceed to discharge its duty, however painful and delicate that task may be.
53 We shall now proceed to state some of the broad facts relevant A for the purpose of the disposal of this case.
The appellant who is the mother of the child and the Respondent who is the father of the child, both belong to the Parsi Community and they were married in Bombay on the 27th December, 1960 according to the rights and ceremonies of the Zoroastrian religion and custom.
A son was born to them on the 6th of May, 1965.
The son who is called Shiavux is now more than 16 years old.
A daughter was born to the appellant and the respondent on the 18th April, 1971.
The daughter is named Gospi and she is now nearly 11 years of age.
In this appeal we are concerned with the custody of this girl Gospi.
The appellant who is the mother and whom we shall describe in the judgment either as the appellant or the mother, has been in the employment of Tatas for a long time and she now works as a confidential secretary to one of the Directors and gets a salary of Rs. 2500 per month.
The respondent obtained training in architectural engineering and had obtained a diploma.
The respondent had also obtained a licence from the authorities to enable him to function as an architect.
The respondent had worked with various concerns from time to time and had also worked at times of his own as an architect.
The respondent at present owns a taxi which he plies himself.
According to the respondent he makes a gross earning on average of some thing between Rs. 125 to Rs. 150 per day, by plying his taxi.
After the marriage on 27.12.1960 the respondent set up their matrimonial home in Mount Villas at Bandra, the tenancy of which stood in the name of the appellant.
As the appellant is an employee of Tatas, the tenancy was granted to her by Ratan Tata Trust which owns the premises.
It appears that unfortunate differences arose between the appellant and the respondent and the appellant left the matrimonial home on 21.5.1978.
It is indeed unfortunate that the parents could not reconcile their differences at least in the interest of their children and on 21.4.1979 the appellant filed a suit being suit No. 14 of 1979 for judicial separation.
On 24.4.1979 the appellant in her suit No. 1411979 made an application for getting the custody of both the children i.e. the son Shiavux and daughter Gospi.
By consent of the parties on 27.4.1979, an interim order was passed on the said application and the said order is to following effect: "The children to spend the week ends commencing from Saturday the 28th April 1979 with the Petitioner and 54 stay over night with the petitioner on Saturdays and Sundays.
Defendant to send the children to the Petitioner at 10.00 a.m. On Saturdays.
Petitioner to return the children to the defendant by 9.00 a.m. On Mondays.
Liberty to the Petitioner to take the children out of Bombay to Lonavla or Matheran for a fortnight commencing from 5th May 1979 and ending 20th May, 1979.
Petitioner undertakes through her learned counsel to bring the children back to Bombay on 20th May 1979 and to give written intimation thereof forthwith to the Prothonotary and Senior Master.
The Petitioner shall return the children to the defendant on 21st May 1979 by 9 a.m. Liberty to the defendant to take the children out of Bombay to Matheran or Lonavla from 22nd May 1979 till 3rd June 1979 and to bring the children back to Bombay.
on or before 3rd June.
Should however the defendant not desire to take the children out of Bombay from 22nd May till 3rd June 1979, the Petitioner shall be at liberty to take the Children out of Bombay during this period and shall return the children to the defendant by 9.00 a.m. On 4th.
Should however neither the petitioner nor the defendant be in a position to take the children out of Bombay from 22nd May till 3rd June, the children shall remain with the defendant and the petitioner shall have week end access to the children in the manner stated in clause (I) above.
In the event of the defendant being unable to take the children out of Bombay from '2nd May, the defendant shall give written intimation of his liability to do so to the petitioner 's advocate on or before 15th May, 1979 in which event the petitioner shall be at liberty to keep the children with her either at Lonavla or Matheran till 3rd June 1979 and shall return the children to the defendant by 9.00 a.m. On 4th June 1979.
This arrangement shall be till 15th June 1979.
Liberty to the Defendant to take the children to Undwada and Shirdi between 4th and 8th June.
1979".
55 The application came up for final disposal before Lentin, J.
The learned Judge interviewed the children in his chambers before passing his order on the said application on 28.6.1979.
As this happens to be the first order passed by the Court after interviewing and speaking to the children, it will be appropriate to set out the order which reads: "I have talked to the children in my chambers.
The boy completed 14 years of age and the girl has completed 8 years of age.
I have found both the children extremely intelligent and sensible.
Both appear to be distressed at the present state of acrimony between their parents.
Both have expressed their desire to spend their time with each of the parents since it is not possible for them, in view of the present state of affairs to spend their time with both the parents at the same time.
After having talked to the children and after having ascertained their wishes, I pass the following order for access in the interest of both the children.
The father shall have access to the children from Monday to Friday and the mother shall have access to .
the children during the week ends, viz. Saturday and Sunday.
The children shall be sent by the father to the mother directly from School on Saturday and the children shall remain with the mother till Monday morning when the mother will leave the children or arrange for them to be p left at the school.
The mother shall have access to the children on public holidays from 10.00 a.m. Of such holiday till the following morning when she will leave or arrange for the children to be left at the school.
It is clarified that though Monday the 27th of August, 1979 is a Public Holiday (Navroz Day) the children shall spend the 27th August 1979 with the father.
The mother shall return the children to the father 's residence by 11.00 a.m.
On the 27th day of August 1979," 56 Though the order passed by the learned Judge was in the circumstances a very proper order passed in expectation that the order would be worked out smoothly to the satisfaction of all concerned and would serve for the time being the best interest of the children.
Yet, as subsequent events go to indicate, the order failed to achieve the purpose mainly in view of the attitude of the father who was not willing to part with the children and to allow them to stay with the mother.
It appears that the father had made an application for variation of the order passed by Lentin J. alleging in the petition that the children were not willing to live with their mother on Saturdays and Sundays as ordered by the Court.
It further appears that no further order was made on the said application of the father.
A copy of this order unfortunately does not form part of the records.
There does not, however, appear to be any dispute that Mehta, J. disposed of this application after speaking to the children in chambers on 10.8.1979.
On 24.4.1980, the appellant took out chamber summons for an order against the respondent for allowing her access to the minor children Shiavux and Gospi by having them with her from 16th May, 1980 to 15th June 1980 and for half the period of each subsequent school/college vacation in addition to having them with her on week ends and holidays, as the respondent had refused to give such access to the appellant.
Agarwal, J. who heard the chamber summons spoke to the children alone in his chambers and passed the following order on 2.5.1980. "During the current Summer Vacation beginning from 15th April 1980 and ending on 15th June, 1980 the children are already with the father from 15th April, 1980 and they will continue to live with the father till 14th May 1980.
On 15th May 1980 the father will hand over the children to their mother and from 15th May 1980 till 15th June 1980 the children will remain with their mother.
On 15th June 1980, she will bring back the children to the house of their father.
The rest of the arrangement between the parties as per order dated 28th June, 1979 will continue.
It may be noted that I have ascertained the wishes of the children before passing the present order.
Liberty to the mother to take the children outside Bombay.
if she so desires.
57 The present arrangement of the parents sharing the company of the children during the vacation to continue in the coming October and December vacations on the basis of the children remaining with the father in the first half of the vacation and with mother in the other half.
This arrangement of sharing the company of the children during the vacation will also apply for coming years pending the hearing and final disposal of the suit.
It is clarified that the order, whereby the children go to their mother every week end, will not be effective during the vacation period as the children for the first half of the vacation will be exclusively with the father and the other half exclusively with the mother.
Chamber Summons absolute accordingly with no order as to costs.
" D It may be mentioned that the daughter Gospi had been admitted to Carmel Convent High School in the K.G. Class and she had been studying in that School.
Shiavux was a student of St. Anne 's High School.
It appears that on 1 5.6.1980, the Respondent without informing the appellant and without her knowledge or consent removed Gospi from Carmel Convent High School and put her in St. Anne 's High School.
On the 20th June, 1980 the appellant made an application in her suit for an order for custody of her two children and also for an order that the child Gospi be forthwith .
removed from St. Anne 's High School and be put in Carmel Con vent High School.
The said application was disposed by Kania, J. on the 9th of July 1980 and the learned Judge who had also spoken to Gospi was pleased to pass the following order: "This is a petition for the custody of the two minor children and for the decision of the question as to whether the minor daughter Gospi should be removed from St. Anne 's High School where she has just been got admitted by her father.
As far as the question of final custody is .
concerned, it appears, particularly in view of the orders passed earlier by Lentin J. and Agarwal, J. that that question can be more conveniently decided when the suit is disposed of.
This position is accepted by both the parties, 58 As far as the question of change of school is concerned, it is regrettable that the respondent husband has changed the minor 's school from Apostolic Carmel Convent High School to St. Anne School without previously informing the petitioner as he should have done.
However, after talking to the child, I find that she is anxious to continue .
in St. Anne 's School at present.
Moreover, she has already been admitted to that school. ' In view of this I see no reason why the respondent should be directed to remove her from St. Anne 's School and to try to get her re admitted to Carmel Convent High School.
If the child is not very happy in the new school i.e. St. Anne 's School the question of changing her school and getting her admitted in Carmel Convent High School can be considered at the end of the academic year.
No order as to costs.
" On 9.9.1980, the Respondent filed a contempt application against the appellant complaining of the violation of the order of the Court in the matter of handing over of the girl Gospi to him.
The said application of the respondent was disposed of by Lentin, J.
On the 22.9.1980.
The learned Judge talked to the children together and also individually and it appears that the learned Judge had a fairly long conversation with the girl Gospi for about 40 minutes The learned Judge thereafter passed an order on the said contempt application of the respondent to the following effect; "I have talked to the children together and individually.
From my conversation with the daughter (aged 9) which extended to well nigh 40 minutes.
I do not think that she has either been 'brainwashed ', 'tutored ' or 'pressurised ', into not going to the father.
She is undergoing a tremendous mental and emotional upheaval which finds her bewildered and totally unhappy at the increasing acrimony between her parents.
She desperately needs her mother and cannot bear to be parted from her and it is not mere childish pique, or 'brainwashing ' or 'tutoring ' that is behind it.
I am aware that normally a parent is given access to his or her child.
However, in this case, I fear that if this little girl who is mentally and emotionally disturbed, is compelled to go to her father against her wishes,.
the consequences on her well being and her mind in its present state are predictable and will be disastrous.
59 Her conversation with me did not reveal any intention A on the part of the mother to want to flout my order of 28th June, 1979 as urged on behalf of the father.
If at all, it showed some resentment on the child 's part against the mother for trying to induce her to go to her father against her will.
The husband 's contention that the wife should have applied for modification of that order, does not take into account (i) that she was trying to persuade the girl to go to her father, (ii) that this at best is a technical breach, and (iii) that confining the wife to civil prison, or otherwise punishing her, would in this case be no solution to what is basically a human problem, more so when looked at from the view of the child who is intelligent enough to speak up for herself and whose interest and well being must be paramount consideration.
Taking all the facts and circumstances into consideration, I pass no order on the motion with no order as to costs.
I suspend my earlier order dated 20th June, 1979 to the extent that it gives the husband access to the girl from Mondays to Fridays and clarify that until the disposal of the suit which, I am told, is ripe for hearing, the mother shall have uninterrupted access to the girl and shall not be bound to send the child to the father against the wishes of the child.
For the mental and emotional well being of his child, the husband should in good grace make this sacrifice.
It is further clarified, if clarification is at all necessary, that the implication of this order is that the husband shall not, until the disposal of the suit, visit the girl at her school, for such visits she dreads, resulting in spells of nausea and black outs and which visits she finds upsetting and humiliating before her friends before whom she naturally wants to maintain the facade that all is well between her parents." . .
Against the said order of Lentin, J. the Respondent filed an e appeal.
During the pendency of the appeal, the suit filed by the appellant and the counter claim filed in the suit by the respondent came up for final hearing.
It may be noted that in the counter claim filed by the respondent in the said suit of the appellant, the respondent had made certain allegations against the appellant.
On 10.
11.1980, the suit and the counter claim were disposed of.
By the decree passed in the suit filed by the appellant.
divorce was granted on the 60 ground of desertion of the appellant and the allegation of cruelty made by the appellant against the husband, the respondent, was withdrawn by the appellant.
The respondent had also withdrawn all the allegations made against the appellant and the decree for divorce was passed in favour of the appellant, as already noted, only on the ground of desertion.
A consent order was passed with regard to other reliefs and under the consent order, the appellant got back her flat in Mount Villas from which she was earlier ousted.
The appeal filed by the respondent against the order of Lentin J. dated 22 9 1980 was also with drawn, and it was agreed that the question of custody of the children would be decided by the Court on a petition for custody to be filed by either of the parties.
On 3 12 1980, the respondent filed a petition for custody of.
both the children.
Since the son Shiavux would complete 16 years of age is May, 1980, and was outside the jurisdiction of Parsi Matrimonial Court, the appellant could not resist the respondent 's prayer for custody of Shiavux and the appellant contested the respondents prayer for custody of daughter Gospi.
The said custody petition of the respondent came to be heard by Diashaw Mehta, J. and the learned Judge passed an order directing the custody of the children to be given to the father.
It is desirable to set out the following,, observations of the learned Judge while passing his order on the custody application.
The learned Judge has observed: "I have interviewed both the minor children individually and also in the presence of each of the parents.
I have also talked to the petitioner and the respondent in the presence of the children.
I consider both the petitioner as well as the respondent as persons capable of looking after the welfare of their children.
The only hurdle in the way of the respondent was that she was not available to the minor Gospi for most of the day after the child returned from School at about 1.00 p.m. and tilt 7.00 p.m.
The minor during this period was looked after by Mr. and Mrs. Kotwal.
This, to my mind is an unfortunate situation.
However, benevolent, hospitable and kind the neighbours be, I do not see why the child should grow up on the charity of neighbours, particularly when her own kith and kin were available, especially her brother Shiavux.
I am informed that Shiavux and Gospi have not met each other for the last six months.
I do not know how this situation has been allowed to arise, but I can only say that it is most 61 unfortunate.
Both the brother and the sister appear to be A fond of each other and have expressed their desire to live together.
I would have willingly given the custody of the minor Gospi to the mother, but for the fact that she is not available to the minor for long hours of the day and again the child will be left to be looked after by neighbours or servants.
In the petitioner 's house hold there are three sisters of the petitioner who can look after the welfare of both Shiavux and Gospi in the absence of the Petitioner.
At pointed out earlier, one of the sisters is a qualified teacher and can look after the education of the children.
At this stage, I may advert to the conduct of Gospi during the forty five minutes that she was in my chamber.
Almost throughout this period, Gospi kept crying or sobbing or whining although there was no provocation to do so, and this was so even in the presence of her mother, the Respondent.
The child appeared to be nervous and kept biting her nails.
I had an occasion to meet Gospi and Shiavux about a year ago when a Chamber Summons taken out by the Respondent, was heard by me.
At that time during my talks with both the children, I found them to be intelligent, exhuberant and confident.
They expressed a desire to live with both the parents.
The situation has changed radically today.
Gospi has developed an aversion for the father and expressed her desire to live with the mother.
On three different occasions she stated that she was not tutored and brain washed.
It appears to me that the child is under considerable mental pressure and at present she is not a normal child.
It is important to create an atmosphere where the child will live a normal and healthy life.
It will only be under such conditions that the child 's progress at School will improve.
Between September, 1980 and today the child 's education has been neglected for some reason and this is evident from the fact that the child failed in October 1980 Examination in three subjects.
Normally I would have given preference to the desire of the child and would have acceded to her request.
In the instant case, however, I do not think that it is in the interest of Gospi to permit her to remain in the custody of the Respondent.
The child has been sadly neglected.
If the child is to return to normalcy, it is very necessary that she should be returned to the custody of the father.
62 Such an arrangement will permit both the brother and the sister to grow up together and it will allow both of them to take comfort and counsel from each other.
I consider this arrangement to be in the interest of both the children Shiavux and Gospi.
I, therefore, order that both the minors Shiavux and Gospi will remain in the custody of the Petitioner till such time as they reach the age of majority i.e. 16 years.
Both the minors will remain with the Petitioner during the course of the week i.e. from Mondays till Fridays.
The Petitioner will take the children on Saturday moorings at 9.00 a.m. to the house of the Respondent and leave them with her till Sunday 7.00 p.m. when the Respondent will hand over both the minors back in the custody of the Petitioner.
During the School vacations, half the period of the vacation will be spent by the children with the Petitioner and half with the Respondent by mutual arrangement.
There will be no order as to costs of the petition .
Mrs. Ponda states that this order be stayed as her clients desire to proceed further.
This order will be stayed till 9.3.1981".
The appellant preferred an appeal on 6.3.1981 and the appellant also applied for interim stay of the order passed by Mehta, J.
It appears that an ad interim stay was granted by the Division Bench.
On the 20.3.1981 a Division Bench consisting of Madon and Khurdukar JJ.
disposed of the said application in the following terms: "Pending the hearing and final disposal of the appeal, the order dated February 19, 1981 appealed against stayed as far as it relates to the minor Gospi alone.
Until the St. Annes High School in which the minor Gospi is at present studying closes for the summer vacation, the Respondent to be entitled to take the child to his residence on Thursdays from 9 a.m. till 8 p.m.
The respondent, who is present in Court, gives an undertaking through his advocate to return the child Gospi to the appellants residence each Thursday by 8 p.m. 63 So far as the school vacations are concerned the A appellant to keep the child Gospi with her for the first half of each vacation and the respondent to keep the child for the second half of each vacation.
The respondent to take the child to his residence by 9 a.m.
On the first day of the second half of each vacation and to return the child by 8 p.m.
On the last day of the second half of each vacation.
The respondent who, as mentioned, earlier is present in Court, through his Advocate gives an undertaking to take the child Gospi to the appellant 's residence and leave her there by 8 p.m.
On the last day of the second half of each vacation.
We may record that we had seen the child Gospi in Chambers on March 10, 1981 and had found her to be an extremely bright and intelligent child.
We may further record that the child stated that she did not have any aversion to spend the day with her father, namely, the respondent, but was greatly apprehensive that if she did so, she would not be allowed to return her mother, namely, the appellant, with whom she wanted Lo stay or that some application would be made to the Court on behalf of the respondent for the purpose of not returning the child to the appellant but to keep her with him.
Notice of Motion made absolute in terms of prayer (c) also and the above directions with respect to the Respondent 's access on Thursdays during the school terms and the order with respect to the sharing of school vacations also to apply if the child Gospi gets re admission in the Apostolic Carmel Convent High School from the next academic year for the .
school terms and vacations.
If the child Gospi does not get re admission in the Apostolic Carmel Convent High School but continues in the Anne High School, the above directions with respect to the Respondent 's access on Thursday.
during the School terms and the sharing of vacations to other school terms and vacations.
Costs of this Notice of Motion will be costs in the appeal".
64 As the respondent had not returned Gospi to the appellant, in terms of the order and the undertaking given by the respondent to the Court, the appellant on 3.4.1981 orally applied to the Division Bench consisting of the same learned Judges viz. Madon and Khurdakar, JJ.
complaining of the breach of the undertaking and on the said application the Court passed, inter alia, the following order: "There were some allegations and counter allegations made by the parties against each other, into which we do not desire to go.
We, in the privacy of our chambers, talked to the child.
We also talked separately to both the parties.
We have also heard both counsel.
An unfortunate position in that the child 's final examination in the Vth standard in which she is studying commences tomorrow and will finish on April 15, 1981.
Purely bearing this circumstance in mind, we permit the child to continue to be with the Respondent until April 16, 1981.
On that day we will give further directions in the matter.
We are passing this order purely in order not to make the child travel back and forth between the residences during her examination.
Mrs. Ponda on behalf of the appellant states that the child 's textbooks, exercise books, the school uniform, etc.
are at the appellant 's place of residence and that the appellant will hand them over to the Respondent.
The Respondent will collect these articles from the appellant 's residence by 4 p.m. today.
The matter will be on Board on April 16, 1981 for giving further directions.
The parties and the child Gospi will remain present in Court, and the Respondent will bring the child to Court on that day.
We also restrain, pending the giving of further directions, the respondent, his servants, agents and family members from taking the child Gospi outside Bombay." on 16.4.1981, the matter came up again before the same division Bench for final orders and the Court was pleased to pass the following order: 65 "Today in our Chamber we have heard both learned advocates as well as the Respondent who wanted to address us.
In course of arguments we pointed out to Mr. Deshmukh, the learned Advocates for the respondent, that when we had talked with the son of the marriage, Shiavux, as also with the daughter of the marriage, Gospi, on March 10, 1981 we found Shiavux using semi legal pharaseology and words, while we found Gospi speaking naturally like any other bright child of her age.
We further pointed out that when we had talked with the child Gospi on April 3, 1981 in our Chamber, we had found her using the same type of pharaseology and words similar as those used by Shiavux and in speaking of various family matters almost echoing what Shiavux had said.
When we put this to Mr. Deshmukh, the learned advocate for the Respondent,.
he replied that that was because time and again there was talk about this case in the Respondent 's house hold.
In our opinion, such talks taking place in the presence of a child cannot be conducive to the happy or healthy psychological growth and development of a child.
Mr. Deshmukh, the learned Advocate for the Respondent further made a request to us that though on March 20, 1981 we had directed that Gospi should spend the first half of the vacation with the appellant, that part of the order should be varied because Gospi had just finished her examinations yesterday and had been till then in the grip of the examination fever and not able to go about with the respondent, and, therefore, the respondent should be permitted to keep Gospi for the first half of the vacation.
At this, Mrs. Ponda, the learned Advocate for the appellant, pointed out that during the middle of her examination the respondent had taken Gospi to some person at Goregaon.
Mr. Deshmukh stated that the said person was known as 'Maiji ' and the said person stayed at Goregaon Tekdi and that several persons visit her, for they consider her a holy woman.
He further stated that Gospi was taken to the said Maiji to seek her blessings.
When we inquired, we were informed that Gospi had also been taken to said Maiji on the 2nd day of April when she was staying with the respondent in pursuance of order dated March 20, 1981, that is, before we had talked to Gospi in the privacy of our chamber on April 3, 1981.
66 Mr. Deshmukh also applied that we should reconsider our order passed on March 20, 1981 in so far as it related to re admission of Gospi in the Apostolic Carmel Convent High School and permit her to continue in the St. Annes High School, which order we had passed after hearing elaborate arguments on the point.
In support of this application Mr. Deshmukh stated that if we were now to talk with Gospi we would find that she has now changed her mind and does not want to rejoin the Apostolic Carmel Convent High School.
Assuming this is so, this fact speaks for itself.
We, therefore, reject the application also.
In these circumstances, we feel that this is a fit case in which a home study should be directed to be made by social welfare expert to be appointed by the Court.
For this purpose both parties have agreed to deposit with the Prothonotary and Senior Master of this Court a sum of Rs. 300 each.
Accordingly, by consent we direct that each of the parties will deposit a sum of Rs. 300 with the Prothonotary by 12 noon of April 18, 1981.
Further directions with respect to to the home study and the social welfare expert by whom it is to be conducted will be given by us in our chamber at 11 a.m. On Monday, April 20, 1981.
Meanwhile the appellant will take the child Gospi with her to her residence.
We reserve the giving of further directions about the party with whom the child will spend the rest of the vacation and with respect to the access of the other parent to the child.
The further hearing of this matter is adjourned to 11 a.m. On Monday, April 20, 1981 in Chambers as part heard.
" On 20.4.1981, the Court appointed Mrs. Clarice D 'Souza B.A., B. Ed., holder of a Diploma in Social Service Administration of the Tata Institute of Social Sciences as a family expert to assist the Court in discharging its function in the matter concerning, the child with the observations: "Parties are agreed that every facility will be given to Mrs. D 'Souza for her to interview privately the child Gospi as also the parties themselves and the relatives and neighbours of the parties if Mrs. D 'Souza desires to interview them or any of them.
Both parties are further agreed 67 that Mrs. D 'Souza will be also at liberty to interview the A present as well as the former teachers of the child.
The parties are further agreed that Mrs. D 'Souza if she thinks it necessary to do so, will be at liberty to take the child and keep her with herself at her place for such period or periods, including overnight stays, as she thinks it necessary, to enable her to make a detached and fair report to the Court.
We may mention that Mrs. D 'Souza has stated to us that she does not desire any remuneration for the work she may do in this connection.
In our opinion, however, it would be unfair to Mrs. D 'Souza who in order to conduct this home study may have to travel from Colaba, where she stays, to Bandara by taxi to conduct these interviews and may have to spend at times the whole day in Bandara and may, therefore, also have to incur some other expenses over her meals or refreshments.
We do not see why Mrs. D 'Souza should go out of pocket.
We will, therefore, decide after the home study is concluded the amount that should be paid to Mrs. D 'Souza out of the moneys which the parties have deposited with the Prothonotary and Senior Master mentioned above.
In the first instance, however, we direct the Prothonotary and Senior Master to pay to Mrs. D 'Souza towards the disbursement of the expenses which she will have to incur, a sum of Rs. 300 out of the aggregate sum of Rs. 600 deposited by the parties.
For the present we are adjourning the matter as part heard in our Chamber at 2.45 p.m.
On Tuesday the 28th April, 1981 for receiving Mrs. D 'Souza 's report if it is ready.
On that day in case the report is ready, the parties are agreed that the Court should decide whether the report should be treated as confidential or should be disclosed to the parties.
In case the report is not ready on that day, the parties are agreed that this matter should be decided on a date to which the matter will be further adjourned for the purpose of receiving the report and for deciding whether it should be kept confidential or not.
Meanwhile the child Gospi will continue to reside with her mother, the appellant, and as mentioned in our order dated April 16, 1981 directions as to with whom the child is 68 to spend the rest of the vacation and the right of access of the other parent to the child will be decided by us after receiving the report and after hearing the advocates for the parties.
" It appears that the minor daughter Gospi who had been living with her mother had been missing from her mother 's place on 30.4.1981, resulting in a great shock to the appellant.
On the very same day the respondent applied to the Division Bench consisting of the same learned Judges with an affidavit stating that the child had come on her own to the house of the respondent who had brought the child to Court to surrender her and abide by the Court 's directions, as he did not want to commit contempt of the Court.
As on that date, the appellant was not able to attend the Court because of her illness due to the shock of her not being able to find Gospi, the Court passed an order that for the time being the child Gospi would go with the Respondent and stay with him until May, 1981 and on that date the Court would give further directions.
On 13th May, 1981, the Court after considering the report of Mrs. Clarico D 'Souza, the family welfare expert appointed by the Court, passed the following order: "In the circumstances, set out above, we would have had no hesitation in directing that the child Gospi should stay with her mother, the appellant, throughout the summer vacation.
However, an unfortunate thing is that the appellant is working in the Tatas and therefore has to be away from home the whole day except during week ends, while the respondent, who drives his own taxi, can always find time to contact Gospi in the course of the day and lure her away.
Bearing these factors in mind, we permit Gospi to stay with the Respondent during the vacation.
The respondent will, however, take Gospi and leave her at the appellant 's residence on every Friday at 8 p.m. and will collect her from the appellant 's residence every Monday by 8 a.m. during the vacation.
In our opinion best thing for Gospi would be to go to a boarding school.
However, we are sure that the respondent would so poison her mind against any boarding school as to cause yet another psychological turmoil and conflict in her mind.
Mrs. D 'Souza 's report has also convinced us that it is better for Gospi that she should be in Carmel Convent High School rather than St. Annes High School, and that part of the 69 order passed by us on March 20, 1981 will stand.
During the school term the appellant will be entitled to take Gospi to her residence straight from the School, every Saturday and to keep her with her and to leave her in the School on Monday mornings.
During the rest of the days during the school term Gospi will stay at the respondent 's residence.
The above directions will be operative during the pendency of appeal for all school terms and vacations.
" While passing the said order, the Court in its judgment observed: "We have very carefully considered the matter.
Between the two spouses the person who in our opinion would be best suited to bring up the child Gospi would be the mother namely, the appellant.
Gospi is a girl about 10 years old, and she needs a mother 's care guidance and advice.
The appellant has struck us as being refined, mature and has been holding a steady job for the last twenty one years and is at present drawing a salary of Rs. 2,500 per month.
She appeared genuinely concerned with the interest and welfare of the minor.
On the other hand, it appears that the respondent is somewhat immature and erratic, and has never been able to pursue any particular vocation steadily, and appears to labour under a sense of inferiority complex vis a vis the appellant.
It further appears to us that the custody of the children is more a matter of prestige with the respondent and is a weapon in his armoury to hurt the appellant with.
As we had almost on every occasion when the matter was before us talked with the child in the privacy of our chambers, either before or after passing orders, we found that when she was with the appellant she behaved as a normal and happy child, but when she was with the respondent, her personality had totally changed and she appeared to be under a strain.
" The Court further observed: "We find that Gospi has been tutored by the respondent to tell a number of lies.
According to what she is alleged to have said as set out in the said affidavit, the appellant beats and ill treats her.
At no stage has Gospi ever mentioned this.
On the contrary, she has always expressed how very happy she was with 70 her, the appellant.
Mrs. D 'Souza 's report also bears this out.
Another instance is with respect to Gospi 's version as to what happened in Court on April, 16, 1981.
As set out in the said affidavit she is alleged to have told the respondent that when her mother, the appellant, came to take her away, she was screaming and shouting and vomited on the Judge 's table and that in spite of that, her mother, the appellant, and her lawyer forcefully took her under instructions from the judges.
It is true that when we told Gospi to go with her mother the appellant, she whimpered for some time and then threw out out side the chambers.
That the conflict between the , two parents has greatly upset Gospi emotionally, resulting in spells of nausea, has also been noticed by Mr. Justice Lentin in his order passed on September 22, 1980.
Further, it is clear from Mrs. D 'Souza 's report that when the respondent had made Gospi change her school and made her give up Carmel Convent High School and put her in St. Annes High School, she was in the habit of vomiting in that school on the least provocation, and she only adjusted herself in the school when she was reassured by her teachers that she would go back to Carmel Convent High School from the next academic year.
After the initial fit of vomiting, Gospi went away with her mother, the appellant, quite happy and content, and of her own accord she got into the taxi along with her mother.
We were watching from the corridor outside our chambers, as we wished to observe Gospi 's behaviour while she was going home with the appellant, and in order to enable us to do so we had instructed that the appellant and Gospi should leave the Court premises from the entrance facing oval Maiden.
We had also instructed one of our PAs.
to accompany them and to report to us, what is set out in the affidavit, therefore, cannot be anything else but the tutoring of Gospi by the Respondent.
We have already had occasion to observe in an earlier order that this child who, while staying with the appellant, was talking like a normal child, has started using semi legal phrases, which she was not doing previously.
" on the 9th of June, the Respondent made an application to the Division Bench of the Bombay High Court for an order for modification of the earlier order passed on the 20th of May, 1981 to the 71 extent that the child Gospi should not be compelled to go to Carmel Convent High School but should be readmitted to St. Annes High School.
During the pendency of this application the appellant on the 6th July, 1981 also made an application to the Division Bench for committal of the respondent for contempt of court for violation of the order passed by the Division Bench on the 20th March, 1981.
Both these applications came up for hearing together on the 31st July, 1981 by the Division Bench consisting of Madon and Sujata Manohar, JJ.
The Division Bench dismissed the application of the respondent for modification of the order dated 20th March, 1981 and the division Bench passed an order on the contempt application taken out by the appellant, committing the respondent to jail for a period of three months and to a fine of Rs. 1000.
The Division Bench further directed that the custody of the minor daughter Gospi to be given to the appellant mother pending final disposal of the appeal and the Division Bench further ordered "As observed in the both Mrs. D ' Souza 's report and in the order of 13.5.1981 the best thing to do in order to restore Gospi to normalcy would be for her to be in an atmosphere away from where she has been for the last almost two years.
The appellant will, therefore, be at liberty to place Gospi in any boarding school of the appellant 's choice outside Bombay.
We also make it clear that Gospi will spend all her School vacations with the appellant only without any access to or interference from the respondent, his servants and agents including the Respondent 's brother and sister or any of them".
The Division Bench further suspended the execution of the punishment imposed on the respondent by the said order for a period of four weeks from the date of the order to enable the respondent to file an appeal in this Court, but refused to stay the execution of the rest of the order.
Mrs Sujata Manohar, JJ.
who delivered the judgment on behalf of the Bench, considered at great length the various facts and circumstances including earlier proceedings between the parties.
As this judgment is under appeal, we do not propose to refer to the various findings and observations made in this judgment at any length.
Some of the observations may, however, be noted.
The Bench observed: "A number of our brother Judges including one of us (Madon, J.) who have had an occasion earlier to deal with the matter, have consistently considered the mother as a mature and responsible woman who holds a steady job for the last 21 years, fetching her at present a salary of 72 Rs. 2,500 per month.
She is a mature woman who is genuinely and deeply concerned with the welfare of her child.
All these judges have also remarked that the husband is an unstable person.
He is unable to hold any job for any length of time.
He also suffers from a deepseated inferiority complex vis a vis his ex wife and for good reasons.
From the respondent 's conduct throughout this litigation it is also apparent that he has scant regard for the welfare of his daughter.
He has, in order to score a point against his ex wife, not hesitated to drag his daughter from court to court resulting in his daughter 's near nervous breakdown.
" The Division Bench has also observed: As repeatedly observed by a number of our brother judges including one of us (Madon, J.) in the course of these proceedings, the girl has appeared happy and normal when she is with the mother.
She appears tense and nervous when she is with her father.
We have no doubt that the child is being pressurised and terrorised into telling lies by the father.
The father 's conduct leaves much to be desired.
" The Division Bench further observed : The respondent and his brothers and sisters and mother do not have any interest in the welfare of the children.
This is borne out by the fact that they admittedly talk constantly in the presence of the children regarding the present case so much so that the children have picked up semi legal words and phraseology as noticed by the Court in various orders.
" Against this judgment and order of the Division Bench the respondent (father) filed in this Court an appeal under section 19(1)(b) of the Contempt of Courts Act and in the said appeal made an application for interim stay.
On 15.8.81 on the said application for interim order, this Court passed an order staying the operation of the Order of the Division Bench in so far as the same related to the imposition of punishment of imprisonment and fine on the father but directed that the rest of the order of the High Court would stand.
This Court further observed that the matter was of an 73 urgent nature and the appeal which was pending before the High Court should be disposed of as expeditiously as possible.
It appears that in pursuance of the order passed by the Division Bench of the Bombay High Court which was not in any way affected by the order passed by this Court on 5.8.1981, the appellant had got the minor daughter Gospi admitted into Kimmins Boarding School at Panchgani.
The appeal preferred by the appellant to the Division Bench of the Bombay High Court against the judgment and order passed by Mehta, J. on 19.2.1981 allowing the custody of the minor daughter to the father came up for hearing before a Division Bench of the High Court consisting of Jahagairdar and Ashok Modi, JJ.
in October, 1981.
It appears that in the course of the hearing of the appeal, the learned Judges had expressed their desire to meet the minor Gospi and directed that the minor Gospi should be brought to Bombay to enable them to see her.
Accordingly, Gospi was brought to Bombay and was interviewed by the learned Judges at the residence of Modi, J. on 9th October, 1981.
We may note that the learned Judges have recorded their impression of the interview with Gospi in a confidential note and had kept the same in a sealed cover for the benefit of this Court in the event of any such occasion arising.
On the 16th of October, 1981, the Division Bench dismissed the said appeal of the appellant with the following order: "For reasons to be recorded in the judgment to be delivered later, we dismiss this appeal challenging the order dated 19th February, 1981 passed by Mehta, J. This in effect means that the said order awarding the custody of the minor daughter Gospi to the Respondent father is confirmed.
However, in view of the fact that the minor daughter is at this moment studying in a residential school at Panchgani, we direct that she will not be brought to Bombay till at least 3rd November, 1981.
The respondent father is hereby allowed to spend what is called the exit week end beginning from 23rd October, 1981 with daughter at Panchgani.
After the child is brought to Bombay, the directions contained in the order of Mehta, J. regarding the minor daughter spending her week ends and vacations with the mother will come into force.
However, it must be made clear that if the school in which the minor daughter is admitted is working on Saturdays, the mother will take the child with her after the school hours are over." 74 The Division Bench delivered its judgment on 3rd November, 1981.
Against this judgment and order of the Division Bench the mother has preferred this appeal in this Court with special leave granted by this Court.
In the present appeal this Court passed an interim order on the 12th November, 1981 to the following effect: "Without expressing any opinion on the merits of the question regarding the custody of the child Gospi, who is the daughter of the appellant and respondent, we direct as a matter of interim arrangement that she shall be allowed to continue her education in the Panchgani School where she is studying at present until the end of the academic year 1981 82.
The parents will be at liberty to meet the daughter alternatively, in accordance with the rules and regulations of the school.
While the girl is in school at Panchgani she will be at liberty to write letters to both the parents.
We are informed that the school will have vacation from November 18, 1981 till about January 18, 1982 and that the girl wants to come to Bombay during the vacation, we direct that during the forthcoming vacation, she will live with the father for the first half of the vacation and with the mother during the second half of the vacation.
The father will bring the child from Panchgani to Bombay on the commencement of the vacation and the mother will take the child back to the school when the school reopens after the vacation.
At the end of the first half of the vacation, the father will deliver the child to the custody of the mother.
The appeal shall come up for hearing in the second week of March, 1982.
Liberty to the parties to apply to this Court in regard to the custody of the child during the pendency of the appeal, if the appeal for any reason is not disposed of before April 15, 1982.
The appeal (CA 1796/1981) the contempt matter will be tagged with this appeal.
We direct that the school authorities will submit to this Court a report in the first week of March 1982 on the progress and performance of the child, and on the question whether she was happy to be away at Panchgani.
" 75 The appeal came up for hearing before us and on the conclusion of the hearing we reserved judgment for our consideration of the matter.
However, taking into consideration the fact that the next term in the Panchgani School will be commencing shortly and there will also be a short recess of the School we passed the following further interim order on 27.4.1982 pending consideration of the matter and delivery of the judgment by us: "We direct that until further orders of this Court the child Gospi, the daughter of the appellant and the respondent, shall be allowed to continue her education in the Kimmins High School at Panchgani.
The parents will be at liberty to meet the daughter alternately in accordance with the rules and regulations of the School, the first opportunity of so meeting the daughter being afforded to the father.
While the girl is in the school at Panchgani, she will be at liberty to write letters to both parents.
We are informed that the school is in vacation from April 21, 1982 to May 12, 1982 and that on the commencement of the vacation the child Gospi was brought home and is continuing there.
We direct that she will live with the father for the first half of the vacation, and thereafter will live with the mother during the second half of the vacation.
The child will be handed over by the father to the mother in the presence of the Vacation Judge of the Bombay High Court on May 17, 1982 at an hour convenient to the Hon 'ble Judge and we request the High Court to inform this Court of the fact of such handing over.
We direct further that on the expiry of the vacations the mother will take the child back to the School at Panchgani and entrust her to the custody of the Principal of the School.
The Court trusts that each parent will promote a sense of respect and affection in the child 's mind for the other parent and will take active interest in persuading the child to settle down in the school at Panchgani, and so promote an atmosphere conductive to the proper development of her personality, her mental and physical health and the enjoyment of emotional security and well being.
" Turning to the merits of the appeal, we must observe at the outset that this case which is concerned with the welfare of a bright, sensitive 76 and innocent girl of about 11 years of age now, has in the peculiar facts and circumstances of the case caused us a great deal of anxiety and pain and we have given very careful consideration to the matter.
Elaborate arguments have been advanced from the bar on behalf of the respective parties.
Mr. Desai, learned counsel for the appellant, has made the following submissions: 1.
In deciding the question of custody of the minor, the Court should be guided only by the consideration of the welfare of the minor.
Mr. Desai in this connection has referred to section 49 of the Parsi Marriage and Divorce Act, 1937, section 41 and 42 of the Indian Divorce Act, 1969, section 26 of the Hindu Marriage Act, 1957 and section 38 of the Special Marriage Act, 1956 containing similar provisions and he has strongly relied on the decision of this Court in Rosi Jacob vs Jacob A. Chakrammakkal.(1) 2.
In the facts and circumstances of this case, the father cannot be considered to be a fit person to have the custody of the child and the custody of the child should be entrusted to the mother.
In support of this submission that the father is not the fit person to be given the custody of the minor child, Mr. Desai has referred to the various proceedings between the parties, the orders passed thereon and the observations made by learned Judges of the Bombay High Court from time to time.
Mr. Desai has argued that the father in his self interest to have the minor child on his side and under his control, has been trying to poison the mind of the daughter against the mother for whom the daughter has a very great affection with the object of alienating the daughter from the mother without any regard to the daughter 's sentiments and without appreciating the very great damage that he is doing to the daughter and this act of the father has caused a tremendous amount of psychological strain, resulting in a near nervous breakdown of the daughter.
Mr. Desai has argued that the minor being a daughter and now of the age of 11 years needs the company and guidance of her mother.
It is the argument of Mr. Desai that the mother has no particular self interest in obtaining the custody of the child and her only concern is the welfare of her daughter, and she has spent and is 77 prepared to spend whatever amount is necessary for the welfare of the daughter and she is also in a position to do so.
Mr. Desai has commented that the main ground on which the learned single Judge of the High Court and also the learned Judges of the division Bench had not given the custody of the minor to the mother is that the mother is a working girl and she does not have time to devote to the daughter and it is his comment that this is really no ground.
He further comments that the father in most cases has to work for a living and in the present case the father earns his living by plying a taxi at the present.
He argues that in modern times, particularly in view of the present economic condition, in very many cases, both the husband and the wife have to work for a proper living and the mere fact that the father or the mother has got to attend to work, cannot disqualify the father or the mother.
Mr. Desai has submitted that apart from the fact that the mother is a working girl, there is nothing against the mother which would disentitle her to the custody of her daughter and in this connection Mr. Desai has referred to the judgments of the learned single Judge and also the division Bench of the Bombay High Court.
Mr. Desai has further pointed out that the learned single Judge gave the custody of the daughter to the father though the daughter had clearly expressed her desire to live with her mother.
The best interest of the minor in the peculiar facts and circumstances of this case will be served only if the minor is removed from the unhealthy atmosphere of home life and is placed in a Boarding House where she will have healthy normal growth in the company of other children of her age under the care and supervision of competent teachers, unimpeded by the conspiratorial attitude of the father to destroy her feelings for the mother.
In support of this submission, Mr. Desai has referred to the various orders passed in which the learned Judges of the Bombay High Court have recorded their impressions after interviewing the girl; and Mr. Desai has placed particular reliance on the report of the Social Welfare Expert, appointed by the Bombay High Court.
Mr. Desai has further submitted that the minor who has been admitted to Panchgani Boarding School and has been there for some time, is gradually fitting in well and she has started feeling happy in the institution.
In this connection Mr. Desai has referred to a number of letters addressed by the minor to her mother and also to the report of the Principal of the institution.
78 Mr. Bhandare learned counsel for the respondent (the father of the minor) has raised the following contentions: 1.
In deciding the question of custody of a minor, the Court will no doubt be guided by the consideration of the minor 's welfare but in considering the question of the welfare of the minor, the Court should see the minor to ascertain the wishes of the minor before deciding the question of the welfare of the minor and the custody of the minor.
It has been his argument that it is indeed the duty and obligation of the Court to see the minor to ascertain the wishes of the minor before coming to any decision on the question of custody of the minor.
In support of this argument, Mr. Bhandare has referred to section 49 of the Parsi Marriage and Divorce Act, 1937, Ss. 7 to 17 of the and also section 26 of the .
Mr. Bhandare has strongly urged upon us to send for the minor and to talk to her either in Court or in chambers in the presence of the parents or alone in their absence at the discretion of the Court before deciding the question of custody of the minor.
The minor is a bright and sensitive girl and is deeply attached to the members of the family and to her brother in particular.
Home influence has considerable importance to the minor in properly shaping her life and future.
Removal of the minor from home and placing her in any Boarding School, however, good and eminent the institution may be, will not enure to the benefit of the minor, as she will not fit in and the minor will not feel happy in the boarding school.
The absence of the company of the father, the brother and the other near relations will deeply affect the mind of the minor and cause a phsychological depression in her mind and this will impede her normal healthy growth.
Mr. Bhandare has in this connection referred to a letter sent by the minor to her aunt (father 's sister).
The order of custody of the minor daughter in favour of the father passed by the learned single Judge of the Bombay High Court and affirmed by the Division Bench of the Bombay High Court should not be interfered with by this Court in this appeal.
The mother has hardly any time to look after the welfare of the daughter as she has to remain constantly busy with her work.
Mr. Bhandare has also criticised the conduct of the mother and he has commented that the mother had walked out of the house without caring for the children and had no time to think of them 79 for a number of months and during this period both the son and the daughter had lived happily with the father and the other relations.
According to Mr. Bhandare, the only object of the mother who is not in a position to look after the interests or the welfare of the daughter herself is to deprive the father of the company of his daughter by putting her in a Boarding House.
The principles of law in relation to the custody of a minor appear to be well established.
It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor.
In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor 's interest.
In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.
In Halsbury 's Laws of England, 3rd Edn., Vol.
21, the Law is succintly stated in para 428 at p. 193 194 in the following terms: "428.
Infant 's welfare paramount.
In any proceedings before any court, concerning the custody or upbringing of an infant or the administration of any property belonging to or held on trust for an infant or the application, of the income thereof, the Court must regard the welfare of the infant as the first and paramount consideration and must not take into consideration, whether from any other point of view, the claim of the father, or any right at common law possessed by the father in respect of such custody, upbringing administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father.
This provision applies whether both parents are living or either or both is or are dead.
Even where the infant is a foreign national, the court, while giving weight to the views of the foreign court, is bound to treat the welfare of the infant as being of the first and paramount consideration whatever orders may have been made by the Courts of any other country.
" In the case of Rosi Jacob vs Jacob A. Chakramakkal (supra), this Court has observed at pp.
934 935: "Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has 80 to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances.
Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better prompted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and who in addition because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them.
The children are not mere chattels; nor are they mere playthings for their parents.
Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents, over them.
The approach of the learned single Judge, in our view, was correct and we agree with him.
The Letters Patent Bench on appeal seems to us to have erred in reversing him on grounds, which we are unable to appreciate.
At the bar reference was made to a number of decided cases on the question of the right of father to be appointed or declared as guardian and to be granted custody of his minor children under section 25 read with section 19 of the .
Those decisions were mostly decided on their own peculiar facts.
We have, therefore, not considered it necessary to deal with them.
To the extent, however, they go against the view we have taken of section 25 of the , they must be held to be wrongly decided.
The respondent 's contention that the Court under the Divorce Act had granted custody of the two younger children to the wife on the ground of their being of tender age, no longer holds good and that, therefore, their custody 81 must be handed over to him appears to us to be misconceived.
The age of the daughter at present is such that she must need the constant company of a grown up female in the house genuinely interested in her welfare.
Her mother is in the circumstances the best company for her.
The daughter would need her mother 's advice and guidance on several matters of importance.
" These observations were no doubt made by this Court, while dealing with a case of rival claims between the father and the mother over the custody of the minor children mainly under the .
The aforesaid observations in our opinion, are applicable to the instant case.
We shall now proceed to examine the contention of Mr. Bhandare that in deciding the question of custody of any minor, it becomes the duty and obligation of the Court to interview the minor for ascertaining the minor 's wishes and to implement the same.
section 49 of the provides "In any suit under this Act, the Court may from time to time pass such interim orders and make such provisions in the final decree as it may deem just and proper with respect to the custody, maintenance and education of the children under the age of 16 years, the marriage of whose parents is the subject of such suit, and may, after the final decree upon application by petition for this purpose, make, revoke, suspend or vary from time to time all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such final decree or by interim orders in case the suit for obtaining such decree were still pending".
This section confers power upon the Court to pass such orders as the Court deems just and proper with respect to the custody, maintenance and education of the children under the age of 16 years in a case falling under the .
This section does not speak anything about a Judge interviewing a minor before passing any order in the matter of custody, maintenance and education of the minor and this section or any other section in this Act, does not cast upon the Court any duty or obligation to see the minor and to ascertain the wishes of the minor.
The material portion of section 7 of the to which reference has been made by Mr. Bhandare reads as follows: 82 "7(1).
Where the Court is satisfied that it is for the welfare of a minor that an order should be made: (a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such a guardian; the Court may make an order accordingly.
" This section empowers the Court to appoint a guardian of the person or property of the minor where the court is satisfied that is for the welfare of the minor to do so.
section 17 of the may in this connection also be noted : "17.
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions ofthis section, be guided by what, consistently, with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
x x x x x x x x x (5) The Court shall not appoint or declare any person to be a guardian against his will.
" This section provides for matters to be considered by the Court in appointing the guardian.
Sub section (1) provides that subject to the provisions of this section, the Court should consider the law to which the minor is subject and be guided by what appears in the circumstances to be for the welfare of the minor.
Sub section (2) stipulates that in considering what will be for the welfare of 83 the minor, the Court shall have regard for the age sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
Sub section (3) empowers the Court in the event the minor is old enough to form an intelligent preference, to consider the preference.
Sub section (5) prevents the Court from appointing or declaring any guardian against the will of the person.
Sub section (3) of this section undoubtedly enables the Court to consider the preference of any minor if the minor is old enough to form an intelligent preference.
In the present case we are not concerned with the question of appointment of a guardian either of the property or of the person of the minor, under the .
We may, however, point out that there cannot be any manner of doubt as to the Court 's power of interviewing any minor for ascertaining the wishes of the minor, if the Court considers it so necessary for its own satisfaction in dealing with the question relating to the custody of the minor.
In the facts and circumstances of this case we are however, not inclined to interview the minor daughter, as we are satisfied in the present case that the minor is not fit to form an intelligent preference which may be taken into consideration in deciding her welfare.
We have earlier set out in extenso the various orders passed by the various learned Judges of the Bombay High Court after interviewing the minor and the learned Judges have recorded their impressions in their judgments and orders.
The impressions as recorded by the learned Judges of the Bombay High Court, go to indicate that the minor has expressed different kinds of wishes at different times under different conditions.
It also appears from the report of the Social Welfare Expert that these interviews cast a gloom on the sensitive mind of the tender girl and caused a lot of strain and depression on her.
Torn between her love for both her parents and the acrimonious dispute between them resulting in the minor being dragged from court to court, we can well appreciate that the sensitive mind of the minor girl is bound to be sadly affected.
Though the girl is quite bright and intelligent as recorded by the learned Judges of the Bombay High Court in their orders after their interviews with the girl who is of a tender age 84 and is placed in a very delicate and embarrasing situation because of the unfortunate relationship and litigation between her parents for both of whom she has great deal of affection, she is not in a position to express any intelligent preference which will be conducive to her interest and welfare.
Mature thinking is indeed necessary in such a situation to decide as to what will enure to her benefit and welfare.
Any child who is placed in such an unfortunate position, can hardly have the capacity to express an intelligent preference which may require the Court 's consideration to decide what should be the course to be adopted for the child 's welfare.
The letters addressed by the daughter to her mother from Panchgani and also a letter addressed by her to her aunt (father 's sister) also go to show that the minor cannot understand her own mind properly and cannot form any firm desire.
We feel that sending for the minor and interviewing her in the present case will not only not serve any useful purpose but will have the effect of creating further depression and demoralisation in her mind.
We are, therefore, unable to accept the contention of Mr. Bhandare that there is any duty or obligation on the part of the Court to interview the minor for ascertaining the wishes of the minor before deciding the question of her custody and that we should send for the minor in the present case and interview her to ascertain her wishes before we proceed to decide the question of her custody.
Home influence plays a very important role in shaping the life of every child.
Influence of a happy home where the children are brought up under the affectionate care and guidance of their parents and other relations, all concerned with the welfare of the children, no doubt, enables the children to lead a normal healthy life and materially contribute to their welfare.
In a happy home the children are free from any kind of unhappy tension and psychological strain and they grow up in a healthy environment where their interests and welfare are properly looked after by their parents.
In such a case, the court is naturally not called upon to interfere and to consider the welfare of the children and the welfare of the children is well taken care of by their parents whose primary concern is to see to their interest and welfare.
It may, however, be mentioned that even in cases of happy homes where the children have a very congenial atmosphere for their healthy growth and are very well looked after by their parents, the parents, in many cases do send their children to Boarding Schools.
The parents do so, as the 85 parents feel that the interest and welfare of children will be better served, if they are sent to a good Boarding School where the children, on their own and in the company of their fellow students, will have a greater and better opportunity of developing their personality and shaping themselves properly under the supervision of competent teachers to enable them to fashion their lives properly and face bravely and squarely the hard realities of the world.
A good Boarding School has very many advantages and is in a position to enforce proper discipline which is obviously necessary for healthy growth of every child.
It is well known that mainly because of such desire on the part of very many of the parents to send their children to a good Boarding School, seats are hardly available in a good Boarding Institution these days and seats have to be booked well in advance.
Loving parents who send their children to Boarding Schools for education, have generally to do so against the wishes of the children.
Children will naturally not be inclined to stay away from their affectionate parents and to leave their happy homes where they enjoy not only the affection and care of their parents but also all the homely comforts and they do not like to be subjected to the rigours of strict discipline enforced in a Boarding Institution.
Children sent to a Boarding Institution from happy homes, also find it difficult to adjust themselves to the environment of a Boarding School and may not feel very happy.
Fond parents bearing only in mind the interest and welfare of their children still send their loving children to Boarding Schools against the wishes of the children, sacrificing themselves the company of their children at home, and persuade their children to adjust themselves in the Boarding School and they go on encouraging their children to enable them to settle down in that institution.
Parents do so at considerable sacrifice to themselves, only in the hope and expectation that the interest and welfare of the children will be best served.
It is common experience that children who are sent from happy homes to Boarding Institutions and when do not feel easy and comfortable in the Boarding Institution when they join to such institution, soon adjust themselves to the new environment and come to like the Boarding Institution where in the company of fellow students they lead a healthy and happy life under the guidance and care of competent teachers to the joy of their parents.
It is also no doubt true that children who stay at home with their parents and do not go to Boarding Schools may also be very well disciplined in life and may have a very healthy, happy and normal growth while staying at home.
Indeed, the majority of 86 children in our country are brought up in their homes, as very many of the parents are not in a position to bear the expenses of a Boarding School for their children.
The children grow well and happily in homes under the affectionate care and guidance of their parents, so long as they continue to enjoy the blessings of a happy home.
A broken home, however, has a different tale to tell for the children.
When parents fall out and start fighting, the peace and happiness of home life are gone and the children become the worst sufferers.
It is indeed sad and unfortunate that parents do not realise the incalculable harm they may do to their children by fighting amongst themselves.
The husband and the wife are the persons primarily responsible for bringing the children into this world and the innocent children become the worst victims of any dispute between their father and the mother.
Human beings with frailties common to human nature, may not be in a position to rise above passion, prejudice and weakness.
Mind is, indeed, a peculiar place and the working of human mind is often inscrutable.
For very many reasons it may unfortunately be not possible for the husband and wife to live together and they may be forced to part company.
Any husband and wife who have irreconciliable differences, forcing them to part company, should, however, have sense enough to understand and appreciate that they have their duties to their children.
In the interest of the children whom they have brought into existence and who are innocent, every husband and wife should try to compose their differences.
Even when any husband and wife are not in a position to reconcile their differences and are compelled to part, they should part in a way as will cause least possible mischief to the children.
Hard facts of life, however, go to show that when near relations fall out, the passions and sentiments are so worked up in them that they lose the right perspective and are not in a position to consider and judge what will ultimately be for their good.
In the instant case, the disputes between the parties who had been married for years and are responsible for the birth of two children, have now become so bitter that a number of proceedings including contempt proceedings by either of them have been initiated and the unfortunate children have been paraded from Court to Court.
The learned Judges of the High Court have done their best to compose the differences and have from time to time passed appropriate orders which, if implemented in the true spirit would have enured to the benefit of all concerned.
It, however, appears that mainly because of the attitude of the father, the various orders directinng the children to 87 stay with their father for five working days in the week and with the mother during the week ends and also apportionting the period of their stay with the parents during the vacations passed by the learned Judges of the Bombay High Court from time to time in the best interests of all parties concerned including the children, have failed to achieve any useful purpose and have only resulted in further litigation.
The facts and circumstances of the case establish that the father out of spite against the mother is not willing to allow the children to stay with their mother.
Obsessed with the idea of having exclusive control of the children, he has been trying to poison the minds of the children against the mother with the only object of completely alienating them from their mother, and in his spiteful obsession, the father fails to appreciate the very great harm done to the children.
It appears that the father has succeeded in his attempt in alienating the son who, as the records show, was once deeply attached to the mother and had great affection for her; and, the son has now become hostile to the mother.
The Respondent husband in view of his bitter feelings against the appellant, may feel elated and satisfied in having succeeded in making the son hostile to the mother.
He, however, does not appreciate the very great stress and strain the son must have undergone in the process of losing his love for the mother and he also does not understand how unfortunate it is for any son to be deprived of the affection of his mother and to lose his own love for the mother.
The mother still appears to have a very great affection for the son.
The situation is unfortunate but in this appeal we are not concerned with the son who is now well over 16 years of age.
We only hope that all concerned will try to restore good relationship amongst themselves, as we feel that though the husband and wife have now parted for good, restoration of friendly relationship amongst all of them will enable them to live in peace and happiness and allowing the bitterness to continue will only add to their miseries and troubles.
The effect on the little girl of the embittered relationship between her parents and the attempt of the father to poison the mind of the daughter against her mother and to alienate her from the mother has been simply disastrous.
The intelligent and sensible girl, distressed at the acrimony between her parents, who wanted to spend her time with each of her parents as she is deeply attached to both, as recorded by Lentin, J. in his order dated 28.6.1979, was on the verge of near nervous break down as noted by the Division 88 Bench in its judgment dated 31st July, 1981.
The various orders passed in between which we have set out at length also, indicate what great mental strain and agony the little girl had suffered because of the acrimonious dispute between her parents.
During this period of two years, the girl had been under home influence, as she had been staying with her quarrelling parents in terms of the various orders of the High Court.
The little girl also had been compelled to make her appearances in Court from time to time.
The facts and circumstances clearly establish that the effect of home influence on the minor in the present case has been to reduce a bright, happy and sensible child to a state of complete misery; and, the extreme psychological strain on the sensible mind of the little girl has caused almost a near nervous breakdown.
When the atmosphere in a house, vitiated and rendered surcharged with tension as a result of bitter squabbles between husband and wife causes misery and unhappiness to a child, who has to live in constant psychological strain in such a broken home in view of the bitter relationship between her parents for each of whom she has great affection, the healthy and normal growth of the child is bound to be seriously affected.
In the interest and for the welfare of the child in such a case, the child is necessarily to be removed from such unhealthy environment of a broken home surcharged with tension.
In such a case, the proper and best way of serving the interest and welfare of the child will be to remove the child from such atmosphere of acrimony and tension and to put the child in a place where the embittered relationship between her parents does not easily and constantly effect her tender mind.
In the facts and circumstances of the present case the best way to serve the welfare and interest of the child will be to remove the child from the unhealthy atmosphere at home which has caused a very great strain on her nerves and has certainly affected her healthy growth, to a place where she can live a normal healthy life and will have a good opportunity of proper education and healthy growth.
We note with satisfaction that the view that we have taken is fully supported by the report of the Social Welfare Expert.
The report of the Social Welfare Expert, though not binding on the Court is entitled to weighty consideration.
In the instant case, the Expert has made a very careful study of the entire matter and has given a well reasoned report.
Pursuant to the order passed by the Division Bench of the Bombay High Court the mother got the child admitted into 89 Kimmins Boarding School at Panchgani.
By an interim order passed by this Court in the stay application in this appeal, the child was directed to continue her stay in the said Boarding institution.
By the interim order passed by us on the conclusion of the hearing we directed that the child should continue her study in the Boarding School.
On a consideration of all the facts and circumstances of this case and bearing in mind the paramount consideration of the welfare of the child, we are of the opinion that the child 's interest and welfare will be best served by removing her from the influence of home life and by directing that she should continue to remain in the Boarding School.
It is not in dispute that Kimmins Boarding School at Panchgani to which the child has been admitted is a good institution.
The question of custody of the child must necessarily be considered from the only view point of the welfare of the child.
In view of our finding that in the instant case the best interest of the child shall be served by keeping her in a Boarding School away from the unhealthy atmosphere of strain and tension which she had been undergoing at home, the question of custody has to be judged in this background.
In that view of the matter it does not really become necessary for us to go into the question of the merits of the respective competence of either of the parents.
The person to whom the custody of the child has to be entrusted will necessarily be answerable to the school for payment of all charges and expenses of the child and also in relation to any matter concerning the child in her school life.
It is clear that the father is not inclined to allow the child to remain in a Boarding institution.
If the custody be left to him, the father in view of the disinclination to allow the child to remain in the Boarding institution, may be in a position to create difficulties for the child for her remaining in the institution by nonpayment of fees or otherwise.
As we have earlier noticed, the father is obsessed with the idea of obtaining exclusive control of the daughter and keeping the daughter with him in his house.
It is not in dispute and it cannot be disputed that the mother has a great deal of affection for her daughter and the daughter is also very fond of the mother.
The mother has the welfare of the daughter in her heart and to serve the best interest of the daughter the mother is prepared to make any necessary sacrifice.
For the welfare of the daughter the mother at considerable expense had put her in Kimmins Boarding School, Panchgani which is recognised to be a good institution.
She has 90 been paying for all the expenses of the daughter at the school.
She has a steady income out of which she is in a position to meet all the expenses of her daughter at the school.
The mother also does not suffer from any obsession regarding possession of the girl and she wants her daughter to lead a healthy normal life essential for her proper growth and development.
The mother is very anxious that the child should continue to remain in the Boarding School.
The girl now aged about 11 years, is reaching an age when she will need the guidance of her mother.
We are, therefore, of the opinion that the custody of the girl should be given to the mother.
The argument of Mr. Desai that the Bombay High Court went wrong in refusing the custody of the daughter to the mother mainly on the ground that the mother is a working girl, is not without force.
It also appears that the High Court failed to properly appreciate that home influence in the present case had been doing very great damage to the healthy growth of the child and had brought about a near nervous breakdown of the girl.
The argument of Mr. Bhandare that the girl needs in any event the company of her brother to whom she is deeply attached, has not impressed us.
The girl had been staying with her father at home and had been enjoying the company of her brother.
It does not, however, appear that the home influence including influence of the brother, has done her any good.
The influence at home, as we have earlier noticed, has more or less made her a nervous wreck.
The further fact also remains that the brother is now grown up and he may not be there at the house to give her company.
At the time of hearing of the appeal we were given to understand that the brother was away at Ceylon as a sea cadet and was likely to return soon.
We may also add that by the directions already given by this Court, all necessary and proper opportunities have been given to the brother to meet the minor.
In the result the appeal succceds.
We set aside the judgment and order passed by the Bombay High Court allowing the custody of the child to the father.
We pass the following order: The appeal is allowed The custody of the child is given to the mother, the appellant before us.
The mother will have the custody of her minor daughter Gospi reaches the age of 16 years.
91 We also give the following further directions : 1.
The child Gospi, the daughter of the appellant and the respondent shall be allowed to continue her education in the Kimmins High Court School at Panchgani.
The parents will be at liberty to meet the daughter alternatively in accordance with rules and regulations of the school, the first opportunity of so meeting the daughter being afforded to the father.
While the girl is in the school at Panchgani she will be at liberty to write letters to both her parents and also to her brother and other relations and friends.
When the school closes for any vacation the girl will live with the father for the first half of the vacation and thereafter will live with the mother during the secoud half of the vacation.
The father will arrange to bring the girl from his school to his place.
Under no circumstances the father will be entitled to keep the girl Gospi with him beyond the period of the first half of the vacation without obtaining any prior order from this Court on notice to the appellant.
The father will positively and punctually hand over the child to the mother on the expiry of the period of the first half of the vacation at the mother 's place of residence.
On the expiry of the vacation the mother is directed to take the child back to the school at Panchgani and entrust her to the custody of the Principal of the School.
These directions will remain in force, unless otherwise ordered by this Court, as long as the minor Gospi does not reach the age of 16 years.
It may be placed on record that after the judgment had been prepared and made ready, I received a letter purported to have been written by the minor Gospi.
It is indeed a curious letter which has been written in an inland card.
It appears from the inland 92 letter card that the inland letter card contains the photostat copy of a letter dated 15.5.1982 by her to the Chief Justic of India and the inland letter card also bears a photostat copy of the Supreme Court address of the Chief Justice of India.
In the very same letter a few lines have been addressed to me in the space left after the photostat copy of the letter dated 15.5.1982 to the Chief Justice of India has been completed.
The letter addressed to me in this very inland air letter card is dated 13.6.1982.
This inland letter card which contains the photostat copy of the letter dated 15.5.1982 and the letter dated 13.6.1982 has been put in an envelope sent to me under registered post with acknowledgement due.
An identical letter written by the girl in the very same manner in another inland air letter card contained the photostat copy of her letter dated 15.5.1982 to the Chief Justice of India has also been sent to my learned brother Pathak, J. The letter to my learned brother is also dated 13.6.1982 and is word for word the same as the letter to me.
The inland letter card in which the exactly similar letter has been addressed to my learned brother was also put in an envelope and sent to my brother under registered post.
The registered envelopes of both these two letters addressed to us indicate that the letters were sent from the address of her father.
We do not propose to set out the contents of the letter as we feel that the same will not serve any useful purpose and may only create unnecessary embarrassment and avoidable unpleasantness for the parties.
It has been our earnest endeavour to try to create a situation of amity and goodwill as far as possible under the circumstances amongst the parties in the larger interest of the minor girl and to try to avoid to say or do anything which may create any unpleasantness or bitterness amongst them.
Suffice it to say that the main purport of these letters is that Gospi does not want to continue her studies in the boarding school and she wants that we should interview her and allow her to stay with her father.
We have no manner of doubt that these letters have been written by Gospi at the instance of her farher.
Even if we accept that Gospi wrote a letter to the Chief Justice of India on 15.5.1982 it is inconceivable that a girl of Gospi 's age could ever think of keeping photostat copies of the letter and it would also not be possible for a girl of her age to prepare photostat copies.
It is obvious that the letter dated 15.5.1982 addressed to the Chief Justice of India, if the letter had been sent at all, must have been written by Gospi under the direction of the father who must have prepared 93 photostat copies.
It is interesting to note that when the hearing of the matter had been concluded and we reserved judgment after passing the interim order on the conclusion of the hearing these two letters absolutely identical in every word and detail should be addressed to us.
It was indeed not possible for Gospi to know which particular Bench of this Court was hearing these matters.
The registered envelopes in which the letters have been sent also indicate that the letters have been sent from the address of the father.
These letters have been written in inland air letter cards containing the photostat copy of the letter to the Chief Justice of India with the obvious object of showing that Gospi had earlier written to the Chief Justice about this matter.
We have no doubt that these letters have been addressed to us after the conclusion of the hearing with the object of lending support to the submissions made on behalf of the father in course of the hearing and creating an impression in our mind that we should see Gospi before we deliver our judgment and we should not place Gospi in the boarding institution and should allow Gospi to stay with her father.
We feel that father has caused these letters to be addressed to us by his daughter, while the daughter had been staying with him, particularly in view of the interim order passed by us on the conclusion of the hearing pending judgment so that we may reconsider our order, while delivering our judgment and disposing of the matter finally.
We cannot help observing that these letters go to show that the view that we have taken is clearly right and we can place no reliance on any kind of wish of Gospi who is not in a position to form any independent volition of her own and she expresses different kind of wishes in different situations under the influence and domination of others.
As we have earlier discussed at length in the judgment, it is not possible for the girl in the situation now prevailing to express any preferential wish which may require consideration by us to decide her welfare.
These letters have the affect of strengthening the impression in our minds that Gospi 's real welfare will be best served by keeping her in the boarding institution and cannot be served by allowing her to stay with her father.
Now that the matter is finally over, we ask the father once again not to persist in his present attitude, as it will do a lot of harm to his daughter whose sensitive mind, disturbed as it is, is likely to get destabilised.
The father who has his love and affection for the daughter should appreciate that his daughter is indeed fortunate 94 in being in a position to receive her education from an institution of repute and that the education of his daughter at the boarding institution will conduce to her healthy and happy growth and to her welfare.
The father should encourage Gospi to settle down properly in the boarding institution and to make the best of it.
If we, however, find that the father is still persisting in his present attitude and is seeking to upset the mind of the girl in properly settling down at the institution, we may reluctantly have to take appropriate steps in the interest and for the welfare of the minor girl for whom the Court has now a special responsibility.
We do hope that no such occasion will arise.
We hope that Gospi will realise that she is having her education in a good boarding institution in an environment which is otherwise free from unhealthy atmosphere of stress and strain from which she had been suffering for the last few years.
She should also appreciate that her upbringing and education in this reputed institution in the company of children of her age and under the guidance of competent teachers will be for her good and she should try to make the best possible use of her study in the institution and devote herself to her studies.
We direct that the two letters should be kept in the records of the proceedings of this appeal.
After we had received the letters from the girl, a letter dated 5th July 82 addressed by the Principal of the School to the Assitant Registrar of this Court has been placed before us.
In this letter the Principal has informed the Court that on the expiry of the holidays the mother brought the girl back to the school and the girl was happy in school and in the first monthly report for the months of May and June, the girl has done very well in her studies and secured 65% marks with 7th position.
We direct that this letter of the Principal also to be kept in the records of the proceedings of this appeal.
S.R. Appeal allowed.
| IN-Abs | The appellant and the respondent belong to the Parsi community and they were married in Bombay on the 27th December 1960 according to the rights and ceremonies of the Zoroastrian religion and custom.
A son was born to them on the 6th of May, 1965 and a daughter on the 18th April, 1971, whose name is Gospi and aged 11 years.
Irreconcilable difference and embittered relationship between the appellant and the respondent had led to the filing of Suit No. 14 of 1979.
by the appellant mother, for judicial separation.
In the several applications made by the parents for the custody of the child, the learned judges of the High Court, before whom the said applications came up for disposals interviewed the children separately and in the presence of the parents and passed appropriate and equitable orders, keeping in the forefront the welfare of the minor children.
The boy bas now become a major as per the Parsi Marriage and Divorce Act and tho question of his custody does not arise.
The custody of the minor daughter was ultimately given to the father as per the order of tho Division Bench of the Bombay High Court dated October 16,1981, Hence the appeal by the appellant mother, after obtaining Special Leave of the Court.
Allowing the appeal, the Court.
^ HELD: 1.
It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor, the Court has a Special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor 's interest.
In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.
[79 B D] Rosi Jocob vs Jacob A. Chakrammakkal [1973] 3 S.C.R. 918 followed.
H 2:1 There is no duty or obligation cast on the part of the Court to interview the minor for ascertaining the wishes of the minor before deciding the question 50 of the child custody under section 49 of the .
[81 F G] 2:2 It is true that Section 17(3) of the speaks of the consideration by the court of the preference of the child "if the minor is old enough to form an intelligent preference".
The instant case, is not one under the Guardian of Wards Act 1890.
[83 B C] 2:3 However, there cannot be any manner of doubt as the Court 's power of entertaining any minor for ascertaining the wishes of the minor, if the Court consider it so necessary for its own satisfaction in dealing with the question relating to the custody of the minor.
[83 D] In the facts and circumstances of the case, the minor is not fit to form an intelligent preference which may be taken into consideration in deciding her welfare.
The report of the Social Welfare Expert records that the interviews, the minor girl faced before the several judges cast a gloom on the sensitive mind of the tender girl and caused a lot of strain and depression on her.
Torn between her love for both her parents and the acrimonious dispute between them resulting in the minor being dragged from court to court is bound to have effected the sensitive mind of the minor girl.
Though the girl is quite bright and intelligent as recorded by the learned judges of the Bombay High Court in their orders after their interviews with the girl who is of a tender age and is placed in a very delicate and embarrassing situation because of the unfortunate relationship and litigation between her parents for both of whom she has great deal of affection, she is not in a position to express any intelligent preference which will be conducive to her interest and welfare.
Mature thinking is indeed necessary in such a situation to decide as to what will ensure to her benefit and welfare Any child who is placed in such an unfortunate position.
can hardly have the capacity to express an intelligent preference which may require the court 's consideration to decide what should be the course to be adopted for the child 's welfare.
Therefore, sending for the minor and interviewing her in the present case, will not only not serve any useful purpose but will have the effect of creating further depression and demoralisation in her mind.
[83 E H, 84 A D] 3:1 on a consideration of all the facts and circumstances of the case and bearing in mind the paramount consideration of the welfare of the child, the child 's interest and welfare will be best served by removing her from the influence of home life and by directing that she should continue to remain in the boarding school, which is admittedly a good institution.
3:2 Home influence plays a very important role in shaping the life of every child.
Influence of a happy home where the children are brought up under the affectionate guidance of their parents and other relations, all concerned with the welfare of the children no doubt, enables the children to lead a normal healthy life and materially contributes to their welfare.
In a happy home, the children are free from any kind of unhappy tension and psychological strain and they grow up in a healthy environment where their interests and welfare are properly looked after by their parents.
In such a case, the court is normally not called upon to interfere and to consider the welfare of the children and the welfare of the children is well taken care of by their parents whose primary concern is to 51 see their interest and welfare.
It is also no doubt true that the children who stay at home with their parents and do not go to boarding school may also be very well disciplined in life and may have a very healthy happy and normal growth, while staying at home.
Therefore, in the interest of the children whom they have brought into existence and who are innocent, every husband and wife should try to compose their differences which are bound to be in any house.
Even when any husband and wife who are not in a position to reconcile their differences and are compelled to part, they should part in a way as will cause s least possible mischief to the children.
[84 E H, 85 H, 86 E] When the atmosphere in a house vitiated and rendered surcharged with tension as a result of bitter squabbles between husband and wife, causes misery and unhappiness to a child, who has to live in constant psychological strain in such a broken home in view of the bitter relationship between her parents fo each of whom she has great affection, the healthy and normal growth of their child is to be seriously affected.
In the interest and for the welfare of the child in such a case, the child is necessarily to be removed from such unhealthy environment of a broken home surcharged with tension.
In such a case, the proper and best way or serving the interest and the welfare of the child will be to remove the child from such atmosphere of acrimony and tension and to put the child in a place where the embittered relationship between her parents does not easily and constantly affect her tender mind.
[88 C E] 3:3 The question of the custody of the child must necessarily be considered from the only view point of tho welfare of the child.
The person to whom tho custody of the child has to be entrusted will necessarily be answerable to the school for payment of all charges and expenses of the child and also in relation to any matter concerning the child in her school life.
[89 D E] In the instant cases, it is clear that the father is not inclined to allow the child to remain in a Boarding institution, If the custody be left to him, the father iq view of the disinclination to allow the child to remain in the Boarding institution, may be in a position to create difficulties for the child for remaining in the institution by non payment of fees or otherwise. ' The 'father is obsessed, with the idea of obtaining exclusive control of the daughter and keeping the daughter with him in his house.
[89 B F] F It is not in dispute and it cannot be disputed that the mother has a great deal of affection for her daughter in her heart and to serve the best interest of the daughter the mother is prepared to make any necessary sacrifice for the welfare of the daughter.
The mother, at considerable expense, had put her in Kimmins Boarding School, Panchghani, which is recognised to be a very good institution She has been paying for all the expenses of the daughter at the G ' school.
She has steady income out of which she is in a position to meet all , the expenses of her daughter at the school.
The mother also does not suffer from any obsession regarding posession of the girl and she wants her daughter to lead a healthy normal life essential for her proper growth and development.
The mother is very anxious that the child should continue to remain in the Boarding; School.
The girl now aged about 11 years, is reaching an age when she will need the guidance of the mother.
Therefore, the custody of the girl should be given to the mother.
[89 F H, 90 A B] 52
|
Civil Appeals Nos. 2475 to 2477 and 2579 of 1969 From the judgment and order dated the 15th April, 1969 of the Judicial Commissioner 's Court at Goa, Daman and Diu in Civil Appeal Nos. 3217, 3334/64 and 3466 of 1965 and 3467 of 1965.
V.M. Tarkunde, Bernardo Doss Reis and Naunit Lal for the Appellants in CA.
2476/69.
S.D. Tamba, Girish Chandra and Miss A. Subhashini, for the Respondents.
The Judgment of the Court was delivered by PATHAK, J.
These appeals by certificate granted by the Additional Judicial Commissioner of Goa, Daman and Diu arise out of suits for the recovery of loans made to the appellants at various branches of the Banco Nacional Ultramarino in Goa during Portuguese rule, 19 The territories, of Goa, Daman and Diu constituted the Estado de India of the sovereign State of Portugal.
The Banco Nacional Ultramarino (the National overseas Bank) with its Head office at Lisbon in Portugal, carried on banking business in Goa at different Branches, some of them being situate at Vasco Da Gama, Margao and Panjim.
It was also a currency issuing Bank and discharged the functions of a Government Treasury.
It issued Portuguese currency notes in Goa, and in its banking capacity it received deposits and granted loans.
On December 20, 1961 the territories of Goa, Daman and Diu were liberated from Portuguese rule and integrated with India.
On the eve of the transfer of power the Banco Nacional Ultramarino closed its Branches at Goa and removed a substantial portion of the valuable assets held there to its Head office at Lisbon and to other places overseas.
To provide for the administration of the liberated territories the President of India promulgated the Goa, Daman and Diu (Administration) ordinance, 1962, which on March 27, 1962 was replaced by enacted by Parliament.
By virtue of sub section
(1) of section 5 of the Act all laws in force immediately before "the appointed day" (December 20, 1961) in Goa, Daman and Diu were to continue to be in force therein until amended or repealed by a competent legislature or other competent authority.
The clo sure of the Branches of the Banco Nacional Ultramarino at Goa gave rise to considerable confusion.
It was necessary to take measures for the exchange of over nine crore rupees worth of Portuguese currency notes for Indian currency, and likewise to provide for the repayment of moneys and the return of valuables deposited with the Branches.
As the Banco Nacional Ultramarino had closed those Branches no one could operate on them.
To relieve the common confusion and distress, the President of India promulgated, under Article 240 of the Constitution, the Goa, Daman and Diu (Banks Reconstruction) Regulation, 1962 (hereinafter referred to as "the Regulation").
Section 3 declared that in view of the closure of the branches and the transfer of a substantial portion of their assets out of India on or about the "appointed day" and the difficulties experienced by depositors, the 20 Branches would, as from that day, be reconstructed in the interests of the general public in accordance with the provisions of the Regulation.
An examination of the provisions which follow shows that the Branches were integrated into a fully constituted Bank independent of the Banco Nacional Ultramarino, the purpose being to dispose of the business pending on December 20, 1961, with no fresh business being undertaken, and its functions being confined to the discharge of existing liabilities and the recovery of existing debts and other assets with a view to the ultimate winding up of the Bank.
A Custodian was appointed by the Central Government to take charge of the Bank.
The properties and assets as well as the obligations and liabilities of the Bank stood transferred to and vested in him, and he was empowered to realise any debts or other amounts due to the said Branches including any debts or other amounts due from the Head office of the Banco Nacional Ultramarino.
On March 30, 1963, the Custodian filed a suit in the Court of the Civil Judge at Ilhas, Panaji against the Agencia Commercial International, its managing partner, Jose Antonio Gouveia and his wife Geraldina Pereira Gouveia, alleging that the branch of the Banco Nacional Ultramarino at Panaji had, pursuant to a request of the Agencia, opened a current account in its favour upto the limit of Escudos 300.000$00 for three months renewable at 4% interest, 3% fine, 1 1/4% quarterly commission, penal interest at 6% and court expenses, the loan account being secured by a promissory note with its maturity date in blank, executed by the Agencia and guaranteed by the managing partner and his wife.
The limit was raised subsequently, and the excess was also guaranteed by a promissory note with its maturity date in blank and signed by the defendants.
The plaintiff stated that the loan account showed a debit balance of Escudos 428.612$37, equivalent to Rs. 71,435.40, in favour of the Panjim branch of the Banco Nacional Ultramarino, the account being closed on December 20, 1961 and the balance thereof becoming payable.
It was stated further that the promissory notes were not in the possession of the plaintiff and could be presumed to have been removed to Portugal.
The plaintiff prayed for a joint and several decree against the defendants for Rs. 71,435.40 with accrued interest, Penal interest, commission, fine and court expenses.
21 The suit was resisted by the defendants, principally on the ground that the Banco Nacional Ultramarino was a public limited company with its head office at Lisbon, that the Branch at Panjim did not possess a separate juridical personality from the Company and could not be said to possess assets or liabilities of its own, that transactions by the Panjim Branch were made under the direct superintendance of the Head office and credit was granted directly by B the Head office, and that the credit in question was incorporated in promissory notes lying with the Banco Nacional Ultramarino which had already informed its debtors that it would take action on the bills directly or by transferring them to a third party.
It was also pleaded that the debtors could be compelled to pay the credit incorporated in a promissory note only when the creditor returned the promissory note for payment, so that future duplication of payment would be avoided.
The defendants asserted that Escudos 25,794$45, equivalent to Rs. 4,234.09, had been entered to their credit in the Bank account and that they were entitled to a set off.
The plaintiff filed a replication to the written statement of the defendants, and the defendants followed with a rejoinder.
Civil suits were also filed by the Custodian against other defendants in respect of similar transactions, and a substantially similar defence was set up in all of them.
The suits were instituted in the Court of the Civil Judge, Senior Division at Margao.
Some of the suits filed at Margao were tried by Shri E.S. Silva, Comarca Judge, while the other by Shri Justino Coelho, Comarca Judge.
The preliminary objections to the maintainability of the suits found favour with Shri Silva, and he dismissed the suits before him altogether.
Sheo Coelho, however, found it necessary to try the suits instituted in his court on their merits, and he decreed them against the original debtor as well as the guarantor and surety.
The lone suit decided by Shri Ataide Lobo, the Comarca Judge, Ilhas at Panaji was decreed against the principal debtor but dismissed against the guarantors.
Ten appeals were filed before the Addl.
Judicial Commissioner.
The Additional Judicial Commissioner dismissed the appeals against the judgment of Shri Ataide Lobo.
Allowing the appeals against the judgments of Shri E.S. Silva, he decreed the suits and granted the reliefs claimed by the Custodian.
The appeals against the judgment of Shri Justino Coelho were dismissed except that the appeal tiled by Amalia Gomes Figueiredo, one of the guarantors, was allowed and the suit dismissed as against her.
22 The Additional Judicial Commissioner held that the Regulation effected a reconstruction of the Branches in Goa, Daman and Diu of the Banco Nacional Ultramarino, that the rights and obligations of the Branches referred to in the Regulation must be understood to mean the rights acquired and the obligations undertaken by the Banco Nacional Ultramarino through those Branches and therefore the Custodian was entitled to maintain the suits and sue for the realisation of debts arising out of transactions entered into through those Branches.
The Additional Judicial Commissioner also held that as the execution of the negotiable instruments had been admitted in the written statements and it was commonly agreed that they were not within the reach of the Custodian, having been removed by the officers of the Banco Nacional Ultramarino to Lisbon or elsewhere on December 20, 1961, there was nothing to preclude the Custodian claiming relief without producing those negotiable instruments.
He also repelled the contention that the bills of exchange and the promissory notes could on endorsement by the Banco Nacional Ultramarino in favour of others result in the defendants having to make payment a second time.
He recorded an oral undertaking furnished by the Custodian that in the event of a decree in such suits the Custodian would render compensation to the defendant to the extent that the Custodian had made realisation pursuant to the decrees under appeal.
Having regard to Article 53 of the Uniform Law on Bills of Exchange and Promissory Notes, the Additional Judicial Commissioner held that the holder had lost his right of recovery against all except the acceptor in respect of whom, observed the Judicial Commissioner, the suits were within time in view of Article 70 of the Uniform Law.
Shri V.M. Tarkunde appearing for the appellants in Civil Appeal No. 2476 of 1969 contends that the loans were granted by the Head office of the Banco Nacional Ultramarino, and not by the Branches at Goa, and that as the properties and assets, rights and claims of the Branches alone vested in the Custodian under the Regulation, the Custodian was not entitled to sue for recovery of the loans granted by the Head office.
Shri Tarkunde relies on the distinction made by the Regulation between the Head office and the Branches of the Bank and says that they have been regarded as separate entities.
Shri Tarkunde further says that even if the suits are held maintainable, the Additional Judicial Commissioner erred in not proceeding further to determine whether the appellants were 23 entitled to credit for the adjustments claimed by them in the loan accounts.
Shri Naunit Lal, appearing for the appellants in Civil Appeals Nos. 2475, 2477 and 2579 of 1979, adopts the submissions of Shri Tarkunde.
Shri F.S. Nariman, appearing for the appellants in Civil Appeals Nos.
2464 to 2468 of 1969, also disputes the maintainability of the suits.
He has strenuously urged that no dichotomy can be envisaged between the Head of the Banco Nacional Ultramarino and its Branches in Goa, and it is only the Banco Nacional Ultramarino at its Head office at Lisbon which can sue for recovery of the debts.
Alternatively he contends that even if the Head office and the Branches can be regarded in law as separate entities some, if not all, of the loans had been extended directly by the Mead office and in respect of them, he says, the Regulation cannot be applied.
He also urges that even if all the transactions are held covered by the Regulation, the suits cannot be decreed as there is no statutory discharge of the appellants ' liability to the Banco Nacional Ultramarino in respect of the debts.
The indemnity offered by the Custodian, he urges, is of no value in law.
Another reason why the suits cannot be decreed, says Shri Nariman, is because the promissory notes have not been produced.
There has been considerable dispute on the point whether the transactions were entered into by the Branches of the Banco Nacional Ultramarino or could be attributed to the Head office at Lisbon.
It seems to us clear from the material on the record that the appellants entered into the loan agreements with the Banco Nacional Ultramarino, and the Head office of the Bank at Lisbon authorised the relevant Branch at Goa to give effect to the agreement.
The evidence is clear that the agreements were signed on behalf of the bank by the Manager of the relevant branch and the loan accounts were opened by the branches in their books, that payments were made by the Branches to the appellants, that deposits by way of repayment were made by the appellants in these accounts maintained by the Branches, and the appellants pledged or hypothecated their goods in favour of the branches; in short while the Head office authorised the Branch to execute the agreements the transactions were regarded for all purposes as transactions pertaining to 24 the respective Branches, to be actually controlled and worked out by them.
The suits, it may be noted, were filed on the basis of the balance recorded in the accounts books of the relative Branch.
Now it is indisputable as a general proposition that a body corporate and its branches are not distinct and separate entities from each other, that the branches constitute mere components through which the corporate entity expresses itself and that all transactions entered into ostensibly with the branches are in legal reality transactions with the corporate body, and it is with the corporate body, that a person must deal directly.
But it is also now generally agreed that in the case of a Bank which operates through its Branches, the Branches are regarded for many purposes as separate and distinct entities from the Head office and from each other.
This Court observed in The Delhi Cloth and General Mills Co. Ltd. vs Harnam Singh and others :(1) "In banking transactions the following rules are now settled: (1) the obligation of a bank to pay the cheques of a customer rests primarily on the branch at which he keeps his account and the bank can rightly refuse to cash a cheque at any other branch: Rex v Lovitt (1912) A.G. 212 at 219, Bank of Travancore vs Dhrit Ram (69 I.A. 1, 8 and 9) and New York Life Insurance Company vs Public Trustee , 110 at page 117; (2) a cumtomer must make a demand for payment at the branch where his current account is kept before he has a cause of action against the bank: Joachimson vs Swiss Bank Corporation (1921) 3 K.B. 119 quoted with approval by Lord Reid in Arab Bank Ltd. vs Barclayas Bank , 531) The rule is the same whether the account is a current account or whether it is a case of deposit.
The last two cases refer to a current account; the Privy Council case Bank of Travancore vs Dhrit Ram (supra) was a case of deposit.
Either way, there must be a demand by the customer at the branch where the current account is kept, or where the deposit is made and kept, before the bank need pay, and for these reasons the English Courts hold that the (3) at 422.
25 situs of the debts is at the place where the current account is kept and where the demand must be made.
" It was explained further that if the bank wrongly refused to pay when a demand was made at the proper place and time, then it could be sued at its head office as well as at its branch office, but the reason was that "the action is then, not on the debt, but on the breach of the contract to pay at the place specified in the agreement", and reference was made to Warrington, L.J. at page 116 and Atkin, L.J. at page 121 of New York Life Insurance Co. vs Public Trustee.(l) That is the position in regard to banking law and practice, and it is apparently in that light that the Regulation has been framed.
The Regulation was intended to achieve what emergency legislation was designed to secure in a somewhat different context by somewhat comparable methods.
In England, during the First World War the Trading with the Enemy Amendment Act, 1916 provided for the winding up of the business carried on in England by companies incorporated in Germany.
That Act was considered by the court In re W. Hagelberg Aktien Gesellschaft(2) and it was observed that although the branches and agency of a business could not be regarded as distinct from the principal business of.
the owner, nonetheless, if a statute was enacted to create that effect, effect had to be given to the statute for the purposes incorporated therein.
During the Second World War the courts in England were called upon to consider the Defence (Trading with the Enemy) Regulation, 1940 under which a winding up order could be made in respect of the business of any enemy bank carried on at its London offices.
In Re The Banca Commercial Italiana(3) the court observed that having regard to the language of the statute and previous cases on the point "a winding up order made under the regulation must be held to create for the purpose of winding up a new entity, namely, the business ordered to be wound up, and this entity is considered as one which can possess assets and have liabilities of its own." Corresponding legislation in India during the Chinese invasion and (1) (2) [1916] Chancery Division 503.
(3) [1943] 1 All Eng.
L.R. 480.
26 the Indo Pakistan Wars was incorporated in the Defence of India Rules framed from time to time.
In all these cases there is a departure from the general rule that the branches and agencies of a business are no more than the components through which the entire enterprise is carried on, and that they cannot be considered as distinct or separate from the Head office.
The departure was necessitated by an emergent or a normal situation, and incorporated and regulated by specific legislation enacted for the purpose of coping with the problems arising out of such a situation.
It is only right then that the true scope of what is intended by the legislation should be determined by close reference to the express terms of the legislation.
It is abundantly plain from the object and purpose of the Regulation and the provisions which seek to realise them that all transactions effected by or through the Branches of the Banco Nacional Ultramarino were intended to be brought within the compass of the Regulation.
As observed earlier, although the loan agreements may have been entered into with the Banco Nacional Ultramarino, the Branches were authorised by the Head office to give effect to those agreements, and accordingly the Branch concerned embarked upon the execution of the agreements and the working out of the transactions.
The entire business involved in those transactions and dealings was effected by the Brancn concerned, and it was only when occasion strictly so required that the Branch made reference to the Head office for authority to amend or enlarge the scope of the operation.
The transaction and the business nonetheless remained throughout those of the Branch, and this is fully affirmed by the existence and operation of the loan accounts in the books of the Branch, by the pledge or hypothecation of goods in almost all cases in favour of the Branch and by the overall nature and character of the transaction as an ordinary banking transaction falling within the normal business of a Branch.
It will be noticed that section S of the Regulation expressly speaks of "properties and assets, all rights, powers, claims, demands, interests, authorities and privileges and all obligations and liabilities" of the Branches and of "all contracts, deeds, bonds, agreements. " to which the Branches are a party or which are in their favour.
It proceeds clearly on the basis that the Branches must be regarded as entering into and carrying out transactions identifiable as theirs.
These are transactions distinct from those exclusively carried on by 27 the Head office of the Banco Nacional Ultramarino, with which transactions in their essence the Branches had nothing to do.
It will also be noticed that by sub section
(2) of section 7 the Regulation envisages financial transactions between the Branches and the Head office.
The entire purpose of the Regulation is to reconstruct by operation of statute the closed Branches of the Banco Nacional Ultramarino and to constitute them into a Bank and to work out existing transactions and square up all pending business with a view to ultimately winding up the affairs of the Branches.
section 14 of the Regulation provides: "The Central Government shall, on the expiry of twelve years, and may, at any time before such expiry, direct that the books of account and affairs of the branches of the Banco Nacional Ultramarino in Goa, Daman and Diu shall be inspected by the Reserve Bank or by such other agency as the Central Government may determine and that a report on the basis of such inspection shall be made and the Central Government may, after considering the said report, direct the winding up of the affairs of the said branches on such terms and conditions to be specified by that Government which shall, as far as practicable, be in consonance with the provisions relating to winding up of a banking company under the Banking Companies Act, 1949".
To accept the contentions advanced by the appellants would be to negative the very object and purpose of the Regulation and to nullify its provisions.
Such a construction of the Regulation is not open to the Court, for it could never be supposed that in enacting the Regulation the President intended an exercise in futility.
It is well settled that the construction put by a court on the provision of a statute should accord with the object and purpose of the statute, and in that behalf the rule in Heydon 's case(1) relied on by this Court in R.M.D. Chamarbaugwalla vs The Union of India(2) is attracted.
What was the law before the statute was passed, what was the mischief or defect for which the law had not provided, what remedy had the legislation appointed and what was the reason of the remedy ? That substantially was also the test laid down in (1) ; (2) ; 28 Vrajlal Manilal & Co. & Ors.
vs State of Madhya Pradesh & ors.(1) It was observed in Kanai Lal Sur vs Paramnidhi Sadhukhan:(2) "When the material words are capable of two cons tructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the courts would prefer to adopt the latter construction.
" We are of opinion that the transactions under consideration in these appeals fall within the scope of the Regulation and the Custodian is fully entitled to sue for the recovery of the debts covered by the loan agreements.
The contention of the appellants to the contrary is rejected.
We now turn to the remaining points raised in these appeals.
It has been urged that the statutes cannot be decreed because the Promissory Notes and the Bills of Exchange have not been produced by the Custodian before the trial court.
Now, it is not disputed that the documents have been removed from Goa to Portugal or to other places overseas and are no longer in the possession of the Branches.
The debts were sought to be proved on the basis of the accounts maintained in the books of account of the relevant Branches.
This was permissible by virtue of sub section
(1) of 8. 8 of the Regulation which provides: "8.
(1) If for the prosecution of any suit, appeal or other legal proceeding by the Custodian in any court it is necessary to produce any document or other particulars and the said document or particulars are proved to the satisfaction of the Court to have been removed to Portugal or to any of the territories under Portuguese control, it shall be lawful for the Court, in disposing of the suit, appeal or other legal proceeding to base its decree or decision on the books of account of the branches of the Banco Nacional Ultramarino in Goa, Daman and Diu and on the evidence which can be otherwise produced." (1) ; , 410.
(2) ; 367. 29 Having regard to the circumstances, it is within the competence of the court to base its decree on the books of account of the Branches in Goa and on other evidence which can be produced.
It was not necessary for the Custodian, indeed it was not possible, to produce the Promissory Notes and Bills of Exchange.
Our attention has been invited to a passage in Byles on Bills of Exchange (1) which declares that "in any action or proceeding upon a bill, the court or a judge may order that the loss of the instrument shall not be set up provided an indemnity be given to the satisfaction of the court or judge against the claims of any other person upon the instrument in question".
The provisions of Rule 16 of order VII of the Code of Civil Procedure and section 81 of the were also referred to.
It is true that those provisions require the plaintiff to furnish an indemnity before a suit can be decreed if the negotiable instrument on which the suit is founded is proved to have been lost or cannot be produced.
It seems to us that resort to those provisions cannot be justified inasmuch as the cases fall to be determined under the Regulation and the Portuguese law which continued in force in Goa.
Even in respect of the Portuguese law, that is to say, provisions in the Portuguese Commercial Code and the Portuguese Uniform Law, to which our attention has been specifically drawn, we are of opinion that it stands superseded by reason of the express provisions contained in sub section
(1) of section 8 of the Regulation.
No indemnity can be reasonably required of the Custodian when it has been proved to the satisfaction of the court that the document has been removed to Portugal or to any of the territories under Portuguese control.
The sub section plainly makes no provision for indemnifying the debtors against any further claims made against them.
Such a measure was not considered necessary, because the Regulation vested the entire right in the Custodian to recover the debt and no further right was left in anyone else; The debts were regarded as properties and assets of the Branches, and all rights in respect of them stood transferred to and vested in the Custodian by virtue of sub section
(I) of section 5.
Having regard to the provisions of the Regulation and the object with which it was enacted it is not possible to conceive that it would be open to the Head office of the Banco Nacional Ultramarino to sue the debtors for recovery of those debts.
Shri Nariman contends that an express provision was neces (1) 22nd Edn.
p. 389 para.
30 sary in the Regulation to effect a complete discharge of the debtors from further liability as was the case in section 11 (2) of the Pakistan Ordinance considered in The Delhi Cloth and General Mills Co. Ltd. vs Harnam Singh and others.(1) We think it is not necessary that there should be such a specific provision.
rt is sufficient if the same conclusion can be drawn from a proper construction of the general provisions of the Regulation and the object with which it has been enacted.
We may point out that although reference was made by this Court in The Delhi Cloth and General Mills Co. Ltd. vs Harnam Singh and others (supra) to section 11 (2) of the Pakistan Ordinance, it was also observed on page 425 that alternatively: "Such payment would operate as a good discharge even under the English rules: see Fouad Bishara Jabbour vs State of Israel(2) where a number of English authorities are cited, including a decision of the Privy Council in Odwin vs Forbes.(3) That was also the result of the decisions in the following English cases, which are similar to this, though the basis of the decisions was the situs of the debt and the multiple residence of corporations: Fouad Bishara Jabbour vs State of Israel (supra), Re.
Bangue Des March ands De Moscou Barclays Bank(4), Arab Bank Lrd.
vs Braclays Bank(5).
The Learned Additional Judicial Commissioner has reached the same conclusion, but in doing so he has relied on certain provisions of the Portuguese Uniform Law.
We have not found it possible to examine the validity of his reasons because a complete statement of the Portuguese Uniform Law is not before us, and therefore we can find no justification for disturbing the basis on which he has come to his finding.
The learned Additional Judicial Commissioner has also adverted to an undertaking offered by the Custodian to indemnify the debtors against any action by anyone else for recovery of the debts, but on the view that we have taken we need not examine the validity or sufficiency of that undertaking, (1) , 425.
(2) @ 154.
(3) (4) (5) , 529.
31 We are satisfied that the discharge of the debts under the Regulation amounts to their complete discharge and it is not open to anyone else to sue for their recovery.
No indemnity is required to be furnished by the Custodian on the ground that the relevant documents cannot be produced.
It is faintly urged that the suits filed by the Custodian were premature.
This point was not raised before the courts below and we cannot allow it to be raised at this stage.
There is one point, however, which, in our opinion, requires consideration by the trial court.
In some of the suits it has been pleaded by the appellants that they were entitled to a set off by reason of certain credits in their favour.
The learned Additional Judicial Commissioner has held that the trial court was justified in declining to enter into those claims.
We think that in this regard the courts below have erred.
It was necessary to do complete justice between the parties having regard to the peculiar circumstances of these cases, and we are of opinion that so far as these claims are concerned the trial court should now examine them on their merits.
In the result, the appeals are dismissed subject to the direction that the trial court will take up the suits again solely for the purpose of examining the validity of the claims to set off made by the appellants in those suits.
We make no orders as to costs of these appeals.
P.B.R. Appeals dismissed.
| IN-Abs | The Banco Nacional Ultramarino (B.N.U.) with its head office at Lisbon in Portugal carried on banking business in Goa, Daman and Diu.
On the eve of the liberation of these territories from Portuguese rule and their integration with India the B.N.U. removed a substantial portion of valuable assets held there to its head office at Lisbon.
To relieve the distress closure to the people by reason of the closure of the B.N.U. the President promulgated regulations by which the branches at these places were integrated into a fully constituted bank independent of the B.N.U. and a Custodian was appointed to take charge of the bank.
The Custodian was empowered to realise all debts due to the branches including any debts from the head office of the B.N.U.
The Custodian filed a suit against the appellants stating that the loan accounts of the appellants showed a debit balance in favour of the branch.
It was also stated that the promissory notes were not in his possession but that they could be presumed to have been removed to Portugal.
While suits similar in nature filed in some courts had been dismissed, suits filed in other courts were decreed against the original debtor as well as tho guarantor and surety.
The Additional Judicial Commissioner on appeal decreed the suits against tho appellants and granted the reliefs claimed by the Custodian, holding that the 17 Custodian was entitled to maintain the suits and sue for the realisation of debts arising out of the transactions entered into through the branches.
He further hold that the execution of the negotiable instruments having been admitted in the written statement and these documents having been removed by the B.N.U. to Lisbon there was nothing to preclude the Custodian from claiming relief without producing those negotiable instruments.
In appeal to this Court, it was contended on behalf of the appellants that since the loans had been granted by the head office of the B.N.U. and not its branches, the Custodian was not entitled to sue for recovery of loans granted by the head office.
Dismissing the appeals, ^ HELD: The transactions under consideration fell within the scope of the regulations and the Custodian was fully entitled to sue for the recovery of the debts covered by the loan agreements.
[28 C] It is settled law that a body corporate and its branches are not distinct and separate entities from each other, that the branches constitute mere components through which the corporate entity expresses itself and that all transactions entered into ostensibly with the branches are in legal reality transactions with the corporate body and that it is with the corporate body that a person must deal directly.
In the case of a bank which operates through its branches, however, the branches are regarded for many purposes as separate and distinct entities from the head office and from each other.
If the bank wrongly refuses to pay when a demand is made at the proper place and time, then it can be sued at its head office as well as at its branch office the reason being that the action is then not on the debt, but on the breach of the contract to pay at the place specified in the agreement.
The regulations had been made apparently in the light of this banking law and practice.
[24 B C; 25 B] The Delhi Cloth and General Mills Co. Ltd. vs Harnam Singh and others, at 422, referred to.
The regulations were intended to achieve what emergency legislation was designed to secure.
In all such emergency laws there is a departure from the general rule that the branches and agencies of a business are no more than components through which the entire enterprise is carried on and that they cannot be considered as distinct and separate from the head office.
[26 A B] It is abundantly plain from the object and purpose of the regulations and the provisions which seek to realise them that all transactions effected by or through the branches of the B.N.U. were intended to be brought within the compass of the Regulations.
[26 D] New York Life Insurance Co. vs Public Trustee, ; In re: W. Hagelberg Aktien Gesellschaft, 1916 Chancery Division 503 and Re The Banca Commercial Italiana, [1943] 1 All England Law Reports 480, referred to. 18 In the instant case although the loan agreements might have been entered into with the B.N.U, the branches were authorised by the head office to give effect to those agreements and accordingly the branch concerned embarked upon the execution of the agreements and the working out of the transactions.
The entire business involved in those transactions and dealings was effected by the branch concerned and it was only when occasion strictly so required that the branch made reference to the head office for authority to amend or enlarge the scope of the operation.
The transaction and the business nonetheless remained throughout those of the branch and this is fully affirmed by the existence and operation of the loan accounts in the books of the branch by the pledge or hypothecation of goods in almost all cases in favour of the branch and by the overall nature and character of the transaction as an ordinary banking transaction falling within the normal business of a branch.
[26 E F] The discharge of the debts under the Regulation amounted to their complete discharge and it was not open to anyone else to sue for their recovery.
No indemnity was required to be furnished by the Custodian on the ground that the relevant documents could not be produced.
Having regard to the circumstances of this case it was within the competence of The Court to base its decree on the books of account of the branches in Goa and on other evidence.
The Portuguese law stands superseded by reason of the express provisions of regulation 8 (1).
[31 A] The Delhi Cloth and General Mills Co. Ltd. vs Harnam Singh and others, , 425, distinguished.
|
riminal Appeals Nos.
20 to 23 of 1955.
Appeals by special leave from the judgment and order dated May 7, 1954, of the Madras High Court in Criminal Revision Cases Nos. 57 to 60 of 1954 and Case Referred Nos.
2 to 5 of 1954.
N. C. Chatterji, section Venkatakrishnan and section Subramanian, for the appellants.
V. K. T. Chari, Advocate General, Madras, Ganapathy Iyer and T. M. Sen, for the respondent.
November 28.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The point for decision in these appeals is whether sections 4(2), 28, 29, 30, 31 and 32 of the Madras Prohibition Act No. X of 1937, hereinafter referred to as the Act, are unconstitutional and void.
It will be convenient first to set out the impugned statutory provisions.
Section 4, omitting what is not material runs as follows; 401 4(1) " Whoever (a) imports, exports, transports or possesses liquor or any intoxicating drug; or (g) uses, keeps or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug; or (j) consumes or buys liquor or any intoxicating drug ; or (k) allows any of the acts aforesaid upon premises in his immediate possession, shall be punished Provided that nothing contained in this sub section shall apply to any act done under, and in accordance with, the provisions of this Act or the terms of any rule, notification, order, licence or permit issued thereunder.
(2) It shall be presumed until the contrary is shown (a) that a person accused of any offence under clauses (a) to (j) of sub section (1) has committed such offence in respect of any liquor or intoxicating drug or any still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug, or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug, for the possession of which he is unable to account satisfactorily ; and (b) that a person accused of any offence under clause (k) of sub section (1) has committed such offence if an offence is proved to have been committed in premises in his immediate possession in respect of any liquor or intoxicating drug or any still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug, or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug.
402 Section 28 provides that if any Collector, Prohibition Officer or Magistrate has reason to believe that an offence under section 4(1) has been committed, he may issue a warrant for search.
Section 29 confers on certain officers power to search and seize articles even without a warrant, under certain circumstances.
Section 30 provides for certain classes of officers entering any place by day or night for inspection of stills, implements, liquor and the like.
Section 31 authorises the officers empowered to make entry under sections 28, 29 or 30, to break open any door or window and remove obstacles, if otherwise they could not make entry.
Section 32 confers authority on a Prohibition Officer or any officer of the Police or Land Revenue Departments to arrest without warrant any person found committing any offence under section 4(1).
Now, the facts are that on November 18, 1953, the Prohibition Officer, Madras City, and the Deputy Commissioner of Police made a search of premises No. 28, Thanikachala Chetty Street, Thyagarayanagar, Madras, and seized several bottles of foreign liquor and glasses containing whisky and soda.
The appellant, Lakshmanan Chettiar, was residing at the premises, and the other three appellants, A. section Krishna, R. Venkataraman and V. section Krishnaswamy, were found drinking from the glass tumblers.
All the four were immediately put under arrest and in due course charge sheets were laid against them for offences under the Act.
The three appellants other than Lakshmanan Chettiar were charged under sections 4 (1) (a) and 4 (1) (j) for possession and consumption of liquor, and Lakshmanan Chettiar was charged under section 4 (1) (k) for allowing the above acts in premises in his immediate possession, a under section 12 for abetment of the offences.
He was also charged under section 4 (1) (a) on the allegation that though he was a permit holder, he was in possession of more units than were allowed under the permit, and that by reason of the proviso to that section, he had committed an offence under section 4 (1) (a).
Immediately after service of summons, the appellants filed an application unders.
432 of the Criminal Procedure Code, wherein they contended that sections 4(2) and 28 to 32 of the Act were 403 repugnant to the provisions of the Constitution, and were therefore void, and prayed that the above question might be referred for the decision of the High Court.
The Third Presidency Magistrate, before whom the proceedings were pending, allowed the application, and referred to the High Court as many as seven questions on the constitutionality of various sections of the Act.
This reference was heard by Rajamannar, C.J., and Umamaheswaram, J., who held, disagreeing with the appellants, that sections 4(2) and 28 to 32 were valid,, and answered the reference against them.
Against this judgment, the appellants have preferred the present appeals under article 136 of the Constitution.
Two contentions have been urged in support of the appeals: (1) Section 4(2) and sa.
28 to 32 of the Act are void under section 107 of the Government of India Act, 1935, which was the Constitution Act in force when the Act in question was passed, because they are repugnant to the provisions of existing Indian laws with respect to the same matter, to wit, I of 1872 and Criminal Procedure Code Act No. V of 1898, and (2) the impugned sections are repugnant to article 14 of the Constitution, and have therefore become void under article 13(1).
(1) Taking the first contention, the point for ' decision is whether the impugned provisions are hit by section 107 of the Government of India Act, 1935.
Subsection (1) of section 107, which is the relevant provision, runs as follows: "If any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal legislature is competent to enact or to any provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section, the Federal law, whether passed before or after the Provincial law, or, as the case may be, the existing Indian law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void.
" For this section to apply, two conditions must be fulfilled: (1) The provisions of the Provincial law and those of the Central legislation must both be in respect 404 of a matter which is enumerated ' in the Concurrent List, and (2) they must be repugnant to each other.
It is only when both these requirements are satisfied that the provincial law will, to the extent of the repugnancy, become void.
The first question, therefore, that has to be decided is, is the subject matter of the impugned legislation one that falls, within the Provincial List, in which case section 107 would be inapplicable, or is it one which falls within the Concurrent List, in which case the further question, whether it is repugnant to the Central legislation will have to be decided ? The Entries in the Lists which are material for the present discussion are the following: List II Provincial Legislative List.
Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this list; procedure in Rent and Revenue Courts.
Intoxicating liquors and narcotic drugs, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors, opium and other narcotic drugs, but subject, as respects opium, to the provisions of List I and, as respects poisons and dangerous drugs, to the provisions of List 111.
Offences against laws with respect of any of the matters in this list.
List III Concurrent Legislative List.
Criminal Procedure, including all matters included in the Code of Criminal Procedure at the date of the passing of this Act.
Evidence and oaths; recognition of laws, public acts and records and judicial proceedings.
Now, it is not contested that the Madras Prohibition Act, as a whole, is a law in respect of intoxicating liquors, falling within Entry 31 of the Provincial list.
The declared object of the enactment as stated in the preamble to it is "to bring about the prohibition. of the production, manufacture, possession, export, import, transport, purchase, sale and assumption of 405 intoxicating liquors. .
And this is carried out in section 4(1), which enacts prohibition in respect of the above matters, and imposes penalties for breach of the same.
The other provisions of the Act may broadly be divided into those which are intended to effectuate section 4(1) and those which regulate the grant of licences and permits.
The legislation is thus on a topic which is reserved to the Provinces and would therefore fall outside a. 107(1) of the Constitution Act.
The argument of Mr. N. C. Chatterjee for the appellant is that though the Act is within the competence of the Provincial Legislature in so far as it prohibits possession, sale, consumption, etc., of liquor under 3.
4(1), the matters dealt with under section 4(2) and sections 28 to 32 fall not within Entry 31 of List II but within Entries 5 and 2 respectively of List III, and to that extent, the legislation is on matters enumerated in the Concurrent List.
He contends that a. 4(2) enacting as it does a presumption to be drawn by the court on certain facts being established, deals with what is purely a matter of evidence, and it is therefore not a law on intoxicating liquors but evidence.
Likewise, he argues, the provisions in sections 28 to 32 deal with matters pertaining to Criminal Procedure, such as warrants, seizure and arrest, and have no connection with intoxicating liquors.
It is accordingly contended that sections 4(2) and 28 to 32 are legislation under Entries 5 and 2 of List III, and that their validity must be tested under section 107(1).
The appellants are right in their contention that section 4(2) of the Act enacts a rule of evidence but does it follow from this that it is a law on evidence, such as is contemplated by Entry 5 in the Concurrent List ? so also sections 28 to 32 undoubtedly deal with matters of Procedure in relation to crimes, but are they for that reason to be regarded as legislation on Criminal Procedure Code within Entry 2 of List III ? The basic assumption on which the argument of the appellants rests is that the heads of legislation set out in the several Lists are so precisely drawn as to be mutually exclusive.
But then, it must be remembered that we are construing a federal Constitution, It is of the 406 essence of such a Constitution that there should be a distribution of the legislative powers of the Federation between the Centre and the Provinces.
The scheme Of distribution has varied with different Constitutions, but even when the Constitution enumerates elaborately the topics on which the Centre and the States could legislate, some overlapping of, the fields of legislation is inevitable.
The British North America Act, 1867, which established a federal Constitution for Canada, enumerated in sections 91 and 92 the topic, ,, on which the Dominion and the Provinces could respectively legislate.
Notwithstanding that the lists were framed so as to be fairly full and comprehensive, it was not long before it was found that the topics enumerated in the two sections overlapped, and the Privy Council had time and again to pass on the constitutionality of laws made by the Dominion and Provincial legislatures.
It was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance.
That is to say, if a statute is found in substance to relate to a topic with.
in the competence of the legislature, it should be held to be intra vires, even though it might incidentally trench on topics not within its legislative competence The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable, that is, whether in the guise of making a law on a matter within it competence, the legislature is, in truth, making a law on a subject beyond its competence.
But where that is not the position, then the fact of encroachmen does not affect the vires of the law even as regards the area of encroachment.
Vide Citizens Insurance Company of Canada vs William Parson8(1), The Attorney General of Ontario vs The Attorney General for the Dominion of Canada(1), The Attorney General of Ontari, vs The Attorney General for the Dominion(3 ), Union Colliery Company of British Columbia vs Bryden(4) Attorney General for ' Canada vs Attorney General for (1) [1881] 7 A. C. 96.
(3) (2) (4) 407 Ontario(,), Attorney General for Alberta vs AttorneyGeneral for Canada(2 ), and Board of Trustees of Letherbridge Northern Irrigation District vs Independent Order of Foresters(1).
The principles laid down in the above decisions have been applied in deciding questions as to the vires of statutes passed by the Indian legislatures under the Government of India Act, 1935.
In Subrahmanyan Chettiar vs Muttuswami Goundan(4), the question was as to whether the Madras Agriculturalist ' Relief Act IV of 1938, which was within the exclusive competence of the Provincial Legislature under Entries 20 and 21 in List 11 was ultra vires, in so far as it related to promissory notes executed by agriculturists by reason of the fact that under Entry 28, List I, "cheques, bills of exchange, promissory notes and other like instruments " were matters falling within the exclusive jurisdiction of the Centre.
In holding that the legislation was intra vires, Sir Maurice Gwyer C. J. stated the reason in these terms: " It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere.
Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its ' pith and substance ' or its 'true nature and character ', for the purpose of determining whether it is legislation in respect of matters in this list or in that. . " This point arose directly for decision before the Privy Council in Prafulla 'Kumar Mukherjee vs The Bank of Commerce, Ltd. (5).
There, the question was whether the Bengal Money Lenders Act, 1940, which (1) (4) (2) (5) [1946 47] 74 I.A. 23.
(3) 53 408 limited the amount recoverable by a money lender for principal and interest on his loans, was valid in so far as it related to promissory notes.
Money lending is within the exclusive competence of the Provincial Legislature under Item 27 of List II, but promissory note is a topic reserved for the Centre, vide List 1, Item 28.
It was held by the Privy Council that the pith and substance of the impugned legislation being money lending, it was valid notwithstanding that it incidentally encroached on a field of legislation reserved for the Centre under Entry 28.
After quoting with approval the observations of Sir Maurice Gwyer C.J. in Subrahmanyan Chettiar vs Muttuswami Goundan, (supra) above quoted, Lord Porter observed: "Their Lordships agree that this passage correctly describes the grounds on which the rule is founded, and that it applies to Indian as well as to Dominion legislation. "No doubt experience of past difficulties has made the provisions of the Indian Act more exact in some particulars, and the existence of the Concurrent List has made it easier to distinguish between those matters which are essential in determining to which list particular provision should be attributed and those which are merely incidental.
But the overlapping of subjectmatter is not avoided by substituting three lists for two, or even by arranging for a hierarchy of jurisdictions.
Subjects must still overlap, and where they do, the question must be asked what in pith and substance is the effect of the enactment of which complaint is made, and in what list is its true nature and character to be found.
If these questions could not be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to Provincial legislation could never effectively be dealt with.
" Then, dealing with the question of the extent of the invasion by the Provincial legislation into the Federal fields, Lord Porter observed: "No doubt it is an important matter, not, as their Lordships think, because the validity of an Act can be determined by discriminating between degrees of invasion, but for the purpose of determining what is the 409 pith and substance of the impugned Act.
Its provisions may advance so far into Federal territory as to show that its true nature is not concerned with ProVincial matters, but the question is not, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not money lending but promissory notes or banking? Once that question is determined the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true content.
" Then, there is the decision of the Federal Court in Lakhi Narayan Das vs The Province of Bihar (1).
There, the question related to the validity of Ordinance No. IV of 1949 promulgated by the Governor of Bihar.
It was attacked on the ground that as a legislation in terms of the Ordinance would have been void, under section 107(1) of the Government of India Act, the Ordinance itself was void.
The object of the Ordinance was the maintenance of public order, and under Entry I of List II, that is a topic within the exclusive competence of the Province.
Then the Ordinance provided for preventive detention, imposition of collective fines, control of processions and public meetings, and there were special provisions for arrest and trial for offences under the Act.
The contention was that though the sections of the Ordinance relating to maintenance of public order might be covered by Entry I in List II, the sections constituting the offences and providing for search and trial fell within Items I and 2 of the Concurrent List, and they were void as being repugnant to the provisions of the Criminal Procedure Code.
In rejecting this contention, Mukherjea J. observed: " Thus all the provisions of the Ordinance relate to or are concerned primarily with the maintenance of public order in the Province of Bihar and provide for preventive detention and similar other measures in connection with the same.
It is true that violation of the provisions of the Ordinance or of orders passed under it have been made criminal offences but offences against laws with respect to matters specified in List 11 (1) 410 would come within Item 37 of List II itself, and have been expressly excluded from Item I of the Concurrent List.
The ancillary matters laying down the procedure for trial of such offences and the conferring of jurisdiction on certain courts for that purpose would be covered completely by Item 2 of List II and it is not necessary for the Provincial Legislature to invoke the powers under Item 2 of the Concurrent List." He accordingly held that the entire legislation fell within Entries I and 2 of List II, and that no question of repugnancy under section 107(1) arose.
This reasoning furnishes a complete answer to the contention of the appellants.
The position, then, might thus be summed up When a law is impugned on the ground.
that it is ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation.
To do that, one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions.
If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might inci dentally trench on matters which are beyond its competence.
It would be quite an erroneous approach to the question to view such a statute not as an organic whole, but as a mere collection of sections, then disintegrate it into parts, examine under what heads of legislation those parts would severally fall, and by that process determine what portions thereof are intra vires, and what are not.
Now, the Madras Prohibition Act is, as already stated, both in form and in substance, a law relating to intoxicating liquors.
The presumptions in section 4(2) are not presumptions which are to be raised in the trial of all criminal cases, as are those enacted in the Evidence Act.
They are to be raised only in the trial of offences under section 4(1) of the Act.
They are therefore purely ancillary to the exercise of the legis lative power in respect of Entry 31 in List 11.
So also, the provisions relating to search, seizure and arrest in sections 28 to 32 are only with reference to offences 411 committed or suspected to have been committed under the Act.
They have no Operation generally or to offences which fall outside the Act.
Neither the presumptions in section 4(2) nor the provisions contained in sections 28 to 32 have any operation apart from offences created by the Act, and must, in our opinion, be held to be wholly ancillary to the legislation under Entry 31 in List II.
The Madras Prohibition Act is thus in its entirety a law within the exclusive competence of the Provincial Legislature, and the question of repugnancy under section 107(1) does not arise.
(2) It is next contended that the presumptions raised in section 4(2) of the Act, are repugnant to article 14 of the Constitution, and that the section must accordingly be declared to have become void under article 13(1).
We are unable to see how section 4(2) offends the requirement as to equality before law or the equal protection of laws.
The presumptions enacted therein have to be raised against all persons against whom the facts mentioned therein are established.
The argument of Mr. N. C. Chatterjee is that the facts set out in section 4(2) on which the presumption of guilt is raised have no reasonable relation to the offences themselves, that for example, possession of liquor can be no evidence of possession of materials or apparatus for manufacture of liquor under section 4(1)(g), nor possession of materials, apparatus for manufacture of liquor, evidence of possession or consumption of liquor under section 4(1) (a) and (j), and that therefore the impugned provision must be struck down as denying equal protection.
He relied in support of this contention on the following observations of Holmes J. in William N. McFarland vs American Sugar Refining Company (1): " As to the presumptions, of course the legislatures may go a good way in raising one or in changing the burden of proof, but there are limits.
It is essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.
Mobile J. & K.C.R. Co. vs Turnipseed(2)." (1) ; at 86 87 ; ; , 904.
(2) ; , 43; ; , 80.
412 The law on this subject is thus stated by Rottschaefer on Constitutional Law, 1939 Edition, at page 835: " The power of a legislature to prescribe rules of evidence is universally recognised, but it is equally well established that due process limits it in this matter.
It may establish rebuttable presumptions only if there is a rational connection between what is proved and what is permitted to be inferred therefrom.
" The law would thus appear to be based on the due ,process clause, and it is extremely doubtful whether it can have application under our Constitution.
But a reference to American authorities clearly shows that the presumptions of the kind enacted in section 4 (2) have been upheld as reasonable and not hit by the due process or equal protection clause.
In Albert J. Adams vs People of the State of New York (1), a law of New York had made it an (offence to be knowingly in possession of gambling instruments, and enacted further that possession of such instruments was presumptive evidence of knowledge.
It is thus in terms similar to section 4(1)(a) of the Act, which makes it an offence to be in possession of liquor, and to section 4(2) which raises a rebuttable presumption of guilt under section 4(1)(a).
In rejecting the contention that the presumption was a violation of the due process clause, the Court observed: " We fail to perceive any force in this argument.
The policy slips are property of an unusual character, and not likely, particularly in large quantities, to be found in the possession of innocent parties.
Like other gambling paraphernalia, their possession indicates their use or intended use, and may well raise some inference against their possessor in the absence of explanation.
Such is the effect of this statute.
Innocent persons would have no trouble in explaining the possession of these tickets, and in any event the possession is only prima facie evidence, and the party is permitted to produce such testimony as will show the truth concerning the possession of the slips.
Furthermore, it is within the established power of the state to prescribe the evidence which is to be received in the courts of its own government." (1) ; ; 413 In Robert Hawes vs State of Georgia (1), the question arose with reference to a statute of the State of Georgia, which had made it an offence to knowingly permit persons to locate in premises apparatus for distilling and manufacturing prohibited liquors.
It also enacted a presumption that when such apparatus was found in a place, the person in occupation thereof shall be presumed to have knowingly permitted the location of the apparatus.
The question was whether this presumption was repugnant to the due process clause.
In holding that it was not, the Court observed: " Distilling spirits is not an ordinary incident of a farm, and, in a prohibition state, has illicit character and purpose, and certainly is not so silent and obscure in use that one who rented a farm upon which it was or had been conducted would probably be ignorant of it.
On the contrary, it may be presumed that one on such a farm, or one who occupies it, will know what there is upon it.
It is not 'arbitrary for the state to act upon the presumption and erect it into evidence of knowledge;.
not peremptory, of course, but subject to explanation, and affording the means of explanation.
" It is therefore clear that even on the application of the due process clause, the presumptions laid down in section 4(2) cannot be struck down as unconstitutional.
We should add that the construction which the appellants seek to put on section 4 (2) that a person in possession of liquor could, under that section, be presumed to have committed an offence under section 4(1) (g) or that a person who is in possession of materials, implement or apparatus could be presumed to have committed offences under section 4 (1) (a) and (j) is not correct.
In our opinion, the matters mentioned in section 4 (2) should be read distributively in relation to the offences mentioned in section 4(1).
Possession of liquor, for example, is an offence under section 4(1) (a).
The presumption in section 4(2) is that if it is found in the possession of a person, he should be presumed to have committed the offence under section 4(1)(a), unless he could give satisfactory explanation therefor, as for example, that it must have been foisted in the place without his knowledge.
Likewise, it would be an (1) ; ; 414 offence under section 4(1)(g) to be in possession of materials, still, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor.
Under section 4(2)(a), if a person is found to be in possession of materials or other things mentioned in the sub section, there is a presumption that he has committed an offence under section 4(1)(g), but it is open to him to account satisfactorily therefor.
The contention, therefore, that there is no reasonable relation between the presumption and the offence is, in our opinion, based on a misreading of the section.
Both the contentions urged on behalf of the appellants having failed, these appeals are dismissed.
Appeals dismissed.
| IN-Abs | The appellants were charged before the Presidency Magistrate for offences under the Madras Prohibition Act, 1937 and when the cases were taken up for trial they raised the contentions that SS.
4(2) and 28 to 32 of the Act are void under section 107(I) of the Government of India Act, 1935, because they are repugnant to the provisions of the , and the Code of Criminal Procedure, 1898, and also because they are repugnant to article 14 Of the Constitution of India.
On their application, the Magistrate referred the questions for the opinion of the High Court under section 432 ' of the Code of Criminal Procedure.
The High Court having answered the questions against the appellants they preferred the present appeal under article 136.
Held, that the Madras Prohibition Act, 1937, is both in form and in substance a law relating to intoxicating liquors and that the presumptions in section 4(2) and the provisions relating to search, seizure and arrest in SS. 28 to 32 of the Act have no operation apart from offences created by the Act and are wholly ancillary to the exercise of the legislative power under Entry 31 in List II, Sch. 7 of the Government of India Act, 1935.
Accordingly the Act is in its entirety a law within the exclusive competence of the Provincial Legislature and the question of repugnancy under section 107(1) of the Government of India Act, 1935, does not arise.
When a law is impugned on the ground that it is ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation.
To do that, one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions.
If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might incidentally trench on matters which are beyond its competence.
It would be quite an erroneous approach to the question to view such a statute not as an organic whole, but as a mere collection of sections, then disintegrate it into parts, examine under what heads of legislation those parts 52 400 would severally fall, and by that process determine what portions thereof are intra vires, and what are not.
Subrahmanyan Chettiar vs Muthuswami Goundain, (1940) F.C.R. 188, Pyafulla Kumar Mukherjee vs The Bank of Commerce Ltd. (1940) L.R. 74 I.A. 23 and Lakhi Narayan Das vs The Province of Bihar , relied on.
Held further, that the presumptions in section 4(2) Of the Act do not off end the requirements as to equality before law or the equal protection of laws under article 14, as they have to be raised against all persons against whom the facts mentioned therein are established.
Even assuming that the law in America that a presumption of guilt would offend the requirement of the equal protection of laws unless there is a rational connection between the act proved and the ultimate fact presumed, could have application to the Indian Constitution, on a proper reading of the sections there is a reasonable relation between the presumption raised in section 4(2) and the offences under section 4(1).
William N. McFarland vs American Sugar Refining Company, ; 24I U.S. 79; , Albert 1.
Adams vs People of the State of New York, ; and Robert Hawes vs State of Georiya, 258 U.S.
I ; , referred to.
|
N: Petition for Special Leave to Appeal (CRL) No. 1523 of 1982.
From the judgment and order dated the 12th April, 1982 of the Bombay High Court in Criminal Revision Application No. 1742 of 1981.
L.N. Sinha, Attorney General, Dr. Y.S. Chitale, and Miss A. Subhashini for the petitioner.
Soli J. Sorabjee and Miss Rani Jethmalani for Respondent No. 1.
A.K. Sen and B.R. Handa for Respondent No. 2.
The order of the Court was delivered by CHINNAPA REDDY, J. Abdul Rehman Antulay was the Chief Minister of the State of Maharashtra till January 12, 1982.
While he was yet holding the office of Chief Minister one Ramdas Shrinivas Nayak, an erstwhile Member of the Maharashtra Legislative Assembly, professing a keen interest in clean administration and so keeping a watchful eye on centres of power and sources of corruption, filed a complaint against Shri Antulay, in the court of the Metropolitan Magistrate, 28th Court, Esplanade, Bombay charging him with the commission of offences punishable under sections 161 and 185 of the Indian Penal Code and S of the Prevention 10 of Corruption Act.
The substance of the allegation was that Shri Antulay founded and controlled a number of trusts called by various names freely, and falsely making it appear that the Prime Minister and the Government of Maharashtra were either interested or had sponsored the trusts, collected contributions and donations for the alleged benefit of the Trusts by misuse of his position and power by dispensing favours and holding out threats, and, thereby placed himself in a position where he could juggle and manipulate a sum of over Rs. five crores.
The learned Metropolitan Magistrate refused to enteratain the complaint holding that it was not maintainable without the requisite sanction of the Government under section 6 of the Prevention of Corruption Act.
Against the order of the learned Metropolitan Magistrate, R.S. Nayak presented a Criminal Revision Application to the High Court of Maharashtra purporting to be under sections 407 and 482 of the Code of Criminal Procedure and article 228 of the Constitution.
The State of Maharashtra and Shri Antulay were impleaded as Respondents.
During the course of the pendency of the Criminal Revision Application, Shri Antualy resigned his position as the Chief Minister of the State of Maharashtra.
By an elaborate order dated April 12, 1982, Gadgil and Kotwal, JJ upheld the view that sanction was necessary and dismissed the Revision Application.
While dismissing the application, the learned Judges noticed that an application had been made to the Governor of Maharashtra for grant of the requisite sanction and observed that the application should not be decided by the Law Minister or any other Minister, but that "it deserved to be decided by the Governor in his individual discretion".
The State of Maharashtra though not aggrieved by the dismissal of the Criminal Revision Application, seeks special leave to appeal to this Court under article 136 of the Constitution against the judgment of the High Court of Maharashtra in so far as the judgment may be said to have directed the Governor of Maharashtra to exercise his individual discretion in deciding the question whether sanction should or should not be granted to prosecute Shri Antulay.
The learned Attorney General, who appeared for the State of Maharashtra, raised the contention that it was not for the Court to decide whether in respect of a particular matter, the Governor should act in his discretion or with the aid and advice of the Council of Ministers and that under article 163(2), if any question arose whether any matter was or was not a matter as respects which the Governor was by or under the Constitution required to act in his discretion, the decision of the 11 Governor in his discretion was final, and the validity of anything done by the Governor was not liable to be called in question on the ground that he ought not to have acted in his discretion.
He also invited our attention to article 163 (3) which provides that the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any Court.
The question posed by the learned Attorney General is no doubt an important question, probably worthy of serious consideration by this court under article 136 of the Constitution.
But, in the present case, we do not propose to grant special leave under article 136 of the Constitution, solely in order to consider this question firstly because the Criminal Revision a Application itself has been dismissed by the High Court and secondly and this is important there was an express concession made in the High Court by the Respondents that in the situation presented by the facts of the present case, the Governor should act in the exercise of his individual discretion.
Gadgil, J. referred to the concession in the following words : "However, I may observe at this juncture itself that at one stage it was expressly submitted by the learned counsel on behalf of the respondent that in case if it is felt that bias is well apparently inherent in the proposed action of the concerned Ministry, then in such a case situation notwithstanding the other Ministers not being joined in the arena of the prospective accused, it would be a justified ground for the Governor on his own, independently and without any reference to any Ministry.
to decide that question.
Kotwal, J. put it even more explicitly and said: ".
At one stage it was unequivocally submitted by the learned counsel on behalf of the respondents in no uncertain terms that even in this case notwithstanding there being no accusation against the Law Minister as such if the court feels that in the nature of things a bias in favour of the respondent and against a complainant would be manifestly inherent, apparent and implied in the mind of the Law 12 Minister, then in that event, he would not be entitled to consider complainant 's application and on the equal footing even the other Ministers may not be qualified to do so and the learned counsel further expressly submitted that in such an event, it would only the Governor, who on his own, independently, will be entitled to consider that question.
" When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court.
We are afraid that we cannot launch into an inquiry as to what transpired in the High Court.
It is simply not done.
Public Policy bars us.
Judicial decorum restrains us.
Matters of judicial record are unquestionable.
They are not open to doubt.
Judges cannot be dragged into the arena.
"Judgments cannot be treated as mere counters in the game of litigation".(1) We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court.
We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence.
If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject.
The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence.
If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error.
(2) That is the only way to have the record corrected.
If no such step is taken, the matter must necessarily end there.
Of course a party may resile and an Appellate (I) Per Lord Atkinson in Somasundaran vs Subramanian, A.I.R (2) (Per Lord Buckmaster in Madhusudan vs Chanderwati, A.I.R. 1917 P.C. 30.
13 Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.
In Rev. Mellor, 7 Cox.
P.C. 454 Martin was reported to have said: "we must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity".
In Ring Emperor vs Barendra Kumar Ghose (1): said, ". these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticised or circumvented; much less is it to be exposed to animad version".
In Sarat Chandra vs Bibhabati Debi (2) Sir Asutosh Mookerjee explained what had to be done: "It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment" So the judges, record is conclusive.
Neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else.
On the invitation of Mr. Sen, we have also perused the written submissions made by him before the High Court.
We have two comments to make: First, oral submissions do not always conform to written submissions.
In the course of argument, counsel, often, wisely and fairly, make concessions which may not find a place in the written submissions.
Discussion draws out many a concession.
(1) (2) 34 C.L.J. 302.
14 Second, there are some significant sentences in the written submissions which probabilise the concession.
They are: "If in the existing case, the entire Council of Ministers becomes interested in the use of the statutory power one way or the other, the doctrine of necessity will fill up the gap by enabling the Governor by dispensing with the advice of His Council of Ministers and take a decision of his own on the merits of the case.
Such a discretion of the Governor must be implied as inherent in his constitutional powers.
The doctrine of necessity will supply the necessary power to the Governor to act without the advice of the Council of Ministers in such a case where the entire Council of Ministers is biased.
In fact, it will be contrary to the Constitution and the principles of democratic Government which it enshrines if the Governor was obliged not to act and to decline to perform his statutory duties because his Ministers had become involved personally.
For the interest of democratic Government and its functioning, the Governor must act in such a case on his own.
Otherwise, he will become an instrument for serving the personal and selfish interest of his Ministers.
" We wish to say no more.
As we said, we cannot and we will not embark upon an enquiry.
We will go by the judges ' record.
We may add, there is nothing before us to think that any such mistake occurred, nor is there any ground taken in the petition for grant of special leave that the learned judges proceeded on a mistaken view that the learned counsel had made a concession that there might arise circumstances, under which the Governor in granting sanction to prosecute a Minister must act in his own discretion and not on the advice of the Council of Ministers.
The statement in the judgment that such a concession was made is conclusive and, if we may say so, the concession was rightly made.
[n the facts and circumstances of the present case, we have no doubt in our mind that when there is to be a prosecution of the Chief Minister, the Governor would, while determining whether sanction for such prosecution should be granted or not under section 6 of the Prevention of Corruption Act, as a matter of propriety, necessarily act in his own discretion and not on the advice of the Council of Ministers.
The question then is whether we should permit the State of Maharashtra to resile from the concession made before the High Court and raise before us the contention now advanced by the learned Attorney General.
We have not the slightest doubt that 15 the cause of justice would in no way be advanced by permitting the State of Maharashtra to now resile from the concession and agitate the question posed by the learned Attorney General.
On the other hand we are satisfied that the concession was made to advance the cause of justice as it was rightly thought that in deciding to sanction or not to sanction the prosecution of a Chief Minister, the Governor would act in the exercise of his discretion and not with the aid and advice of the Council of Ministers.
The application for grant of special leave is, therefore, dismissed.
S.R. Petition dismissed.
| IN-Abs | Sanction for the prosecution of the Chief Minister under Section 6 of the Prevention of Corruption Act Whether the Governor should act in his discretion or with the aid and advice of the Council of Ministers Constitution of India, 1950, Article 163.
Dismissing the Special Leave Petition, the Court, ^ HELD: 1:1.
Supreme Court is bound to accept the statement of the judges recorded in their judgment and, therefore, it cannot launch into an inquiry as to what transpired in the High Court.
It is simply not done.
Public policy bars such an action and judicial decorum restrains it.
[12 C] 1:2.
Supreme Court cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence.
Matters of judicial record are unquestionable and not open to doubt.
Judges cannot be dragged into the arena.
If the judges say in their judgments that something was done, said or admitted before them, that has to be the last word on the subject.
Judges record is conclusive.
[12 C E] 1:3.
If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error.
That is the only way to have the record corrected.
If no such step is taken, the matter must necessarily end there.
Of course, a party may resile and an Appellate Court may permit him, in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice, but he may not call in question the very fact of making the concession as recorded in the judgment.
[12 F H, 13 A] 9 Rex vs Mellor , quoted with approval.
Madhusudan vs Chandrawati, A.l.R. ; King Emperor vs Barendra Kumar Ghose, Sarat Chandra vs Bibhabati Debi, Samasundaram vs Subramanian.
A.I.R 1926 P.C. 136: approved.
In the facts and circumstances of the present case, it is clear that, when there is to be a prosecution of the Chief Minister, tho Governor would, while determining whether sanction for such prosecution should be granted or not under section 6 of the Prevention of Corruption Act, as a matter of propriety, necessarily act in his own discretion and not on the advice of the Council of Ministers.
[14 F G] 3.
In the instant case, the cause of justice would in no way be advanced by permitting the state of Maharashtra to now resile from the concession so made.
On the other hand the concession was rightly made before the High Court to advance the cause of justice.
[15 A]
|
Civil Appeal No. 2631 of 1982.
Appeal by special leave from the judgment and order dated the 3rd October, 1980 of the Delhi High Court in C. (Main) No. 184 of 1980.
Miss Lily Thomas, K section Gill and S.K. Arora, for the Appellant.
S.T. Desai and Miss A. Subhashini for the Respondent.
The following Judgments were delivered; PATHAK J.
The appellants, who belong to the Roman Catholic community, were married on December 30, 1967 in 34 Podannur in the State of Tamil Nadu under section 27 of the .
On July 26, 1979 they put in a joint petition under section 28 of the Special Marriage Act for a decree of divorce by mutual consent in the Court of the learned District Judge, Delhi.
On March 11, 1980 the trial court dismissed the petition on the ground that section 28 of the Special Marriage Act could not be availed of.
The appellants filed 'a writ petition in the High Court of Delhi which having been dismissed they proceeded in appeal to this Court.
In the appeal they applied for permission to amend the joint petition to enable them to rely upon section 7 of the read with section 1 (2) (d) of the Matrimonial Causes Act, 1973 of England.
The amendment was allowed, and the appellants filed an amended joint petition i n the trial court seeking divorce on the ground that they had been living separately for more than two years and had not been able to live together and their marriage had broken down irretrievably and therefore they were entitled to a decree of divorce under the aforesaid provisions.
On August 16, 1980 the trial court dismissed the petition holding that the appellants were not entitled to rely on section I (2) (d) of the English statute.
The appellants took the matter to the High Court or Delhi and the High Court has affirmed the view taken by the trial court.
In this appeal Miss Lily Thomas, appearing for the appellants, contends that the trial court and the High Court are wrong and that in reading section 7 of the the provisions of section I (2) (d) of the Matrimonial Causes Act, 1973 must be deemed to be incorporated therein and therefore the appellants are entitled to the benefit of the ground for divorce set forth in the latter enactment.
In deference to Miss Thomas 's vehement submissions and having regard to the importance of the question we heard her at length but we indicated that the point raised by her did not carry conviction, and we reserved judgment in order to give a fully reasoned order Shortly thereafter, Miss Thomas 's put in an application asserting that she had information that the Government of India was proposing to amend the matrimonial law in relation to the Christian community in India and praying that in the circumstances judgment may not be delivered for sometime.
There has, however, been no Change in the law since, and it is appropriate, we think, that judgment should be pronounced now without further delay.
35 The main contention raised by Miss Thomas is that the appellants are entitled to the benefit of section 7 of the and therefore, by reason of that provision, to rely on section 1 (2) (d) of the Matrimonial Causes Act, 1973.
There is no doubt that if the provisions of section 1 (2) (d) of the English statute can be read in section 7 of the and the appellants can establish that the conditions set forth in section i (2) (d) are made out the appellants will be entitled to claim a decree of divorce.
But we are not satisfied that section I (2) (d) of the English statute can be read in section 7 of the Sub sections (l) and (2) of section I of the Matrimonial Causes Act, 1973 provides: "(I) Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.
(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say (a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; (c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition, (d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as "two years ' separation") and the respondent consents to a decree being granted; 36 (e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to.
as "five years ' separation).
" The circumstances set forth in sub section
(2) of section 1 constitute the basis for holding that the marriage has broken down irretrievably.
Can these provisions be deemed incorporated in section 7 of the ? section 7 provides: "7.
Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief: Provided that nothing in this section shall deprive the said Courts of jurisdiction in a case where the parties to a marriage professed the Christian religion at the time of the occurrence of the facts on which the claim to relief is founded.
" The section requires that in all suits or proceedings under the the High Court and District Courts shall "act and give relief on principles and rules" which conform as nearly as may be to the principles and rules on which the Court for Divorce anc Matrimonial Causes of England acts and gives relief.
What is contemplated is the manner in which the court will exercise its jurisdiction for the purpose of disposing of a pending suit or proceeding The expression "principles and rules" does not mean the grounds on which a suit or proceeding may be instituted.
The grounds are ordinarily placed in the suit or proceeding when the petitioner comes to court and invokes its jurisdiction.
It is after the suit or proceeding is entertained that the question arises of deciding on the norms to be applied by the court for the purpose of disposing of it.
If it were otherwise, plainly there would be a conflict with section 10 of the .
For section 10 sets fourth the limited grounds on which a petition may be presented by a husband or wife for dissolution of the marriage.
37 It cannot be denied that society is generally interested in maintaining the marriage bond and preserving the matrimonial state with a view to protecting societal stability, the family home and the proper growth and happiness of children of the marriage.
Legislation for the purpose of dissolving the marriage constitutes a departure from that primary principle, and the Legislature is extremely, circumspect in setting forth the grounds on which a marriage may be dissolved.
The history of all matrimonial legislation will show that at the outset conservative attitudes influenced the grounds on which separation or divorce could be granted.
Over the decades, a more liberal attitude has been adopted, fostered by a recognition of the need for the individual happiness of the adult parties directly involved.
But although the grounds for divorce have been liberalised, they nevertheless continue to form an exception to the general principle favouring the continution of the marital tie.
In our opinion, when a legislative provision specifies the grounds on which divorce may be granted they constitute the only conditions on which the court has jurisdiction to grant divorce.
If grounds need to be added to those already specifically set forth in the legislation, that is the business of the Legislature and not of the courts.
It is another matter that in construing the language in which the grounds are incorporated the courts should give a liberal construction to it.
Indeed, we think that the courts must give the fullest amplitude of meaning to such a provision.
But it must be meaning which the language of the section is capable of holding.
It cannot ' be extended by adding new grounds not enumerated in the section.
When therefore section 10 of the specifically sets forth the grounds on which a marriage may be dissolved, additional grounds cannot be included by the judicial construction of some other section unless that section plainly intends so.
That, to our mind, section 7 does not.
We may point out that in M. Barnard vs G.H. Barnard(l) the Calcutta High Court repelled a similar contention and held that section 7 could not be construed so as to "import into Indian Divorce Jurisprudence any fresh ground for relief other than those set forth in section I()" and that "the only grounds on which a marriage may be dissolved are those set forth in section 10 of the Act. ".
The Punjab High Court in Miss Shireen Mall vs John James Taylor(2) has also taken the view that the grounds set forth in section 10 of the Indian (l) AIR 1928 Cal.
(2) AIR 38 Divorce Act cannot be enlarged by reference to section 7 of the Act.
So also has a Special Bench of the Madras High Court in T.M. Bashiam vs Victor(l) and a Single Judge of that Court in A. George Cornelius vs Elizabeth Dopti Samadanam.(2) Miss Thomas appeals to us to adopt a policy of "social engineering" and to give to section 7 the content which has been enacted in section 28 of the and section 13B of the , both of which provide for divorce by mutual consent.
It is possible to say that the law relating to Hindu marriages and to marriages governed by the presents a more advanced stage of development in this area than the .
However, whether a provision for divorce by mutual consent should be included in the is a matter of legislative policy.
The courts cannot extend or enlarge legislative policy by adding a provision to the statute which was never enacted there.
Reference is made by Miss Thomas to section 2 (ix) of the Dissolution of Muslim Marriage Act, 1939 which empowers the court to dissolve a Muslim marriage on any ground other than those already enumerated in the section "which is recognised as valid for the dissolution of marriages under Muslim law. ' ' No such provision is contained in section 10 of the .
Learned counsel of the appellants has referred us to B. Iswarayya vs Swarnam Iswarayya(3) and George Swamidoss Joseph vs Miss Harriet Sundari Edward.(4) Nothing said in those cases helps the appellants.
The first case was concerned with the question whether an appellate court can increase the amount of alimony payable by the husband to the wife without an appeal by her.
And the second deals with the question whether the Indian Courts can make a decree nisi for nullity absolute within a shorter period than that specifically mentioned in the .
(1) A.l.
R. (2) A.l.
R. (3) A.I.R. 1931 Privy Council 234.
(4) A.l.
R. 39 We are not satisfied that section 7 of the can be read to include the provisions of section I (2) (d) of the Matrimonial Causes Act, 1973.
This contention of the appellant must fail.
Learned counsel for the appellants then points out that a Christian marriage can be registered under the and that there is no reason why a marriage registered under the should not enjoy an advantage which is available to a marriage registered under the .
Reliance is placed on the constitutional prohibition against discrimination embodied in Article 14 of the Constitution.
Assuming that the marriage in this case could have been registered under the , inasmuch as it was solemnised in 1967 it was open to the parties to avail of that Act instead of having resort to the .
In the circumstances, it is not open to the appellants to com plain of the disadvantage now suffered by them.
It is also urged by the appellants that the Letters Patent jurisdiction enjoyed by the High Court in matrimonial matters is sufficiently extensive to enable the High Court to make a decree for divorce on the ground now pleaded.
We have examined the matter carefully and we do not see how that jurisdiction can be construed to include a ground which is not specifically set forth in E section 10 of the .
We are not satisfied that this appeal can succeed.
It is for Parliament to consider whether the should be amended so as to include a provision for divorce by mutual con sent.
The appeal fails and is dismissed but in the circumstances there is no order as to costs.
CHINNAPPA REDDY, J.
I agree with my brother Pathak, J. that 'mutual consent ' is not a ground for divorce under the and that the provisions of section 1(2)(d) of the British Matrimonal Causes Act, 1973 cannot be read into the merely because of section 7.
lt is unthinkable that legislation whenever made by the Parliament of a foreign state may automatically become part of the law of another sovereign State.
Legislation by incorporation can never go so far.
Whatever interpretation of section 7 was permissible before August 15.
1947 when the British Parliament 40 had plenary powers of legislation over Indian territory, no interpretation is now permissible which would incorporate post 1947 British laws into Indian law.
My brother Pathak J. has pointed out that the history of matrimonial legislation has been towards liberalisation of the grounds for divorce.
Inevitably so.
The history of matrimony itself, in the recent past, has been a movement from ritual and sacrament to reality and contract even as the history of the relationship of the sexes has been from male dominance to equality between the sexes.
But the world is still a man 's world and the laws are man made laws, very much so.
We have just heard that in an advanced country like the United States of America, the Equal Rights for Women Amendment could not be successfully pushed through for failure to obtain the support of the necessary number of States.
Our constitution makers and our Parliament have certainly done better.
We have constitutional and legal equality for the sexes.
But even so, economic and social equality between the sexes appears to be a very distant goal.
One has only to read the daily sickly reports of 'dowry deaths ' and 'atrocities on women ' to realise that women, in our country, are yet treated as commodities and play things.
The root cause of the inequality between the sexes, like other class inequalities, is their social and economic inequality.
All inequality will end when social and economic inequality ends.
It isl therefore, obvious that true equality between the sexes and else where is possible only when economic and social inequalities disappear.
Our Constitution proclaims, in the Preamble, the establishment of a socialist State where there will be justice, social, economic and political, as our constitutional goal and this is reiterated in the Fundamental Rights ' and Directive Principles ' Chapters.
But, the march towards equality ' and economic and social justice is still a 'long march ' and meanwhile, what of divorce by mutual consent ? Yes, I agree with Miss Lily Thomas that divorce by mutual consent should be available to every married couple, whatever religion they may profess and however, they were married.
Let no law compel the union of man and woman who have agreed on separation.
If they desire to be two, why should the law insist that they be one ? But I have a qualification, The woman must be protected.
Our society still looks askance at a divorced woman.
A woman divorcee is yet a suspect.
Her chances of survival are diminished by the divorce.
So, the law which grants the decree for divorce must secure for her some measure of economic 41 independence.
It should be so whatever be the ground for divorce, A whether it is mutual consent, irretrievable break down of the marriage, or even the fault of the woman herself.
Every divorce solves a problem and creates another.
Both problems need to be solved, no matter who is responsible for the break down of the marriage.
If the divorce law is to be a real success, it should make provision for the economic independence of the female spouse.
After all, Indian society today is so constituted that a Woman is generally helpless and her position become worse if she is divorced.
It is necessary that the law should protect her interest.
; even if she be an erring spouse, lest she become destitute and a dead loss to society.
N.V.K. Appeal dismissed.
| IN-Abs | The appellants, who were husband and wife belonging to the Roman Catholic Community were married under section 27 of the .
They filed a joint petition under Section 28 of the Special Marriage Act for a decree of divorce by mutual consent in the District Court.
The trial court dismissed the petition on the ground that section 28 of the Special Marriage Act could not be availed of.
The Supreme Court allowed the appellants to amend their joint petition to enable them to rely on section 7 of the read with section 1 (2)(d) of the Matrimonial Causes Act 1973 of England and to seek divorce on the ground that they had been living separately for more than two years and had not been able to live together and that the marriage had broken down irretrievably, and that therefore they were entitled to a decree of divorce.
The District Court however dismissed the petition holding that they were not entitled to rely on section 1 (2)(d) of the English Statute.
In appeal the High Court affirmed the view taken by the trial Court.
In the appeal to this court it was contended on behalf of the appellants: (1) that the trial court and the High Court were wrong and that section 7 of the incorporated the provisions of section 1(2)(d) of the Matrimonial Causes Act 1973 and that the appellants were entitled to the benefit of the ground for divorce as set forth in the latter enactment, and (2) that the Letters Patent jurisdiction enjoyed by the High Court in Matrimonial matters is sufficiently extensive to enable the High Court to make a decree for divorce.
Dismissing the appeal, ^ HELD: [By the Court] 33 Mutual consent is not a ground for divorce under the .
The provisions of section l(2)(d) of the Matrimonial Causes Act 1973 of England cannot be read into section 7 of the .
[39 A] [Per Pathak and Baharul Islam, JJ.] 1.
Whether a provision for divorce by mutual consent should be included in the is a matter for legislative policy.
The courts cannot extend or enlarge legislative policy by adding a provision to the statute which was never enacted there.
It is for Parliament to consider whether the should be amended so as to include a provision for divorce by mutual consent.
[38 C D; 39 F] 2.
The Letters Patent jurisdiction enjoyed by the High Court in matrimonial matters cannot be construed to include a ground for divorce not specifically set forth in section 10 of the .
[39 E] M. Barnard vs G.H. Barnard A.I.R. 1928 Cal. 657; Miss Shireen Mall vs John James Taylor A.I.R. T.M. Bashiam vs M. Victor A.I.R. 1970 Mad. 12; aad A. George Cornelius vs Elizabeth Dopti Samadanam A.l.
R. 1970, Mad.
approved.
[Per Chinnappa Reddy and Baharul Islam, JJ.] Legislation whenever made by Parliament of a foreign state cannot automatically become part of the law of another sovereign state.
Whatever interpretation of section 7 of the was permissible before August 15, 1947 when the British Parliament had plenary powers of legislation over Indian territory, no interpretation is now permissible which would incorporate post 1947 British laws into the Indian laws.
[39 G H; 40 A]
|
Civil Appeal No. 2050 of 1973.
Appeal by special leave from the judgment and order dated the 14th October, 1971 of the Andhra Pradesh High Court in Writ Appeal No. 691 of 1970.
B. Parthasarthi for the Appellant.
P.N. Poddar for Respondent No. 2.
section Markakandeya for Respondent No. 6.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
This appeal preferred by special leave is against the judgment of the Division Bench of the Andhra Pradesh High Court setting aside the decision of a learned single judge of that Court and dismissing a writ petition filed by the present appellant.
The appellant, who was working as an officer of the Forest Department in the State of Andhra Pradesh, approached the High 161 Court challenging the provisional integrated gradation list of Forest officers of the former Andhra and Hyderabad States published under the provisions of the States Reorganization Act, as annexure to a State Government order dated January 27, 1962.
The contentions raised by the petitioner in the writ petition were mainly two fold.
Firstly, it was urged that the inter se seniority between the appellant and the 6th respondent, both of whom originally belonged to the Andhra Cadre, had been wrongly fixed in the provisional gradation list by showing the 6th respondent as senior to the appellant, whereas the appellant was legally entitled to seniority over the 6th respondent.
Secondly, it was contended that respondents Nos. 3, 4, 5, 7 and 8 who were officers allotted to the State of Andhra Pradesh from the Telengana region of the former Hyderabad State, had been erroneously assigned ranks above the appellant in the integrated gradation list in violation of the principles laid down by the Government of India for equation of posts and the fixation of inter se seniority between the persons drawn from the two sources.
By the time the writ petition came up for hearing before the learned single judge, the Central Government had already set right the appellant 's grievance concerning his ranking and the seniority in relation to respondents 3, 4, 5, 7 and 8.
It therefore became unnecessary for him to pursue the second contention aforementioned and hence he pressed before the learned single judge only the plea concerning his claim for seniority over the 6th respondent was well founded.
Accordingly, the learned single judge found that the contention put forward by the appellant that he was entitled to seniority over the 6th respondent was well founded.
Accordingly, the learned judge allowed the writ petition and issued a writ of mandamus directing the State Government and the Government of India to modify the gradation list by showing the appellant as senior to the 6th respondent.
The 6th respondent carried the matter in appeal before a Division Bench of the High Court by filing Appeal No. 691 of 1978.
The Division Bench took the view that since the prayer contained in the writ petition was for the issue of a writ of mandamus directing respondents No. 1 and 2 to forbear from implementing the provisional gradation list published along with the Government order dated January 27, 1962, and inasmuch as the petitioner had not pressed the said prayer for quashing of the list in so for as it related to the officers of Telengana region (respondents 3, 4, 5, 7 and 8), the writ petition should have been dismissed on that short ground and the question relating to inter se seniority between the petitioner and the 162 6th respondent ought not to have been decided by the learned single judge.
In this view, the Division Bench allowed the writ appeal, set aside the order passed by the learned single judge and dismissed the writ petition.
The appellant has come up to this Court questioning the legality and correctness of the aforesaid reasoning and conclusion of the Division Bench.
It is true that the writ petition contained a prayer for the quashing of the gradation list in so far as it related to the inter se ranking of the petitioner vis a vis respondents Nos. 3 to 8 and the petitioner (appellant) had also sought the issuance of a writ of mandamus directing respondents Nos. 1 and 2 to forbear from implementing or acting upon the said gradation list.
But subsequent to the institution of the writ petition, the Central Government has refixed the ranks of respondents Nos. 3, 4, 5, 7 and 8 (Telengana officers) and placed them below the appellant thereby redressing the grievance of the appellant in so far as it pertained to the ranking of the aforesaid respondents.
It therefore became unnecessary for the appellant to pursue his claim for relief with respect to the ranks assigned to those five respondents.
It was under those circumstances that the appellant submitted before the learned single judge of the High Court, at the time of final hearing of the writ petition, that he was pressing the writ petition only in so far as it related to his claim for seniority over the 6th respondent.
We fail to see how the fact that the appellant had sought in the writ petition the issuance of a writ of mandamus directing respondents 1 and 2 to forbear from implementing or acting upon the provisional gradation list will operate to preclude him from seeking a lesser relief, namely, the quashing of the list only so far as it pertains to the fixation of the inter se seniority between himself and the 6th respondent.
The material facts and circumstances had undergone a substantial change subsequent to the filing of the original petition and it was in consequence thereof that it had become unnecessary for the petitioner to pursue his original prayer for the grant of a larger relief.
Besides ignoring this crucial aspect, the Division Bench of the High Court has also lost sight of the well established principle that in an action where a party has prayed for a larger relief it is always open to the court to grant him any smaller relief that he may be found to be entitled in law and thereby render substantial justice.
The Court can undoubtedly take note of changed circumstances and suitably mould the relief to be granted to the party concerned in order to mete out justice in the case.
As far as possible the anxiety and endeavour of the Court should be to remedy an injustice when it is 163 brought to its notice rather than deny relief to an aggrieved party on purely technical and narrow procedural grounds.
We do not, therefore, find it possible to uphold the view expressed by the Division Bench of the High Court that since the writ petition was not pressed in so far as it related to the officers belonging to the Telengana region the question of inter se seniority between the writ petitioner and the 6th respondent should not have been considered by the single judge and the writ petition should have been dismissed.
Accordingly, we set aside the judgment of the Division Bench and remand the writ appeal to the High Court for fresh disposal in accordance with law.
The parties will bear their respective costs in this appeal.
| IN-Abs | The appellant, an officer of the Forest Department challenged the provisional integrated gradation list of Forest Officers of the former Andhra and Hyderabad States published under the provisions of the States Reorganisation Act, 1947, in his writ petition, contending that (a) the inter se seniority between the appellant and the 6th respondent, both of whom originally belonged to the Andhra Cadre, had been wrongly fixed by showing the 6th respondent as senior to the appellant whereas the appellant was legally entitled to seniority over the 6th respondent, and (b) that respondent nos.
3, 4, 5, 7 and 8 officers allotted to the State of Andhra Pradesh from the Telengana region of the former Hyderabad State, had been erroneously assigned ranks above the appellant in violation of the principles laid down by the Government of India for equation of posts and fixation of inter se seniority.
During the pendency of the writ petition the Central Government set right the appellant 's grievance concerning his ranking and seniority in relation to respondents 3, 4, 5, 7 and 8.
When the writ petition came up for hearing the appellant pressed only his claim for seniority over the 6th respondent and as the contention was well founded, the learned Single Judge, allowed the writ petition and issued a writ of mandamus directing the Government of India to modify the gradation list by showing the appellant as senior to the 6th respondent.
In the appeal to the Division Bench by the 6th respondent, the Division Bench took the view that since the prayer contained in the writ the petition was for the issue of a writ of mandamus directing respondents nos.
1 and 2 to forbear from implementing the provisional gradation list published alongwith the Government Order dated January 27, 1962 and as the appellant had not pressed the prayer for quashing of the list in so far as it related to the officers of Telengana region viz. respondents 3, 4, 5, 7 and 8, the writ petition should have been dismissed on that short ground and the question relating to the inter se seniority between the appellant and the 6th respondent ought not to have been decided.
The Division Bench allowed the writ appeal, set aside the order passed by the single Judge and dismissed the writ petition.
Allowing the appeal to this Court, 160 ^ HELD: In an action where a party has prayed for a larger relief it is always open to the Court to grant him any smaller relief that he may be found to be entitled to in law and thereby render substantial justice.
The Court can take note of changed circumstances and suitably mould the relief to be granted to the party concerned in order to mete out justice.
As far as possible the anxiety and endeavour of the Court should be to remedy an in justice when it is brought to its notice rather than deny relief to an aggrieved party on purely technical and narrow procedural grounds.
[162 G 163 A] In the instant case the writ petition contained the prayer for the quashing of the gradation list in so far as it related to the inter se ranking of the appellant vis a vis respondents nos.
3 to 8 and the appellant had also sought the issuance of a writ of mandamus directing respondents nos.
1 and 2 to forbear from implementing or acting upon the said gradation list.
Subsequent to the institution of the writ petition the Central Government had refixed the ranks of respondents nos.
3, 4, 5, 7 and 8 and placed them below the appellant thereby redressing the grievance of the appellant in so far as it pertained to the ranking of the said respondents.
It, therefore, became unnecessary for the appellant to pursue his claim for relief with respect to the ranks assigned to those five respondents.
It was under those circumstances that the appellant submitted before the single Judge at the time of final hearing of the writ petition that he was pressing the writ petition only in so far as it related to his claim for seniority over the 6th respondent.
This will not operate to preclude him from seeking a lesser relief namely the quashing of the list only in so far as it pertains to the fixation of the inter se seniority between himself and the 6th respondent.
[162 B F]
|
ition No. 8143 of 1981.
(Under article 32 of the Constitution of India) Govind Mukhoty in person and A.K. Ganguli for the petitioner.
Miss A. Subhashini for Respondent No. 1.
N.C. Talukdar and R.N. Poddar for Respondents Nos.5 and 6.
Sardar Bahadur Saharya and Vishnu Bahadur Saharya for Respondent No. 7.
The Judgment of the Court was delivered by BHAGWATI, J.
This is a writ petition brought by way of public interest litigation in order to ensure observance of the provisions of various labour laws in relation to workmen employed in the construction work of various projects connected with the Asian Games.
The matter was brought to the attention of the Court by the 1st petitioner which is an organisation formed for the purpose of protecting democratic rights by means of a letter addressed to one of us (Bhagwati, J.).
The letter was based on a report made by a team of three social scientists who were commissioned by the 1st petitioner for the purpose of investigating and inquiring into the conditions under which the workmen engaged in the various Asiad Projects were working.
Since the letter addressed by the 1st petitioner was based on the report made by three social scientists after personal investigation and study, it was treated as a writ petition on the judicial side and notice was issued upon it inter alia to the Union of India, Delhi Development Authority and Delhi Administration which 467 were arrayed as respondents to the writ petition.
These respondents filed their respective affidavits in reply to the allegations contained in the writ petition and an affidavit was filed on behalf of the petitioner in rejoinder to the affidavits in reply and the writ petition was argued before us on the basis of these pleadings.
Before we proceed to deal with the facts giving rise to this writ petition, we may repeat what we have said earlier in various orders made by us from time to time dealing with public interest litigation.
We wish to point out with all the emphasis at our command that public interest litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief.
Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed.
That would be destructive of the Rule of Law which forms one of the essential elements of public interest in any democratic form of government.
The Rule of Law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights.
The poor too have civil and political rights and the Rule of Law is meant for them also, though today it exists only on paper and not in reality.
If the sugar barons and the alcohol kings have the Fundamental Right to carry on their business and to fatten their purses by exploiting the consuming public, have the 'chamars ' belonging to the lowest strata of society no Fundamental Right to earn an honest living through their sweat and toil ? The former can approach the courts with a formidable army of distinguished lawyers paid in four or five figures per day and if their right to exploit is upheld against the government under the label of Fundamental Right, the courts are praised for their boldness 468 and courage and their independence and fearlessness are applauded and acclaimed.
But, if the Fundamental Right of the poor and helpless victims of injustice is sought to be enforced by public interest litigation, the so called champions of human rights frown upon it as waste of time of the highest court in the land, which, according to them, should not engage itself in such small and trifling matters.
Moreover, these self styled human rights activists forget that civil and political rights, priceless and invaluable as they are for freedom and democracy, simply do not exist for the vast masses of our people.
Large numbers of men, women and children who constitute the bulk of our population are today living a sub human existence in conditions of abject poverty: utter grinding poverty has broken their back and sapped their moral fibre.
They have no faith in the existing social and economic system.
What civil and political rights are these poor and deprived sections of humanity going to enforce ? This was brought out forcibly by W. Paul Gormseley at the Silver Jubilee Celebrations of the Universal Declaration of Human Rights at the Banaras Hindu University: "Since India is one of those countries which has given a pride of place to the basic human rights and freedoms in its Constitution in its chapter on Fundamental Rights and on the Directive Principles of State Policy and has already completed twenty five years of independence, the question may be raised whether or not the Fundamental Rights enshrined in our Constitution have any meaning to the millions of our people to whom food, drinking water, timely medical facilities and relief from disease and disaster, education and job opportunities still remain unavoidable.
We, in India, should on this occasion study the Human Rights declared and defined by the United Nations and compare them with the rights available in practice and secured by the law of our country.
" The only solution for making civil and political rights meaningful to these large sections of society would be to remake the material conditions and restructure the social and economic order so that they may be able to realise the economic, social and cultural rights.
There is indeed close relationship between civil and political rights on the one hand and economic, social and cultural rights on the other and this relationship is so obvious that the International 469 Human Rights Conference in Tehran called by the General Assembly in 1968 declared in a final proclamation: "Since human rights and fundamental freedoms are indivisible, the full realisation of civil and political rights without the enjoyment of economic, social and cultural rights is impossible.
" Of course, the task of restructuring the social and economic order so that the social and economic rights become a meaningful reality for the poor and lowly sections of the community is one which legitimately belongs to the legislature and the executive, but mere initiation of social and economic rescue programmes by the executive and the legislature would not be enough and it is only through multidimensional strategies including public interest litigation that these social and economic rescue programmes can be made effective.
Public interest litigation, as we conceive it, is essentially a co operative or collaborative effort on the part of the petitioner, the State or public authority and the court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them.
The State or public authority against whom public interest litigation is brought should be as much interested in ensuring basic human rights, constitutional as well as legal, to those who are in a socially and economically disadvantaged position, as the petitioner who brings the public interest litigation before the Court.
The state or public authority which is arrayed as a respondent in public interest litigation should, in fact, welcome it, as it would give it an opportunity to right a wrong or to redress an injustice done to the poor and weaker sections of the community whose welfare is and must be the prime concern of the State or the public authority.
There is a misconception in the minds of some lawyers, journalists and men in public life that public interest litigation is unnecessarily cluttering up the files of the court and adding to the already staggering arrears of cases which are pending for long years and it should not therefore be encouraged by the court.
This is, to our mind, a totally perverse view smacking of elitist and status quoist approach.
Those who are decrying public interest litigation do not seem to realise that courts are not meant only for the rich and the well to do, for the landlord and the gentry, for the business magnate 470 and the industrial tycoon, but they exist also for the poor and the down trodden the have nots and the handicapped and the half hungry millions of our countrymen.
So far the courts have been used only for the purpose of vindicating the rights of the wealthy and the affluent.
It is only these privileged classes which have been able to approach the courts for protecting their vested interests.
It is only the moneyed who have so far had the golden key to unlock the doors of justice.
But, now for the first time the portals of the court are being thrown open to the poor and the down trodden, the ignorant and the illiterate, and their cases are coming before the courts through public interest litigation which has been made possible by the recent judgment delivered by this Court in Judges Appointment and Transfer cases.
Millions of persons belonging to the deprived and vulnerable sections of humanity are looking to the courts for improving their life conditions and making basic human rights meaningful for them.
They have been crying for justice but their cries have so far been in the wilderness.
They have been suffering injustice silently with the patience of a rock, without the strength even to shed any tears.
Mahatma Gandhi once said to Gurudev Tagore, "I have had the pain of watching birds, who for want of strength could not be coaxed even into a flutter of their wings.
The human bird under the Indian sky gets up weaker than when he pretended to retire.
For millions it is an eternal trance.
" This is true of the 'human bird ' in India even today after more than 30 years of independence.
The legal aid movement and public interest litigation seek to bring justice to these forgotten specimens of humanity who constitute the bulk of the citizens of India and who are really and truly the "People of India" who gave to themselves this magnificent Constitution.
It is true that there are large arrears pending in the courts but, that cannot be any reason for denying access to justice to the poor and weaker sections of the community.
No State has a right to tell its citizens that because a large number of cases of the rich and the well to do are pending in our courts, we will not help the poor to come to the courts for seeking justice until the staggering load of cases of people who can afford, is disposed of.
The time has now come when the courts must become the courts for the poor and struggling masses of this country They must shed their character as upholders of the established order and the status quo.
They must be sensitised to the need of doing justice to the large masses of people to whom justice has been denied by a cruel and heartless society for generations.
The realisation must come to them that 471 social justice is the signature tune of our Constitution and it is their solemn duty under the Constitution to enforce the basic human rights of the poor and vulnerable sections of the community and actively help in the realisation of the constitutional goals.
This new change has to come if the judicial system is to become an effective instrument of social justice, for without it, it cannot survive for long.
Fortunately, this change is gradually taking place and public interest litigation is playing a large part in bringing about this change.
It is through public interest litigation that the problems of the poor are now coming to the fore front and the entire theatre of the law is changing.
It holds out great possibilities for the future.
This writ petition is one such instance of public interest litigation.
The Asian Games take place periodically in different parts of Asia and this time India is hosting the Asian Games.
It is a highly prestigious undertaking and in order to accomplish it successfully according to international standards, the Government of India had to embark upon various construction projects which included building of fly overs, stadia, swimming pool, hotels and Asian Games village complex.
This construction work was framed out by the Government of India amongst various Authorities such as the Delhi Administration, the Delhi Development Authority and the New Delhi Municipal Committee.
It is not necessary for the purpose of the present writ petition to set out what particular project was entrusted to which authority because it is not the purpose of this writ petition to find fault with any particular authority for not observing the labour laws in relation to the workmen employed in the projects which are being executed by it, but to ensure that in future the labour laws are implemented and the rights of the workers under the labour laws are not violated.
These various authorities to whom the execution of the different projects was entrusted engaged contractors for the purpose of carrying out the construction work of the projects and they were registered as principal employers under section 7 of the .
The contractors started the construction work of the projects and for the purpose of carrying out the construction work, they engaged workers through jamadars.
The jamadars brought the workers from different parts of India and particularly the States of Rajasthan, Uttar Pradesh and Orissa and got them employed by the contractors.
The workers were entitled to a minimum wage of Rs. 472 9.25 per day, that being the minimum wage fixed for workers employed on the construction of roads and in building operations but the case of the petitioners was that the workers were not paid this minimum wage and they were exploited by the contractors and the jamadars.
The Union of India in the affidavit reply filed on its behalf by Madan Mohan; Under Secretary, Ministry of Labour asserted that the contractors did pay the minimum wage of Rs. 9.25 per day but frankly admitted that this minimum wage was paid to the jamadars through whom the workers were recruited and the jamadars deducted rupee one per day per worker as their commission and paid only Rs. 8.25 by way of wage to the workers.
The result was that in fact the workers did not get the minimum wage of Rs. 9.25 per day.
The petitioners also alleged in the writ petition that the provisions of the were violated and women workers were being paid only Rs. 7/ per day and the balance of the amount of the wage was being misappropriated by the jamadars.
It was also pointed out by the petitioners that there was violation of Article 24 of the Constitution and of the provisions of the in as much as children below the age of 14 years were employed by the contractors in the construction work of the various projects.
The petitioners also alleged violation of the provisions of the and pointed out various breaches of those provisions by the contractors which resulted in deprivation and exploitation of the workers employed in the construction work of most of the projects.
It was also the case of the petitioners that the workers were denied proper living conditions and medical and other facilities to which they were entitled under the provisions of the .
The petitioners also complained that the contractors were not implementing the provisions of the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979 though that Act was brought in force in the Union Territory of Delhi as far back as 2nd October 1980.
The report of the team of three social scientists on which the writ petition was based set out various instances of violations of the provisions of the , the , Article 24 of the Constitution, The Employment of Children Act 1970, and the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979.
These averments made on behalf of the petitioners were denied in the affidavits in reply filed on behalf of the Union of India, the 473 Delhi Administration and the Delhi Development Authority.
It was asserted by these authorities that so far as the and the were concerned, the provisions of these labour laws were being complied with by the contractors and whenever any violations of these labour laws were brought to the attention of the authorities as a result of periodical inspections carried out by them, action by way of prosecution was being taken against the contractors.
The provisions of the were, according to the Delhi Development Authority, being observed by the contractors and it was pointed out by the Delhi Development Authority in its affidavit in reply that the construction work of the projects entrusted to it was being carried out by the contractors under a written contract entered into with them and this written contract incorporated "Model Rules for the Protection of Health and Sanitary Arrangements for Workers employed by Delhi Development Authority or its Contractors" which provided for various facilities to be given to the workers employed in the construction work and also ensured to them payment of minimum wage The Delhi Administration was not so categorical as the Delhi Development Authority in regard to the observance of the provisions of the and in its affidavit in reply it conceded that the jamadars through whom the workers were recruited might be deducting rupee one per day per worker from the minimum wage payable to the workers.
The Union of India was however more frank and it clearly admitted in its affidavit in reply that the jamadars were deducting rupee one per day per worker from the wage payable to the workers with the result that the workers did not get the minimum wage of Rs. 9.25 per day and there was violation of the provisions of the .
So far as the is concerned the case of the Union of India, the Delhi Administration and the Delhi Development Authority was that no complaint in regard to the violation of the provisions of that Act was at any time received by them and they disputed that there was any violation of these provisions by the contractors.
It was also contended on behalf of these Authorities that the was not applicable in case of employment in the construction work of these projects, since construction industry is not a process specified in the Schedule and is therefore not within the provisions of sub 474 section (3) of section 3 of that Act.
Now unfortunately this contention urged on behalf of the respondents is well founded, because construction industry does not find a place in the Schedule to the and the prohibition enacted in section 3 sub section (3) of that Act against the employment of a child who has not completed his fourteenth year cannot apply to employment in construction industry.
This is a sad and deplorable omission which, we think, must be immediately set right by every State Government by amending the Schedule so as to include construction industry in it in exercise of the power conferred under section 3A of the .
We hope and trust that every State Government will take the necessary steps in this behalf without any undue delay, because construction work is clearly a hazardous occupation and it is absolutely essential that the employment of children under the age of 14 years must be prohibited in every type of construction work.
That would be in consonance with Convention No. 59 adopted by the International Labour Organisation and ratified by India.
But apart altogether from the requirement of Convention No. 59, we have Article 24 of the Constitution which provides that no child below the age of 14 shall be employed to work in any factory or mine or engaged in any other hazardous employment.
This is a constitutional prohibition which, even if not followed up by appropriate legislation, must operate proprio vigore and construction work being plainly and indubitably a hazardous employment, it is clear that by reason of this constitutional prohibition, no child below the age of 14 years can be allowed to be engaged in construction work.
There can therefore be no doubt that notwithstanding the absence of specification of construction industry in the Schedule to the , no child below the age of 14 years can be employed in construction work and the Union of India as also every State Government must ensure that this constitutional mandate is not violated in any part of the country.
Here, of course, the plea of the Union of India, the Delhi Administration and the Delhi Development Authority was that no child below the age of 14 years was at any time employed in the construction work of these projects and in any event no complaint in that behalf was received by any of these Authorities and hence there was no violation of the constitutional prohibition enacted in Article 24.
So far as the complaint in regard to non observance of the provisions of the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979 was concerned, the defence of the Union of India, the Delhi Administration and the Delhi Development Authority that though this Act had come into force in the 475 Union Territory of Delhi with effect from 2nd October 1980, the power to enforce the provisions of the Act was delegated to the Administrator of the Union Territory of Delhi only on 14th July 1981 and thereafter also the provisions of the Act could not been enforced because the Rules to be made under the Act had not been finalised until 4th June 1982.
It is difficult to understand as to why in the case of beneficient legislation like the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979 it should have taken more than 18 months for the Government of India to delegate the power to enforce the provisions of the Act to the Administrator of the Union Territory of Delhi and another almost 12 months to make the Rules under the Act.
It was well known that a large number of migrant workmen coming from different States were employed in the construction work of various Asiad projects and if the provisions of a social welfare legislation like the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979 were applied and the benefit of such provisions made available to these migrant workmen, it would have gone a long way towards ameliorating their conditions of work and ensuring them a decent living with basic human dignity.
We very much wished that the provisions of this Act had been made applicable earlier to the migrant workmen employed in the construction work of these projects though we must confess that we do not see why the enforcement of the provisions of the Act should have been held up until the making of the Rules.
It is no doubt true that there are certain provisions in the Act which cannot be enforced unless there are rules made under the Act but equally there are other provisions which do not need any prescription by the Rules for their enforcement and these latter provisions could certainly have been enforced by the Administrator of the Union Territory of Delhi in so far as migrant workmen employed in these projects were concerned.
There can be no doubt that in any event from and after 4th June, 1982 the provisions of this beneficient legislation have become enforceable and the migrant workmen employed in the construction work of these projects are entitled to the rights and benefits conferred upon them under those provisions.
We need not point out that so far as the rights and benefits conferred upon migrant workmen under the provisions of section 13 to 16 of the Act are concerned, the responsibility for ensuring such rights and benefits rests not only on the contractors but also on the Union of India, the Delhi Administration or the Delhi Development Authority who is 476 the principal employer in relation to the construction work entrusted by it to the contractors.
We must confess that we have serious doubts whether the provisions of this Act are being implemented in relation to the migrant workmen employed in the construction work of these projects and we have therefore by our Order dated 11th May 1982 appointed three Ombudsmen for the purpose of making periodic inspection and reporting to us whether the provisions of this Act are being implemented at least from 4th June 1982.
We must in fairness point out that the Union of India has stated in its affidavit in reply that a number of prosecution have been launched against the contractors for violations of the provision of various labour laws and in Annexure I to its affidavit in reply it has given detailed particulars of such prosecutions.
It is apparent from the particulars given in this Annexure that the prosecutions launched against the contractors were primarily for offences such as non maintenance of relevant registers non provision of welfare and health facilities such as first aid box, latrines, urinals etc.
and non issue of wage slips.
We do not propose to go into the details of these prosecutions launched against the contractors but we are shocked to find that in cases of violations of labour laws enacted for the benefit of workmen, the Magistrates have been imposing only small fines of Rs. 200/ thereabouts.
The Magistrates seem to view the violations of labour laws with great indifference and unconcern as if they are trifling offences undeserving of judicial severity.
They seem to over look the fact labour laws are enacted for improving the conditions of workers and the employers cannot be allowed to buy off immunity against violations of labour laws by paying a paltry fine which they would not mind paying, because by violations the labour laws they would be making profit which would far exceed the amount of the fine.
If violations of labour laws are going to be punished only by meagre fines, it would be impossible to ensure observance of the labour laws and the labour laws would be reduced to nullity.
They would remain merely paper tigers without any teeth or claws.
We would like to impress upon the Magistrates and Judges in the country that violations of labour laws must be viewed with strictness and whenever any violations of labour laws are established before them, they should punish the errant employers by imposing adequate punishment.
We may conveniently at this stage, before proceeding to examine the factual aspects of the case, deal with two preliminary 477 objections raised on behalf of the respondents against the maintainability of the writ petition.
The first preliminary objection was that the petitioners had no locus standi to maintain the writ petition since, even on the averments made in the writ petition, the rights said to have been violated were those of the workers employed in the construction work of the various Asiad projects and not of the petitioners and the petitioners could not therefore have any cause of action.
The second preliminary objection urged on behalf of the respondents was that in any event no writ petition could lie against the respondents, because the workmen whose rights were said to have been violated were employees of the contractors and not of the respondents and the cause of action of the workmen, if any, was therefore against the contractors and not against the respondents.
It was also contended as part of this preliminary objection that no writ petition under article 32 of the Constitution could lie against the respondents for the alleged violations of the rights of the workmen under the various labour laws, and the remedy, if any, was only under the provisions of those laws.
These two preliminary objections were pressed before us on behalf of the Union of India, the Delhi Administration and the Delhi Development Authority with a view to shutting out an inquiry by this Court into the violations of various labour laws alleged in the writ petition, but we do not think there is any substance in them and they must be rejected.
Our reasons for saying so are as follows: The first preliminary objection raises the question of locus standi of the petitioners to maintain the writ petition.
It is true, that the complaint of the petitioners in the writ petition is in regard to the violations of the provisions of various labour laws designed for the welfare of workmen and therefore from a strictly traditional point of view, it would be only the workmen whose legal rights are violated who would be entitled to approach the court for judicial redress.
But the traditional rule of standing which confines access to the judicial process only to those to whom legal injury is caused or legal wrong is done has now been jettisoned by this Court and the narrow confines within which the rule of standing was imprisoned for long years as a result of inheritance of the Anglo Saxon System of jurisprudence have been broken and a new dimension has been given to the doctrine of locus standi which has revolutionised the whole concept of access to justice in a way not known before to the Western System of jurisprudence.
This Court 478 has taken the view that, having regard to the peculiar socioeconomic conditions prevailing in the country where there is, considerable poverty, illiteracy and ignorance obstructing and impeding accessibility to the judicial process, it would result in closing the doors of justice to the poor and deprived sections of the community if the traditional rule of standing evolved by Anglo Saxon jurisprudence that only a person wronged can sue for judicial redress were to be blindly adhered to and followed, and it is therefore necessary to evolve a new strategy by relaxing this traditional rule of standing in order that justice may became easily available to the lowly and the lost.
It has been held by this Court in its recent judgment in the Judges Appointment and Transfer case, in a major break through which in the years to come is likely to impart new significance and relevance to the judicial system and to transform it into as instrument of socio economic change, that where a person or class of persons to whom legal injury is caused or legal wrong is done is by reason of poverty, disability or socially or economically disadvantaged position not able to approach the Court for judicial redress, any member of the public acting bona fide and not out of any extraneous motivation may move the Court for judicial redress of the legal injury or wrong suffered by such person or class of persons and the judicial process may be set in motion by any public spirited individual or institution even by addressing a letter to the court.
Where judicial redress is sought of a legal injury or legal wrong suffered by a person or class of persons who by reason of poverty, disability or socially or economically disadvantaged position are unable to approach the court and the court is moved for this purpose by a member of a public by addressing a letter drawing the attention of the court to such legal injury or legal wrong, court would cast aside all technical rules of procedure and entertain the letter as a writ petition on the judicial side and take action upon it.
That is what has happened in the present case.
Here the workmen whose rights are said to have been violated and to whom a life of basic human dignity has been denied are poor, ignorant, illiterate humans who, by reason of their poverty and social and economic disability, are unable to approach the courts for judicial redress and hence the petitioners, have under the liberalised rule of standing, locus standi to maintain the present writ petition espousing the cause of the workmen.
It is not the case of the respondents that the petitioners are acting mala fide or out of extraneous motives and in fact the respondents cannot so allege, since 479 the first petitioner is admittedly an organisation dedicated to the protection and enforcement of Fundamental Rights and making Directive Principles of State Policy enforceable and justiciable.
There can be no doubt that it is out of a sense of public service that the present litigation has been brought by the petitioners and it is clearly maintainable.
We must then proceed to consider the first limb of the second preliminary objection.
It is true that the workmen whose cause has been championed by the petitioners are employees of the contractors but the Union of India, the Delhi Administration and the Delhi Development Authority which have entrusted the construction work of Asiad projects to the contractors cannot escape their obligation for observance of the various labour laws by the contractors.
So far as the is concerned, it is clear that under section 20, if any amenity required to be provided under sections 16, 17, 18 or 19 for the benefit of the workmen employed in an establishment is not provided by the contractor, the obligation to provide such amenity rests on the principal employer and therefore if in the construction work of the Asiad projects, the contractors do not carry out the obligations imposed upon them by any of these sections, the Union of India, the Delhi Administration and the Delhi Development Authority as principal employers would be liable and these obligations would be enforceable against them.
The same position obtains in regard to the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979.
In the case of this Act also, sections 17 and 18 make the principal employer liable to make payment of the wages to the migrant workmen employed by the contractor as also to pay the allowances provided under sections 14 and 15 and to provide the facilities specified in section 16 to such migrant workmen, in case the contractor fails to do so and these obligations are also therefore clearly enforceable against the Union of India, the Delhi Administration and the Delhi Development Authority as principal employers.
So far as Article 24 of the Constitution is concerned, it embodies a fundamental right which is plainly and indubitably enforceable against every one and by reason of its compulsive mandate, no one can employ a child below the age of 14 years in a hazardous employment and since, as pointed out above, construction work is a hazardous employment, no child below the age of 14 years can be employed in construction work and there 480 fore, not only are the contractors under a constitutional mandate not to employ any child below the age of 14 years, but it is also the duty of the Union of India, the Delhi Administration and the Delhi Development Authority to ensure that this constitutional obligation is obeyed by the contractors to whom they have entrusted the construction work of the various Asiad projects.
The Union of India, the Delhi Administration and the Delhi Development Authority cannot fold their hands in despair and become silent spectators of the breach of a constitutional prohibition being committed by their own contractors.
So also with regard to the observance of the provisions of the Equal Remuneration Act 1946, the Union of India, the Delhi Administration and the Delhi Development Authority cannot avoid their obligation to ensure that these provisions are complied with by the contractors.
It is the principle of equality embodied in Article 14 of the Constitution which finds expression in the provisions of the Equal Remuneration Act 1946 and if the Union of India, the Delhi Administration or the Delhi Development Authority at any time finds that the provisions of the Equal Remuneration Act 1946 are not observed and the principles of equality before the law enshrined in Article 14 is violated by its own contractors, it cannot ignore such violation and sit quiet by adopting a non interfering attitude and taking shelter under the executive that the violation is being committed by the contractors and not by it.
If any particular contractor is committing a breach of the provisions of the Equal Remuneration Act 1946 and thus denying equality before the law to the workmen, the Union of India, the Delhi Administration or the Delhi Development Authority as the case may be, would be under an obligation to ensure that the contractor observes the provisions of the Equal Remuneration Act 1946 and does not breach the equality clause enacted in Article 14.
The Union of India, the Delhi Administration and the Delhi Development Authority must also ensure that the minimum wage is paid to the workmen as provided under the .
The contractors are, of course, liable to pay the minimum wage to the workmen employed by them but the Union of India the Delhi Administration and the Delhi Development Authority who have entrusted the construction work to the contractors would equally be responsible to ensure that the minimum wage is paid to the workmen by their contractors.
This obligation which even otherwise rests on the Union of India, the Delhi Administration and the Delhi Development Authority is additionally 481 re inforced by section 17 of the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979 in so far as migrant workmen are concerned.
It is obvious, therefore, that the Union of India, the Delhi Administration and the Delhi Development Authority cannot escape their obligation to the workmen to ensure observance of these labour laws by the contractors and if these labour laws are not complied with by the contractors, the workmen would clearly have a cause of action against the Union of India, the Delhi Administration and the Delhi Development Authority.
That takes us to a consideration of the other limb of the second preliminary objection.
The argument of the respondents under this head of preliminary objection was that a writ petition under Article 32 cannot be maintained unless it complains of a breach of some fundamental right or the other and since what were alleged in the present writ petition were merely violations of the labour laws enacted for the benefit of the workmen and not breaches of any fundamental rights, the present writ petition was not maintainable and was liable to be dismissed.
Now it is true that the present writ petition cannot be maintained by the petitioners unless they can show some violation of a fundamental right, for it is only for enforcement of a fundamental right that a writ petition can be maintained in this Court under Article 32.
So far we agree with the contention of the respondents but there our agreement ends.
We cannot accept the plea of the respondents that the present writ petition does not complain of any breach of a fundamental right.
The complaint of violation of Article 24 based on the averment that children below the age of 14 years are employed in the construction work of the Asiad projects is clearly a complaint of violation of a fundamental right.
So also when the petitioners allege non observance of the provisions of the Equal Remuneration Act 1946, it is in effect and substance a complaint of breach of the principle of equality before the law enshrined in Article 14 and it can hardly be disputed that such a complaint can legitimately form the subject matter of a writ petition under Article 32.
Then there is the complaint of non observance of the provisions of the Contract Labour (Regulation & Abolition) Act 1970 and the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979 and this is also in our opinion a complaint relating to violation of Article 21.
This Article has 482 acquired a new dimension as a result of the decision of this Court in Maneka Gandhi vs Union of India (1) and it has received its most expansive interpretation in Francis Coralie Mullin vs The Administrator, Union Territory of Delhi & Ors,(2) where it has been held by this Court that the right to life guaranteed under this Article is not confined merely to physical existence or to the use of any faculty or limb through which life is enjoyed or the soul communicates with outside world but it also includes within its scope and ambit the right to live with basic human dignity and the State cannot deprive any one of this precious and invaluable right because no procedure by which such deprivation may be effected can ever be regarded as reasonable, fair and just.
Now the rights and benefits conferred on the workmen employed by a contractor under the provisions of the and the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 are clearly intended to ensure basic human dignity to the workmen and if the workmen are deprived of any of these rights and benefits to which they are entitled under the provisions of these two pieces of social welfare legislation, that would clearly be a violation of Article 21 by the Union of India, the Delhi Administration and the Delhi Development Authority which, as principal employers, are made statutorily responsible for securing such rights and benefits to the workmen.
That leaves for consideration the complaint in regard to non payment of minimum wage to the workmen under the .
We are of the view that this complaint is also one relating to breach of a fundamental right and for reasons which we shall presently state, it is the fundamental right enshrined in Article 23 which is violated by non payment of minimum wage to the workmen.
Article 23 enacts a very important fundamental right in the following terms : "article 23 : Prohibition of traffic in human beings and forced labour (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and 483 any contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this Article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.
Now many of the fundamental rights enacted in operate as limitations on the power of the State and impose negative obligations on the State not to encroach on individual liberty and they are enforceable only against the State.
But there are certain fundamental rights conferred by the Constitution which are enforceable against the whole world and they are to be found inter alia in Articles 17, 23 and 24.
We have already discussed the true scope and ambit of Article 24 in an earlier portion of this judgment and hence we do not propose to say anything more about it.
So also we need not expatiate on the proper meaning and effect of the fundamental right enshrined in Article 17 since we are not concerned with that Article in the present writ petition.
It is Article 23 with which we are concerned and that Article is clearly designed to protect the individual not only against the State but also against other private citizens.
Article 23 is not limited in its application against the State but it prohibits "traffic in human beings and begar and other similar forms of forced labour" practised by anyone else.
The sweep of Article 23 is wide and unlimited and it strikes at traffic in human beings and begar and other similar forms of forced labour" wherever they are found.
The reason for enacting this provision in the chapter on fundamental rights is to be found in the socio economic condition of the people at the time when the Constitution came to be enacted.
The Constitution makers, when they set out to frame the Constitution, found that they had the enormous task before them of changing the socio economic structure of the country and bringing about socio economic regeneration with a view to reaching social and economic justice to the common man.
Large masses of people, bled white by well nigh two centuries of foreign rule, were living in abject poverty and destitution with ignorance and illiteracy accentuating their helplessness and despair.
The society had degenerated into a status oriented hierarchical society 484 with little respect for the dignity of individual who was in the lower rungs of the social ladder or in an economically impoverished condition.
The political revolution was completed and it had succeeded in bringing freedom to the country but freedom was not an end in itself, it was only a means to an end, the end being the raising of the people to higher levels of achievement and bringing about their total advancement and welfare.
Political freedom had no meaning unless it was accompanied by social and economic freedom and it was therefore necessary to carry forward the social and economic revolution with a view to creating social economic conditions in which every one would be able to enjoy basic human rights and participate in the fruits of freedom and liberty in an egalitarian social and economic framework.
It was with this end in view that the constitution makers enacted the Directive Principles of State Policy in Part IV of the Constitution setting out the constitutional goal of a new socio economic order.
Now there was one feature of our national life which was ugly and shameful and which cried for urgent attention and that was the existence of bonded or forced labour in large parts of the country.
This evil was the relic of feudal exploitative society and it was totally incompatible with the new egalitarian socio economic order which, "We the people of India" were determined to build and constituted a gross and most revolting denial of basic human dignity.
It was therefore necessary to eradicate this pernicious practice and wipe it out altogether from the national scene and this had to be done immediately because with the advent of freedom, such practice could not be allowed to continue to blight the national life any longer.
Obviously, it would not have been enough merely to include abolition of forced labour in the Directive Principles of State Policy, because then the outlaying of this practice would not have been legally enforceable and it would have continued to plague our national life in violation of the basic constitutional norms and values until some appropriate legislation could be brought by the legislature forbidding such practice.
The Constitution makers therefore decided to give teeth to their resolve to obliterate and wipe out this evil practice by enacting constitutional prohibition against it in the chapter on fundamental rights, so that the abolition of such practice may become enforceable and effective as soon as the Constitution came into force.
This is the reason why the provision enacted in Article 23 was included in the chapter on fundamental rights.
The prohibition against "traffic in human beings and begar and other similar forms of forced labour" 485 is clearly intended to be a general prohibition, total in its effect and all pervasive in its range and it is enforceable not only against the State but also against any other person indulging in any such practice.
The question then is as to what is the true scope and meaning of the expression "traffic in human beings and begar and other similar forms of forced labour" in Article 237 What are the forms of 'forced labour ' prohibited by that Article and what kind of labour provided by a person can be regarded as 'forced labour ' so as to fall within this prohibition ? When the Constitution makers enacted Article 23 they had before them Article of the Universal Declaration of Human Rights but they deliberately departed from its language and employed words which would make the reach and content of Article 23 much wider than that of Article 4 of the Universal Declaration of Human Rights.
They banned 'traffic in human beings which is an expression of much larger amplitude than "slave trade" and they also interdicted "begar and other similar forms of forced labour".
The question is what is the scope and ambit of the expression 'begar and other similar forms of forced labour ?" In this expression wide enough to include every conceivable form of forced labour and what is the true scope and meaning of the words ' 'forced labour ?" The word 'begar ' in this Article is not a word of common use in English language.
It is a word of Indian origin which like many other words has found its way in the English vocabulary.
It is very difficult to formulate a precise definition of the word begar ' but there can be no doubt that it is a form of forced labour under which a person is compelled to work without receiving any remuneration.
Molesworth describes 'begar ' as "labour or service exacted by a government or person in power without giving remuneration for it.
" Wilson 's glossary of Judicial and Revenue Terms gives the following meaning of the word 'begar ': "a forced labourer, one pressed to carry burthens for individuals or the public.
Under the old system, when pressed for public service, no pay was given.
The Begari, though still liable to be pressed for public objects, now receives pay: Forced labour for private service is prohibited." "Begar" may therefore be loosely described as labour or service which a person is forced to give without receiving any remuneration for 'it.
That was the meaning of the word 'begar ' accepted by a Division Bench 486 of the Bombay High Court in section Vasudevan vs S.D. Mital.(1) 'Begar ' is thus clearly a film of forced labour.
Now it is not merely 'begar ' which is unconstitutionally prohibited by Article 23 but also all other similar forms of forced labour.
This Article strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and is contrary to basic human values.
The practice of forced labour is condemned in almost every international instrument dealing with human rights.
It is interesting to find that as far back as 1930 long before the Universal Declaration of Human Rights came into being, International Labour organisation adopted Convention No. 29 laying down that every member of the International Labour organisation which ratifies this convention shall "suppress the use of forced or compulsory labour in all its forms" and this prohibition was elaborated in Convention No. 105 adopted by the International Labour organisation in 1957.
The words "forced or compulsory labour" in Convention No. 29 had of course a limited meaning but that was so on account of the restricted definition of these words given in Article 2 of the Convention.
Article 4 of the European Convention of Human Rights and Article 8 of the International Covenant on Civil and Political Rights also prohibit forced or compulsory labour.
Article 23 is in the same strain and it enacts a prohibition against forced labour in whatever form it may be found.
The learned counsel appearing on behalf of the respondent laid some emphasis on the word 'similar ' and contended that it is not every form of forced labour which is prohibited by Article 23 but only such form of forced labour as is similar to 'begar ' and since 'begar ' means labour or service which a person is forced to give without receiving any remuneration for it, the interdict of Article 23 is limited only to those forms of forced labour where labour or service is exacted from a person without paying any remuneration at all and if some remuneration is paid, though it be inadequate, it would not fall within the words 'other similar forms of forced labour.
This contention seeks to unduly restrict the amplitude of the prohibition .
against forced labour enacted in Article 23 and is in our opinion not well founded.
It does not accord with the principle enunciated by this Court in Maneka Gandhi vs Union of India(2) that when interpreting the provisions of the Constitution conferring fundamental rights, the attempt of the court should be to expand the reach and ambit of the fundamental rights rather than to attenuate their (1) AIR 1962 Bom.
53: (2) [1978] 2 SCR 621.
487 meaning and content.
It is difficult to imagine that the Constitution makers should have intended to strike only at certain forms of forced labour leaving it open to the socially or economically powerful sections of the community to exploit the poor and weaker sections by resorting to other forms of forced labour.
Could there be any logic or reason in enacting that if a person is forced to give labour or service to another without receiving any remuneration at all it should be regarded as a pernicious practice sufficient to attract the condemnation of Article 23, but if some remuneration is paid for it, then it should be outside the inhibition of that Article ? If this were the true interpretation, Article 23 would be reduced to a mere rope of sand, for it would then be the easiest thing in an exploitative society for a person belonging to a socially or economically dominant class to exact labour or service from a person belonging to the deprived and vulnerable section of the community by paying a negligible amount of remuneration and thus escape the rigour of Article 23.
We do not think it would be right to place on the language of Article 23 an interpretation which would emasculate its beneficent provisions and defeat the very purpose of enacting them.
We are clear of the view that Article 23 is intended to abolish every form of forced labour.
The words "other similar forms of forced labour are used in Article 23 not with a view to importing the particular characteristic of 'begar ' that labour or service should be exacted without payment of any remuneration but with a view to bringing within the scope and ambit of that Article all other forms of forced labour and since 'begar ' is one form of forced labour, the Constitution makers used the words "other similar forms of forced labour.
" If the requirement that labour or work should be exacted without any remuneration were imported in other forms of forced labour, they p would straightaway come within the meaning of the word 'begar ' and in that event there would be no need to have the additional words "other similar forms of forced labour.
" These words would be rendered futile and meaningless and it is a well recognised rule of interpretation that the court should avoid a construction which as the effect of rendering any words used by the legislature superfluous or redundant.
The object of adding these words was clearly to expand the reach and content of Article 23 by including, in addition to 'begar ', other forms of forced labour within the prohibition of that Article.
Every form of forced labour 'begar ' or otherwise, is within the inhibition of Article 23 and it makes no difference whether the per 488 son who is forced to give his labour or service to another is remunerated or not.
Even if remuneration is paid, labour supplied by a person would be hit by this Article if it is forced labour, that is, labour supplied not willingly but as a result of force or compulsion.
Take for example a case where a person has entered into a contract of service with another for a period of three years and he wishes to discontinue serving such other person before the expiration of the period of three years.
If a law were to provide that in such a case the contract shall be specifically enforced and he shall be compelled to serve for the full period of three years, it would clearly amount to forced labour and such a law would be void as offending Article 23.
That is why specific performance of a contract of service cannot be enforced against an employee and the employee cannot be forced by compulsion of law to continue to serve the employer.
Of course, if there is a breach of the contract of service, the employee would be liable to pay damages to the employer but he cannot be forced to continue to serve the employer without breaching the injunction of Article 23.
This was precisely the view taken by the Supreme Court of United States in Bailv vs Alabama(1) while dealing with a similar provision in the Thirteenth Amendment.
There, a legislation enact ed by the Alabama State providing that when a person with intent to injure or defraud his employer enters into a contract in writing for the purpose of any service and obtains money or other property from the employer and without refunding the money or the property refuses or fails to perform such service, he will be punished with of fine.
The constitutional validity of this legislation was challenged on the ground that it violated the Thirteenth Amendment which inter alia provides: "Neither slavery nor involuntary servitude shall exist within the United States or any place subject to their jurisdiction".
This challenge was upheld by a majority of the Court and Mr. Justice Hughes delivering the majority opinion said: "We cannot escape the conclusion that although the statute in terms is to punish fraud, still its natural and inevitable effect is to expose to conviction for crime those .
who simply fail or refuse to perform contracts for personal service in liquidation of a debt, and judging its purpose by its effect that it seeks in this way to provide the means of compulsion through which performance of such service may (1) ; 489 be secured.
The question is whether such a statute is constitutional".
The learned Judge proceeded to explain the scope and ambit of the expression 'involuntary servitude ' in the following words: "The plain intention was to abolish slavery of whatever name and form and all its badges and incidents, to render impossible any state of bondage, to make labour free by prohibiting that control by which the personal service of one men is disposed of or coerced for another 's benefit, which is the essence of involuntary servitude.
" Then, dealing with the contention that the employee in that case had voluntarily contracted to perform the service which was sought to be compelled and there was therefore no violation of the provisions of the Thirteenth Amendment, the learned Judge observed: "The fact that the debtor contracted to perform the labour which is sought to be compelled does not withdraw the attempted enforcement from the condemnation of the statute.
The full intent of the constitutional provision could be defeated with obvious facility if through the guise of contracts under which advances had been made, debtors could be held to compulsory service.
It is the compulsion of the service that the statute inhibits, for when that occurs, the condition of servitute is created which would be not less involuntary because of the original agreement to work out the indebtedness.
The contract exposes the debtor to liability for the loss due to the breach, but not to enforced labour." and proceeded to elaborate this thesis by pointing out: "Peonage is sometimes classified as voluntary or involuntary, but this implies simply a difference in the mode of origin, but none in the character of the servitude.
The one exists where the debtor voluntarily contracts to enter the Service of his creditor.
The other is forced upon the debtor by some provision of law.
But peonage however created, is compulsory service, involuntary servitude.
The peon can release himself therefrom, it is true, by the pay 490 ment of the debt, but otherwise the service is enforced.
A clear distinction exists between peonage and the voluntary performance of labour or rendering of services in payment of a debt.
In the latter case the debtor though contracting to pay his indebtedness by labour of service, and subject like any other contractor to an action for damages for breach of that contract, can elect at any time to break it, and no law or force compels performance or a continuance of the service.
" It is therefore clear that even if a person has contracted with another to perform service and there is consideration for such service in the shape of liquidation of debt or even remuneration, he cannot be forced by compulsion of law or otherwise to continue to perform such service, as that would be forced labour within the inhibitian of Article 23.
This Article strikes at every form of forced labour even if it has its origin in a contract voluntarily entered into by the person obligated to provide labour or service Vide Pollock vs Williams.(1) The reason is that it offends against human dignity to compel a person to provide labour or service to another if he does not wish to do so, even though it be in breach of the contract entered into by him.
There should be no serfdom or involuntary servitude in a free democratic India which respects the dignity of the individual and the worth of the human person.
Moreover, in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, a contract of service may appear on its face voluntary but it may, in reality, be involuntary, because while entering into the contract, the employee, by reason of his economically helpless condition, may have been faced with Hobson 's choice, either to starve or to submit to the exploitative terms dictated by the powerful employer.
It would be a travesty of justice to hold the employee in such a case to the terms of the contract and to compel him to serve the employer even though he may not wish to do so.
That would aggravate the inequality and injustice from which the employee even otherwise suffers on account of his economically disadvantaged position and lend the authority of law to the exploitation of the poor helpless employee by the economically powerful employer.
Article 23 therefore says that no one shall be forced to (1) ; Lawyers Edition 1095.
491 provide labour or service against his will, even though it be under a contract of service.
Now the next question that arises for consideration is whether there is any breach of Article 23 when a person provides labour or service to the State or to any other person and is paid less than the minimum wage for it.
It is obvious that ordinarily no one would willingly supply labour or service to another for less than the minimum wager when he knows that under the law he is entitled to get minimum wage for the labour or service provided by him.
It may therefore be legitimately presumed that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under law to receive.
What Article 23 prohibits is 'forced labour ' that is labour or service which a person is forced to provide and 'force ' which would make such labour or service 'forced labour ' may arise in several ways.
It may be physical force which may compel a person to provide labour or service to another or it may be force exerted through a legal provision such as a provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want and destitution.
Any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as 'force ' and if labour or service is compelled as a result of such 'force ', it would we 'forced labour '.
Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or feed his wife and children or even to hide their nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate the rigour of his poverty, he would have no choice but to accept any work that comes hims way, even if the remuneration offered to him is less than the minimum wage.
He would be in no position to bargain with the employer; he would have to accept what is offered to him.
And in doing so he would be acting not as a free agent with a choice between alternatives but under the compulsion of economic circumstances and the labour or service provided by him would be clearly 'forced labour. ' There is no reason why the word 'forced ' should be read in a narrow and 492 restricted manner so as to be confined only to physical or legal 'force ' particularly when the national charter, its fundamental document has promised to build a new socialist republic where there will be socioeconomic justice for all and every one shall have the right to work, to education and to adequate means of livelihood.
The constitution makers have given us one of the most remarkable documents in history for ushering in a new socio economic order and the Constitution which they have forged for us has a social purpose and an economic mission and therefore every word or phrase in the Constitution must be interpreted in a manner which would advance the socio economic objective of the Constitution.
It is not unoften that in capitalist society economic circumstance exert much greater pressure on an individual in driving him to a particular course of action than physical compulsion or force of legislative provision.
The word 'force ' must therefore be constructed to include not only physical or legal force but also force arising from the compulsion of economic circumstance which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage of course, if a person provides labour or service to another against receipt of the minimum wage, it would not be possible to say that the labour or service provided by him is 'forced labour ' because he gets what he is entitled under law to receive.
No inference can reasonably be drawn in such a case that he is forced to provide labour or service for the simple reason that he would be providing labour or service against receipt of what is lawfully payable to him just like any other person who is not under the force of any compulsion.
We are therefore of the view that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words 'forced labour ' under Article 23.
Such a person would be entitled to come to the court for enforcement of his fundamental right under Article 23 by asking the court to direct payment of the minimum wage to him so that the labour or service provided by him ceases to be 'forced labour ' and the breach of Article 23 is remedied.
It is therefore clear that when the petitioners alleged that minimum wage was not paid to the workmen employed by the contractors, the complaint was really in effect and substance a complaint against violation of the fundamental right of the workmen under Article 23.
493 Before leaving this subject, we may point out with all the emphasis at our command that whenever any fundamental right, which is enforceable against private individuals such as, for example a fundamental right enacted in Article 17 or 23 or 24 is being violated, it is the constitutional obligation of the State to take the necessary steps for the purpose of interdicting such violation and ensuring observance of the fundamental right by the private indivi dual who is transgressing the same.
Of course, the person whose fundamental right is violated can always approach the court for the purpose of enforcement of his fundamental right, but that cannot absolve the State from its constitutional obligation to see that there is no violation of the fundamental right of such person, particularly.
when he belongs to the weaker section humanity and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him.
The Union of India, the Delhi Administration and the Delhi Development Authority must therefore be held to be under an obligation to ensure observance of these various labour laws by the contractors and if the provisions of any of these labour laws are violated by the contractors, the petitioners indicating the cause of the workmen are entitled to enforce this obligation against the Union of India, the Delhi Administration and the Delhi Development Authority by filing the present writ petition.
The preliminary objections urged on behalf of the respondents must accordingly be rejected.
Having disposed of these preliminary objections, we may turn to consider whether there was any violation of the provisions of the , Article 24 of the Constitution, the , the Contract labour (Regulation and Abolition) Act 1970 and the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979 by the contractors.
The Union of India in its affidavit in reply admitted that there were certain violations committed by the contractors but hastened to add that for these violations prosecutions were initiated against the errant contractors and no violation of any of the labour laws was allowed to go unpunished.
The Union of India also conceded in its affidavit in reply that Re. 1/ per worker per day was deducted by the jamdars from the wage payable to the workers with the result that the workers did not get the minimum wage of Rh. 9.25 per day, but stated that proceedings had been taken for the purpose of recovering the amount of the short fall in minimum wage from the contractors.
No particulars were however given of 494 such proceedings adopted by the Union of India or the Delhi Administration or the Delhi Development Authority.
It was for this reason that we directed by our order dated 11th May 1982 that whatever is the minimum wage for the time being or if the wage payable is higher than such wage, shall be paid by the contractors to the workmen directly without the intervention of the jamadars and that the jamadars shall not be entitled to deduct or recover any amount from the minimum wage payable to the workmen as and by way of commission or otherwise.
He would also direct in addition that if the Union of India or the Delhi Administration or the Delhi Development Authority finds and for this purpose it may hold such inquiry as is possible in the circumstances that any of the workmen has not received the minimum wage payable to him, it shall take the necessary legal action against the contracts whether by way of prosecution or by way of recovery of the amount of the short fall.
We would also suggest that hereafter whenever any contracts are ' given by the government or any other governmental authority including 2 public sector corporation, it should be ensured by intro ducing a suitable provision in the contracts that wage shall be paid by the contractors to the workmen directly without the intervention of any jamadars or thekadars and that the contractors shall ensure that no amount by way of commission or otherwise is deducted or recovered by the Jamadars from the wage of the workmen.
So far as observance of the other labour laws by the contractors is concerned, the Union of India, the Delhi Administration and the Delhi Development Authority disputed the claim of the petitioners that the provisions of these labour laws were not being implemented by the contractors save in a few instances where prosecutions had been launched against the contractors.
Since it would not be possible for this Court to take evidence for the purpose of deciding this factual dispute between the parties and we also wanted to ensure that in any event the provisions of these various laws enacted for the benefit of the workmen were strictly observed and implemented by the contractors, we by our order dated 11th May 1982 appointed three ombudsmen and requested them to make periodical inspections of the sites of the construction work for the purpose of ascertaining whether the provisions of these labour laws were being carried out and the workers were receiving the benefits and amenities provided for them under these beneficient statutes or whether there were any violations of these provisions being committed by the contractors so that on the basis of the reports of the three ombudsmen, this Court could give further direction in the matter if found necessary.
We may 495 add that whenever any construction work is being carried out either departmentally or through contractors, the government or any other governmental authority including a public sector corporation which is carrying out such work must take great care to see that the provisions of the labour laws are being strictly observed and they should not wait for any complaint to be received from the workmen in regard to nonobservance of any such provision before proceeding to take action against the erring officers or contractor, but they should institute an effective system of periodic inspections coupled with occasional surprise inspections by the higher officers in order to ensure that there are no violations of the provisions of labour laws and the workmen are not denied the rights and benefits to which they are entitled under such provisions and if any such violations are found, immediate action should be taken against defaulting officers or contractors.
That is the least which a government or a governmental authority or a public sector corporation is expected to do in a social welfare state.
These are the reasons for which we made our order dated 11th May 1982.
S.R. Petition allowed.
| IN-Abs | Petitioner No. 1, is an organisation formed for the purpose of protecting democratic rights.
It commissioned three social scientists for the purpose of investigating and inquiring into the conditions under which the workmen engaged in the various Asiad Projects were working.
Based on the report made by these three social scientists after personal investigation and study the 1st petitioner addressed a letter to Hon 'ble Mr. Justice Bhagwati complaining of violation of various labour laws by tho respondents ' and/or their agents and seeking interference by the Supreme Court to render social justice by means of appropriate directions to the affected workmen.
The Supreme Court treated the letter as a writ petition on the judicial side and issued notice to the Union of India, Delhi Administration and the Delhi Development Authority.
The allegations in the petition were: (i) The various authorities to whom the execution of the different projects was entrusted engaged contractors for the purpose of carrying out the construction work of the projects and they were registered as principal employers under section 7 of the .
These contractors engaged workers through "Jamadars" who brought them from different parts of India particularly the States of Rajasthan, Uttar Pradesh and Orissa and paid to these Jamadars the minimum wage of Rs. 9.25 per day per worker and not to the workmen direct.
The Jamadars deducted Rupee one per day per worker as their commis 457 sion with the result that there was a violation of the provisions of A the Minimum Wages Act; (ii) The provisions of were violated as the women workers were being paid Rs. 71 per day, the balance of the amount of the wage was being misappropriated by the Jamadars: (iii) There was violation of Article 24 of the Constitution and of the . provisions of the Employment of Children Acts, 1938 and 1970 in as much as children below the age of 14 years were employed by the contractors in the construction work of the various projects, (iv) There was violation of the provisions of the Contract Labour (Regulations and Abolition) Act, 1970 which resulted in deprivation and exploitation of the workers and denial of their right to proper living condition and medical and other facilities under the Act; and (v) The provisions of the Inter state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, though brought into force as far back as 2nd October 1980 in the Union.
Territory of Delhi were not implemented by the Contractors.
Allowing the petition, the Court, ^ HELD: l:1.
Public interest litigation which is strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief.
Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and indicate public interest which demands that violations of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed.
That would be destructive of the Rule of Law which forms one of the essential elements of public interest in any democratic form of Government.
[467 C F] 1:2.
The Rule of Law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights.
The poor too have civil and political rights and the Rule of law is meant for them also, though today it exists only on paper and not in reality.
If the sugar barons and the alcohol kings have the Fundamental rights to carry on their business and to fatten their purses by exploiting the consuming public, certainly the "chamaras" to belonging 458 to the lowest strata of society have Fundamental Right to earn on honest living through their sweat and toil.
Large numbers of men, women and children who constitute the bulk of an population are today living a sub human existence in conditions of object poverty; utter grinding poverty bas broken their back and sapped their moral fibre.
They have no faith in the existing social and economic system.
Nor can these poor and deprived sections of humanity afford to enforce their civil and political rights.
(467 P H; 468 A D] 1:3.
The only solution of making civil and political rights meaningful to these large sections of society would be to remake the material conditions and restructure the social and economic order so that they may be able to realise the economic, social and cultural rights.
Of course, the task of restructuring the social and economic order so that the social and economic right become a meaningful reality for the poor and lowly sections of the community is one which legitimately belongs to the legislature and the executive but mere initiation of social and economic rescue programmes by the executive and the legislature would not be enough and it is only through multi dimensional strategies including public interest litigation that these social and economic rescue programmes can be made effective.
[468 G H, 469 B D] 1:4.
Public interest litigation, is essentially a cooperative or collaborative effort on the part of the petitioner, the State or public authority and the Court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them.
The State or public authority against whom public interest litigation is brought should be as much interested in ensuring basic human rights, constitutional as well as legal, to those who are in a socially and economically disadvantaged position, as the petitioner who brings the public interest litigation before the court.
The State or public authority which is arrayed as a respondent in public interest litigation should, in fact, welcome it, as it would give it an opportunity to right a wrong or to redress an injustice done to the poor and weaker sections of the community whose welfare is and must be the prime concern of the State or the public authority.
[469 D F] l:5.
The legal aid movement and public interest litigation seek to bring justice to these forgotten specimens of humanity who constitute the bulk of the citizens of India and who are really and truly the "People of India who gave to themselves this magnificent Constitution.
Pendency of large arrears in the courts cannot be any reason for denying access of justice to the poor and weaker sections of the community.
[470 E F] 1:6.
The time has now come when the courts must become the courts for the poor and struggling masses of this country.
They must shed their character as upholders of the established order and the status quo.
They must be sensitised to the need of doing justice to the large masses of people to whom justice has been denied by a cruel and heartless society for generations.
The realisation must come to them that social justice is the signature tune of our Constitution and it is their solemn duty under the Constitution to enforce the basic human rights of the poor and vulnerable sections of the community and actively help in the 459 realisation of the constitutional goals.
This new change has to come if the judicial system is to become an effective instrument of social justice for without it, it cannot survive for long.
Fortunately this change is gradually taking place and public interest litigation is playing a large part in bringing about this change.
It is through public interest litigation that the problems of the poor are now coming to the forefront and the entire theatre of the law is changing.
It holds out great possibilities for the future.
This writ petition is one such instance of public interest litigation.
[470 G H; 471 A C] 2.
It is true that construction industry does not find a place on the schedule to the and the Prohibition enacted in section 3 sub section ( 3) of that Act against the employment of a child who has not completed his fourteenth year cannot apply to employment in construction industry.
But, apart altogether from the requirement of Convention No. 59 of C the International Labour organisation and ratified by India, Article 24 of the Constitution provides that no child below the age of 14 shall be employed to work in any factory or mine or engaged in any other hazardous employment.
This is a constitutional prohibition which, even if not followed up by appropriate legislation, must operate propiro vigore and construction work being plainly and indubitably a hazardous employment, it is clear that by reason of this Constitutional prohibition, no child below the age of 14 years can be allowed to be engaged in construction work.
Therefore, notwithstanding the absence of specification of construction industry in the Schedule to the , no child below the age of 14 years can be employed in construction work and the Union of India as also every state Government must ensure that this constitutional mandate is not violated in any part of the Country [474 A F] 3.
Magistrates and Judges in the country must view violations of labour laws with strictness and whenever any violations of labour laws are established before them, they should punish the errant employers by imposing adequate punishment.
The labour laws are enacted for improving the conditions of workers and the employers cannot be allowed to buy off immunity against violations of labour laws by paying a paltry fine which they would not mind paying, because by violating the labour laws they would be making profit which would far exceed the amount of the fine.
If violations of labour laws are to be punished with meagre fines, it would be impossible to ensure observance of the labour laws and the labour laws would be reduced to nullity.
They would remain merely paper tigers without any teeth or claws.
[476 E H] 4:1.
It is true that the complaint of the petitioners in the writ petition is in regard to the violations of the provisions of various labour laws designed for the welfare of workmen, and therefore from a strictly traditional point of view it would be only the workmen whose legal rights are violated who would be entitled to approach the court for judicial redress.
But the traditional rule of standing which confines access to the judicial process only to those to whom legal injury is caused or legal wrong is done has now been jettisoned by the Supreme Court and the narrow confines within which the rule of standing was imprisoned for long years as a result of inheritance of the Anglo saxon system of jurisprudence have been broken and a new dimension has been given to the doctrine of 460 locus standi which has revolutionised the whole concept of access to justice in a way not known before to the Western System of jurisprudence.
[477 F H] 4:2.
Having regard to the peculiar socio economic conditions prevailing in the country where there is considerable poverty, illiteracy and ignorance obstructing and impeding accessibility to the judicial process, it would result in closing the doors of justice to the poor and deprived sections of the community if the traditional rule of standing evolved by Anglo Saxon jurisprudence that only a person wronged can sue for judicial redress were to be blindly adhered to and followed, and it is therefore Necessary to evolve a new strategy by relaxing this traditional rule of standing in order that justice may become easily available to the lowly and the lost.
[478 A C] 4:3.
Where a person or class of persons to whom legal injury is caused or legal wrong is done is by reason of poverty, disability or socially or economically disadvantaged position not able to approach the Court for judicial redress, any member of the public acting bonafide and not out of any extraneous motivation may move the Court for judicial redress of the legal injury or wrong suffered by such person or class of persons and the judicial process may be set in motion by any public spirited individual or institution even by addressing a letter to the court.
Where judicial redress is sought of a legal injury or legal wrong suffered by a person or class of persons who by reason of poverty, disability or socially or economically disadvantaged position are unable to approach the court and the court is moved for this purpose by a member of a public by addressing a letter drawing the attention of the court to such legal injury or legal wrong, court would cast aside all technical rules of procedure and entertain the letter as a writ Petition on the judicial side and take action upon it.
[478 C F] Here, the workmen whose rights are said to have been violated and to whom a life of basic human dignity has been denied are poor, ignorant, illiterate humans who, by reason of their poverty and social and economic disability, are unable to approach the courts for judicial redress and hence the petitioners have, under the liberalised rule of standing, locus standi to maintain the present writ petition espousing the cause of the workmen.
The petitioners are not acting mala fide or out of extraneous motives since the first petitioner is admittedly an organisation dedicated to tho protecting and enforcement of Fundamental Rights and making Directive Principles of State Policy enforceable and justiciable.
There can be no doubt that it is out of a sense of public service that the present Litigation has been brought by the petitioners and it is clearly maintainable.
[478 G H; 479 A B] 4.4 The Union of India, the Delhi Administration and the Delhi Development Authority cannot escape their obligation to the workmen to ensure observance of the provisions of various labour law by its contractors and for non compliance with the laws by the contractors, the workmen would clearly have a cause of actions against them as principal employers.
So far as to Con tract Labour (Regulation and Abolition) Act, 1970 is concerned, section 20 is clear that if any amenity required to be provided under sections 16 to 18 or 19 for the 461 benefit of the workmen employed in an establishment is not provided by the contractor, the obligation to provide such amenity rests on the principal employer.
[479 C D] Sections 17 and 18 of the Inter state Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979 also make principal employer liable to make payment of the wages to the wages to the migrant workmen employed by the contractor as also to pay the allowances provided under sections 14 and 15 and to provide the facilities specified in section 16 of such migrant workmen.
[479 F G] Article 24 of the Constitution embodies a Fundamental Right which is plainly and indubitably enforceable against every one and by reason of its compulsive mandate, no one can employ a child below the age of 14 years in a hazardous employment.
Since, construction work is a hazardous employment, no child below the age of 14 years can be employed in constructions work and therefore, not only are the contractors under a constitutional mandate not to employ any child below the age of 14 years, but it is also the duty of the Union of India, the Delhi Administration and the Delhi Development Authority to ensure that this constitutional obligation is obeyed by the contractors to whom they have entrusted the construction work of the various Asiad Projects.
Similarly the respondents must ensure compliance with by the contractors of the Provisions of the equal Remuneration Act, 1946 as they express the principle of equality embodied in Article 14 of the Constitution.
[479 G H; 480 A D] No doubt, the contractors are liable to pay the minimum wage to the workmen employed by them under the Minimum Wage Act 1948 but the Union of India, the Delhi Administration and the Delhi Development Authority who have entrusted the construction work to the contractors would equally be responsible to ensure that the minimum wage is paid to the workmen by their contractors.
[480 G H] 5:1.
It is true that the present writ petition cannot be maintained by the petitioners unless they can show some violation of a Fundamental Right, for it is only for enforcement right that a writ petition can be maintained in this Court under Article 32.
But, certainly the following complaints do legitimately form the subject matter of a writ petition under Article 32; namely, (i) the complaint of violation of Article 24 based on the averment that children below the age of 14 years are employed in the construction work of the Asiad Projects, (ii) allegation of non observance of the provisions of the Equal Remuneration Act 1946, is in effect and substance a complaint of breach of the principle of equality before the law enshrined in Article 14; and (iii) the complaint of non observance of the provisions of the and the Interstate Migrant Workmen (Regulations of Employment and Conditions of Service) Act 1979 as it is a complaint relating to violation of Article 21.
Now the rights and benefits conferred on the workmen employed by a contractor under the provisions of the and the Inter State Migrant Workmen Regulation of Employment and Conditions of Service) Act 1979 which became enforceable w.e.f. 4 6 1982 are clearly intended to ensure basic 462 human dignity to the workmen and if the workmen are deprived of any of these rights and benefits to which they are entitled under the provisions of these two pieces of social welfare legislation, that would clearly be a violation of Article 21 by the Union of India, the Delhi Administration and the Delhi Development Authority which, as principal employers, are made statutorily responsible for securing such rights and benefits to the workmen; and (iv) the complaint in regard to non payment of minimum wage to the workmen under the , is also one relating to breach of a Fundamental Right enshrined in Article 23 which is violated by non payment of minimum wage to the workmen.
[481 D H; 482 A F] Maneka Gandhi vs Union of India, [1978] 2 SCR 663; Francis Coralie Mullin vs The Administrator of Union Territory of Delhi & Others, ; , applied.
Many of the fundamental rights enacted in operate as limitations on the power of the State and impose negative obligations on the State not to encroach on individual liberty and they are enforceable only against the State.
But there are certain fundamental rights conferred by the Constitution which are enforceable against the whole world and they are to be found inter alia in Articles 17, 23 and 24.
[483 C D] 5:3.
Article 23 is clearly designed to protect the individual not only against the State but also against other private citizens.
Article 23 is not limited in its application against the State but it prohibits "traffic in human beings and begar and other similar forms of forced labour" practised by anyone else.
The prohibition against "traffic in human being and begar and other similar forms of forced labour" is clearly intended to be a general prohibition, total in its effect and all pervasive in its range and it is enforceable not only against the State but also against any other person indulging in any such practice.
[484 G H; 485 A] 5:4.
The word "begar" in Article 23 is not a word of common use in English language, but a word of Indian origin which like many other words has found its way in English vocabulary.
It is a form of forced labour under which a person is compelled to work without receiving any remuneration.
Begar is thus clearly a film of forced labour.
[485 E G] section Vasudevan vs S.D. Mittal AIR 1962 Bom.
53 applied.
It is not merely 'begar ' which is constitutionally prohibited by Article 23 but also all other similar forms of forced labour.
Article 23 strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and is contrary to basic human values.
To contend that exacting labour by passing some remuneration, though it be inadequate will not attract the provisions of Article 23 is to unduly restrict the amplitude of the prohibition against forced labour enacted in Article 23.
The contention is not only illfounded, but does not accord with the principle enunciated by this Court in Maneka Gandhi vs Union of India that when interpreting the provisions of the Constitution conferring fundamental rights, the attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than to attenuate 463 their meaning and content.
The Constitution makers did not intend to strike only at certain forms of forced labour leaving it open to the socially or economically powerful sections of the community to exploit the poor and weaker sections by resorting to other forms of forced labour.
There could be no logic or reason in enacting that if a person is forced to give labour or service to another without receiving any remuneration at all, it should be regarded as a pernicious practice sufficient to attract the condemnation of Article 23, but if some remuneration is paid for it, then it should be outside the inhibition of that Article.
To interpret Article 23 as contended would be reducing Article 23 to a mere rope of sand, for it would then be the easiest thing in an exploitative society for a person belonging to a socially or economically dominant class to exact labour or service from a person belonging to the deprived and vulnerable section of the community by paying a negligible amount of remuneration and thus escape the rigour of article 23.
It would not be right to place on the language of Article 23 an interpretation which would emasculate its beneficient provisions and defeat the very purpose of enacting them.
Article 23 is intended to abolish every form of forced labour.
[486 E H; 487 A D] 5:6.
The words "other similar forms of forced labour" are used in Article 23 not with a view to importing the particular characteristic of 'begar ' that labour or service should be exacted without payment of any remuneration but with a view to bringing within the scope and ambit of that Article all other forms of forced labour and since 'begar ' is one form of forced labour, the Constitution makers used the words "other similar forms of forced labour".
If the requirement that labour or work should be exacted without any remuneration were imported in other forms of forced labour.
they would straight away come within the meaning of the word 'begar ' and in that event there would be no need to have the additional words "other similar forms of forced labour.
" These words would be rendered futile and meaningless and it is a well recognised rule of interpretation that the court should avoid a construction which has the effect of rendering any words used by the legislature superfluous redundant.
[487 E G] The object of adding these words was clearly to expand the reach and content of Article 23 by including, in addition to 'begar ', other forms of forced labour within the prohibition of that Article.
Every form of forced labour, 'begar ' or otherwise, is within the inhibition of Article 23 and it makes no difference whether the person who is forced to give his labour or service to another is remunerated or not.
Even if remuneration is paid, labour supplied by a person would be hit by Article 23 if it is forced labour, that is, labour supplied not willingly but as a result of force or compulsion.
For example, where a person has entered into a contract of service with another for a period of three years and he wishes to discontinue serving such other person before the expiration of the period of three years, if a law were to provide that in such a case the contract shall be specifically enforced and he shall be compelled to serve for the full period of three years, it would clearly amount to forced labour and such a law would be void as offending Article 23.
That is why specific performance of a contract of service cannot be enforced against an employee 464 and the employee cannot be forced by compulsion of law to continue to serve the employer.
Of course, if there is a breach of the contract of service, the employee would be liable to pay damages to the employer but he cannot be forced to continue to serve the employer without breaching the injunction of Article 23.
[487 H; 488 A D] Baily vs Aalabama, ; Law Ed. 191; quoted with approval, 5:7.
Even if a person has contracted with another to perform service and there is consideration for such service in the shape of liquidation of debt or even remuneration, he cannot be forced by compulsion of law or otherwise, to continue to perform such service, as that would be forced labour within the inhibition of Article 23, which strikes at every form of forced labour even if it has its origin in a contract voluntarily entered into by the person obligated to provide labour or service, for the reasons, namely; (i) it offends against human dignity to compel a person to provide labour or service to another if he does not wish to do so, even though it be breach of the contract entered into by him; (ii) there should be no serfdom or involuntary servitude in a free democratic India which respects the dignity of the individual and the worth of the human person; (iii) in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, a contract of service may appear on its face voluntary but it may, in reality, be involuntary, because while entering into the contract the employee by reason of his economically helpless condition, may have been faced with Hobson 's choice, either to starve or to submit to the exploitative terms dictated by the powerful employer.
It would be a travesty of justice to hold the employee in such a case to the terms of the contract and to compel him to serve the employer even though he may not wish to do so.
That would aggravate the inequality and injustice from which the employee even otherwise suffers on account of his economically disadvantaged position and lend the authority of law to the exploitation of the poor helpless employee by the economically powerful employer.
Article 23 therefore, provides that no one shall be forced to provide labour or service against his will, even though it be under a contractor of service.
[490 C H] Pollock vs Williams, ; Lawyers Edn. 1095; referred to.
Where a person provides labour or services to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words "forced labour" under Article 23.
Such a person would be entitled to come to the court for enforcement of his fundamental right under Article 23 by asking the court to direct payment of the minimum wage to him so that the labour or service provided by him ceases to be 'forced labour ' and the breach of Article 23 is remedied.
[492 F G] 5:9.
Ordinarily no one would willingly supply labour or service to another for less than the minimum wage, when he knows that under the law he is entitled to get minimum wage for the labour or service provided by him.
Therefore when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of 465 some compulsion which drives him to work though he is paid less than what he is entitled under law to receive.
What Article 23 prohibits is 'forced labour ' that is labour or service which a person is forced to provide." [491 B D] 5:10. 'Force ' which would make such labour or service 'forced labour ' may arise in several ways.
It may be physical force which may compel a person to provide labour or service to another or it may be force exerted through a legal provision such as a provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want and destitution.
Any factor which deprives a person of a choice of alternative and compels him to adopt one particular course of action may properly be regarded as 'force ' and if labour or service is compelled as a result of such 'force ', it would be 'forced labour '.
Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or to feed his wife and children or even to hide their nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate the rigour of his poverty, he would have no choice but to accept any work that comes his way, even if the remuneration offered to him is less than the minimum wage.
He would be in no position to bargain with the employer; he would have to accept what is offered to him.
And in doing so he would be acting not as a free agent with a choice between alternatives but under the compulsion of economic circumstances and the labour of service provided by him would be clearly 'forced labour '.
The word 'forced ' should not be read in a narrow and restricted manner so as to be confined only to physical or legal 'force ' particularly when the national character, its fundamental document has promised to build a new socialist republic where there will be socio economic justice for all and every one shall have the right to work, to education and to adequate means of livelihood.
The constitution makers have given us one of the most remarkable documents in history for ushering in a new socio economic order and the Constitution which they have forged for us has a social purpose and an economic mission and, therefore, every word or phrase in the Constitution must be interpreted in a manner which would advance the socio economic objective of the Constitution.
It is a fact that in a capitalist society economic circumstances exert much greater pressure on an individual in driging him to a particular course of action than physical compulsion or force of legislative provision.
The word 'force ' must therefore be construed to include not only physical or legal force but force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage.
Of course, if a person provides labour or service to another against receipt of the minimum wage, it would not be possible to say that the labour or service provided by him is 'forced labour ' because he gets what he is entitled under law to receive.
No inference can reasonably be drawn in such a case that he is forced to provide labour or service for the simple reason that would be providing labour or service against receipt of what is lawfully payable to him just like any other person who is not under the force of any compulsion.
[491 D H; 492 A E] 6.
Wherever any fundamental right which is enforceable against private individuals such as, for example, a fundamental right enacted in Article 17 or 23 466 or 24 is being violated, it is the constitutional obligation of the State to take necessary steps for the purpose of interdicting such violation and ensuring observance of the fundamental right by the private individual who is transgressing the same.
The fact that the person whose fundamental right is violated can always approach the court for the purpose of enforcement of his fundamental right, cannot absolve the State from its constitutional obligation to see that there is no violation of the fundamental right of such person, particularly when he belongs to the weaker section of humanity and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him.
[493 A D]
|
ivil Appeal No. 5 (N) of 1982.
(From the Judgment and order dated the 14th September, 1981 of the High Court of Delhi at New Delhi in F.A. No. 29 of 1981) Soli J. Sorabjee, A. Minocha, Mrs. Veerna Minocha and Dr. Roxna Swamy, for the Appellant.
Rameshwar Nath for the Respondent.
The Judgment of the Court was delivered by 376 PATHAK, J.
I agree that the appeal must succeed.
The real question is whether the Explanation(l) to r. 13 of O. 9 of the Code of Civil Procedure bars the appeal filed by the respondent against the ex parte decree.
The Explanation was enacted by the Code of Civil Procedure (Amendment) Act, 1976 with effect from February 1, 1977.
Prior to its enactment, a defendant burdened by an ex parte decree could apply to the trial court under r. 13 of O. 9 for setting aside the decree.
He could also appeal under section 96 against the decree.
The mere filing of the appeal did not take away the jurisdiction of the trial court to entertain and dispose of the application for setting aside the ex parte decree.
It was where the appeal was disposed of, and the appellate decree, superseded the trial court decree by reversing, confirming or varying it that the trial court could not proceed to set aside its ex parte decree.
For the trial court decree was said to have merged with the appellate decree.
There are of course cases where the trial court decree does not merge with the appellate decree.
Such instances arise when the appeal is dismissed in default, or where it is dismissed as having abated by reason of the omission of the appellant to implead the legal representatives of a deceased respondent or where it is dismissed as barred by limitation.
So there a limited area where the trial court decree merges in the appellate decree and when that takes place an application before the trial court for setting aside the decree loses all meaning.
It was a limited area defined by the operation of the doctrine of merger.
From February 1, 1977 the area was extended enormously.
With the Explanation in operation, no application for setting aside an ex parte decree can lie where the defendant has filed an appeal and the appeal has been disposed of on any ground other than the ground that the appeal has been withdrawn by the appellant.
No doubt the provision described as an "Explanation", but as is well known it is not the rubric which decisively defines the true nature of a statutory provision.
Its true nature must be determined from the content of the provision, its import gathered from the language employed, and the language construed in the context in which the 377 provision has been enacted.
In the present .
case, the rule in Heydon 's case,(l) approval of and applied by this Court in Swantraj & Ors.
vs State of Maharashtra (2) and many other cases, is attracted.
What was the law before the amendment, what was the mischief and defect for which the law did not provide, what remedy has Parliament resolved and appointed to cure the mischief, and the true reason of the remedy.
It has been observed earlier that a defendant intending to avoid an ex parte decree could apply to the trial court for setting it aside and could 'also appeal to a superior court against it.
The courts were open to a duplication of proceedings, and although the immediate relief claimed in the two proceedings was not identical both ultimately aimed at a redecision on the merits.
Moreover, on the two proceedings initiated by the defendant, the application under r. 13 of O. 9 would subsequently become infructuous if the appeal resulted in a decree superseding the trial court decree.
It was also possible to envisage the appeal becoming infructuous if the trial court decree was set aside on the application under r. 13 of O. 9 before the appeal was disposed of.
The plaintiff was in the unfortunate position of being dragged through two courts in simultaneous proceedings.
Public time and private convenience and money was sought to be saved by enacting the Explanation.
The Code of Civil Procedure (Amendment) Act, 1976 was enacted with the avowed purpose of abridging and simplifying the procedural law.
By enacting the Explanation, Parliament left it open to the defendant to apply under r. 13 of O. 9 for setting aside an ex parte decree only if the defendant had opted Dot to appeal against the ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him.
The withdrawal of the appeal was tantamount to effacing it.
It obliged the defendant to decide whether he would prefer an adjudication by the appellate court on the merits of the decree or have the decree set aside by the trial court under r. 13 of O. 9.
The legislative attempt incorporated in the Explanation was to discourage a two pronged attack on the decree and to confine the defendant to a single course of action.
If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground, he was denied the right to 378 apply under r. 13 of O.9.
The disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation.
In the present case, the appeal was dismissed as barred by limitation.
That it was an appeal even though barred by time is clear from M/s. Mela Ram & Sons vs Commissioner of Income tax,(1) where Venkataram Ayyar, J., speaking for the court, after referring to Nagendranath Dey vs Suresh Chandra Dey,(2) Raja Kulkarni and Ors.
vs The State of Bombay(3) and Promotho Nath Roy vs W.A. Lee(4) held that "an appeal presented out of time is an appeal, and an order dismissing it as time barred is one passed in appeal.
" There can be no dispute then that in law what the respondent did was to file an appeal and that the order dismissing it as time barred was one disposing of the appeal.
Accordingly, the appeal is allowed, the judgment and order passed by the High Court are set aside and the ex parte decree passed in favour of the appellant is restored.
There is no order as to costs.
AMARENDRA NATH SEN, J.
Whether the dismissal of an appeal against an ex parte decree on the ground that the appeal is barred by limitation attracts the provisions contained in the Explanation in O. 9. R.13 of the Code of Civil Procedure and creates a bar to the maintainability of an application under O. 9.
rule 13 of the Code of Civil Procedure for setting aside the ex parte decree, is the question which falls for determination in this appeal by special leave granted by this Court.
The question arises in the following circumstances: The appellant filed a petition against the respondent under section 13 of the Hindu Marriage Act for the dissolution of her marriage with respondent and for a decree of divorce.
The said petition was filed by the appellant on 1.9.79 and the appellant obtained an ex 379 parte decree on 6 12 1979.
It appears that on 10 11 79 the respondent husband had addressed a letter to the Court requesting the Court for an adjournment of the case fixed on 6 12 1979 on the ground that because of special assignment it would not be possible for him to be present in Court on that day.
The Court refused to grant an adjournment and on that date an ex parte decree for divorce was passed in favour of the appellant.
The respondent husband preferred an appeal against the ex parte decree in the High Court.
As the appeal had been filed in the High Court beyond time, the respondent husband also made an application under section 5 of the Limitation Act for condonation of delay in filing the appeal.
By its judgment and order dated 17 3 1981, the High Court dismissed the application tor condonation of delay, holding that no sufficient cause for condonation had been made out.
The High Court by the same order and Judgment also dismissed the appeal holding "the appeal being barred by time is dismissed".
The respondent moved an application before the Trial Court under O. 3, rule 13 of the Code of Civil Procedure for setting aside the ex parte decree.
The respondent had also moved an application under section 5 of the Limitation Act for condonation of delay in making the application under O.9, rule 13 of the C.P. Code.
The learned Trial Judge held that no sufficient cause had been made out for condonation of delay and in that view of the matter the learned Trial Judge dismissed both the applications.
Against the order of the Trial Judge, the respondent filed an appeal in the High Court.
The main contention of the husband, the appellant in the High Court, was that the Trial Court was in error in coming to the conclusion that no sufficient cause for condonation of delay had been made out and the Trial Court had also erred in not setting aside the ex parte decree as there was sufficient cause for non appearance of the husband on the date fixed for the hearing of the petition for divorce.
On behalf of the wife, the respondent in the appeal before the High Court, it was urged that the Trial Court was clearly right on merits in coming to the conclusion that no sufficient cause had been made out for condonation of delay and for setting aside the decree and it was further urged that in view of the provisions contained in the Explanation in order 9, rule 13 of the Code of Civil Procedure, the application for setting aside the ex parte decree was not maintainable, as the appeal preferred by the husband against the ex parte decree had already been dismissed by the High Court.
The High Court for reasons recorded in its Judgment dated 14.9.1981 380 came to the conclusion that sufficient cause bad been made out by the husband for condonation cf delay in presenting the application under O. 9, rule 13 beyond the prescribed time, that sufficient cause had been made out by the husband for his non appearance at the hearing of the petition on 6 12 1979 when the ex parte decree for divorce was passed and that the Explanation in order IX, rule 13 did not create any bar to the maintainability of the application under order 9, rule 13, as the appeal against the ex parte decree had been dismissed not on merits but on the ground of Limitation.
The High Court held: "Thus I am of the view that the disposal of an appeal against the ex parte decree means disposal on merits for debarring the defendant applicant from filing or continuing an application for setting aside the ex parte decree under order 9 rule 13 of the code.
If an application for condonation of delay in filing appeal has not been accepted it means no appeal was preferred in law and dismissal of appeal as barred by time would not be disposal of the appeal as contemplated under Explanation to order 9 rule 13 of the Code.
I, therefore, hold that the appellant 's application under order 9, rule 13 of the Code of Civil Procedure is maintainable".
Against the Judgment and order of the High Court this appeal has been preferred by the wife with special leave granted by this Court The main contention raised on behalf of the appellant is that on a true interpretation of the Explanation in order 9, rule 13 of the Code of Civil Procedure the application for setting aside the ex parte decree must be held to be incompetent and not maintainable.
It has been urged that the High Court erred in holding that the Explanation did not impose any bar to the maintainability of an application in a case where the appeal is not dismissed on merits.
The argument it that the said interpretation by the High Court is wrong and is clearly unwarranted by the plain language used in the said Section.
It is urged that it is not right to hold that when an appeal is filed beyond time and is dismissed on the ground of limitation, there is no appeal in the eye of law and therefore, no disposal, of an appeal as contemplated in the Explanation.
The learned counsel has submitted that the decisions of the Privy Council in the case of Chandri Abdul Majid vs Jawahar Lal (1) and of the Calcutta High (I) AIR 1914 P. C. 66.
381 Court in the case of Kalumuddin Ahmed vs Esabakuddin & ors (l) are of no assistance in interpreting the provisions contained in the Explanation in order 9, rule 13 of the Code of Civil Procedure.
The learned Counsel has further submitted that the High Court went wrong in interfering with the findings of the Trial Court that no sufficient cause had been made out for condonation of delay in filing an application under order 9, rule 13 of the Code and in any event there is no justifiable reason for non appearance of the respondent on the due date for the hearing of the matter.
On behalf of the respondent husband, it has been urged that on a true interpretation of the Explanation, the High Court has correctly held that the Explanation will not apply to a case where the appeal preferred against an ex parte decree is dismissed not on merits but on the ground of limitation.
It is the argument of the learned counsel that the Explanation will only apply when the appeal is dismissed on merits, as in such a case the decree of the Trial Court gets merged with the decree of the appellate Court and naturally the trial Court loses its competence to set aside the ex parte decree which was originally passed by the trial court, but has subsequently merged in the decree passed by the appellate court.
The learned counsel argues that the Explanation seeks to embody the principle that when a decree of the Trial Court gets merged in the decree of the appellate court, the Trial Court loses seisin over the matter and becomes incompetent to deal with a decree of the appellate court.
It is his argument that as in the instant case the appeal was dismissed on the ground of limitation and not on merits, there is no question of any merger of the decree P of the trial court with any decree of the appellate court.
He argues that an appeal preferred beyond time, unless delay in filing the appeal is condoned, becomes incompetent and is indeed no appeal in the eye of law.
He has placed reliance on the two decisions of the Privy Council in Chandri Abdul Majid (supra) and Kalimuddin Ahmed (supra), considered by the High Court in its judgment.
The learned counsel further argues that in the facts and circumstances of this case, the High Court was perfectly justified in holding that sufficient cause was made out for not making the appli 382 cation under order 9, rule 13 within the time prescribed and for condoning the delay in making the application, and the High Court was also clearly justified in coming to the conclusion that the respondent husband was prevented by sufficient cause for not being able to appear on the date fixed for hearing.
He submits that in any event this Court in this appeal should not interfere with these findings of the High Court in the larger interfere of the administration of justice and this Court should not deprive the husband of the opportunity of contesting the claim of the wife.
The principal question as to whether the application made by the husband for setting aside the ex parte decree is competent or not in view of the provisions contained in the Explanation in O. 9, rule 13 of the Code of Civil Procedure turns on a proper interpretation of the Explanation.
Order 9, rule 13 of the Code of Civil Procedure reads as follows: "In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for Proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff 's claim.
383 Explanation: Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.
" Order 9, rule 13 makes provision for the setting aside of an ex parte decree against the defendant.
It lays down the conditions and also the procedure for the setting aside of an ex parte decree.
The Explanation was introduced into this provision by the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976) and it has come into force from 1.2 1977.
The proceeding by the wife was initiated on 1.9.1979 and the ex parte decree of divorce in her favour was passed on 6.12.1979.
The application by the husband has been made for setting aside this ex parte decree.
The Explanation, therefore, operates; the real question being whether in the facts and circumstances of this case, the bar created by the Explanation to the setting aside of an ex parte decree is attracted to the present application.
A plain reading of the Explanation clearly indicates that if any appeal against an ex parte decree has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application for setting aside the ex parte decree under order 9, rule 13 of the Code will be entertained.
The words used in the Explanation are clear and unambiguous.
The language used in the explanation clearly suggests that where there has been an appeal against a decree passed ex parte and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under order 9, rule 13 of the Code for setting aside the ex parte decree.
An appeal may be disposed of on various grounds.
It may be disposed of after proper hearing on merits and this is usually the normal way of disposal of an appeal.
An appeal may be disposed of also for non prosecution thereof.
Though the dismissal of an appeal on the ground of non prosecution of the same is not disposal of the appeal on merits, yet the dismissal of the appeal for non prosecution results in the disposal thereof.
An appeal may also be dismissed on the ground of limitation, if condonation of delay in filing the appeal is not allowed by the Court.
An appeal may also be liable to be dismissed for non compliance with any condition relating to 384 the filing of the appeal and also for other reasons.
An appellant is also entitled to withdraw the appeal and the withdrawal of the appeal also results in the disposal of the appeal, though in such a case no merits of the appeal are adjudicated upon.
The language used in the Explanation makes it clear that the withdrawal of an appeal is considered to be disposal of the appeal, as contemplated in the Explanation.
It is significant to note that though an appeal may be disposed of on very many grounds the Legislature has thought it fit to provide in the Explanation that only when an appeal against an ex parte decree is disposed of on the ground that the appellant has withdrawn the appeal, the bar created to the maintainability of an application under order 9, rule 13 of the Code for setting aside the ex parte decree will not apply.
The Legislature must be presumed to know that there are various ways of disposal of an appeal.
The Legislature has, however, thought it fit to provide that when an appeal has been preferred against an ex parte decree, the disposal of the appeal on any ground excepting the solitary ground of disposal of the appeal by withdrawal of the same by the appellant, will create a bar to the maintainability of an application under Order 9, rule 13 of the Code of Civil Procedure.
By specifically providing in the Explanation that the disposal of any appeal from the ex parte decree on any ground other than the solitary ground of withdrawal of the appeal by the appellant, the legislative intent is made manifestly clear that in all other cases of the disposal of the appeal on any other ground than the ground of withdrawal of the appeal, there will be a bar to the maintainability of the application under order 9, rule 13 and no application will lie under order 9, rule 13 for the setting aside of an ex parte decree.
Withdrawal of an appeal by an appellant does not result in any adjudication on merits.
Even then, the withdrawal of an appeal is still considered to be a disposal of the appeal; and the disposal of an appeal only on this ground of withdrawal of the appeal by the appellant, it is made clear in the Explanation, will not create any bar to the maintainability of the application under order 9, rule 13 of the Code of Civil Procedure.
On a proper interpretation of the explanation we are of the opinion that where there has been an appeal against an ex parte decree and the appeal has not been withdrawn by the appellant and has been disposed of on any ground, the application under order 9, rule 13 of the Code of Civil Procedure will not lie and cannot be entertained.
385 In the instant case, an appeal had admittedly been filed against the ex parte decree.
The appeal was beyond time.
The appellant had not withdrawn the appeal.
The appellant had filed an application for condonation of delay in preferring the appeal.
The application for condonation of delay had been rejected by the Court and the appeal had been dismissed an the ground of limitation.
The dismissal of the appeal on the ground of limitation resulted in disposal of the appeal though not on merits.
The appeal filed against the ex parte decree was, therefore, disposed of on grounds other than the ground that the appellant had withdrawn the appeal.
The application under order 9, rule 13 after the disposal of the appeal, therefore, became incompetent in view of the provisions contained in the Explanation and could not therefore be entertained by the Court.
The view expressed by the High Court must, therefore.
be held to be erroneous.
In support of the view taken by the High Court, the High Court referred to and relied on the decision of the Privy Council in the case of Chandri Abdul Majid (supra).
The decision of the Privy Council, in our opinion, has no material bearing on the question involved in the present appeal.
In the case before the Privy.
Council, the Judicial Committee was concerned with the question as to the commencement of the period of limitation in respect of a decree passed by the Trial Court, affirmed by the High Court on appeal and a further appeal therefrom to the Privy Council was dismissed by the Privy Council for non prosecution of the appeal.
The appellant before the Privy Council was in the position of a mortgagor and the Respondents of mortgagees under a mortgage dated 3rd September, 1868.
In 1889 a suit was commenced before the Subordinate Judge of Allahabad to enforce that mortgage and on the 12th May, 1890, a decree was passed by him for the sale of the property unless payment was made on or before the 12th August, 1890.
An appeal was brought from that decree to the High Court and on the 8th April, 1893 that appeal was dismissed and the decree of the Subordinate Judge was confirmed.
The mortgagor obtained leave to appeal to the Judicial Committee but did not prosecute his appeal; and on the 13th May, 1901, the appeal was dismissed for want of prosecution.
The Mortgagor decree holder made an application to the Subordinate Judge on the 11th June, 1909 for an order absolute to sell the mortgaged properties; it appears that an 386 order had been 'made on the said application for execution in favour of the decree holder and ultimately the validity of the execution proceedings went to the Privy Council for consideration.
The main argument before the Privy Council was that the decree which was sought to be enforced had been constructively turned into a decree of the Privy Council by virtue of the dismissal of the appeal by the Privy Council on 13.5.1901 for non prosecution of the appeal and the period of limitation, therefore, was 12 years from 13.5.1901.
The Judicial Committee rejected this contention holding that the order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from.
The Judicial Committee held that as there was no decree by the Judicial Committee adopting or confirming the decision appealed from, and as there was never any stay of the decree passed by the High Court affirming the decree of the Subordinate Judge, the period of limitation will run from the date of the passing of the decree by the High Court and the period will be three years from the date of the decree! passed by the High Court.
The Privy Council allowed the appeal holding that the application dated 11.6.1909 for sale of the mortgaged properties was barred by limitation.
While considering the question whether the period of limitation should be effective from the date of the dismissal of the appeal by the Judicial Committee for non prosecution thereof, the Judicial Committee had made the following observations: "The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from.
It merely recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him, and that therefore he was in the same position as if he had not appealed at all.
" This position was made abundantly clear by the Judicial Committee by the observations immediately following: "To put it shortly, the only decree for sale that exists is the decree, dated 8th April, 1893, and that is a decree of the High Court of Allahabad." 387 In the case of Kalimuddin Ahamed vs Esabakuddin and ors the material facts were: A partition suit was instituted on 20.12.1918 against several defendants, among whom the appellant before the High Court was No. 4.
Two of the defendants contested the suit and on 22.9.1919 a preliminary decree from partition was made on contest against two of the defendants and ex parte against the others.
The appellant did not appear at all in the first Court and he was one of the defendants against whom the decree was made ex parte.
On 17.12.1919 the first defendant alone preferred an appeal against the decree to the High Court and on 20.12.1919 the appellant presented an application to the Trial Court under order 9, rule 13 of the Code of Civil Procedure.
This application was kept pending until after the disposal of the appeal preferred by the first defendant.
One of the respondents in the appeal filed by the first defendant died and as the appellant did not take proper steps to bring the heirs on the record, the appeal was dismissed as against them and then against the others it was held that in the absence of the heirs of the deceased respondent the appeal could not proceed and the appeal was accordingly dismissed on 5th January 1922.
Thereafter the application of the appellant under 9, rule 13 of Code of Civil Procedure came up for hearing and on 8th April 1922 a petition of compromise between the plaintiff and the appellant was presented and in accordance therewith the Court ordered that the suit should be restored to its original number as against the applicant who was defendant No. 4 in the suit in regard to three only of the plots mentioned in the plaint.
In making this order, the Court proceeded on the compromise alone without any enquiry as to the causes which prevented defendant No. 4 from appearing at the trial.
In July.
1922, a different Judge was presiding over the Court and on 5th July, 1922, he expressed doubt as to the legality of the order passed by his predecessor on 8th April, 1922 and after hearing the arguments he delivered his judgment on 7th July, 1922 holding that the order passed by his predecessor on 8th April, 1922 was made without jurisdiction because there was no longer any ex parte decree over which the Court had control and the said order was a nullity and utterly void so that no proceeding to set it aside were necessary and the fact of the order being made on consent as against the plaintiff could not convert it into a valid order.
Against this judgement, an appeal was filed in the High Court.
A division Bench of 388 the Calcutta High Court treated the appeal as a revision petition under section 115 and set aside the order, holding that when an ex parte decree was appealed against and also an application to set aside was made but the appeal was dismissed for not bringing the representatives of the deceased respondent on record, the ex parte decree did not merge in the appellate decree and an order passed on consent on the application to set aside the decree was not without jurisdiction.
The decision of the Judicial Committee in Abdul Majid 's case was also considered in this case.
Walmsley, J. held at p1832 as follows : "The order of this Court may be a decree, without being such a decree as to supersede the decree of the lower Court.
All that this Court decided was that having regard to the nature of the appeal, a certain defendant was a necessary party, and that in the absence of that defendant, . or on her death her representatives, the appeal could not proceed.
On the merits of the appeal in other respects there was no adjudication, but on the contrary an express refusal to adjudicate.
Consequently it is of no importance whether the order did or did not amount to a decree.
What .
is of importance is that it was not a decree in which that of the lower Court was merged:" Mukherjee, J., the other learned Judge on the Bench observed at p. 834 : "Now the consideration of the question as to whether the learned Subordinate Judge had jurisdiction to pass the order of the 8th April, 1922 involves a consideration of the following questions (a) whether the order of this Court passed on the 5th January 1922, amounted to a decree or not, (b) if it was a decree, whether the ex parte decree can be held to have a merged into it, (c) whether the learned Subordinate Judge had jurisdiction to set aside the ex parte decree and restore the suit, and (d) whether his successor could declare or was right in declaring the aforesaid order a nullity.
As to (a): The definition of the word 'decree ' in the Code of Civil Procedure, in so far as it purports to be a 389 definition at all, lays down the following essential and distinguishing elements viz., that the decision must have been expressed in a suit, that the decision must have been passed on the rights of the parties with regard lo all or any of the matters in controversy in the suit, that the decision must be one which conclusively determines those rights.
Then certain orders which may or may not satisfy the above requirements are either expressly included in or excluded from the definition.
The whole object of defining a 'decree ' in the said Code appears to be to classify orders in order to determine whether an appeal or in certain cases a second appeal lies therefrom.
Apart from that object .
this definition is of no value.
I am not prepared to accept the contention of the respondent that because an order rejecting a plaint is a decree, an order dismissed an appeal on the ground that it was improperly constituted is by mere analogy to be treated as a decree.
I am unable to reconcile either in principle or in theory why an order rejecting a plaint should stand on a different footing from orders of dismissal for default, and yet one is a decree and the other is not.
It is true that an order of rejection of a plaint has been expressly included in the definition of a 'decree ' but the legislature has included it and no analogy can be drawn therefrom.
The question whether an adjudication is an order or decree is to be tested not by general principles, but by the expressions of the Code, and those words are to be construed in their plain and obvious sense." The learned Judge further held at p. 835: "Here the position was that the plaintiff had got a decree as against the defendants in respect of a certain share; one of the defendants viz., the defendant No. 1, had preferred the appeal; excepting the question as to whether the appeal was maintainable in the absence of the minors, the heirs of the defendants No. 6, no other question was gone into, and in fact none could be litigated, and that is more important is what the rights of the defendant 390 No. 4 were as against the plaintiff or whether the ex parte decree passed against him was a good or valid one, or whether it should stand at all, could scarcely be determined in that appeal.
There is no authority for the proposition that under circumstances such as these, the ex parte decree can possibly be said to have merged in the decree by passed the appellate Court.
" It may be noticed that in neither of these two decisions there was or could be any occasion for interpreting the Explanation which came to be incorporated years later and these two decisions have mainly proceeded on the basis of merger of the decree passed by the Trial Court with the decree of the Appellate Court.
The words used in Explanation make it abundantly clear that disposal of the appeal as contemplated in the Explanation is not intended to mean or imply disposal on merits resulting in the merger of the decree of the Trial Court with the decree, if any, of the Appellate Court on the disposal of the appeal.
The Explanation speaks of "the appeal has been disposed of on any ground other then the ground that the appellant has withdrawn the appeal" and these words make it abundantly clear that disposal of the appeal may be on any ground and the withdrawal of on appeal by the appellant is also considered to be the disposal of the appeal on the ground of withdrawal, and, the disposal of the appeal from the ex parte decree on the ground of withdrawal of the appeal by the appellant has only been exempted from the operation of the Explanation.
If the intention was that the Explanation would not be attracted and there would be no disposal of an appeal within the meaning of the Explanation unless the appeal was disposed of on merits resulting in the merger of the decree of the Trial Court with the decree of the Appellate Court, it would not have been necessary to provide specifically that the disposal of an appeal on the ground of withdrawal would be exempt, because the disposal of an appeal on the ground of withdrawal would not be disposal of the appeal within the meaning of the Explanation, as on the withdrawal of an appeal there is no decision on merits and there is no merger of the decree with any decree of the Appellate Court.
The legisla 391 ture could also have simply provided in the Explanation for the disposal of an appeal on merits and it would not have been necessary to use the other words, "on the disposal of an appeal on any ground other than the ground that the appellant has withdrawn the appeal.
The words used, "disposal of the appeal on any ground other than the ground that the appellant has withdrawn the appeal" will undoubtedly attract within its ambit the disposal of an appeal on the ground of the same being dismissed for non prosecution, Though in the case of such disposal of the appeal there will be no effective adjudication of the appeal on merits and the disposal of the appeal may not have the effect of the decree of the Trial Court appealed against being merged with any decree of the Appellate Court on the disposal of the appeal.
The disposal of an appeal on the ground of limitation may or may not be adjudication on the merits of the appeal, depending on the particular facts and circumstances of the case and may or may not result in the merger of the decree of the Trial Court with the decree, if any, of the appellate Court; but there cannot be any manner of doubt that when an ' appeal from the ex parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal.
As the dismissal of the appeal on the ground of limitation results in the disposal of the appeal on any ground other than the ground of the withdrawal of the appeal by the appellant, the explanation is attracted, and the application for setting aside the ex parte decree becomes in competent after the disposal of the appeal and cannot be entertained.
As in our view, the application for setting aside the ex parte decree does not lie and cannot be entertained, in view of the provisions contained in the Explanation, it does not become necessary for us to go into the merits of the application to consider whether sufficient cause had been shown by the respondent for his nonappearance at the hearing at the date fixed and also for not preferring the application with n the time prescribed.
The appeal, therefore, succeeds.
The judgment and order passed by the High Court are set aside and the ex parte decree 392 passed in favour of the appellant OD 6.12.1979 is restored.
In the facts and circumstances of this case, we do not propose to make any order for costs.
S.R. Appeal allowed.
| IN-Abs | The appellant wife filed on 1.9.1979, a petition under section 13 of the Hindu Marriage Act, against the respondent for dissolution of her marriage with him and for a decree for divorce.
The next date of hearing was fixed for 6.12.1979.
On 10.11.1979, the respondent husband had addressed a letter to the court requesting the court for an adjournment of the case fixed for 6.12.1979 on the ground that because of special assignment it would not be possible for hi to be present in Court on that day.
On that date, the court refused to grant the adjournment and passed an ex parte decree in favour of the appellant.
The respondent husband, thereafter preferred an appeal under section 96 of the Civil Procedure Code before the High Court with an application under section 5 of the Limitation Act to condone the delay in filing.
The High Court dismissed the condonation application as well as the appeal.
Thereafter the respondent husband moved the Trial Court with an application under Rule 13 of order IX with an application under section 5 of the Limitation Act.
Both the applications were dismissed.
The respondent husband moved the High Court against the said orders of dismissal which was accepted rejecting the contention of the appellant wife that the newly added Explanation to Rule 13 of order IX C.P.C. is a bar to the maintainability of the application itself filed by the respondent husband under that Rule.
Hence the appeal by the appellant wife, after obtaining special leave of the Court.
Allowing the appeal the Court, ^ HELD: Per Pathak, J. (Concurring with A.N. Sen, J.) 1.
No doubt the provision is described as an 'Explanation ', but it is not the rubric which decisively defines the true nature of a statutory provision.
Its true 373 nature must be determined from the content of the provision, its import gathered from the language employed, and the language construed in the context in which the provision has been enacted.
What was the law before the amendment; what was the mischief and defect for which the law did not provide, what remedy has Parliament resolved and appointed to cure the mischief, and the true reason of the remedy.
[376 E G, 377 A B] Rule in Heydon 's case, 76 English Reports 637; Swantraj & Ors.
vs State of Maharashtra ; , followed.
The Code of Civil Procedure (Amendment) Act, 1976 was enacted with the avowed purpose of abridging and simplifying the procedural law.
Prior to it a defendant burdened by an ex parte decree could apply to the trial court under Rule 13 of order IX C.P.C. for setting aside the decree.
He could also appeal under section 96 against the decree.
The mere filing of the appeal did not take away the jurisdiction of the trial court to entertain and dispose of application for setting aside the ex parte decree.
It was where the appeal was disposed of, and the appellate decree superseded the trial court decree by reversing, confirming or varying it that the trial court could not proceed to set aside its ex parte decree.
For the trial court decree was said to have merged with the appellate decree.
Prior to the Amendment Act, the courts were open to a duplication of proceedings, and although the immediate relief claimed in the two proceedings was not identical both ultimately aimed at a redecision on the merits.
The earlier disposal of either resulted in the other becoming infructuous.
The plaintiff, therefore, was in the unfortunate position of being dragged through two courts in simultaneous proceedings.
[376 A C, 377 C D] 2:2.
Public time and private convenience and money was sought to be saved by enacting the Explanation.
By enacting the Explanation, Parliament left it open to the defendant to apply under Rule 13 of order IX for setting aside an ex parte decree only if the defendant had opted not to appeal against the ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him.
The withdrawal of the appeal was tantamount to effacing it.
It obliged the defendent to decide whether he would prefer an adjudication by the appellate court on the merits of the decree or have the decree set aside by the trial court under Rule 13 of order IX.
The legislative attempt incorporated in the Explanation was to discourage a two pronged attack on the decree and to confine the defendant to a single course of action.
If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground, he was denied the right to apply under r. 13 of order IX.
The disposal of the appeal on any ground whatever, apart from the withdrawal, constituted sufficient reason for bringing the ban into operation.
[377 D G, 378 A] 2:3.
In the present case, the appeal was dismissed as barred by limitation and the order was one disposing of the appeal on any other ground.
[378 A] M/s. Mela Ram & Dons vs Commissioner of lncome tax; , , followed.
374 Per Amarendra Nath Sen, J. 1:1.
A proper interpretation of the Explanation, makes it clear that where there has been an appeal against an ex parte decree and the appeal has not been withdrawn by the appellant and has been disposed of any ground, the application under Rule 13 of order IX of the Code of Civil Procedure will not lie and cannot be entertained.
[384 G H] 2:2.
The words used in the Explanation are clear and unambiguous.
The language used in the Explanation makes it clear that the withdrawal of the appeal is considered to be disposal of the appeal, as contemplated by the Explanation.
Though an appeal may be disposed of on very many grounds, the Legislature has thought it fit to provide in the Explanation that only when an appeal against an ex parte decree is disposed of on the ground that the appellant has withdrawn the appeal, the bar created to the maintainability of an application under order IX, Rule 13 of the Code for setting aside the ex parte decree will not apply.
The Legislature must be presumed to know that there are various ways of disposal of an appeal and that in all other cases of the disposal of the appeal on any other ground than the ground of withdrawal of the appeal, there will be a bar to the maintainability of the application under order IX, Rule 13 and no application will lie for setting aside the ex parte decree.
Withdrawal of appeal by an appellant does not result in any adjudication on merits.
Even, then, the withdrawal of an appeal is still considered to be a disposal of the appeal, but not creating a bar for the maintainability of the application under order IX Rule 13 [383 E, 384 B G] 1:3.
In the instant case, the appellant had not withdrawn the appeal.
His application for condonation of delay was rejected by the High Court and therefore, the appeal was dismissed on the ground of limitation.
The appeal filed against the ex parte decree was, therefore, disposed of on grounds other than the ground of withdrawal of the appeal.
The application under order IX, Rule 13, after the disposal of the appeal, therefore, became incompetent.
[385A B] 2:1.
The words used in the Explanation make it abundantly clear that disposal of the appeal as contemplated in the Explanation is not intended to mean or imply disposal in merits resulting in the merger of the decree of the Trial Court with the decree, if any, of the Appellate Court on the disposal of the appeal.
The Explanation speaks of "the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal" and these words make it abundantly clear that disposal of the appeal by the appellant is also considered to be the disposal of the appeal on the ground of withdrawal; and, the disposal of the appeal from the ex parte decree on the ground of withdrawal of the appeal by the appellant has only been exempted from the operation of the Explanation.
If the intention was that the Explanation would not be attracted and there would be no disposal of an appeal within the meaning of the Explanation unless the appeal was disposed of on merits resulting in the merger of the decrees of the Trial Court with the decree of the 375 the Appellate Court, it would not have been necessary to provide specifically that the disposal of an appeal on the ground of withdrawal would be exempt, because the disposal of an appeal on the ground of withdrawal would not be disposal of the appeal within the meaning of the Explanation, as on the withdrawal of an appeal there is no decision on merits and there is no merger of the decree with any decree of the Appellate Court.
The legislature could also have simply provided in the Explanation for the disposal of an appeal on merits and it would not have been necessary to use the other words, "on the disposal of an appeal on any ground other than the ground that the appellant has withdrawn the appeal.
The words used, "disposal of the appeal on any ground other than the ground that the appellant has withdrawn the appeal" will undoubtedly attract within its ambit the disposal of an appeal on the ground of the same being dismissed for non prosecution, though in the case of such disposal of the appeal there will be no effective adjudication of the appeal on merits and the disposal of the appeal may not have the effect of the decree of the trial court appealed against being merged with any decree of the Appellate Court on the disposal of the appeal.
[390D H, 391 A C] 2:2.
The disposal of an appeal on the ground of limitation may or may not be adjudication on the merits of the appeal, depending on the particular facts and circumstances of the case and may or may not result in the merger of the decree of the Trial Court with the decree, if any, of the appellate Court; but there cannot be any manner of doubt that when an appeal from the ex parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal.
As the dismissal of the appeal on the ground of limitation results in the disposal of the appeal on any ground other than the ground of the withdrawal of the appeal by the appellant, the Explanation is attracted, and the application for setting aside the ex parte decree becomes incompetent after the disposal of the appeal and cannot be entertained.
[391 C F] Ckandri Abdul Majid vs Jawahar Lal, A.l.
R. 1914 P.C. 66: Kalumuddin Ahmad vs Esabakuddin & Ors.
, A.I.R. 1924 Cal. 830; discussed and held inapplicable.
|
: Special Leave Petition (Criminal) No. 432 of 1981.
From the Judgment and order dated the 25th September, 1980 of the High Court of Andhra Pradesh at Hyderabad in Criminal Revision Case No. 461 of 1980.
P. Ram Reddy and G.N. Rao for the Petitioner.
The order of the Court was delivered by CHINNAPPA REDDY.
The respondent was charged with an offence under Section 34 (a) of the Andhra Pradesh Excise Act on the allegation that he was found in possession of a quantity of eight litres of illicitly distilled arrack, an intoxicant, in contravention of the provisions of the Act and the Rules made under the Act.
The learned Judicial First Class Magistrate convicted him and sentenced .
him to suffer rigorous imprisonment for a period of two years, which was the minimum sentence that could be awarded for an offence under Section 34 (a) of the A.P. Excise Act.
On an appeal preferred by the respondent, the Sessions Judge, Anantapur con firmed the conviction and sentence.
The respondent preferred a revision petition before the High Court.
The learned Single Judge who heard the revision confirmed the conviction.
But, on the question of sentence, he observed: 497 "Mr. T. Ramulu, appearing for the petitioner who has A filed this revision through jail, has submitted that the petitioner is aged 30 years and is a first offender and he has already served a sentence of about IN months and that the sentence may be appropriately modified.
It is true that under the A.P. Excise Act, a statutory minimum sentence is prescribed.
But having regard to the submissions made above, I feel the interest of justice will be satisfied if the sentence of imprisonment imposed against the petitioner is reduced to the period already undergone and if the fine of Rs. 5O/ , imposed is set aside.
The revision is dismissed subject to the modification as stated above.
" We are unable to understand why the High Court reduced the sentence.
The statute prescribes a minimum sentence.
It does not provide for any exceptions and does not vest the Court with any discretion to award a sentence below the prescribed minimum under any special circumstances.
The learned judge has himself noticed that the sentence imposed is the statutory minimum.
Having noticed that the statute prescribes a minimum sentence for the offence, the High Court has ununderstably reduced the sentence of imprisonment to less than the minimum permissible.
The High Court was clearly in error in doing so.
We think we have said enough to correct the error.
It is unnecessary to pursue the matter further by granting special leave.
The petition is dismissed with the above observations.
P.B.R. Petition dismissed.
| IN-Abs | Where the statute prescribes minimum sentence and does not provide for any exceptions or vest the Court with any discretion to award a sentence below the prescribed minimum under any special circumstances, a Court cannot reduce the sentence to less than the minimum permissible.
[497 D E]
|
: Criminal Appeal No. 45 of 1980 From the Judgment and Order dated the 17th October, 1979 of the High Court of Rajasthan in S.B. Criminal Appeal No. 39 of 1977.
Frank Anthony and S.K. Jain, for the Appellant.
Badri Dass Sharma for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
Appellant Kishan Chand Mangal was convicted by the learned Special Judge (A.C.D. Cases), Jaipur, Rajasthan, for 571 having committed offences under section 161, Indian Penal Code and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947, and was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 200/ , in default to suffer further rigorous imprisonment for one month on each count with a further direction that both the sentences will run concurrently.
After an unsuccessful appeal to the High Court of Rajasthan, he has preferred this appeal by special leave.
Appellant at the relevant time was serving as Factory Inspector, Ajmer and in that capacity he accompanied by his friend paid a visit on November 20, 1974, to the factory named 'Krishna Industries ' whose proprietor was one Rajendra Dutt.
Appellant said that his visit being after a lapse of one and a half year, the proprietor should pay him pocket money.
Rajendra Dutt replied that his establishment was not covered by the Factories Act and showed disinclination to grease the palms of the appellant.
However, appellant persisted in his demand and told Rajendra Dutt if he did not pay Rs. 150/ he was likely to be entangled in some legal proceedings.
So saying appellant and his companion left.
Rajendra Dutt was not inclined to give the bribe demanded from him and, therefore, on November 22, 1974, he contacted Dy.
S.P., A.C.D., Ajmer, P.W. 7, Mahavir Prasad and gave a written complaint Ext.
P 12 complaining about the demand of illegal gratification by the appellant requesting for taking suitable action in the matter.
He also produced 15 currency notes each of the denomination of Rs.10/ .
P.W. 7 Dy.
S.P. Mahavir Prasad directed P.W. 3 Prahlad Narayan to bring two persons to witness the search and accordingly P.W. 1 Ram Babu and P.W. 2 Keshar Mal were requested to join the raiding party.
15 currency notes produced by the complainant were smeared with phenolphthalein powder and a memorandum of the same was prepared.
The raiding party led by P.W. 7 Dy.
S.P. Mahavir Prasad and including the complainant Rajendra Dutt, two motbirs P.W. 1 Ram Babu and P.W. 2 Keshar Mal, P.W. 3 Prahlad Narayan, a clerk in the Office of the Anti Corruption Department, started by a jeep driven by P.W. 6 Bajrang Singh to go to the residence of the appellant.
Office and residence of the appellant are situated in the same building.
Complainant Rajendra Dutt and the two motbirs Ram Babu and Keshar Mal proceeded ahead and entered into the room used as residential portion of the building.
Ram Babu and Keshar Mal stopped in the verandah and the complainant Rajendra Dutt went inside.
Appellant was seen sitting on a cot.
On inquiry by complainant Rajendra Dutt appellant replied that he was not well 572 and that he was suffering from cold Appellant then inquired whether complainant Rajendra Dutt had brought the money and the complainant replied that he had brought the money and handed over marked currency notes 15 in number each of the demonination of Rs. 10/ which the appellant accepted and put the same under his pillow.
Rajendra Dutt came out in the verandah and as instructed, gave the agreed signal whereupon Dy.
S.P. Mahavir Prasad, the two motbirs and others entered the room.
Mahavir Prasad introduced himself as Dy.
S.P. ACD, and asked the appellant whether he had accepted Rs. 150/ as and by way of bribe from complainant Rajendra Dutt.
Appellant denied having accepted any bribe or any money from Rajendra Dutt whereupon a search of his person was taken.
When the search of the person of the accused was being taken motbirs Ram Babu and Keshar Mal pointed towards the pillow indicating that the bribe taken by the appellant was kept underneath the pillow.
P.W. 6 Driver Bajrang Singh was asked to lift the currency notes and the numbers were tallied with the memorandum prepared earlier.
Hands of the accused were dipped in the solution of sodium carbonate which turned pink.
After the memorandum was completed recording all these facts and after completing investigation sanction was obtained and the appellant was prosecuted for the aforementioned offences.
By the time the case came up for trial complainant Rajendra Dutt was dead and his evidence was not available.
Prosecution examined the two motbirs Ram Babu and Keshar Mal, Dy.
SP, ACD Mahavir Prasad, Clerk Prahlad Narayan, Driver Bajrang Singh and two others.
Statement of the accused was recorded under section 313 of the Code of Criminal Procedure and he offered himself as a witness in his defence.
In his evidence he stated that on the date of occurrence around 4.30 p.m. when he was sitting in his cot complainant Rajendra Dutt came and took a seat in the chair placed nearby.
Appellant enquired why he had come and whether he had brought any written complaint against Clerk Mr. Singhal.
According to him, the complainant replied that action be taken against Singhal by recording his statement whereupon the appellant said that if the complainant has any grievance he should come with a written complaint.
Appellant further stated that thereafter he went to the bath room for spitting cough and he came out and sat on the cot.
Complainant Rajendra Dutt enquired whether he can drink water from a jug which was lying there.
Thereafter Rajendra Dutt went 573 out of the room and soon thereafter 8 persons including Rajendra Dutt entered the room.
He stated that two of the members of the raiding party caught his hands and when he tried to get himself released from the grip of those persons the grip tightened.
One of the members of the raiding party then told him that he was Dy.
SP, ACD, Ajmer and called upon him to produce Rs. 150/ he had taken from Rajendra Dutt.
Appellant stated that he immediately told the Dy.
SP that he had not accepted any money from Rajendra Dutt whereupon the Dy.
SP came near him and put his hand in the pocket of the garment put on by the appellant.
Appellant objected to any search being taken and insisted on keeping two respectable persons present.
He further stated that Dy.
SP quarrelled with him and then he sent a telephone message to S.P, Ajmer that a Factory Inspector has quarrelled with him and he should be provided with extra police help.
Thereafter his hands were dipped in a solution but the colour of the solution did not change and remained white.
Appellant then told the Dy.
SP that Rajendra Dutt had come to complain against one Singhal, a Clerk and in support of this he produced Ext.
D 2 marked collectively in respect of five letters.
At this stage the Dy.
SP according to the appellant asked Rajendra Dutt why he had given a false signal whereupon the complainant Rajendra Dutt informed the Dy SP that the bribe money was lying under the pillow whereupon the Dy SP removed the pillow and collected the currency notes.
He further stated that he has been involved in this false case at the instance of K.C. Sogani, Factory Manager of Krishna Mills, Beawar.
This was broadly the defence of the appellant as collected from his evidence.
The learned special Judge noted the fact that the complainant Rajendra Dutt was not available and, therefore, the first demand at the Factory of Rajendra Dutt on November 20, 1974, has not been proved.
The learned Judge, however, held that the evidence of two motbirs Ram Babu and Keshar Mal was reliable and was amply corroborated by the recovery of currency notes as well as the presence of phenolphthalein powder on the hands of the accused.
The learned Judge rejected the defence version that the currency notes were planted when the appellant had gone into the bath room.
The learned Judge accordingly convicted and sentenced the appellant as mentioned hereinbefore.
The appellant having unsuccessfully appealed to the Rajasthan High Court, has filed this appeal by special leave.
574 Mr. Frank Anthony, learned counsel for the appellant contended that there are certain features of this case which would convincingly show that the prosecution case cannot be accepted.
He enumerated the circumstances as: (i) absence of name of the appellant in the F.I.R. Ext.
P 12; (ii) absence of evidence of demand as on November 20, 1974; (iii) absence of any prior arrangement where and when the complainant was to meet the appellant and, therefore, the trap could not be successfully arranged which might permit an inference that the whole story of acceptance of bribe money is concocted; (iv) further two motbirs P.W. 1 Ram Babu and P.W. 2 Keshar Mal were petty clerks specially selected by P.W. 3 Prahlad Narayan; (v) in their evidence they have tried to improve upon the prosecution version which shows their unconcealed interest in the success of the trap which would render them partisan witnesses; (vi) there are certain omissions in the evidence of the prosecution witnesses which may indicate that the defence version of planting the currency notes when the appellant had gone to bath room is probabilised; (vii) that no inference be drawn from the fact that when hands of the appellant were dipped in the sodium carbonate solution it turned pink because admittedly when hands of the accused were caught by the members of the raiding party one or the other of them may have transmitted phenolphthalein powder to the hands of the appellant.
Complainant Rajendra Dutt on whose complaint a trap was arranged was dead by the time the case came up for trial and his evidence was not available to the prosecution.
However, the complaint Ext.
P 12 filed by him was admitted in evidence because P.W. 7 Mahavir Prasad, the Dy SP who recorded the same gave evidence about the same.
The averments in the complaint even in the background of these facts would not provide substantive evidence and the only use to which it can be put is that a complaint of this nature was filed which tends to explain the subsequent actions taken by the Dy SP.
High Court has examined the evidence of two motbirs P.W. 1 Ram Babu and P.W. 2 Keshar Mal, and also the evidence of P.W. 7 Mahavir Prasad and agreed with the findings recorded by the trial court.
We need not examine the evidence afresh but limit our examination to specific contentions raised by Mr. Anthony.
The first contention is that the name of the appellant Kishan Chand Mangal is not to be found in Ext.
That is true, but 575 what is stated in Ext.
P 12 is that a Factory Inspector accompanied by his friend visited the factory of the appellant and demanded a bribe.
Now, the appellant in his evidence as DW 1 has stated that complainant Rajendra Dutt did come to his house on November 22, 1974, around 4.30 p.m.
Appellant further proceeds to say that Rajendra Dutt had some grievance against a clerk Singhal and appellant insisted upon giving a written complaint at the time of the visit of Rajendra Dutt.
If Rajendra Dutt as is now contended wanted to falsely implicate the accused there is no reason why he would not mention the name of the appellant in Ext.
On the contrary the absence of the name of the appellant in Ext.
P 12 would indicate that probably the appellant had visited the factory of Rajendra Dutt after a long time and that is what transpires from Ext.
P 12 that the visit of the appellant was after a year and half.
It is reasonable to infer that Rajendra Dutt did not know the name of the appellant but knew him by the designation of his office as Factory Inspector.
Therefore, the absence of name of Kishan Chand Mangal in Ext.
P 12 is hardly of any significance.
It was next contended that once Rajendra Dutt is not available for evidence there is no evidence as to the demand of bribe on November 20, 1974, and it is not open to the Court to spell out the demand from the contents of Ext.
It is undoubtedly true that Rajendra Dutt was dead before the commencement of trial.
It is equally true that the F.I.R. lodged by him on November 22, 1974, cannot be used as substantive evidence nor the contents of the report can be said to furnish testimony against the appellant.
Such an F.I.R. would not be covered by any of the clauses of sections 32 and 33 of the Evidence Act and would not be admissible as substantive evidence.
The question still remains whether there is any evidence of demand of bribe on November 20, 1974, in this case.
A fact may be proved either by direct testimony or by circumstantial evidence If appellant did not visit the Factory of Rajendra Dutt on November 20, 1974, and made no overtures demanding the bribe, on what rational hypothesis can one explain the visit of Rajendra Dutt to the office of Dy.
SP, ACD on November 22, 1974, his producing currency notes worth Rs. 150; a superior officer like the Dy SP, ACD, making all arrangements for the trap and the raiding party going to the house of the accused on November 22, 1974.
The visit of Rajendra Dutt soon followed by the raiding party at the house of the accused on November 22, 1974, is admitted.
Coupled with this, the fact that Keshar Mal, P.W. 2 in his evidence stated that after Rajendra Dutt entered the room in which appellant was sitting, Rajendra Dutt on 576 entering the room asked the appellant, 'Hallo, how do you do '.
He further stated that the appellant replied, 'I am sick and suffering from cold '.
He deposed that thereafter the appellant asked, 'Have you brought the money ', whereupon complainant Rajendra Dutt replied, Yes, I have brought the money '.
He further stated that thereafter Rajendra Dutt took out the amount of currency notes from his diary and gave the same to the appellant who took the amount and kept it under the pillow on the cot.
If there was no prior demand the subsequent events remain unexplained as also the demand as deposed to by P.W. 2 Keshar Mal.
But Mr. Anthony urged that this part of the evidence of Keshar Mal cannot be accepted because he has not stated this fact in his statement recorded in the course of investigation.
Simultaneously it was pointed out that the other motbir Ram Babu is totally silent in his evidence about this conversation between the appellant and the complainant.
Undoubtedly, the omission in the police statement of Keshar Mal and non mentioning all these facts by the co motbir would raise some doubt in the mind of the court about this conversation but as pointed out earlier there are tell tale circumstances which do indicate that there must have been a demand and, therefore, these circumstances as herein before set out will render support to the statement of Keshar Mal that the demand at the time of visit of Rajendra Dutt must be pursuant to earlier demand by the appellant.
Therefore, it is not proper to say that there is no evidence of the demand of bribe as on November 20, 1974.
It was next contended that if a bribe is demanded and agreed to be paid and if the complainant was contemplating not to pay the bribe but was thinking of initiating action against the officer demanding the bribe, obviously for the success of the trap to be arranged the time and place of meeting would be arranged and if it be so it would be mentioned in the F.I.R. It was said that the very absence of it would show that there was neither a demand of bribe nor any action was contemplated on November 20, 1974, as is now sought to be made out and, therefore, the court should not accept any evidence with regard to the trap.
In view of the admission of the appellant in his evidence that Rajendra Dutt followed by a raiding party came to his house also used as residence cum office around 4.30 p.m. on November 22, 1974, omission to mention about the time and place of future meeting in the F.I.R. Ext.
P 12 loses all significance.
It is equally possible that on the very day when the appellant visited the factory of Rajendra Dutt and demanded bribe, Rajendra Dutt may 577 not have immediately planned to rush to the Anti Corruption Department.
He had declined to give the bribe.
In his view his factory was not covered by the Factories Act.
These are the averments in Ext.
They are not being relied upon as substantive evidence but are used to explain the conduct of Rajendra Dutt which has evidentiary value.
If Rajendra Dutt did not negotiate giving the bribe and did not agree to give the bribe though the appellant persisted in the demand and threatened to involve him in court cases the question of any arrangement for any time and place for giving the bribe does not arise and obviously it could not have found its place in the F.I.R. Such things find mention in a F.I.R. only when the victim agrees to grease the palms of the officer.
Absence in such a situation of such averments in Ext.
P 12 in this case is both natural and obvious.
The next contention is that once Rajendra Dutt is not available to give evidence not only of the first demand but also the payment of bribe pursuant to the demand, the evidence of two motbirs assumes considerable importance.
It was urged that both the motbirs are some petty clerks and it would be both unwise and dangerous to place implicit reliance on their testimony to convict the Government servant.
Factually it is not correct to say that both the motbirs are petty clerks.
Ram Babu was serving as a clerk in the Central Bank of India and Keshar Mal was serving as a teacher in Middle School at the relevant time.
It is unfortunate that thirty five years after independence and in this age of common man, there is still not the eclipse of the high brow.
Sanctity of word made dependent upon the office held or wealth acquired is a nauseating phenomenon.
Truth is neither the monopoly nor the preserve of the affluent or of highly placed persons.
In a country where renunciation is worshipped and the grandeur and wild display of wealth frowned upon, it would be the travesty of truth if persons coming from humble origin and belonging to officewise, wealthwise lower strata of society are to be disbelieved or rejected as unworthy of belief solely on the ground of their humble position in society.
The converse unfortunately appears to be true.
The submission was sought to be buttressed by reference to Khairati Lal vs The State(1).
A learned single judge of the High Court rejected the testimony in that case of P.W. 2 Brij Nandan and P.W. 3 Krishan Kumar observing that they are petty clerks and cannot be styled as independent witnesses.
We have moved far away in seventeen years and this 578 approach does not commend to us.
We say no more.
Therefore, without further discussing this aspect, we are utterly disinclined to reject the testimony of the two motbirs accepted as wholly reliable by the learned Special Judge and the High Court on the sole ground that they are petty clerks as if that by itself is sufficient to reject their testimony.
That is a wholly irrelevant consideration.
As a second string to the bow it was urged that Ram Babu was serving at the relevant time as a Clerk in the Central Bank of India and Keshar Mal was a teacher in the middle school at Ajmer and both of them were, therefore, by virtue of their service, likely to be under the police influence.
It is difficult to appreciate this contention.
Undoubtedly Ram Babu was a Clerk in a nationalised bank and it may be that officers of Anti Corruption Department may have jurisdiction to investigate lapses on the part of clerks in nationalised banks.
It is not clear whether Keshar Mal who was serving in a Middle School was a Government employee or the school itself was a Government School.
It may be that the school may be receiving grant but if all institutions which receive grant from Government and are, therefore, styled as Government Departments, and have to be treated under the police influence then the net will have to be spread so wide not to exclude any one as independent of police influence.
We find no justification in the submission that the two motbirs were persons not likely to be independent of police influence.
Both of them have been accepted as independent witnesses and they do satisfy the test of witnesses independent of police influence.
Reference in this connection was made to Raghbir Singh vs State of Punjab(1), wherein this Court adversely commented upon selecting one Makhan, a sweeper in the whole time employment of police, as a witness in a trap case observing that the Anti Corruption Department should insist on observing the safeguard of selecting independent persons as witnesses as scrupulously as possible for the protection of the public servants against whom a trap may have to be laid.
Makhan, a sweeper in the whole time employment of police can obviously not be said to be independent of police influence but how does he compare with a clerk in a nationalised bank and a teacher in a middle school ? It, therefore, cannot be said that the two motbirs could not be styled as independent witnesses.
In passing it was submitted that Rajendra Dutt and Ram Babu must have intimately known each other because Rajendra Dutt had an account in the same branch in which Ram Babu was working as 579 clerk.
If a Bank Clerk is supposed to be intimately connected with each account holder in the bank, banking service would receive encomiums from the society.
But it is difficult to accept the submission that on this account Ram Babu could not be said to be independent witness and let it be recalled that by the time Ram Babu came to give evidence Rajendra Dutt was already dead.
The next contention is that even if Ram Babu and Keshar Mal are independent witnesses there are certain inherent infirmities in their evidence which would render their evidence untrustworthy of belief.
Before we examine this submission in detail let it be reiterated that the learned special judge who tried the case and had seen both these witnesses giving evidence has observed that P.W. 1 Ram Babu and P.W. 2 Keshar Mal are independent witnesses and there is nothing in their testimony which may induce any distrust about the facts stated by them and their evidence was relied upon.
The learned judge of the High Court observed that both the witnesses are independent witnesses and there is no reason why their evidence should not be relied upon.
It is now time to briefly refer to some of the omissions and contradictions brought to our notice with a view to persuading us to reject the testimony of both these witnesses.
It was pointed out that according to Ram Babu both he and Keshar Mal told the Dy SP that the currency notes were under the pillow while according to Keshar Mal it was Ram Babu who pointed out that the currency notes were under the pillow.
We find no contradiction in this statement because if plural used by Ram Babu was to be relied upon as a contradiction, cross examination ought to have been directed on this point.
It is necessary to point out that the cross examination of both the witnesses is scrappy, jumpy and not pursuant to any set theory of defence.
It is worthwhile to note that there is not the slightest challenge to the statement of both these witnesses that while waiting in the lobby outside the room both of them saw Rajendra Dutt giving marked currency notes to the appellant and appellant accepting the same and keeping them underneath the pillow.
It was also urged that both the witnesses in their respective statements in the course of investigation have not referred that they pointed out that the currency notes were kept under the pillow.
A further omission was pointed out that while Mahavir Prasad has stated that accused started quarrelling with him which necessitated summoning additional police help, both the witnesses while referring to the 580 quarrel picked up by the appellant so as to support the evidence of Mahavir Prasad have failed to refer to this aspect in their statements in the course investigation.
These are omissions of trivial details and have hardly any bearing on the main part of the prosecution case.
Along with this the earlier omission in the statement of Keshar Mal already discussed was reiterated.
In our opinion the so called inner variations between the evidence of these two witnesses and omissions of trivial details would not cause any dent in the testimony of these two witnesses.
Mr. Anthony after referring to Darshan Lal vs Delhi Administration(1), urged that if Mahavir Prasad took search of the appellant for recovering the bribe it would show that neither Ram Babu nor Keshar Mal had seen appellant keeping marked currency notes under the pillow.
Such an inference cannot be drawn.
Ordinarily the police officer would start searching the person of appellant and while he was doing that act, he was told where the currency notes were kept by the appellant.
Therefore, no such inference is permissible.
It was lastly urged that the court should not be influenced by the fact that when the hands of the appellant were dipped in a solution of sodium carbonate it turned pink which would affirmatively show the presence of phenolphthalein powder on the tips of fingers of the hands of the appellant.
The fact remains that the solution did turn pink when the hands of the appellant were dipped in it.
The explanation of the appellant is that both his hands were caught by the members of the raiding party and it is possible that the members of the raiding party whose hands must have already been soiled with the phenolphthalein powder when the arrangements were being made for laying the trap they must have transmitted the same to the hands of the accused.
This contention stands belied by the evidence on record.
Mahavir Prasad has deposed that he asked one Ganga Singh to demonstrate the phenolphthalein powder test.
After that he was directed to wash his hands.
No other member of the raiding party touched the phenolphthalein powder at the time of demonstration.
Ganga Singh was a member of the raiding party but when the hands of the accused were sought to be dipped in the solution this task was assigned to SI Satya Narain.
Undoubtedly there is nothing to show that his hands were soiled with phenolphthalein powder.
The hands of Rajendra Dutt must have been soiled with 581 phenalphthalein powder because he took out the currency notes from his diary and passed them on to the appellant.
But it is not suggested that Rajendra Dutt caught the hands of the appellant.
Therefore, it is not possible to accept the submission that when the hands of the appellant were caught in the ensuing quarrel between him and the Dy SP Mahavir Prasad, phenolphthalein powder must have been transmitted by persons holding the hands of the appellant.
This tell tale circumstance would lend ample independent corroboration if there be any need to the evidence of Ram Babu and Keshar Mal that they saw Rajendra Dutt giving marked currency notes to the appellant and the appellant accepting the same and putting them underneath the pillow.
Mr. Anthony urged that there are certain tell tale circumstances in the case which would render the defence plausible.
It was urged that the appellant did not disclose any guilty syndrome when the raiding party entered his room and at the first question he denied having accepted any bribe from Rajendra Dutt.
How would these two circumstances be sufficient to reject the otherwise reliable testimony ? A person with a strong will would not be upset and may remain cool and collected.
The appellant did pick up a quarrel with the Dy SP.
Why ? His suggestion that he insisted on two independent witnesses being kept present appears to be an afterthought.
The fact that the appellant picked up a quarrel is borne out from the evidence of the persons present there and by the action of the Dy SP in summoning additional police help.
Therefore, we find no circumstances which would impinge upon the prosecution case.
We read the entire evidence of two motbirs Ram Babu and Keshar Mal, evidence of Dy SP Mahavir Prasad, Ext.
P 12, the F.I.R., and we are in agreement with the High Court that the case has been proved beyond a shadow of reasonable doubt.
The evidence of appellant himself does not raise a plausible defence and has been rightly negatived.
Mr. Anthony further urged that the appellant did not demand bribe because there is no such evidence and that even if Rajendra Dutt appears to have given some currency notes the appellant was an unwilling victim and the court must frown upon such attempts of the police to make government servants commit offence.
He relied 582 upon the oft quoted passage in Brannan vs Peek(1).
In that case the finding was that when the second time the police constable attempted to give a bet the accused showed his reluctance to accept the same.
That was also the finding of the justices.
The Court frowned upon the police officers in the absence of an Act of Parliament going to the place of the accused so as to induce him to commit an offence.
We fail to see how this observation has any relevance in the facts of this case.
Once the suggestion that there was a demand of bribe is accepted the appellant could not be said to be an unwilling victim nor a fence sitter who was induced to fall a victim to the trap.
Lastly it was urged that the court would not be justifiedni raising a presumption under section 4 (1) of the Prevention of Corruption Act, 1947.
In the facts of this case and in the absence of presumption even if Rajendra Dutt gave some money to the appellant that by itself would not establish the offence and the case must fail.
Reliance was placed on Bansi Lal Yadav vs State of Bihar(2).
In that case the defence of the accused was that currency notes were thrust in his pocket.
Taking cue from this statement, the court held that the acceptance of an amount other than legal remuneration having been admitted the presumption would arise under section 4(1) and the burden would shift to the accused.
It is in this context that this court held that where the accused says that involuntarily the amount was thrust in his pocket he could not be said to have accepted or obtained for himself any gratification other than legal remuneration which alone permits the presumption to be raised.
Facts in this case being a demand and voluntarily acceptance, the presumption would squarely arise and has been rightly raised.
Reliance was also placed on the decision of this Court in Sultan Singh vs State of Rajasthan(3).
In that case the explanation of the appellant was that Rs. 100 was paid to him towards the arrears of revenue and in the absence of reliable evidence to the contrary the explanation was held acceptable.
This is a decision on the facts of that case and would be hardly of any assistance in dealing with the points raised in this case.
583 Therefore, the charge is brought home to the accused and he has been rightly convicted and the sentence awarded being the minimum, no case is made out for interfering with the same.
Accordingly this appeal fails and is dismissed.
The bail bond of the appellant is cancelled and he must surrender to serve out the sentence.
H.L.C. Appeal dismissed.
| IN-Abs | The appellant, a Factory Inspector, visited the complainant 's factory and demanded an illegal gratification of Rs. 150/ on the threat of entangling him in some legal proceedings.
The complainant, who was not inclined to give the bribe, made a written complaint to the Deputy Superintendent of Police, Anti Corruption Department (Dy SP) requesting for suitable action.
A trap was arranged by smearing 15 currency notes of the denomination of Rs. 10/ each with phenolphthalein powder and, on the direction of the Dy SP, two motbirs were requested to accompany the raiding party and to watch what happens.
The motbirs went along with the complainant to the residence of the appellant and witnessed the acceptance of the money given to him by the complainant, the subsequent search for the recovery of the currency notes from the appellant, the dipping of his hands in sodium carbonate solution and the consequent change in the colour of the hands into pink.
By the time the case came up for trial, the complainant was dead.
In the absence of the evidence of the complainant, the trial Judge noted that the first demand of the bribe at the factory of the complainant had not been proved.
He, however, held that the evidence of the two motbirs was reliable and was amply corroborated by the recovery of the currency notes as well as the presence of phenolphthalein powder on the hands of the appellant.
The trial Judge convicted and sentenced the appellant under section 161, I.P.C. and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947.
The High Court which examined the evidence of the motbirs agreed with the findings recorded by the trial Court and dismissed the appeal filed by the appellant.
One of the contentions urged on behalf of the appellant was that once the complainant was not available to give evidence not only of the first demand but also on the payment of bribe pursuant to the demand, the evidence of the two motbirs had assumed considerable importance and it was unwise and dangerous to place implicit reliance on their testimony to convict the appellant 570 as (i) both the motbirs were petty clerks and (ii) by virtue of their service, they were likely to be under police influence.
Dismissing the appeal, ^ HELD: Truth is neither the monopoly nor the preserve of the affluent or of highly placed persons.
In a country where renunciation is worshipped and the grandeur and wild display of wealth frowned upon, it would be the travesty of truth if persons coming from humble origin and belonging to office wise, wealth wise lower strata of society are to be disbelieved or rejected as unworthy of belief solely on the ground of their humble position in society.
[577 F] Khairati Lal vs The State, (1965) 1 Delhi Law Times, 362 overruled.
In the instant case it is factually not correct to say that both the motbirs are petty clerks: one was serving as a clerk in a nationalised bank and the other was a teacher in a middle school.
The testimony of the motbirs which had been accepted as wholly reliable by the trial Judge and the High Court cannot be rejected on the sole ground that they are petty clerks.
[577 E: 578 A B] It may be that officers of Anti Corruption Department have jurisdiction to investigate lapses on the part of clerks in nationalised banks.
It is not clear whether the motbir who was a teacher was a government employee or the school itself was a government school.
It may be that the school was receiving grant but if all institutions which receive grant from government are styled as government departments and have to be treated as falling under the police influence then the net will have to be spread so wide as not to exclude anyone as independent of police influence.
There is no justification in the submission that the two motbirs were persons not likely to be independent of police influence.
[578 D E] Raghbir Singh vs State of Punjab, AIR 1976 S.C. 91, distinguished.
|
TE JURISDICTION: Civil Appeal NO. 3182 of 1982.
Appeal by special leave from the Judgment and Order dated the 13th November, 1978 of the Kerala High Court in M.F.A. No. 145 of 1976.
B.S. Bhasme and H.S. Parihar for the Appellant.
K.N. Bhatt for Respondent No. 2.
A.S. Nambiar for the intervener.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
This is an appeal by special leave under Article 136 of the Constitution against the judgment and order dated November 13, 1978 of the High Court of Kerala in M.F.A. No. 145 of 1976.
The facts leading to this appeal may be briefly stated thus: The appellant is the Maharashtra State Electricity Board (hereinafter referred to as 'the Electricity Board ').
Cochin Malleables (P) Ltd. (in liquidation) (hereinafter referred to as 'the Company in liquidation ') used to enter into contracts with the Electricity Board before it was ordered to be wound up by the High Court of Kerala to supply goods to the Electricity Board pursuant to tenders which were being issued from time to time.
One of the terms usually found in such tenders was that the intending supplier of goods should pay as earnest money and/or security to the Electricity Board alongwith every tender a sum approximately equivalent to 10% of the estimated price of the goods in question.
There was, however, a provision for exempting payment of such earnest money or security deposit in the case of those tenderers who would keep a permanent deposit of Rs. 50,000 either in cash or in any form approved by the Electricity Board and one such approved form was a bank guarantee to the tune of Rs. 50,000.
The effect of such deposit of Rs. 50,000 made by an intending tenderer with the Electricity Board under this condition was that he acquired the privilege of offering his tender for the supply of goods of any value to the Electricity Board and of such tender being considered along 564 with other tenders made by others who had in the ordinary course paid 10% of the estimated cost of goods as security deposit as per the usual condition.
Such privilege was available to him in the case of any tender that he might make as long as the deposit remained intact with the Electricity Board.
In other words, on depositing a sum of Rs. 50,000 an intending tenderer could offer to supply goods of any value either under one of more tenders without complying with the condition which required him to deposit alongwith with tender a sum equivalent to 10% of the estimated value of goods which he intended to supply.
The security of Rs. 50,000 thus given did not relate to any specific tender but it was open to the Electricity Board to appropriate the whole or any part of it towards any amount due from the tenderer under any supply contract entered into during the relevant period.
Any balance which remained unadjusted became refundable to the person who had made it on demand provided that there was no other subsisting liability towards which the said balance could be adjusted and on such refund being made the person ceased to enjoy the exemption from the requirement of making an earnest deposit in respect of any future tender.
Any bank guarantee given by any such intending tenderer in lieu of the cash deposit of Rs. 0,000 was deemed to be equivalent to the cash deposit made on date of the guarantee and the Electricity Board could realise the bank guarantee amount or any part of it at its will on any day irrespective of whether any tender had been made by the person concerned during the period or not.
On such realisation of the bank guarantee amount, the Electricity Board could deal with it in accordance with the terms of the contract as if the said amount had been deposited with it in cash on the date of bank guarantee.
The liability of the bank which gave the bank guarantee under these terms was unconditional and did not vary according to the number of tenders offered, the value of the goods offered for sale under those tenders, and the defaults, if any, committed by the tenderer in the supply of goods.
Pursuant to the above term, the Company in liquidation offered on September 1, 1966 a bank guarantee for a sum not exceeding Rs. 50,000 given by the Canara Bank Ltd. (now known as Canara Bank and hereinafter referred to as 'the Bank ').
The relevant part of the said guarantee was as follows "THE CANARA BANK LTD.", hereby agrees unequivocally and unconditionally to pay, within 48 (Forty eight) hours, on demand in writing from the Maharashtra 565 State Electricity Board or any officer authorised by it in this behalf, of any amount upto and not exceeding Rs.50,000/ (Rupees Fifty thousand only) to the said Maharashtra State Electricity Board, Bombay on behalf of M/s Cochin Malleables (Private) Ltd., Trichur, who have tendered and/ or contracted or may tender or contract hereafter for supply of materials equipment or service to the Maharashtra State Electricity Board and have been exempted from payment of earnest money and/or security deposit against such tenders or contracts.
" The original period of guarantee was one year.
It was, however, extended from time to time and the guarantee was in force in the year 1973.
On August 27, 1973, the Electricity Board called upon the Bank to pay the guarantee amount of Rs. 50,000.
Thereafter reminders were sent and a final demand was made on May 23, 1974.
In the meanwhile Company Petition No. 14 of 1973 was filed on July 30, 1973 on the file of the High Court of Kerala for the winding up of the Company in liquidation.
By an order dated September 16, 1974 the High Court ordered the winding up of the Company in liquidation and directed the Official Liquidator to take charge of its affairs.
In view of these proceedings the Bank wrote to the Official Liquidator on November 4, 1974 stating that the Company in Liquidation was liable to the Bank to the extent of Rs. 1,64,353.12 on two heads one of which was the sum of Rs. 50,000 demanded by the Electricity Board as per the terms of the bank guarantee referred to above.
Thereupon, the Official Liquidator filed an application under section 456(2) of the read with Rule 9 of the Companies (Court) Rules, 1959 before the Company Judge praying for an order restraining the Electricity Board from realising the amount covered by the guarantee on the ground that since the Company in liquidation had been ordered to be wound up the Electricity Board could not claim the amount of guarantee from the Bank.
The Electricity Board contended that the amount of Rs. 50,000 was not being claimed as a creditor of the Company in liquidation but on the basis of the bank guarantee, the liability under which was not affected by the liquidation proceedings.
The learned Company Judge upheld the plea of the Official Liquidator and issued an order restraining the Electricity Board from realising the amount from the Bank on the ground that since the Bank would have recourse to the securities given by the Company in liquidation to the Bank for realising the amount paid by it in accordance with the bank guarantee and such 566 action of the Bank would affect the assets of the Company in liquidation, it was not open to the Electricity Board to claim the amount of guarantee from the Bank except as a creditor in the winding up proceedings.
An appeal filed by the Electricity Board before the Division Bench of the High Court was dismissed.
This appeal is filed by the Electricity Board against the order of the Division Bench.
After the petition for special leave was filed in this Court in July 1979, notice was issued to the Official Liquidator.
He has written a letter to this Court stating that the High Court of Kerala has since sanctioned a scheme for reconstruction of the Company in liquidation by an order dated November 6, 1979, subject to certain conditions and that the winding up proceedings are directed to be kept in abeyance till December 31, 1982.
He has further stated that he has handed over all the assets of the Company in liquidation to the new management as per directions of the High Court and that he has no funds to participate in these proceedings.
The Managing Director of the Company in liquidation has entered appearance as an intervener and is represented by a counsel.
The learned counsel for the intervener has been heard in this appeal.
He has also filed his submissions in writing.
The principal question which arises for determination in this appeal relates to the effect of the liquidation proceedings on the right of the Electricity Board to recover from the Bank the sum of Rs. 50,000 as per the terms of the bank guarantee.
It cannot be disputed that the terms of the document on the basis of which the Electricity Board has claimed the amount from the Bank constitute a contract of guarantee and not a contract of indemnity.
Under that document the Bank has undertaken to pay any amount not exceeding Rs. 50,000 to the Electricity Board within forty eight hours of the demand.
The payment of the amount guaranteed by the Bank is not made dependent upon the proof of any default on the part of the Company in liquidation.
It may be that in order to give the said guarantee, the Bank had in its turn taken as security from the Company in liquidation certain fixed deposit receipt and a certain quantity of imported zinc ingots and that the Bank had certain rights in respect of those securities.
There may also be some claims or counter claims arising out of the contracts of supply entered into between the Electricity Board and the Company in liquidation.
But the transactions viz. (1) the bank guarantee executed by the Bank in favour of the Electricity Board, (2) the 567 contracts of supply entered into between the Electricity Board and the Company in liquidation and (3) the document under which the Company in liquidation had given a fixed deposit receipt and certain quantity of zinc ingots as security to the Bank for executing the letter of guarantee in favour of the Electricity Board are independent of each other in so far as their legal incidents are concerned.
Under the bank guarantee in question the Bank has undertaken to pay the Electricity Board any sum upto Rs. 50,000 and in order to realise it all that the Electricity Board has to do is to make a demand.
Within forty eight hours of such demand the Bank has to pay the amount to the Electricity Board which is not under any obligation to prove any default on the part of the Company in liquidation before the amount demanded is paid.
The Bank cannot raise the plea that it is liable only to the extent of any loss that may have been sustained by the Electricity Board owing to any default on the part of the supplier of goods i.e. the company in liquidation.
The liability is absolute and unconditional.
The fact that the Company in liquidation i.e. the principal debtor has gone into liquidation also would not have any effect on the liability of the Bank i.e. the guarantor.
Under section 128 of the Indian Contract Act, the liability of the surety is co extensive with that of the principal debtor unless it is otherwise provided by the contract.
A surety is no doubt discharged under section 134 of the Indian Contract Act by any contract between the creditor and the principal debtor by which the principal debtor is released or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor.
But a discharge which the principal debtor may secure by operation of law in bankruptcy (or in liquidation proceedings in the case of a company) does not absolve the surety of his liability (See Jagannath Ganeshram Aggarwala vs Shivnarayan Bhagirath & Ors.(1).
See also In re Fitzgeorge Ex parte Robson(2).
In view of the unequivocal language of the letter of guarantee, no reliance can be placed by the Company in liquidation on the decision of this Court in Punjab National Bank Limited vs Bikram Cotton Mills & Anr.(3) in which the surety 's liability was limited to the 'ultimate balance ' found due from the principal debtor and the said balance had not been ascertained before the institution of the suit.
568 The facts of this case are distinguishable from the facts in the case before us.
As mentioned earlier the liability of the Bank to pay the amount as per the letter of guarantee did not depend upon prior proof of any default on the part of the Company in liquidation.
Whether the whole of Rs. 50,000 should be demanded or any lesser sum should be demanded from the Bank was entirely within the choice of the Electricity Board.
The Bank has, therefore, to pay the amount due under the letter of guarantee given by it to the Electricity Board.
On such payment it is open to the Bank to have recourse to the securities given by the Company in liquidation for the purpose of the issue of the letter of guarantee.
The Electricity Board is not concerned with what the Bank does in order to reimburse itself after making payment of the amount guaranteed by it.
It is the responsibility of the Bank to deal with the securities held by it in accordance with law.
It was not, however, open to the Company Judge to make any order under the prohibiting the Electricity Board from realising the amount guaranteed by the Bank as this had nothing to do with the assets of the Company in liquidation.
The order of the Company Judge and the Judgment of the Division Bench in appeal are, therefore, liable to be set aside be and they are accordingly set aside.
Before concluding this judgment, we place on record the submission made on behalf of the Electricity Board that it is open to the Company in liquidation to prefer any claim arising out of the supply contracts as against the Electricity Board.
It is also open to the Electricity Board to claim any sum that may be due to it under such contracts.
In considering the above mutual rights and liabilities of the Electricity Board and the Company in liquidation the sum to be received by the Electricity Board from the Bank under the letter of guarantee will have to be taken into consideration and dealt with in accordance with the terms of the supply contracts.
The appeal is accordingly allowed.
No costs.
P.B.R. Appeal allowed.
| IN-Abs | The appellant Board invites tenders for the supply of goods.
One of the terms of the tenders required the intending supplier of goods to pay earnest money and/or security to the Board along with the tender a sum approximately equivalent to 10% of the estimated price of goods tendered.
But where an intending tenderer deposited a sum of Rs. 50,000 either in cash or in any form approved by the Board such as a Bank guarantee he could offer to supply goods of any value either under one or more tenders without complying with the above condition.
In accordance with the terms of tender the company in liquidation offered a bank guarantee for a sum of Rs. 50,000 for supply of goods to the Board.
As security for the guarantee, the Bank took from the company in liquidation a fixed deposit receipt and some quantity of imported zinc ingots and the Bank had certain rights in respect of these securities.
In August, 1973 the Board called upon the Bank to pay to it the guarantee amount.
In the meanwhile, however, the High Court ordered the winding up of the company in liquidation.
The Bank then wrote to the Official Liquidator that the company in liquidation was liable to the Bank a large sum of money one of which was the sum of Rs. 50,000 demanded by the Board.
On application by the Official Liquidator the company Judge issued an order restraining the Board from realising the amount from the Bank on the ground that since the Bank would have recourse to the securities given by the company in liquidation for realising the amount paid by it in accordance with the bank guarantee and that since such action of the Bank would affect the assets of the company in liquidation, it was not open to the Board to claim the amount of guarantee from the Bank except as a creditor in the winding up proceedings.
A Division Bench of the High Court dismissed the Board 's appeal.
562 On the question whether the Board could recover from the Bank the sum of Rs. 50,000 according to the terms of the bank guarantee and what its effect would be on liquidation proceedings, Allowing the Appeal, ^ HELD: It was not open to the company Judge to make any order under the prohibiting the Board from realising the amount guaranteed by the Bank as this had nothing to do with the assets of the company in liquidation.
[568 D] The terms of the document on the basis of which the Board has claimed the amount from the Bank constituted a contract of guarantee and not a contract of indemnity.
[566 F] The three transactions, namely (1) the bank guarantee, (2) the contract of supply between the Board and the Company in liquidation and (3) the document under which the Company in liquidation gave a fixed deposit receipt and some quantity of zinc ingots as security are independent of each other in so far as their legal incidents are concerned.
[566 H; 567 A] In order to realise the guarantee amount of Rs. 50,000 all that the Board had to do was to make a demand, within 48 hours of which the Bank had to pay the sum to the Board.
The Board was not required to prove any default on the part of the Company in liquidation.
Nor could the Bank raise the plea that it was liable only to the extent of any loss sustained by the Board.
The Bank 's liability to pay the sum demanded by the Board was absolute and unconditional.
[567 C D] The fact that the principal debtor had gone into liquidation would not have any effect on the Bank 's liability as guarantor.
Under section 128 of the Indian Contract Act the liability of the surety is co extensive with that of the principal debtor unless it is otherwise provided by the contract.
A surety is no doubt discharged under section 134 of the Indian Contract Act by any contract between the creditor and the principal debtor by which the principal debtor is released or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor.
But a discharge which the principal debtor may secure by operation of law in bankruptcy (or in liquidation proceedings in the case of a company) does not absolve the surety of his liability.
[567 D F] Jagannath Ganeshram Aggarwala vs Shivnarayan Bhagirath In re Fitzegeorge Ex parte Robson, , referred to.
Punjab National Bank Limited vs Bikram Cotton Mills & Anr., ; , held inapplicable.
On payment of the sum demanded by the Board it was open to the Bank to have recourse to the securities given by the Company in liquidation.
The 563 Board was not concerned with what the Bank did to reimburse itself.
It was the Bank 's responsibility to deal with the securities held by it in accordance with law.
|
Civil Appeal No. 1531 of 1980.
Appeal by special leave from the judgment and order dated the 9th August, 1978 of the Allahabad High Court in C.M. Writ No.6788 of 1978 J.K Goel for the Appellant S.Markendeya for Respondent.
The order of the Court was delivered by DESAI J. Appellant Ramakant Misra joined service in the Kanpur Electric Supply Administration ( 'Administration ' for short) which was then a Department of the Government of Uttar Pradesh.
On the constitution of U.P. Electricity Board ( 'Board ' for short), under the provisions of ( 'Act ' for short), with effect from April 1,1958, the Kanpur Electric Supply Administration stood transferred to the Board and the employees working in the Administration were deemed to be on deputation to 650 the Board though they would continue to be Government servants as provided in a Circular dated March 13, 1959.
As per Notification No. 3721E/74 23P (3) 155E/174 dated August 3, 1974 the posts held formerly in the Administration by the employees working in the Administration were abolished and the deputationists were absorbed in the service of the Board.
However, before the appellant could be so absorbed he was served with a charge sheet on November 19, 1971, alleging that he was guilty of disorderly behaviour punishable under the relevant Standing orders.
Simultaneously the appellant was suspended from service pending a departmental inquiry.
The inquiry officer who was appointed to hold the inquiry after holding the inquiry recorded his finding that the charge was proved.
It would be advantageous to reproduce the charge.
It is extracted from the report of the inquiry officer: "Shri Rama Kant was charged for misconduct under clause 20 (9) .
18 and 28 of the Standing Orders for disorderly behaviour or conduct likely to cause a breach of peace threatening an employee within the premises and conduct prejudiced to good order and discipline".
The specific allegation is that on November 18, 1971, around 2.50 p.m. appellant was complaining about the deduction that was being made from his wages for his absence from the place of work and late attendance with Shri Mahendra Singh.
When Shri Mahendra Singh replied that he had no separate rules for him, the appellant is alleged to have lost his balance.
The threatening language alleged to have been used by the appellant when freely translated reads: "Are other persons your father.
I will make you forget your high handedness either here or somewhere else.
An officer of yesterday 's making discloses power consciousness".
The inquiry officer held that the words attributed to the appellant were used by him in reference to Shri Mahendra Singh and that use of such language would constitute misconduct within the relevant clauses of the Standing Orders hereinbefore mentioned.
The inquiry officer recommended dismissal from service.
As the matter was being dealt with on the footing that the appellant was a Government servant entitled to the protection of Article 311 of the Constitution, 651 a second show cause notice according to the provisions then contained in article 311 was required to be served before penalty was finally imposed upon him.
But even before the notice was served the appellant was dismissed from service on April 6, 1972.
A dispute having been raised questioning the validity of termination of service of the appellant, the 1st respondent made a reference to the Labour Court, U.P. for adjudication of the dispute.
The Labour Court by its Award dated March 21, 1978, held that the termination of service of the appellant was legal and proper.
A petition under Article 227 of the Constitution to the High Court failed.
Hence this appeal by special leave.
Mr. Markandeya, learned counsel who appeared for the respondent urged that any person who claims to be a Government employee cannot seek relief both under Article 311 on the footing that he is holding a civil post or is a member of the civil service of the State on the one hand and a workman falling under the purview of the , on the other, and that this aspect is being examined by a larger Bench.
In this case it is not necessary to resolve the controversy because we requested Mr. Markandeya to state specifically whether according to him the appellant on the date of his dismissal was a Government servant governed by article 311 or a workman within the meaning of the .
Mr. Markandeya specifically stated and it was also held by the Labour Court though wrongly but which aspect at present is not relevant that the appellant is not a Government Servant holding a civil post or a member of the civil service of the State but that he is a workman entitled to the protection of the .
We are proceeding on that assumption in this case.
The charge of which appellant is found guilty is already extracted hereinbefore.
It amounts to a riotous or disorderly behaviour during working hours at the establishment.
At least this could not be said to be an act subversive of discipline.
The misconduct attributed to the appellant is that he used some language unbecoming of a disciplined workman and may have thereby exposed a threatening posture which is alleged to be subversive of discipline.
Shorn of all embellishments, enraged by deduction from his wages appellant, a Joint Secretary of Union of Workmen used some 652 language which can be said to be indiscreet.
In order not to minimise the gravity of the charge we have extracted the charge by its free translation and it must be confessed that both the learned counsel who appeared on either side were fully conversant with the Hindi language and, therefore, clearly understood the import of the language used by the appellant.
In the ultimate analysis the mis conduct is use of language indiscreet or may be said to be indecent or may be disclosing a threatening posture.
We will proceed on the assumption that use of such language is punishable under the relevant Standing Orders.
So what.
The punishment must be for misconduct.
To some extent misconduct is a civil crime which is visited with civil and pecuniary consequences.
In this case it has resulted in dismissal from service.
In order to avoid the charge of vindictiveness, justice, equity and fairplay demand that punishment must always be commensurate with the gravity of the offence charged.
In the development of industrial relation norms we have moved far from the days when quantum of punishment was considered a managerial function with the courts having no power to substitute their own decision in place of that of the management.
More often the courts found that while the misconduct is proved the punishment was disproportionately heavy.
As the situation then stood, courts remained powerless and had to be passive sufferers incapable to curing the injustice.
Parliament stepped in and enacted section IIA of the which reads as under: "11A. Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National or Tribunal for adjudication and, in the course of the adjudication proceeding, the Labour Court Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require".
It is now crystal clear that the Labour Court has the jurisdiction and power to substitute its measure of punishment in 653 place of the managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case.
And this Court is at present exercising jurisdiction under article 136 over the decision of the Labour Court.
Therefore this Court can examine whether the Labour Court has properly approached the matter for exercising or refusing to exercise its power under section 11A. Before we can exercise the discretion conferred by section 11A, the Court has to be satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case.
These words indicate that even though misconduct is proved and a penalty has to be imposed, the extreme penalty of dismissal or discharge was not justified in the facts and circumstances of the case meaning thereby that the punishment was either disproportionately heavy or excessive.
As stated earlier, it is a well recognised principle of jurisprudence which permits penalty to be imposed for misconduct that the penalty must be commensurate with the gravity of the offence charged.
What has happened here.
The appellant was employed since 1957.
The alleged misconduct consisting of use of indiscreet or abusive or threatening language occurred on November 18, 1971, meaning thereby that he had put in 14 years of service.
Appellant was Secretary of the workmen 's Union.
The respondent management has not shown that there was any blameworthy conduct of the appellant during the period of 14 years ' service he rendered prior to the date of misconduct and the misconduct consists of language indiscreet, improper or disclosing a threatening posture.
When it is said that language discloses a threatening posture it is the subjective conclusion of the person who hears the language because voice modulation of each person in the society differs and indiscreet improper, abusive language may show lack of culture but merely the use of such language on one occasion unconnected with any subsequent positive action and not preceded by any blameworthy conduct cannot permit an extreme penalty of dismissal from service.
Therefore, we are satisfied that the order of dismissal was not justified in the facts and circumstances of the case and the Court must interfere.
Unfortunately, the Labour Court has completely misdirected itself by looking at the dates contrary to record and has landed itself in an unsustainable order.
Therefore, we are required to interfere.
What ought to be the proper punishment in this case ? In our 654 opinion, in such a situation withholding of two increments with future effect will be more than adequate punishment for such a low paid employee.
Accordingly, this appeal is allowed and the Award of the Labour Court is set aside as also the penalty imposed by the management is quashed and set aside.
The appellant is reinstated with all the benefits, including the back wages, but his two increments falling due from the date of his termination of service be withheld with future effect.
P.B.R. Appeal allowed.
| IN-Abs | In order to avoid the charge of vindictiveness, justice, equity and fairplay demand that punishment must always be commensurate with the gravity of the offence charged.
In the development of industrial relation norms law has moved far from the days when quantum of punishment was considered a managerial function with the courts having no power to substitute their own decision in place of that of the management.
More often, the courts found that, while the misconduct was proved, the punishment was disproportionately heavy.
As the situation then stood, courts remained powerless and had to be passive sufferers incapable of curing the injustice.
Parliament stepped in and enacted section IIA of the Industrial Disputes Act by which the Labour Court is clothed with jurisdiction and power to substitute its measure of punishment in place of the managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case.
This Court, while exercising jurisdiction under Article 136 can examine whether the Labour Court has properly approached the matter in exercising or refusing to exercise its power under section 11A.
The words that the court must be "satisfied that the order of discharge or dismissal was not justified" occurring in section 11A indicate that even though misconduct is proved and a penalty has to be imposed, the extreme penalty of dismissal or discharge was not justified in the facts and circumstances of the case meaning thereby that the punishment was either disproportionately heavy or excessive.
In the instant case the charge against the appellant workman was that he had used threatening and abusive language against a senior officer unbecoming of a disciplined workman and had adopted a threatening posture, subversive of discipline.
An inquiry was conducted.
On the recommendations of the Inquiry officer the workman was dismissed from service.
The Labour Court upheld the order of dismissal and the High Court dismissed the appellant 's petition under Article 227.
649 On the question whether the order of dismissal was justified on the facts and in the circumstances of the case.
^ HELD: The order of dismissal was not justified.
[653 A] It is a well recognized principle of jurisprudence, which permits penalty to be imposed for misconduct, that the penalty must be commensurate with the gravity of the offence charged.
[653 C D] The appellant workman had put in more than 14 years of service and had been the Secretary of the workers ' union.
The management had not shown that there was any blameworthy conduct on his part during the period of his service.
The misconduct alleged against him consisted of use of language which was indiscreet and improper, disclosing a threatening posture.
[653 E F] When it is said that his language disclosed a threatening posture it was the subjective conclusion of the person who heard the language because voice modulation of each person in the society differs.
Indiscreet, improper, abusive language may show lack of culture.
But mere use of such language on one occasion unconnected with any subsequent positive action and not preceded by any blameworthy conduct cannot permit an extreme penalty of dismissal from service.
[653 F H]
|
etition (Criminal) No. 1075 of 1982.
(Under article 32 of the Constitution of India) V.J. Francis for the Petitioner.
S.N. Jha for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
On October 4, 1982, we quashed and set aside the impugned detention order dated April 20, 1982, in respect of detenu Devi Lal Mahto, reserving the giving of the reasons for our order to a later date.
Here are the reasons.
This is a petition under Article 32 for a writ of hebeas corpus filed by detenu Devi Lal Mahto challenging the order of preventive detention dated April 20, 1982, made by the District Magistrate, Dhanbad.
Detenu Devi Lal Mahto was arrested on March 2, 1982, and was produced before the Chief Magistrate, Dhanbad, who remanded him to jail custody till March 17, 1982.
On March 1982, detenu moved an application for bail which was fixed for hearing on March 24, 1982.
On March 25, 1982 the bail application was rejected.
On April 20, 1982, the District Magistrate, Dhanbad, made the impugned order of detention in exercise of the power conferred by sub section
(2) read with sub section (3) of section 3 of the ( 'Act ' for short).
The District Magistrate stated in his order that with a view to preventing the detenu from acting in a manner prejudicial to the maintenance of public order he be detained.
Grounds of detention 632 were served upon the detenu on April 23, 1982.
Another application for bail moved by detenu was rejected on April 23, 1982 On May 13, 1982 the detenu submitted his representation to the State Government which came to be rejected by the State Government on June 3, 1982.
The order of detention was confirmed by the State Government on June 10, 1982.
Mr. V.J. Francis, learned counsel who appeared for the petitioner canvassed three contentions before us.
They are: (i) the detenu being already deprived of his personal liberty having been confined in jail from March 2, 1982, and his bail application having already been rejected on March 25, 1982, he was not even if so inclined, in a position to repeat his activity and therefore, the preventive detention order could not be made against him with a view to preventing him from indulging into activity prejudicial to the maintenance of public order; (ii) the detaining authority was not even aware that the detenu was already in jail when he made the impugned detention order and, therefore, the order suffers from the vice of non application of mind which would vitiate the order; and (iii) there was inordinate delay which has remained unexplained in considering the representation of the detenu and, therefore, the detention order is vitiated.
Undoubtedly, for a period of one month and 18 days the detenu was in jail, his bail application having been rejected nearly 25 days before the date of the impugned detention order.
It is difficult to appreciate how the District Magistrate was subjectively satisfied that a detention order in respect of the detenu was necessary with a view to preventing him from acting in a manner prejudicial to the maintenance of public order.
This aspect we have most meticulously examined in four decisions of this Court, and therefore, we need not examine the same again.
As early as in Rameshwar Shaw vs District Magistrate, Burdwan & Anr.,(1) and as late as Vijay Kumar vs State of J & K and Ors.(2), the two recent most decisions in Biru Mahato vs District Magistrate, Dhanbad(3), and M. Satyanarayana, etc.
vs State of Andhra Pradesh & Ors.
,(4) it has been held that one can envisage a hypothetical case in which a preventive detention order 633 may have to be made against a person already deprived of his personal liberty by being confined or detained in jail but in such a situation the detaining authority must show awareness of this fact that the person against whom the detention order is proposed to be made is already in jail and is incapable of acting in a manner prejudicial to the maintenance of public order and yet for the reasons which may appeal to the District Magistrate on which his subjective satisfaction is grounded a preventive detention order is required to be made.
It is further held that this awareness must appear either in the order or in the affidavit justifying the impugned detention order when challenged.
Neither in the order nor in the affidavit we find even a whimper of this aspect being present to the mind of the detaining authority while making the detention order.
Therefore, it clearly discloses non application of mind and following the aforementioned decisions it must be held that the order of preventive detention having been mechanically made and suffering from the vice of non application of mind is vitiated.
The last contention is that there was an inordinate delay in considering the representation of the detenu and, therefore, the detention order is vitiated.
The detenu made a representation on May 13, 1982.
It also transpires that the case of the detenu was referred to the Advisory Board on May 15, 1982.
The affidavit in reply recites that the representation was rejected by the State Government on June 3, 1982.
How the representation was dealt at various levels from May 13, to June 3, has not been dealt with in the affidavit on behalf of the respondents.
It may be mentioned here that the counter affidavit on behalf of the respondents has been filed by one G.P.A. Kujur who has described himself as Deputy Collector of Dhanbad.
Obviously he was not the detaining authority.
The detaining authority though impleaded as a respondent has not filed the affidavit.
Mr. Jha, learned counsel who appeared for the respondents after referring to the file with him urged that the representation was received on May 14, 1982 and it was on May 24, 1982, that its examination commenced.
There was no further detail available as to how it was dealt with.
When a detention order is made by the District Magistrate in exercise of the power conferred by sub section
(2) read with sub section
(3) of section 3 of the Act, sub section
(4) makes it obligatory upon the State Government to examine the order and approve the same within a period of 12 days from the date of making of the order.
There is a proviso appended to the section which is not relevant.
There is nothing to show that the order was approved.
634 There is nothing to show why for a period of 10 days the representation was not examined by the competent authority.
There is nothing to show how the file moved after May 24, 1982, till the representation was rejected on June 3, 1982.
In our opinion in the facts and circumstances of this case a time of 21 days taken by the State Government in examining the representation of the detenu made under section 8 of the Act shows inordinate delay in dealing with the representation and that would vitiate the order.
For these reasons we had quashed and set aside the impugned detention order.
H.L.C. Petition allowed.
| IN-Abs | The petitioner who had been arrested on March 2, 1982 and whose application for bail had been rejected on March 25, 1982 was in jail when the District Magistrate, Dhanbad made the impugned order of detention against him on April 20, 1982 under sub section
(2) read with sub section
(3) of section 3 of the .
Another application for bail moved by the petitioner was rejected on April 23, 1982.
The grounds of detention were served on April 23, 1982 and the representation submitted to the State Government on May 13, 1982 was rejected on June 3, 1982 and the order of detention was confirmed on June 10, 1982.
It was contended that the impugned order could not have been made against the petitioner as he was already in jail, that the order was vitiated by non application of mind as the detaining authority was not even aware of the petitioner 's custody in jail and as there was inordinate delay in considering the representation against the order.
Allowing the petition, ^ HELD: When a preventive detention order is made against a person already deprived of his personal liberty, the detaining authority must show awareness of the fact that the person against whom the detention order is proposed to be made is already in jail and is incapable of acting in a manner prejudicial to the maintenance of public order and yet, for reasons which may appeal to the detaining authority on which its subjective satisfaction is grounded, a preventive detention order is required to be made.
This awareness must appear in the order or in the affidavit justifying the order when challenged.
[633 A B] In the instant case neither in the order nor in the affidavit was there even a whimper of this aspect being present to the mind of the detaining authority while making the order.
The order having been mechanically made and suffering from the vice of non application of mind was vitiated.
[633 C] Rameshwar Shaw vs District Magistrate, Burdwan & Anr. ; ; Vijay Kumar vs State of J&K and Ors. ; ; Biru Mahto vs 631 District Magistrate, Dhanbad; , and M. Satyanarayana, etc.
vs State of Andhra Pradesh & Ors. ; followed.
(b) When a detention order is made in exercise of the power conferred by sub section
(2) read with sub section
(1) of section 3 of the Act, sub section
(4) makes it obligatory upon the State Government to examine the order and approve the same within a period of 12 days from the date of making the order.
[633 G H] In the facts and circumstances of the instant case, a time of 21 days taken by the State Government in examining the representation of the detenu showed inordinate delay which vitiated the order.
[634 B]
|
Appeal No. 135 of 1955.
Appeal by special leave from the judgment and order dated October 30, 1952, of the Labour Appellate Tribunal of India, Allahabad, in Misc.
Case No. C 146 of 1952.
R. R. Biswas, for the appellant.
Sukumar Ghose (amicus curiae), for the respondents.
November 28.
The Judgment of the Court was delivered by S.K. DAS J.
This is an appeal by special leave from the judgment and order of the Labour Appellate Tribunal of India at Allahabad dated October 30, 1952.
The relevant facts are these.
The Banaras Ice Factory Limited, the appellant before us, was incorporated on September 13, 1949, as a private limited company and was carrying on the business of manufacturing ice in the city of Banaras though its registered office was in Calcutta.
The factory worked as a seasonal factory and had in its employment about 25 workmen at all material times.
These workmen were employed from the month of March to the month of September 145 year.
The appellant company got into financial difficulties on account of trade depression, rise in the price, of materials and increase in the wages and emoluments of workmen.
It tried to secure a loan of Rs. 10,000/ from a Bank but met with no success.
Thereupon, it decided to close down the factory and on January 15, 1952, a notice was given to its workmen saying that the factory would be closed down with effect from January 17, 1952, and the services of the workmen would not be necessary for two months from that date.
The work.
men received their wages up to January 16, 1952.
On March 18, 1952, they were again taken into service but this temporary closing of the factory gave rise to an industrial dispute and the workmen complained that they were wrongfully laid off with effect from January 17, 1952.
The dispute was referred to the Regional Conciliation Officer, Allahabad, for adjudication.
In the meantime, that is, on June 6, 1952, the workmen gave a strike notice and as there was no coal in the factory, the appellant also gave a notice of closure on June 12, 1952.
A settlement was, however, arrived at between the parties on June 15, 1952, at the house of the Collector of Banaras.
The terms of that settlement, inter alia, were: (1) the management would withdraw its notice of closure dated June 12, 1952 ; (2) the workmen would withdraw their strike notice dated June 6, 1952; (3) there being no coal, the workers would remain on leave for a period of thirty days with effect from June 16, 1952, and would report for duty on July 16, 1952, at 8 A.M. and (4) after the workers had resumed their duty on July 16, 1952, the appellant would not terminate the services of any workmen or lay them off in future without obtaining the prior permission of the Regional Conciliation Officer, Allahabad.
On June 28, 1952, the Regional Conciliation Officer, Allahabad, gave his award in the matter of the industrial dispute between the appellant and its work , men with regard to the alleged wrongful laying off of the workmen from January 17, 1952, to March 18, 1952, 19 146 referred to above.
By his award the Regional Conciliation Officer gave full wages to the workmen for the period in question.
On July 16, 1952, none of the workmen reported for duty in accordance with the terms of the agreement referred to above, and on that date the appellant gave a notice to its workmen to the effect that the appellant found it difficult to run the factory and had decided to close it down; the workmen were informed that their services would not be required and would be terminated upon the expiry of thirty days from July 16, 1952.
The workmen, it is stated, accepted the notice and took their pay for one month (from July 16 to August 15, 1952) without any protest.
Against the award of the Regional Conciliation Officer dated June 28, 1952, the appellant filed an appeal to the Labour Appellate Tribunal on July 25, 1952.
On August 31, 1952, a complaint was made on behalf of the workmen to the Labour Appellate Tribunal under section 23 of the Industrial _ Disputes (Appellate Tribunal) Act, 1950, hereinafter referred to as the Act.
The gravamen of the complaint was that the appellant had contravened the provisions of section 22 of the Act.
because the appellant had discharged all the workmen with effect from August 15, 1952, without the permission in writing of the Labour Appellate Tribunal during the pendency before it of the appeal filed on July 25, 1952, against the award of the Regional Conciliation Officer.
The Labour Appellate Tribunal dealt with this complaint by its order dated October 30, 1952.
Before the Labour Appellate Tribunal it was urged on behalf of the appellant that there was no contravention of a. 22, because on July 16, 1952, when the notice of discharge was given by the appellant, no appeal was pending before it, the appellant 's appeal having been filed several days later, namely, on July 25, 1952.
This contention was not accepted by the Labour Appellate Tribunal on the ground that though the notice of discharge was given on July 16, 1952, the termination of service was to come into operation after one month, that is, from August 15, 1952, on which date the appeal before the Labour Appellate Tribunal was certainly pending.
As learned counsel for the 147 appellant has not again pressed this point before us, it is not necessary to say anything more about it.
A second point uroed before the Labour Appellate Tribunal was that the appellant had the right to close down the factory, when the appellant found that it was not in a position any longer to run the factory.
The agreement of June 15, 1952, did not stand in the appellant 's way, as the workmen themselves did not report for duty on July 16, 1952.
The closure being a bona fide closure, it was not necessary to obtain the permission of the Labour Appellate Tribunal and there was therefore no contravention of section 22 of the Act.
The Labour Appellate Tribunal apparently accepted the principle that the appellant had the right to close its business but took the view that permission should have been obtained before the closure.
It referred to the agreement of June 15, 1952, and held that though the appellant had the right to close its business, permission was still necessary and in the absence of such permission, the appellant was guilty of contravening cl.
(b) of section 22 of the Act, and directed that the appellant should pay its workmen full wages as compensation for the period of involuntary unemployment up to the date of its award, that is, during the period from August 16, 1952, to October 30, 1952.
Relying on the decision in J. K. Hosiery Factory vs Labour Appellate Tribunal of India (1), learned counsel for the appellant has urged three points before us.
His first point is that the termination of the services of all workmen on a real and bona fide closure of business is not 'discharge ' within the meaning of cl.
(b) of section 22 of the Act.
His second point is that if the word 'discharge ' in cl.
(b) aforesaid includes termination of services of all workmen on bona fide closure of business, then the clause is an unreasonable restriction on the fundamental right guaranteed in el.
(g) of article 19 (1) of the Constitution.
His third point is that, in any view, the Labour Appellate Tribunal, was not entitled to grant compensation to the workmen, because section 23 of the Act did not in terms entitle the Labour (1) A.I.R. 1956 All.
148 Appellate Tribunal to pass an order of compensation.
We may state here that if the appellant succeeds on the first point, it becomes unnecessary to decide the other two points.
For a consideration of the first point, we must first read sections 22 and 23 of the Act.
Section 22: " During the period of thirty days allowed for the filing of an appeal under section 10 or during the pendency of any appeal under this Act, no employer shall (a)alter, to the prejudice of the workmen concerned in such appeal, the conditions of service applicable to them immediately before the filing of such appeal, or (b)discharge or punish, whether by dismissal or otherwise, any workmen concerned in such appeal, save with the express permission in writing of the Appellate Tribunal.
" Section 23: " Where, an employer contravenes the provisions of section 22 during the pendency of proceedings before the Appellate Tribunal, any employee, aggrieved by such contravention, may make a complaint in writing, in the prescribed manner, to such Appellate Tribunal and on receipt of such complaint, the Appellate Tribunal shall decide the complaint as if it were an appeal pending before it, in accordance with the provisions of this Act and shall pronounce its decision thereon and the provisions of this Act shall apply accordingly." The short question before us is whether the word 'discharge ' occurring in cl.
(b) of section 22 includes termination of the services of all workmen on a real and bona fide closure of his business by the employer.
It is true that the word 'discharge ' is not qualified by any limitation in cl.
We must, however, take the enactment as a whole and consider section 22 with reference to the provisions of the , (XIV of 1947) which is in pari materia with the Act under our consideration.
We have had occasion to consider recently in two cases the general scheme and 149 scope of the .
In Burn & Co., Calcutta vs Their Employees(1) this Court observed that the object of all labour legislation was ' firstly, to ensure fair terms to the workmen and secondly, to prevent disputes between employers and employees so that production might not be adversely affected and the larger interests of the public might not suffer.
In Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor Union (2) it was observed " The objects mentioned above can have their fulfilment only in an existing and not a dead industry.
" We accepted the view expressed in Indian Metal and Metallurgical Corporation vs Industrial Tribunal(3) and K. M. Padmanabha Ayyar vs The State Of Madras (4) that the provisions of the , applied to an existing industry and not a dead industry.
The same view was reiterated in Hariprasad Shivshankar Shukla vs A. D. Divikar (5) where we held that 'retrenchment ' in cl.
(oo) of section 2 and section 25F did not include termination of the services of workmen on bona fide closure of business.
Turning now to section 22 of the Act, it is clear enough that el.
(a) applies to a running or existing industry only; when the industry itself ceases to exist, it is otiose to talk of alteration of the conditions of service of the workmen to their prejudice, because their service itself has come to an end.
The alteration referred to in cl.
(a) must therefore be an alteration in the conditions of service to the prejudice of the workmen concerned, in an existing or running industry.
Similarly, the second part of cl.
(b) relating to punishment can have application to a running or existing industry only.
When the industry itself ceases to exist, there can be no question of punishment of a workman by dismissal or otherwise.
We are then left with the word 'discharge '.
Unqualified though the word is, it must, we think, be interpreted in harmony with the general scheme and scope of the .
Our attention has been drawn to (1) ; (4) (2) 2.
(5) [1957] S.C. R.121.
(3) A.I. R. 150 the definition of 'workman ' in cl.
(s) of a. 2, which says ". for the purposes of any proceeding under this Act in relation to an industrial dispute, (the definition) includes any person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute.
" In the said definition clause also, the word 'discharge ' means discharge of a person in a running or continuing business not discharge of all workmen when the industry itself ceases to exist on a bona fide closure of business.
The true scope and effect of sections 22 and 23 of the Act were explained in The Automobile Products of India Ltd. vs Rukmaji Bala (1).
It was pointed out there that the object of section 22 was " to protect the workmen concerned in disputes which formed the subject matter of pending proceedings against victimisation " and the further object was " 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 these 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 relations between the employer and the workmen.
" Those objects are capable of fulfilment in a running or continuing industry only, and not a dead industry.
There is hardly any occasion for praying for permission to lift the ban imposed by section 22, when the employer has the right to close his business and bona fide does so, with the result that the industry itself ceases to exist.
If there is no real closure but a mere pretence of a closure or it is mala fide, there Is no closure in the eye of law and the workmen can raise an industrial dispute and may even complain under a.23 of the Act.
For these reasons, we must uphold the first point taken before us on behalf of the appellant.
The Appellate Tribunal was in error in holding that the (1) ; 151 appellant had contravened cl.
(b) of section 22 of the Act.
The Appellate Tribunal did not find that the closure of the appellants business was not bona fide; on the ' contrary, in awarding compensation, it proceeded on the footing that the appellant was justified in closing its business on account of the reasons stated by it.
As to the agreement of June 15, 1952, the workmen themselves did not abide by it and the appellant 's right cannot be defeated on that ground.
In view of our decision on the first point, it becomes unnecessary to decide the other two points.
On the point of construction of section 22 of the Act,, we approve of the decision of the Allahabad High Court in J. K. Hosiery Factory vs Labour Appellate Tribunal of India (supra) but we refrain from expressing any opinion on the other points decided therein and we must not be understood to have expressed our assent, contrary to the opinion expressed by us in the case of The Automobile Product8 of India Ltd. (supra) to the view that under section 23 of the Act, it is not open to an industrial Tribunal to award compensation in an appropriate case.
In the result, the appeal is allowed and the decision of the Labour Appellate Tribunal dated the 30th October 1952 is set aside.
As the workmen did not appear before us, there will be no order for costs.
We are indebted to Mr. Sukumar Ghosh for presenting before us the case of the workmen as amicus curiae.
Appeal allowed.
| IN-Abs | Clause (b) Of section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950 provides that during the pendency of any appeal under the Act no employer shall discharge any workmen concerned in such appeal, save with the express permission in writing of the Appellate Tribunal, and section 23 enables any employee to make a complaint in writing to such Appellate Tribunal, if the employer contravenes the provisions Of section 22 during the pendency of proceedings before the said Tribunal.
144 During the pendency of an appeal filed before the Labour, Appellate Tribunal the appellant company finding it difficult to run the factory decided to close it down and gave notice to all the workmen that their services would be terminated upon the expiry of thirty days from July 16, 1952.
On August 31, 1952, a complaint was made on behalf of the workmen to the Tribunal under section 23 Of the Act that the appellant had discharged them without the permission in writing of the Tribunal and had thereby contravened the provisions of section 22 of the Act.
It was found that the closure of the appellant 's business was bona fide.
Held, that section 22 of the Act is applicable only to an existing or running industry and that the termination of the services of all workmen, on a real and bona fide closure of business, is not 'discharge ' within the meaning of section 22(b) of the Act.
J. K. Hosiery Factory vs Labour Appellate Tribunal of India (A.I.R. 1956 All. 498), approved on the point of construction of section 22 of the Act.
Pipraich Sugar Mills Ltd. vs The Pipraich Sugar Mills Mazdoor Union followed.
|
etition (Criminal) No. 1166 of 1982.
(Under article 32 of the Constitution of India) AND Writ Petition (Criminal) No. 1167 of 1982 (Under article 32 of the Constitution of India) Gobinda Mukhoty, N.R. Choudhury and S.K. Bhattacharya for the Petitioners.
P. Ram Reddy and G.N. Rao for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
On October 8, 1982, we quashed and set aside the detention order dated December 26, 1981 in respect of detenu Merugu Satyanarayana s/o Ramchander, deferring the giving of the reasons to a later date.
On the same day we quashed the detention order dated February 13, 1982, in respect of detenu Bandela Ramulu @ Lehidas @ Peddi Rajulu @ Ramesh, s/o Venkati, deferring the giving of the reasons to a later date.
Identical contentions were raised in both these petitions and, therefore, by this common order we proceed to give our reasons on the basis of which we made the aforementioned orders.
1166/82.
Detenu M. Satyanarayana was working in Belampalli Coal Mines.
According to him he was arrested on October 22, 1981, but was kept in unlawful custody till October 31, 1981, when he was produced before the Judicial Magistrate who took him in judicial custody and sent him to Central Jail, Warangal.
According to the respondents detenu was arrested on October 30, 1981, and was produced before the Judicial Magistrate on October 31, 1981.
When he was thus confined in jail a detention order dated December 26, 1981 (in the counter affidavit the date of the detention order is shown to be December 28, 1981) made by the District Magistrate, Adilabad, in exercise of the power conferred by sub section
(2) read with sub section
(3) of section 3 of the ( 'Act ' for short) 639 was served upon him on December 29, 1981.
The District Magistrate also served upon the detenu grounds of detention on January 2, 1982.
It is not clear from the record or from the counter affidavit filed on behalf of respondents 1 to 3 whether any representation was made by the detenu and when the matter was disposed of by the Advisory Board.
1167/82.
Detenu Bandela Kamulu according to him was arrested on January 1, 1982, and he was produced before the Judicial Magistrate on January 11, 1982.
The dates herein mentioned are controverted by the respondents and they assert in the counter affidavit that the detenu was arrested on January 8, 1982, and was produced before the Judicial Magistrate on January 9, 1982.
During the period of his incarceration the District Magistrate, Adilabad in exercise of the power conferred by sub section
(2) read with sub s (3) of section 3 of the made an order of detention which was served on the detenu in District Jail, Nizamabad, on February 14, 1982.
Even in this case it is not clear from the record whether the detenu made any representation on how his case was dealt with by the Advisory Board.
The detenu in each of these petitions filed a petition for writ of habeas corpus in the Andhra Pradesh High Court It appears both the petitions were rejected.
Thereafter the present petitions were filed.
It may be stated at the outset that there is some dispute about the date of arrest of detenu in each case.
But in order to focus attention on the substantial contention canvassed in each case we would proceed on the assumption that the date of arrest given in each case by the respondents is correct.
We do not mean to suggest that the averment of the respondents with regard to the date of arrest is correct but that would be merely a presumption for the purpose of disposal of these petitions.
Mr. Gobinda Mukhoty, learned counsel who appeared for the detenu in each petition urged that on the date on which the detention order came to be made against each detenu he was already deprived of his liberty as he was already arrested and was confined in jail and, therefore, he was already prevented from pursuing any activity which may prove prejudicial to the maintenance of public order.
Hence no order of detention could be made against him.
640 The impugned detention order in each case recites that the detaining authority, the District Magistrate of Adilabad, made the impugned detention order with a view to preventing the detenu from continuing to act further in the manner prejudicial to the maintenance of public order.
The fact situation in each case as transpires from the counter affidavit filed on behalf of the respondents is that detenu Merugu Satyanarayan was in jail since October 31, 1981, and the detention order in his case was made on December 28, 1981, meaning thereby that the detenu was already confined in jail for a period of nearly two months prior to the date of the detention order.
Similarly, in the case of detenu Bandela Ramulu according to the counter affidavit he was arrested on January 8, 1982, and was confined to jail under the orders of the First Class Magistrate from January 9, 1982.
The detention order in his case was made on February 13, 1982, meaning thereby that the detenu was already confined to jail for a period of one month and four days prior to the date of the detention order.
It is in the background of this fact situation in each case that the contention canvassed on behalf of the detenu by Mr. Mukhoty may be examined Sub section (2) of section 3 of the confers power on the Central Government or the State Government to make an order of detention with a view to preventing any person from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order, etc.
In this case the detaining authority has made the order on being satisfied that it is necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
A preventive action postulates that if preventive step is not taken the person sought to be prevented may indulge into an activity pre judicial to the maintenance of public order.
In other words, unless the activity is interdicted by a preventive detention order the activity which is being indulged into is likely to be repeated.
This is the postulate of the section.
And this indubitably transpires from the language employed in sub section
(2) which says that the detention order can be made with a view to preventing the person sought to be detained from acting in any manner prejudicial to the maintenance of public order.
Now, if it is shown that the man sought to be prevented by a preventive order is already effectively prevented, the power under sub section
(2) of section 3, if exercised, would imply that one who is already is sought to be further prevented which is not the mandate 641 of the section, and would appear tautologous.
An order for preventive detention is made on the subjective satisfaction of the detaining authority.
The detaining authority before exercising the power of preventive detention would take into consideration the past conduct or antecedent history of the person and as a matter of fact it is largely from the prior events showing the tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order.
If the subjective satisfaction of the detaining authority leads to this conclusion it can put an end to the activity by making a preventive detention order.
(see Ujagar Singh vs State of Punjab, and Jagir Singh vs State of Punjab)(1).
Now, if the man is already detained, can a detaining authority be said to have been subjectively satisfied that a preventive detention order be made ? In Rameshwar Shaw vs District Magistrate, Burdwan & Anr.(2), this Court held that as an abstract proposition of the law detention order can be made in respect of a person who is already detained.
But having said this, the Court proceeded to observe as under: "As an abstract proposition of law, there may not be any doubt that section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail, but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail.
Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years.
It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him.
In dealing with this question, again the consideration of proximity of time will not be irrelevant.
On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a 642 valid order of detention a few days before the person is likely to be released.
The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary.
It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years ' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence.
Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.
" One can envisage a hypothetical case where a preventive order may have to be made against a person already confined to jail or detained.
But in such a situation as held by this Court it must be present to the mind of the detaining authority that keeping in view the fact that the person is already detained a preventive detention order is still necessary.
The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessity.
If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated.
But as stated by this Court it will depend on the facts and circumstances of each case.
The view herein taken finds further support from the decision of this Court in Vijay Kumar vs State of J & K and Ors (1), wherein this Court recently held as under: "Preventive detention is resorted to, to thwart future action.
If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State.
Maybe, in a given case there yet may be the need to order preventive detention of a person already in jail.
But in such a situation the detaining authority must disclose awareness of the fact that 643 the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made.
There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made.
This, in our opinion, clearly exhibits non application of mind and would result in invalidation of the order." Mr. Mukhoty next contended that even if a hypothetical case can be envisaged as contemplated by the decision of this Court in Rameshwar Shaw that a preventive detention order becomes necessitous in respect of a person already confined to jail, the detaining authority must show its awareness of the fact that the person in respect of whom detention order is being made is already in jail and yet a detention order is a compelling necessity.
It was urged that this awareness must appear on the face of the record as being set out in the detention order or at least in the affidavit in opposition filed in a proceeding challenging the detention order.
Otherwise, according to Mr. Mukhoty, the detention order would suffer from the vice of non application of mind.
The awareness must be of the fact that the person against whom the detention order is being made is already under detention or in jail in respect of some offence or for some reason.
This would show that such a person is not a free person to indulge into a prejudicial activity which is required to be prevented by detention order.
And this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged.
The absence of this awareness would permit an inference that the detaining authority was not even aware of this vital fact and mechanically proceeded to pass the order which would unmistakably indicate that there was non application of mind to the most relevant fact and any order of such serious consequence resulting in deprivation of liberty, if mechanically passed without application of mind, is obviously liable to be set aside as invalid.
And that is the case here.
Coming to the facts of each case, the detention order refers to the name of the detenu and the place of his residence.
There is not even a remote indication that the person against whom the detention order is being made is already in jail in one case for a period of roughly two months and in another case for a period of one month and four days.
The detenu is referred to as one who is staying at a 644 certain place and appears to be a free person.
Assuming that this inference from the mere description of the detenu in the detention order is impermissible, the affidavit is conspicuously silent on this point.
Not a word is said that the detaining authority was aware of the fact that the detenu was already in jail and yet it became a compelling necessity to pass the detention order.
Therefore, the subjective satisfaction arrived at clearly discloses a non application of mind to the relevant facts and the order is vitiated.
The next contention urged by Mr. Mukhoty was that the detaining authority has not filed an affidavit in opposition but the same has been filed by one Sub Inspector of Police and it speaks about the subjective satisfaction of the detaining authority viz., the District Magistrate and this would show that the District Magistrate had completely abdicated his functions in favour of the Sub Inspector of Police.
The affidavit in opposition on behalf of respondents 1 to 3 who are the State of Andhra Pradesh, the District Magistrate, Adilabad and the Jailor, Central Prison, Hyderabad, has been filed by M. Venkatanarasayya who has described himself as Sub Inspector of Police.
The same Sub Inspector has filed affidavit in opposition in both the cases.
In para 1 of the affidavit in opposition it is stated that the deponent as a Sub Inspector of police is well acquainted with all the facts of the case.
In para 7 of the affidavit in opposition in writ petition 1166/82 he has stated that: 'Only after deriving the subjective satisfaction, the detaining authority passed order of detention against the detenu, as his being at large, will prejudice the maintenance of public order.
We are completely at a loss to under stand how a Sub Inspector of Police can arrogate to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power is conferred by the .
If the power of preventive detention is to be conferred on an officer of the level and standing of a Sub Inspector of Police, we would not be far from a Police State.
Parliament has conferred power primarily on the Central Government and the State Government and in some specific cases, if the conditions set out in sub section (3) of section 3 are satisfied and the notification is issued by the State Government to that effect, this extra ordinary power of directing preventive detention can be exercised by such highly placed officers as District Magistrate or Commissioner of Police.
In this case the District Magistrate, the detaining authority has not chosen to file his affidavit.
The affidavit in opposition is filed by a Sub Inspector of Police.
Would this imply that Sub Inspector of Police had access to the file of the District Magistrate or was the Sub Inspector the person who influenced the 645 decision of the District Magistrate for making the detention order ? From the very fact that the respondents sought to sustain the order by filing an affidavit of Sub Inspector of Police, we have serious apprehension as to whether the District Magistrate completely abdicated his functions in favour of the Sub Inspector of Police.
The file was not made available to the Court at the time of hearing of the petitions.
But number of inferences are permissible from the fact that the District Magistrate though a party did not file his affidavit justifying the order and left it to the Sub Inspector of police to fill in the bill.
And the Sub Inspector of Police does not say how he came to know about the subjective satisfaction of the District Magistrate.
He does not say that he had access to the file or he is making the affidavit on the basis of the record maintained by the District Magistrate.
Therefore, the inference is irresistible that at the behest of the Sub Inspector of Police who appears to be the investigating officer in some criminal case in which each of the detenu is implicated, the District Magistrate completely abdicating his responsibilities, made the detention order.
This Court in A.K. Roy vs Union of India & Ors.(1), while upholding the validity of the , repelled the contention that it is wholly unreasonable to confer upon the District Magistrate or Commissioner of Police the power to issue orders of detention for reasons mentioned in sub section
(2) of section 3, observing that the District Magistrate or the Commissioner of Police can take the action under sub section
(2) of section 3 during the periods specified in the order of the State Government only.
This Court also noticed another safeguard, namely, that the order of the State Government under sub section
(3) of section 3 can remain in force for a period of three months only and it is during this period that the District Magistrate or the Commissioner of Police, as the case may be, can exercise power under sub section
(2) of section 3.
The further safeguard noticed by this Court is that both these officers have to forthwith intimate the fact of detention to the State Government and no such order of detention can remain in force for more than 12 days after the making thereof unless, in the meantime, it has been approved by the State Government.
The Court observed that in view of these in built safeguards it can not be said that excessive or unreasonable power is conferred upon the District Magistrate or the Commissioner of Police to pass orders under sub section
(2) (see para 72).
646 If the District Magistrate is to act in the manner he has done in this case by completely abdicating his functions in favour of an officer of the level of a Sub Inspector of Police, the safeguards noticed by this Court are likely to prove wholly illusory and the fundamental right of personal liberty will be exposed to serious jeopardy.
We only hope that in future the District Magistrate would act with responsibility, circumspection and wisdom expected of him by this Court as set out earlier.
However, the conclusion is inescapable that the errors pointed out by the petitioners which have appealed to us remain uncontroverted in the absence of an affidavit of the detaining authority.
We refuse to take any notice of an affidavit in opposition filed by a Sub Inspector of Police in the facts and circumstances of this case.
The last contention canvassed by Mr. Mukhoty is that even though assurances were given on the floor of Parliament as well as while hearing the case of A.K. Roy wherein constitutional validity of the was challenged that the drastic and draconian power of preventive detention will not be exercised against political opponents, in flagrant violation thereof the affidavit in opposition would show that the power of preventive detention was exercised on extraneous and irrelevant consideration, the detenu in each case being a member and organiser of CPI (ML) (People 's War Group), a political party operating in this country.
In the affidavit in opposition in writ petition 1166/82, the relevant averments on this point read as under : "In reply to para 7 of the petition these answering respondents submit that it is not correct to say that the grounds of detention failed to disclose any proximity with the order of detention and underlying purpose and object of the inasmuch as the detenu is one of the active organisers of CPI (ML) (People 's War Group) believing in violent activities with the main object to overthrow the lawfully established Government by creating chaotic conditions in rural and urban areas by annihilating the class enemies, went underground to preach the party ideology and to build up the cadres by indoctrinating them for armed struggle".
There is a similar averment in the affidavit in opposition in the connected petition also.
We would have gone into this contention 647 but for the fact that having found the detention order invalid for more than one reason, it is unnecessary to examine this contention on merits.
Non examination of the contention need not lead to the inference that the contention is rejected.
We keep it open to be examined in an appropriate case.
These were the reasons for which we quashed and set aside the order of detention in each case.
S.R. Petitions allowed.
| IN-Abs | In both the Writ Petitions, when the petitioners were already in judicial custody and thus have been deprived of their liberty, the District Magistrate Adilabad passed the detention orders in exercise of the power conferred under Section 3(2) read with Section 3(3) of the .
The detenu in each of these petitions filed a petition for writ of habeas corpus in the Andhra Pradesh High Court and both the petitions were rejected.
In the present petitions, it was contended as follows: (i) that in both the cases, the detenus being in judicial custody were already prevented from pursuing any activity which may prove prejudicial to the maintenance of public order and, therefore, no order of detention could be passed against each of them; (ii) that the affidavit in opposition was filed by a sub inspector of police and not by the detaining authority, i.e. the District Magistrate had completely abdicated his powers; and (iii)that in flagrant violation of the assurances given at the hearing of A.K. Roy 's case, that the drastic and draconian power of preventive detention will not be exercised against political opponents, the affidavit in opposition would show that the power of preventive detention was exercised against political opponents because the detenu in each case was a member and organizer of C.P.I. (M.L.) (Peoples War Group), a political party operating in this country.
Allowing the petition, the Court 636 ^ HELD: 1:1.
A preventive action postulates that if preventive step is not taken the person sought to be prevented may indulge into an activity prejudicial to the maintenance of public order.
In other words, unless the activity is interdicted by a preventive detention order the activity which is being indulged into is likely to be repeated.
That this is the postulate, indisputably transpires from the language employed in sub section (2) of Section 3, which says that the detention order can be made with a view to preventing the person sought to be detained from acting in any manner prejudicial to the maintenance of public order.
If it is shown that the man sought to be prevented by a preventive order is already effectively prevented, the power under sub section (2) of Section 3, if exercised, would imply that one who is already prevented is sought to be further prevented which is not the mandate of the section, and would appear tautologous.
[640 F H, 641 A] 1.2 The detaining authority before exercising the power of preventive detention would take into consideration the past conduct or antecedent history of the person and as a matter of fact it is largely from the prior events showing the tendencies of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order.
If the subjective satisfaction of the detaining authority leads to this conclusion it can put an end to the activity by making a preventive detention order.
If the man is already detained a detaining authority cannot be said to have subjectively satisfied himself that a preventive detention order can be made.
[641 A C] Ujagar Singh vs State of Punjab, Jagir Singh vs State of Punjab ; and Rameshwar Shaw vs District Magistrate, Burdwan and Anr.
[1964]4 S.C.R. 921 referred to.
The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained in jail is under detention and yet a preventive detention order is a compelling necessity.
If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated.
But, it will depend on the facts and circumstances of each case.
[642 D F] Vijay Kumar vs State of J & K and Ors.
A.I.R. 1982 S.C. 1023, applied.
The awareness of the detaining authority must be of the fact that the person against whom the detention order is being made is already under detention.
This would show that such a person is not a free person to indulge into a prejudicial activity which is required to be prevented by detention order.
And this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged.
The absence of this awareness would permit an inference that the detaining authority was not even aware of this vital fact and mechanically proceeded to pass the order which would 637 unmistakably indicate that there was non application of mind to the most relevant fact and any order of such serious consequences resulting in deprivation of liberty, if mechanically passed without the application of mind is liable to be set aside as invalid.
[643 D G] 3:1.
A sub inspector of police cannot arrogate to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power of detention is conferred by the .
If the power of preventive detention is to be conferred on an officer of the level and standing of a sub inspector of police, we would not be far from a police state.
[644 E F] 3:2.
Parliament has conferred power primarily on the Central Government and in specific cases, if the conditions set out in sub section (3) of section 3 of the Act are satisfied and the Notification is issued by the State Government to that effect, this extra ordinary power of directing preventive detention can be exercised by such highly placed officers as District Magistrate or Commissioner of Police.
[644 F G] 3:3.
In this case, (a) the District Magistrate, the detaining authority has not chosen to file his affidavit, (b) the affidavit in opposition filed by the sub inspector would imply either he had access to the file of the District Magistrate or he had influenced the decision of the Magistrate for making the detention order and in any case the District Magistrate completely abdicated his functions in favour of the sub inspector of Police because (i) the sub inspector does not say in the affidavit how he came to know about the subjective satisfaction of the District Magistrate or that he had access to the file, and (ii) the file was not made available to the Court.
If the District Magistrate is to act in the manner he has done in this case by completely abdicating his functions in favour of an officer of the level of a sub inspector of Police, the safe guards noticed by the Supreme Court are likely to prove wholly illusory and the fundamental right of personal liberty will be exposed to serious jeopardy.
Hence the affidavit in opposition cannot be taken notice of, here.
[644 G H, 646 A C] A.K. Roy vs Union of India & Ors. ; , referred to.
The affidavit in opposition filed in the present case would show that the power conferred for ordering preventive detention was exercised on extraneous and irrelevant consideration in respect of each detenu he being a member of and organiser of C.P.I. (M.L.) (People War Group), a political party operating in this country which fact motivated the order and, therefore, a flagrant violation of the assurances given on the floor of Parliament and while hearing the case of A.K. Roy wherein the constitutional validity of the Act was challenged that the drastic and draconian power of preventive detention will not be exercised against political opponents.
But it is unnecessary to examine this aspect on merits, in view of the fact that the detention orders have been found to be invalid for more than one reason.
Non examination of the contention need not lead to the inference that the contention is rejected but kept open to be examined in an appropriate case.
[646 D E, 647 A B]
|
ATE JURISDICTION: Civil Appeal No. 3379 of 1981 Appeal by Special leave from the Judgment and order dated the 14th December, 1981 of the Bombay High Court in Writ Petition No. 1104 of 1981.
F.S. Nariman, Arvind V. Savant and M.N. Shroff for the Appellant.
A.L. Settwal, and Mrs. Jayshree Wad for Respondent No. 1.
D.R. Dhanuka, Lalit Bhasin, Vinay Bhasin, Suraj M. Shah and Vineet Kumar for Respondent No. 2.
L.N. Sinha, Attorney General, M.K. Banerjee, Additional Solicitor General of India and Miss A. Subhashini for Respondent No. 3.
S.B. Bhasme, S.V. Tambwekar and R.G. Bhadekar for Interveners 1 6.
V.N. Ganpule for Intervener No. 7.
The Judgment of the Court was delivered by SEN, J.
This appeal by special leave is directed against the judgment and order of the Bombay High Court dated December 14, 1981.
By its judgment the High Court struck down an order dated August 27, 1981 by which the Chief Justice of the Bombay High Court, in exercise of his powers under sub section
(3) of section 51 of the States Reorganization Act, 1956 (Act XXXVII of 1956) (for short 'the Act ') with the prior approval of the Governor of Maharashtra, directed that the Judges and Division Courts of the High Court of 660 Bombay shall also sit at Aurangabad with effect from August 27, 1981 for the disposal of cases arising out of the Marathwada region of the State of Maharashtra.
By an order dated May 4, 1982 we allowed the appeal and set aside the judgment of the High Court since it did not appear to us that the impugned order issued by the Chief Justice suffered from any infirmity, legal or constitutional.
We now proceed to give our reasons.
By virtue of sub section
(1) of section 49, the High Court of Bombay exercising immediately before the appointed day i.e. November 1, 1956, jurisdiction in relation to the existing State of Bombay, was deemed to be the High Court for the new State of Bombay constituted under sub section (1) of section 8 of the Act.
Immediately before the appointed day, i.e. on October 27, 1956, the Central Government while telegraphically communicating to the then Chief Justice (Chagla, C.J.) the issue of a Presidential Order under sub section (1) of section 51 of the Act appointing Bombay to be the principal seat of the High Court for the new State of Bombay with effect from November 1, 1956, conveyed that as from that date the High Court shall function only at that place unless the Chief Justice issued an order under sub section
(3) of section 51 of the Act that temporary Benches may also function at other places.
The then Chief Justice was advised that he should issue such notification on the appointed day, i.e. November 1, 1956, for the establishment of Circuit Benches at Nagpur and Rajkot with a view to preserve the continuity of judicial administration, since the High Court of Madhya Pradesh had its principal seat at Nagpur and the High Court of Saurashtra at Rajkot, prior to the appointed day.
The then Chief Justice accordingly issued an order under sub section
(3) of section 51 of the Act with the prior approval of the Governor by which he appointed Nagpur and Rajkot to be places at which the Judges and Division Courts of the Bombay High Court would also sit with effect from November 1, 1956.
The two Benches at Nagpur and Rajkot continued to function till May 1, 1960 when the bilingual State of Bombay was bifurcated into two separate States The State of Maharashtra and the State of Gujarat by the Bombay Reorganization Act, 1960 (Act, XI OF 1960).
Prior to the constitution of the States Reorganization Commission in December 1953, leaders of political parties from the Marathi speaking areas in the Vidarbha and Marathwada regions and of the then State of Bombay signed an agreement or pact called 661 the Nagpur pact on September 23, 1953 which formed a basis for joint representation to the States Reorganization Commission and was the basis for the formation of Maharashtra as a new State for the Marathi speaking people of the former State of Bombay, the Vidarbha region of the former State of Madhya Pradesh, and the Marathwada region of the erstwhile State of Hyderabad.
(7) of the Nagpur Pact provides that the provision with regard to the establishment of a permanent Bench of the High Court at Nagpur shall apply mutatis mutandis to the Marathwada region.
It appears that due to continued demand of the people of Marathwada region for the establishment of a permanent Bench of the High Court at Aurangabad under sub section
(2) of section 51 of the Act, the State Government first took up the issue with the then Chief Justice (Kantawala, C.J.) in 1977.
On March 22, 1978, the State Legislative Assembly passed a unanimous resolution supporting a demand for the establishment of a permanent Bench of the High Court at Aurangabad to the effect: "With a view to save huge expenses and to reduce the inconvenience of the people of the Marathwada and Pune regions in connection with legal proceedings, this Assembly recommends to the Government to make a request to the President to establish a permanent Bench of the Bombay High Court having jurisdiction in Marathwada and Pune regions, one at Aurangabad and the other at Pune." The said demand for the constitution of a permanent Bench of the High Court at Aurangabad was supported by the State Bar Council of Maharashtra, Advocates '.
Association of Western India, several bar associations and people in general.
It is necessary here to mention that the resolution at originally moved made a demand for the setting up of a permanent Bench of the High Court of Bombay at Aurangabad for the Marathwada region, and there was no reference to Pune which was added by way of amendment.
Initially, the State Government made a recommendation to the Central Government in 1978 for the establishment of two permanent Benches under sub section
(2) of section 51 of the Act, one at Aurangabad and the other at Pune, but later in 1981 confined its recommendation to Aurangabad alone.
The State Government thereafter took a Cabinet decision in January, 1981 to establish a permanent Bench of the High Court at 662 Aurangabad and this was conveyed by the Secretary to the Government of Maharashtra, Law & Judiciary Department, communicated by his letter dated February 3, 1981 to the Registrar and he was requested, with the permission of the Chief Justice, to submit proposals regarding accommodation for the Court and residential bungalows for the Judges, staff, furniture etc.
necessary for setting up the Bench.
As a result of this communication, the Chief Justice wrote to the Chief Minister on February 26, 1981 signifying his consent to the establishment of a permanent Bench at Aurangabad.
After adverting to the fact that his predecessors had opposed such a move and had indicated, amongst other things, that such a step involved, as it does, breaking up of the integrity of the institution and the Bar, which would necessarily impair the quality and quantity of the disposals, he nonetheless went on to say: "As against that I am personally aware of the difficulties to which the litigant public of Marathwada is subjected to, in regard to their causes in this High Court since the Marathwada area became a part of the Bombay State with effect from 1.11.1956, resulting virtually in the stifling of the genuine litigation therefrom.
Grievances on this count are many and genuine to my knowledge.
Establishment and continued existence of the Benches in the High Courts of Madhya Pradesh, Uttar Pradesh, Bihar, Kerala and a Bench at Nagpur in our own State, make it difficult for them to believe that their claim for a Bench alone is liable to be ignored because of any such view of the Law Commission or the Jurists.
This only goes to deepen the bitterness and sense of injustice that is prevalent among them.
" It however became evident by the middle of June, 1981 that the Central Government would take time in reaching a decision on the proposal for the establishment of a permanent Bench under sub section (2) of section 51 of the Act at Aurangabad as the question involved a much larger issue, viz. the principles to be adopted and the criterion laid down for the establishment of permanent Benches of High Courts generally.
This meant that there would be inevitable delay in securing concurrence of the Central Government and the issuance of a Presidential Notification under sub section
(2) of section 51 of the Act.
On June 12, 1981, the State Government accordingly took a Cabinet decision that pending the establishment of a permanent Bench under 663 sub section
(2) of section 51 of the Act at Aurangabad for the Marathwada region, resort be had to the provisions of sub section
(3) thereof.
On June 20, 1981 Secretary to the Government of Maharashtra, Law and Judiciary Department wrote to the Registrar stating that there was a possibility of the delay in securing concurrence of the Central Government and the issuance of a notification by the President under sub section
(2) of section 51 of the Act for the establishment of a permanent Bench at Aurangabad and in order to tide over the difficulty, the provisions of sub section
(3) of section 51 of the Act may be resorted to and he therefore requested the Chief Justice to favour the Government with his views in the matter at an early date.
On July 5, 1981, the Law Secretary waited on the Chief Justice in that connection.
On July 7, 1981 the Chief Justice wrote a letter to the Chief Minister in which he stated that the Law Secretary had conveyed to him the decision of the State Government to have a Circuit Bench at Aurangabad under sub section
(3) of section 51 pending the decision of the Central Government to establish a permanent Bench there under sub section
(2) of section 51 of the Act.
The Chief Justice then added: "I agree that some such step is necessary in view of the preparations made by the Government at huge costs and the mounting expectations of the people there." Rest of the letter deals with the problem of finding residential accommodation for the Judges, staff, increase in strength of Judges etc.
On July 20, 1981, the Law Secretary addressed a letter to the Registrar requesting him to forward, with the permission of the Chief Justice, proposal as is required under sub section
(3) of section 51 for the setting up of a Bench at Aurangabad.
In reply to the same, the Registrar by his letter dated July 24, 1981 conveyed that the Chief Justice agreed with the suggestion of the State Government that action had to be taken under sub section
(3) of section 51 of the Act for which the approval of the Governor was necessary and he enclosed a copy of the draft order which the Chief Justice proposed to issue under sub section
(3) of section 51 of the Act.
On August 10, 1981, the Law Secretary conveyed to the Registrar the approval of the Governor.
On August 27, 1981, the Chief Justice issued an order under sub section
(3) of section 51 of the Act to the effect: 664 "In exercise of the powers conferred by sub section
(3) of section 51 of the State Reorganization Act, 1956 (No. 37 of 1956) and all other powers enabling him in this behalf, the Hon 'ble the Chief Justice, with the approval of the Governor of Maharashtra, is pleased to appoint Aurangabad as a place at which the Hon 'ble Judges and Division Courts of the High Court of Judicature at Bombay may also sit.
" The High Court has set aside the impugned notification issued by the Chief Justice under sub section
(3) of section 51 of the Act on the following grounds, namely: (1) The impugned order issued by the Chief Justice under sub section
(3) of s.51 of the Act was not directly connected with or related to problems arising out of the reorganization of the States i.e. there is no nexus between the purpose and objects of the Act and the setting up of Aurangabad as a venue for additional seat of the High Court, (2) The provisions of the Act and in particular of section 51 were not intended to be operative in definitely and they were meant to be exercised either immediately or within a reasonable time and therefore the exercise of the power by the Chief Justice under sub section
(3) of section 51 of the Act appointing Aurangabad as a place where the Judges and Division Courts of the High Court may also sit after a lapse of 26 years is constitutionally impermissible, (3) The State of Maharashtra was not a new State within the meaning of section 51 read with section 2(1) of the Act after the bifurcation of the bilingual State of Bombay into the State of Maharashtra and the newly constituted State of Gujarat under section 3 of the Bombay Reorganization Act, 1960 and therefore the power of the President of India to establish a permanent Bench or Benches of the High Court under sub section
(2) of section 51 of the Act and that of the Chief Justice to appoint with the prior approval of the Governor a place or places where the Judges and the Division Courts of the High Court may also sit under sub section
(3) thereof, can no longer be exercised, (4) The power conferred on the Chief Justice under sub s.(3) of section 51 of the Act to appoint a place or places where the Judges or the Division Courts of the High Court may also sit, does not include a power to establish a Bench or Benches at such places, and he had no power or authority under sub section
(3) of section 51 of the Act to issue administrative directions for the filing or institution of proceedings at such a place and (5) The impugned notification issued by the Chief Justice under sub section (3) of section 51 of the Act was a colourable exercise of power and therefore liable to be struck down.
We are afraid, the High Court has proceeded on wholly wrong premises.
665 Section 51 of the Act provides as follows: "51.
Principal seat and other places of sitting of High Courts for new States.
(1) The principal seat of the High Court for a new State shall be at such place as the President may, be notified order, appoint.
(2) The President may, after consultation with the Governor of a new State and the Chief Justice of the High Court for that State, by notified order, provide for the establishment of a permanent bench or benches of that High Court at one or more places within the State other than the principal seat of the High Court and for any matters connected therewith.
(3) Notwithstanding anything contained in subsection (1) or sub section (2), the Judges and Division Courts of the High Court for a new State may also sit at such other place or places in that State as the Chief Justice may, with the approval of the Governor, appoint.
" There questions arise for consideration in this appeal: (1): Whether the power of the President under sub section
(2) of section 51 of the Act or that of the Chief Justice of the High Court under sub section
(3) of section 51 of the Act, can no longer be exercised due to lapse of time.
(2) Whether the exercise of power by the Chief Justice under sub section
(3) of section 51 of the Act appointing Aurangabad to be a place at which the Judges and Division Courts of the High Court shall also sit is co related to the reorganization of the States, or he has no nexus with the object and purposes sought to be achieved by the Act and is only a part of the demand for decentralization of the administration justice in general.
(3) Whether the power of the Chief Justice under sub section
(3) of section 51 of the Act does not include a power to establish a Bench or Benches at such place or places carving out territorial jurisdiction for such Benches and authorising the filing or institution of proceedings at such places.
It is difficult to agree with the High Court that the High Court of Bombay is not the High Court of a new State within the meaning 666 of sub section
(1) of section 49 of the Act, merely because the bilingual State of Bombay was bifurcated into two separate States of Maharashtra and Gujarat under section 3 of the Bombay Reorganization Act, 1960.
Nor do we see any valid basis for the view taken by the High Court that the power of the President to establish a permanent Bench or Benches of the High Court under sub section
(2) of section 51 of the Act or that of the Chief Justice to appoint, with the approval of the Governor, a place or places where the Judges and Division Courts may also sit under sub section
(3) of section 51 of the Act, can no longer be exercised, in relation to the High Court of Bombay.
It was right by not disputed before us that the High Court of Bombay was the High Court for the new State of Bombay within the meaning of sub section
(1) of section 49 of the Act and therefore the provisions of section 51 of the Act are still applicable.
That must be so because the High Court of Bombay owes its principal seat at Bombay to the Presidential Order issued under sub section
(1) of section 51 of the Act.
The expression "new State" occurring in sub section
(1) of section 49 of the Act is defined in section 2(i) to mean "a State formed under the provisions of Part II".
The State of Bombay was a new State formed under section 8 of the Act, which occurs in Part II.
The Bombay Reorganization Act, 1960 (Act No.
XI of 1960) which reconstituted the erstwhile State of Bombay into the State of Maharashtra and the State of Gujarat provides, inter alia, by sub section
(1) of section 28 that, as from the appointed day, i.e. May 1, 1960, there shall be a separate High Court for the State of Gujarat and that the High Court of Bombay shall become the High Court for the State of Maharashtra.
Sub section
(2) of section 28 of that Act provides that the principal seat of the Gujarat High Court shall be at such place as the President may, by notified order, appoint.
It is rather significant that the Bombay Reorganization Act, 1960 contains no similar provision with regard to the principal seat of the High Court of Bombay.
That being so, the continued existence of the principal seat of the Bombay High Court at Bombay is still governed by sub section
(1) of section 51 of the Act.
This conclusion of ours is reinforced by the opening words of section 41 of that Act which provides for the setting up of a permanent bench of the Bombay High Court at Nagpur, and it reads: "41.
Permanent Bench of Bombay High Court at Nagpur Without prejudice to the provisions of section 51 of the States Reorganization Act, 1956, such Judges of the High Court at Bombay, being not less than three in 667 number, as the Chief Justice may from time to time nominate, shall sit at Nagpur in order to exercise the jurisdiction and power for the time being vested in that High Court in respect of cases arising in the districts of Buldana, Akola, Amravati, Yeotmal, Wardha, Nagpur, Bhandara, Chanda and Rajpura: Provided that the Chief Justice may, in his discretion, order that any case arising in any such districts shall be heard at Bombay.
" The legislative intent is clear and explicit by the use of the words "Without prejudice to the provisions of section 51 of the States Reorganization Act, 1956".
The legislature pre supposed the continued existence of section 51 of the Act in relation to the High Court of Bombay.
That shows that while enacting s.41 of the Act, Parliament retained the power of the President of India both under sub section
(1) and sub section
(2) of s.51 of the Act and that of the Chief Justice under sub section (3) thereof.
If there is continued existence of sub section
(1) of s.51 of the Act in relation to the principal seat of the High Court for a new State, a fortiori, there is, to an equal degree, the continued, existence of the provisions contained in sub sections
(2) and (3) of section 51 of the Act.
This is also clear from the provisions of section 69 of the Act which in terms provides that Part V which contains s.51 of the Act shall have effect subject to any provision that may be made, on or after the appointed day with respect to the High Court of a new State, by the Legislature or any other authority having power to make such provision.
Nor can we subscribe to the proposition that the power of the President under sub section
(2) of section 51 of the Act, or that of the Chief Justice of the High Court of a new State under sub section
(3) of that section, can no longer be exercised due to lapse of time.
The High Court is of the view that the provisions of the Act and in particular of section 51 were meant to be exercised either immediately or within a reasonable time of the reorganization of the States and therefore the exercise of the power by the Chief Justice under sub section
(3) of section 51 of the Act appointing Aurangabad as a place where the Judges and Division Courts of the High Court may also sit, after a lapse of 26 years, is constitutionally impermissible.
Any other view, according to the High Court, is bound to give rise to a very anamolous situation as in nine out of sixteen States not affected by the Act, 668 the creation of a permanent Bench of a High Court must be by an Act of Parliament while in seven new States formed under the Act, the same could be achieved by a Presidential Notification under sub section
(2) of section 51 of the Act.
Furthermore, in States where the High Courts were established by Letters Patent, the powers conferred on the Chief Justices of the High Courts qua sittings of single Judges and Division Courts can be exercised only with legislative sanction whereas under sub section (3) of section 51 it can be done by the Chief Justice of the High Court for a new State, with the approval of the Governor of that State.
Such a construction of the provisions of section 51 of the Act would, according to the High Court, result in creating discrimination between the States.
The reasoning of the High Court that the Act being of a transitory nature, the exercise of the power of the President under sub section
(2) of section 51 of the Act, or of the Chief Justice under sub section
(3) thereof, after, a lapse of 26 years, would be a complete nullity, does not impress us at all.
The provisions of sub sections (2) and (3) of section 51 of the Act are supplemental or incidental to the provisions made by Parliament under articles 3 and 4 of the Constitution.
article 3 of the Constitution enables Parliament to make a law for the formation of a new State.
The Act is a law under article 3 for the reorganization of the States.
article 4 of the Constitution provides that the law referred to in article 3 may contain "such supplemental, incidental and consequential provisions as Parliament may deem necessary".
Under the scheme of the Act, these powers continue to exist by reason of Part V of the Act unless Parliament by law otherwise directs.
The power of the President under sub section
(2) of section 51 of the Act, and that of the Chief Justice of the High Court under sub section
(3) thereof are intended and meant to be exercised from time to time as occasion arises, as there is no intention to the contrary manifested in the Act within the meaning of section 14 of the .
The High Court has assumed that the provisions of sub ss (2) and (3) of section 51 of the Act have 'ebbed out ' by lapse of time.
This assumption is plainly contrary to the meaning and effect of section 69 of the Act which in terms provides that Part V which contains section 51 of the Act, shall have effect subject to any provision that may be made on or after the appointed day with respect to the High Court of any State, by the Legislature or any other authority having power to make such provision.
It is a matter of common knowledge that Parliament considered it necessary to reorganize the existing States in India and to provide for it and other matters connected therewith and with that end in view, the States Reorganization Act, 1956 was enacted.
As a result 669 of reorganization, boundaries of various States changed.
Some of the States merged into other States in its entirety, while some States got split and certain parts thereof merged into one State and other parts into another.
These provisions were bound to give rise, and did give rise, to various complex problems.
These problems are bound to arise from time to time.
The Act is a permanent piece of legislation on the Statute Book.
Section 14 of the provides that, where, by any Central Act or Regulation, any power is conferred, then unless a different intention appears, that power may be exercised from time to time as occasion arises.
The Section embodies a uniform rule of construction.
That the power may be exercised from time to time when occasion arises unless a contrary intention appears is therefore well settled.
A statute can be abrogated only by express or implied repeal.
It cannot fall into desuetude or become inoperative through obsolescence or by lapse of time.
In R. vs London Country Council(1), Scrutton L.J. put the matter thus: "The doctrine that, because a certain number of people do not like an Act and because a good many people disobey it, the Act is therefore "obsolescent" and no one need pay any attention to, it is a very dangerous proposition to hold in any constitutional country.
So long as an Act is on the statutebook, the way to get rid of it is to repeal or alter it in Parliament, not for subordinate bodies, who are bound to obey the law, to take upon themselves to disobey an Act of Parliament." As to the theory of desuetude, Allen in his 'Law in the Making, 5th edn.
p. 454 observes: "Age cannot wither an Act of Parliament, and at no time, so far as I am aware, has it ever been admitted in our jurisprudence that a statute might become inoperative through obsolescence." The learned author mentions that there was at one time a theory which, in the name of 'non observance ' came very near to the doctrine of Desuetude, that if a statute had been in existence for any considerable period without ever being put into operation it may be of little or no effect.
The rule concerning desuetude has 670 always met with such general disfavour that it seems hardly profitable to discuss it further.
It cannot be said that sub section
(2) or (3) of section 51 of the Act can be regarded as obsolescent.
The opening words of section 41 of the Bombay Reorganization Act, 1960 manifest a clear legislative intention to preserve the continued existence of the provisions contained in section 51 of the Act.
It was as recent as December 8, 1976 that the President issued a notification under sub section
(2) of section 51 of the Act for the establishment of a permanent Bench of the Rajasthan High Court at Jaipur.
The High Court is therefore not right in observing that the provisions of section 51 of the Act were not intended to be operative indefinitely and they were meant to be exercised either immediately or within a reasonable time, or that the powers of the President or the Chief Justice thereunder can no longer be exercised in relation to the High Court of Bombay.
The conclusion reached by the High Court that the impugned notification issued by the Chief Justice under sub section (3) of section 51 of the Act was not directly connected with the reorganization of the States, or had no nexus with the objects and purposes sought to be achieved by the Act but was only as part of the demand for decentralization of the administration of justice in general, can only be justified as a necessary corollary flowing from its views expressed on other aspects of the matter.
The creation of 14 new States by Part II of the Act based on a linguistic basis virtually led to the re drawing of the political map of India as a whole.
Even after the reorganization of the States in 1956, the political map of India continued to change owing to the growing pressure of political considerations and circumstances.
The formation of the linguistic State of Bombay constituted under section 8 of the Act became the source of struggle between the Gujarati and Marathi speaking people as a result of which the State of Bombay was further bifurcated in 1960.
These political changes necessarily affected the constitution and structure of the High Court.
Under the Constitution, Parliament alone has the legislative competence to make a law relating to the subject under Entry 78 of List I of the Seventh Schedule which reads: "78.
Constitution and organisation (including vacations) of the High Courts except provisions as to officers and servants of High Courts: persons entitled to practise before the High Courts: Under the scheme of the Act, it would appear that having constituted a High Court for the new State of Bombay under sub section
671 (1) of section 49 of the Act and conferred jurisdiction on it under section 52 in relation to the territories of the new State, Parliament left it to the various high Constitutional functionaries designated in the three sub sections of section 51 of the Act to determine the place where the principal seat of the High Court should be located and places where permanent Bench or Benches of the High Court may be established or where the Judges and Division Courts of the High Court may also sit.
on the reorganization of the States as from the appoint day, i.e. November 1, 1956, the territories of the new State of Bombay formed under section 8 of the Act and with it the jurisdiction of the High Court was considerably extended.
The merger of the new territories of the Vidarbha region of the former State of Madhya Pradesh and the Marathwada region of the erstwhile State of Hyderabad together with the Saurashtra region of the newly constituted State of Gujarat was an additional source of strength of the High Court.
It became necessary for the more convenient transaction of judicial business to establish, as from the appointed day, two Benches of the High Court at Nagpur and Rajkot to deal with matters arising from Vidarbha and Saurashtra regions respectively.
The formation of the separate State of Gujarat in 1960 under section 3 of the Bombay Reorganization Act, 1960 resulted in severance of ties not only with the Saurashtra region but also with the Gujarat districts over which the High Court had exercised jurisdiction for about a century.
The High Court of Bombay therefore underwent a major transformation in 1956 when the bilingual State of Bombay was formed under section 8 of the Act and then again in 1960 when with the formation of a separate State of Gujarat under section 3 of the Bombay Reorganization Act, the residuary State of Bombay was to be known as the State of Maharashtra.
Nagpur which ceased to be the seat of the High Court of the new State of Madhya Pradesh, was given a Bench by an order issued by the then Chief Justice of the High Court under sub section (3) of section 51 of the Act.
The arrangement was made permanent by section 41 of that Act which provided for the establishment of a permanent Bench at Nagpur to deal with cases arising out of the Vidarbha region.
It was a solemn assurance given to the people of the Marathwada region of the erstwhile State of Hyderabad by cl.
(7) of the Nagpur Pact that the provision with regard to the establishment of a permanent Bench at Nagpur shall also apply mutatis mutandis to the Marathwada region.
There has been a long standing demand ever since the formation of the bilingual State of Bombay under section 8 of the Act for the establishment of a permanent Bench of the Bombay High Court at 672 Aurangabad under sub section
(2) of section 51 of the Act for the disposal of cases arising out of the Marathwada region of the State of Maharashtra and the matter is still under the active consideration of the Central Government.
Pending the decision of the Central Government regarding the establishment of a permanent Bench of the High Court under sub section
(2) of section 51 of the Act at Aurangabad for the Marathwada region, the Chief Justice of the Bombay High Court issued the impugned order for the establishment of a Bench at Aurangabad with effect from August 27, 1981.
The only other point to be considered, and this was the point principally stressed in this appeal, is whether the power conferred on the Chief Justice under sub section
(3) of section 51 of the Act to appoint a place or places where the Judges and Division Courts may also sit, does not include a power to establish a Bench or Benches at such place or places, nor that he had any power or authority thereunder to issue administrative directions for the filing or institution of proceedings at such a place.
There is quite some discussion in the judgment of the High Court on the distinction between the "sittings" of the Judges and Division Courts and the "seat" of the High Court and after going into the history of the constitution of the various High Courts in India and the Letters Patent constituting such High Courts, the High Court holds that the exercise of the power by the Chief Justice under sub section
(3) of section 51 of the Act is bad in law as it brings about a territorial bifurcation of the High Court.
According to the High Court, the Judges and Division Courts at Aurangabad were competent to hear and decide cases arising out of the districts of the Marathwada region assigned to them by the Chief Justice, but the Chief Justice had no power or authority under sub section (3) of section 51 of the Act to issue administrative directions for the filing or institution of proceedings at such a place.
The judgment of the High Court mainly rests on the decision of the Kerala High Court in Manickam Pillai Subbayya Pillai vs Assistant Registrar, High Court Kerala, Trivandrum(1) and the minority view of Raina, J. in Abdul Taiyab Abbasbhai Malik & Ors.
vs The Union of India & Ors.,(2) following the Kerala view.
It is not necessary for our purposes to go into the distinction sought to be drawn between the "sittings" of the Judges and Division Courts at a place and the "seat" of the High Court.
It is 673 difficult to comprehend how the Chief Justice can arrange for the sittings of the Judges and Division Courts at a particular place unless there is a seat at that place.
It may be true in the juristic sense that the seat of the High Court must mean "the principal seat of such High Court," i.e. the place where the High Court is competent to transact every kind of business from any part of the territories within its jurisdiction.
It is impossible to conceive of a High Court without a seat being assigned to it.
The place where it would sit to administer justice or, in other words, where its jurisdiction can be invoked is an essential and indispensable feature of the legal institution, known as a Court.
Where there is only one seat of the High Court, it must necessarily have all the attributes of the principal seat.
But where the High Court has more than one seat, one of them may or may not be the principal seat according to the legislative scheme.
It is both sound reason and commonsense to say that the High Court of Bombay is located at its principal seat at Bombay, but it also has a seat at the permanent Bench at Nagpur.
When the Chief Justice makes an order in terms of sub section
(3) of section 51 of the Act that Judges and Division Courts of the High Court shall also sit at such other places, the High Court in the genetic sense has also a seat at such other places.
We may drew some analogy from the provisions of article 130 of the Constitution which reads: "130.
The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.
" It is necessary to emphasize that besides administering justice, the High Court has the administrative control over the subordinate judiciary in State.
The High Court must necessarily carry on its administrative functions from the principal seat, i.e. the place where the High Court transacts every Kind of business in all its capacities.
The High Court as such is located there, but it may have more than one seat for transaction of judicial business.
The constitution and structure of the High Court depends on the statute creating it.
The decision in Nasiruddin vs State Transport Appellate Tribunal(1) is not directly in point as it turned on the construction of the provisions of the U.P. High Courts (Amalgamation) order, 1948.
It is however an authority for the proposition that after the 674 amalgamation of the High Court of Allahabad and the Chief Court of Oudh, the two High Courts ceased to exist and became Benches of the newly constituted High Court by the name of the High Court of Judicature at Allahabad.
Further, the Court held that a case "instituted" at a particular Bench had to be "heard" at that Bench.
It recognized that there can be two seats of the High Court without a principal seat.
It must here be mentioned that provisions similar to sub s.(3) of section 51 of the Act existed in almost all the Letters Patent or the Acts under which the various High Courts have been constituted.
While introducing the Bill of 1861 in the British Parliament for the establishment of the High Courts for the Bengal Division of the Presidency of Fort William and also at Madras and Bombay, Sir Charles Wood, Secretary of State for India, laid stress on the advantage of the Judges of the new Courts going on circuit to try criminal cases.
He said: "Now according to the provisions of this Bill, the Judges of the Supreme Court may be sent on circuit throughout the country.
It may be impossible in a country like India to bring justice to every man 's door, but at all events the system now proposed will bring it far nearer than at present." When we examine the constitution of the various High Courts in India, one thing is clear that whenever a High Court was established by Letters patent under section 1 of the Indian High Courts Act, 1861 called the Charter Act, or under section 113 of the Government of India Act, 1935, the High Court was created and established at a particular place mentioned in the Letters Patent.
section 1 of the Charter Act provided that it shall be lawful for Her Majesty, by Letters Patent under the great seal of the United Kingdom, to erect and establish a High Court of Judicature at Fort William at Bengal for the Bengal Division of the Presidency of the Fort William, and by like Letters Patent, to erect and establish like High Courts at Madras and Bombay for these Presidencies respectively.
In pursuance of these provisions by Letters Patent issued by Her Majesty in 1862, the Chartered High Courts of Calcutta, Madras and Bombay were established.
In virtue of the powers conferred by section 16 of the Act the Crown by Letters Patent established in 1866 at Agra a High Court of Judicature for North Western Provinces for the Presidency of Fort William, to be called a High Court of Judicature for North 675 Western Provinces.
The seat of the High Court for the North Western Provinces was shifted from Agra to Allahabad in 1869 and its designation was altered to the High Court of Judicature at Allahabad by Supplementary Letters Patent issued in 1919 in pursuance of section 101 (5) of the Government of India Act, 1915.
The expression "erect and establish" in relation to a High Court meant nothing more than to indicate the establishment of the High Court at a particular place where the High Court was competent to transact every kind of business arising from any part of the territory within its jurisdiction.
Cl. 31 of the Letters Patent for the High Court of Calcutta provides for "exercise of jurisdiction elsewhere than at the ordinary place of sitting of the High Court" and it reads as follows: "And we do further ordain that whenever it shall appear to the Governor General in Council convenient that the jurisdiction and power by these our Letters Patent, or by the recited Act, vested in the said High Court of Judicature at Fort William in Bengal, should be exercised in any place within the jurisdiction of any Court now subject to the superintendence of the said High Court, other than the usual place of sitting of the said High Court, or at several such places by way of circuit, the proceedings in cases before the said High Court at such place or places shall be regulated by any law relating thereto which has been or may be made by competent legislative authority for India.
" The Letters Patent for the High Courts of Madras and Bombay are mutatis mutandis in almost the same terms.
Cl. 31 of these Letters Patent similarly provided for "exercise of jurisdiction elsewhere than at the ordinary place of sitting of the High Court.
" It would appear therefrom that the power to direct that the High Court shall sit at a place or places other than the usual place of sitting of these High Courts was a power of the Governor General in Council, and the proceedings in cases before the said High Courts at such place or places were to be regulated by any law relating thereto which had been or might be made by competent legislative authority for India.
It is clear upon the terms of section 51 of the Act that undoubtedly the President has the power under sub section
(1) to appoint the principal 676 seat of the High Court for a new State.
Likewise, the power of the President under sub section
(2) thereof, after consultation with the Governor of a new State and the Chief Justice of the High Court for that State, pertains to the establishment of a permanent Bench or Benches of that High Court of a new State at one or more places within the State other than the place where the principal seat of the High Court is located and for any matters connected therewith clearly confer power on the President to define the territorial jurisdiction of the permanent Bench in relation to the principal seat as also for the conferment of exclusive jurisdiction to such permanent Bench to hear cases arising in districts falling within its jurisdiction.
The creation of a permanent Bench under sub section
(2) of section 51 of the Act must therefore bring about a territorial bifurcation of the High Court.
Under sub section
(1) and sub section
(2) of section 51 of the Act the President has to act on the advice of the Council of Ministers as ordained by article 74(1) of the Constitution.
In both the matters the decision lies with the Central Government.
In contrast, the power of the Chief Justice to appoint under sub s.(3) of section 51 of the Act the sittings of the Judges and Division Courts of the High Court for a new State at places other than the place of the principal seat or the permanent Bench is in the unquestioned domain of the Chief Justice, the only condition being that he must act with the approval of the Governor.
It is basically an internal matter pertaining to the High Court.
He has full power, authority and jurisdiction in the matter of allocation of business of the High Court which flows not only from the provision contained in sub s.(3) of section 51 of the Act but inheres in him in the very nature of things.
The opinion of the Chief Justice to appoint the seat of the High Court for a new State at a place other than the principal seat under sub section
(3) of section 51 of the Act must therefore normally prevail because it is for the more convenient transaction of judicial business.
The non obstante clause contained in sub section
(3) of section 51 given an overriding effect to the power of the Chief Justice.
There is no territorial bifurcation of the High Court merely because the Chief Justice directs under sub section
(3) of section 51 of the Act that the Judges and Division Courts shall also sit at such other places as he may, with the approval of the Governor, appoint.
It must accordingly be held that there was no territorial bifurcation of the Bombay High Court merely because the Chief Justice by the impugned notification issued under sub section
(3) of section 51 of the Act directed that the Judges and Division Courts shall also sit at Aurangabad.
The Judges and Division Courts at Aurangabad are 677 part of the same High Court as those at the principal seat at Bombay and they exercise jurisdiction as Judges of the High Court of Bombay at Aurangabad.
The Chief Justice acted within the scope of his powers.
We see no substance in the charge that the impugned notification issued by the Chief Justice under sub section
(3) of section 51 of the Act was a colourable exercise of power.
As to the scope and effect of sub section
(3) of section 51 of the Act, the question came up for consideration before Chagla, C.J. and Badkas, J. in Seth Manji Dana vs Commissioner of Income tax, Bombay & Ors.(1) decided on July 22, 1958.
This was an application by which the validity of r. 254 of the Appellate Side Rules was challenged insofar as it provided that all income tax references presented at Nagpur should be heard at the principal seat of the High Court at Bombay, and the contention was that the result of this rule was that it excluded income tax references from the jurisdiction of the High Court functioning at Nagpur.
In repelling the contention, Chagla, C. J. observed : "Legally, the position is quite clear, under section 51 (3) of the State Reorganization Act, the Judges sitting at Nagpur constitute a part of the High Court of Bombay.
They are as much a part of the High Court of Bombay, and if we might say so distinguished part of the High Court of Bombay, as if they were sitting under the same roof under which Judges function in Bombay.
All that happens is that the Chief Justice, under the powers given to him under the Letters Patent distributes the work to various Judges and various Divisional Benches, and acting under that power he distributes certain work to the Judges sitting at Nagpur.
" He then continued: "All that rule 254 does is to permit as a matter of convenience certain matters to be presented at Nagpur to the Deputy Registrar.
If rule 254 had not been enacted, all matters would have to be presented at Bombay and then the Chief Justice would have distributed those matters to different Judges, whether sitting in Bombay or at Nagpur.
It is out of regard and consideration for the 678 people of Vidarbha and for their convenience that this rule is enacted, so that litigants should not be put to the inconvenience of going to Bombay to present certain matters.
Therefore, this particular rule has nothing whatever to do either with section 51 (3) of the or with the Constitution.
" With regard to r. 254, he went on to say : "Now, having disposed of the legal aspect of the matter, we turn to the practical aspect, and let us consider whether this rule inconveniences the people at Nagpur.
If it does, it would certain call for an amendment of that rule.
Now, there is particular reason why all Income Tax References should be heard in Bombay and that reason is this.
The High Court of Bombay for many years, rightly or wrongly, has followed a particular policy with regard to Income Tax References and that policy is that the same Bench should hear Income Tax References, so that there should be a continuity with regard to the decisions given on these References.
I know that other High Courts have referred to this policy with praise because they have realised that the result of this policy has been that Income Tax Law has been laid down in a manner which has received commendation from various sources.
The other reason is and we hope we are not mistaken in saying so that the number of Income Tax References from Nagpur are very few.
If the number was large, undoubtedly a very strong case would be made out for these cases to be heard at Nagpur.
" He then concluded : "After all, Courts exist for the convenience of the litigants and not in order to maintain any particular system of law or any particular system of administration.
Whenever a Court finds that a particular rule does not serve the convenience of litigants, the Court should be always prepared to change the rule.
" 679 The ratio to be deduced from the decision of Chagla, C. J. is that the Judges and Division Courts sitting at Nagpur were functioning as if they were the Judges and Division Courts of the High Court at Bombay.
In Manickam Pillai 's case (supra), the Kerala High Court held that the curtailment of the territorial jurisdiction of the main seat of the High Court of a new State is a necessary concomitant to the establishment of a permanent Bench under sub section
(2) of section 51 of the Act while contrasting sub section
(3) with sub section
There, a question arose whether the temporary Bench of the High Court of Kerala with its principal seat at Ernakulam created by the Chief Justice at Trivandrum by an order issued under sub section (3) of section 51 of the Act was not the High Court of Kerala, and the Judges and Division Courts sitting at Trivandrum were precisely in the same position as Judges and Division Courts sitting in the several court rooms of the High Court at its principal seat in Ernakulam.
In other words, the contention was that the Judges and Division Courts sitting at Trivandrum could only hear and dispose of such cases as were directed to be posted before them by the Chief Justice but no new case could be instituted there.
Raman Nayar, J. (as he then was) speaking for the Court held that the Trivandrum Bench was not the High Court of Kerala and the Judges and Division Courts sitting at Trivandrum could hear and dispose of only such cases as may be assigned to them.
With respect, we are of the opinion that the view expressed by Chagla, C. J. in Manji Dana 's case, (supra), is to be preferred.
Chagla, C. J. rightly observes that the Judges and Division Courts at a temporary Bench established under sub section
(3) of section 51 of the Act function as Judges and Division Courts of the High Court at the principal seat, and while so sitting at such a temporary Bench they may exercise the jurisdiction and power of the High Court itself in relation to all the matters entrusted to them.
In the result, the appeal must succeed and is allowed.
The judgment and order passed by the High Court is set aside and the writ petition filed by respondent No. 1 is dismissed.
In terms of the order passed by us on May 4, 1982, we direct that in accordance with the notification issued by the Chief Justice of the High Court of Bombay dated August 27, 1981, the sittings of the Judges and Division Courts may be held and continue to be held at Aurangabad with full and normal powers to entertain and dispose of all matters 680 arising out of the Marathwada region, that is to say, the area comprising the districts of Aurangabad, Bhir, Jalna, Nanded, Osmanabad and Parbani.
All cases pertaining to that region and pending as on May 4, 1982 at the main seat of the High Court at Bombay shall be dealt with and disposed of as the Chief Justice of the High Court may direct.
consistently with the terms of the aforesaid notification dated August 27, 1981.
There shall be no order as to costs.
H. L. C. Appeal dismissed.
| IN-Abs | Sub section
(3) of section 51 of the States Reorganization Act, 1956, provides that notwithstanding anything contained in sub section
(1) or sub s.(2) thereof the Judges and division Courts of the High Court of a new State may also sit at such other place or places in that State as the Chief Justice may, with the approval of the Governor, appoint.
Prior to the constitution of the States Reorganization Commission, leaders of political parties from the Marathi speaking areas in the country had signed an agreement called the 'Nagpur Pact ' which ultimately formed the basis for the creation of the Maharashtra State.
Clause (7) of this agreement stipulated that the provision with regard to the establishment of a permanent Bench of the High Court at Nagpur shall apply mutatis mutandis to the Marathwada region.
The brought into being the new State of Bombay with effect from November 1, 1956.
By virtue of sub s.(1) of section 49, the existing High Court of Bombay was deemed to be the High Court for the New State of Bombay and, by a Presidential Order issued under sub section
(1) of section 51, Bombay was declared to be its principal seat.
The then Chief Justice issued an order under sub section
(3) of section 51 appointing Nagpur to be a place at which the Judges and division Courts of the High Court would also sit with effect from November 1, 1956.
The Bench at Nagpur continued to function till May 1, 1960 when the State was bifurcated into Maharashtra and Gujarat and section 41 of the Bombay Reorganisation Act, 1960 provided for the establishment of a permanent Bench at Nagpur.
Due to the continued demand of the people of Marathwada region and the passing of a unanimous resolution in support by the Legislative Assembly the 656 State Government recommended to the Central Government in 1978 that a permanent Bench of the High Court be established at Aurangabad under sub section (2) of section 51 and simultaneously made preparations, in consultation with the Chief Justice for setting up the Bench.
However, when it became evident that the Central Government would take time in reaching a decision on the proposal, it was decided, in view of the preparations made and the mounting expectations of the people, that, pending the establishment of a permanent Bench under sub section (2) of s 51, resort be had to the provisions of sub section
(3) thereof.
Accordingly, on August 27,1981, the Chief Justice, with the prior approval of the Governor of the State, issued an Order under sub section
(3) of section 51 appointing Aurangabad as a place at which the Judges and division Courts of the High Court of Judicature at Bombay may also sit.
The respondents challenged the validity of the order and the High Court set aside the same on the following grounds: 1.
The Act being of a transitory nature, the exercise of the power under sub section
(3) of section 51 after a lapse of 26 years was constitutionally impermissible.
There was no nexus between the purpose.
and objects of the Act and the setting up of Aurangabad as an additional venue for sittings of Judges and division Courts of the High Court.
After the bifurcation of the bilingual State of Bombay, the power of the Chief Justice under sub.
section (3) of section 51 would no longer be exercised as the State of Maharashtra was not a 'new State ' within the meaning of section 51 read with section 2(1) of the Act.
The Order was bad in law as it had brought about a territorial bifurcation of the High Court.
Under sub section
(3) of section 51 the Chief Justice had neither the power to establish a Bench at any place nor the power to issue administrative directions for filing or institution of proceedings at such a place.
Allowing the appeal, ^ HELD: The Act is a permanent piece of legislation enacted by Parliament under Articles 3 and 4 of the Constitution.
Section 14 of the , provides that, where, by any Central Act or Regulation, any power is conferred, then, unless a different intention appears, that power may be exercised from time to time as occasion arises.
A statute can be abrogated only by express or implied repeal.
It cannot fall into desuetude or become inoperative through obsolescence or by lapse of time.
The powers conferred on the President and the Chief Justice under sub sections
(2) and (3) of section 51 are intended to be exercised from time to time as occasion arises, as there is no intention to the contrary manifested in the Act.
The assumption that these provisions have ebbed out by lapse of time is plainly contrary to the meaning and effect of section 69 of the Act which in terms provides that Part V which contains section 51 shall have.
effect subject to any provision that may be made on or after the appointed day with respect to the High Court of any State by the Legislature or any other authority having power to make such provision.
Further, the opening words of section 41 of the Bombay Reorganisation Act, 1960 manifest a clear legislative intention to preserve the continued existence of the provisions contained in section 51 of the .
[669 B C, 668 E G, 670 A B] 657 R.v.
London County Council, referred to. 2.
It cannot be said that the impugned Order is not directly connected with the reorganisation of States.
There has been a long standing demand for the establishment of a permanent Bench of the Bombay High Court at Aurangabad.
A solemn assurance in this behalf had been given to the people of Marathwada region by cl.
(7) of the 'Nagpur Pact '.
Under the scheme of the Act it would appear that having constituted a High Court for the new State of Bombay and conferred jurisdiction on it under section 52 in relation to the territories of the new State, Parliament left it to the various high Constitutional functionaries designated in section 51 to determine the place where the principal seat of the High Court should be located and places where permanent Bench or Benches of the High Court may be established, or where the Judges and division Courts of the High Court may also sit.
While Nagpur was given a Bench by an order issued under sub s (3) of section 51 and the arrangement made permanent by s.41 of the Bombay Reorganisation Act, 1960, the proposal for setting up a permanent Bench at Aurangabad is still under the active consideration of the Central Government.
[670 D, 671 H, 672 A B, 661 B, 670 H, 671 F G, 672 A] 3.
The expression "new State" occurring in sub section
(1) of section 49 of the Act is defined in section 2(1) to mean "a State formed under the provisions of Part II".
The State of Bombay was a 'new State ' formed under section 8 of the Act which occurs in Part II.
The High Court of Bombay was the High Court for the new State of Bombay within the meaning of sub section
(1) of section 49 and therefore the provisions of section 51 are still applicable.
Sub section
(1) of section 28 of the Bombay Reorganisation Act, 1960 provides that as from May 1,1960, there shall be a separate High Court for the State of Gujarat and that the High Court of Bombay shall become the High Court for the State of Maharashtra and sub s, (2) thereof provides that the principal seat of the Gujarat High Court shall be at such place as the President may, by notified order, appoint.
It is significant that the Act contains no similar provision with regard to the principal seat of the High Court of Bombay.
That being so, the continued existence of the principal seat of the Bombay High Court at Bombay is still governed by sub section
(1) of section 51.
If there is continued existence of sub section
(1) of section 51 in relation to the principal seat of the High Court for a new State, a fortiori there is to an equal degree, the continued existence of the provisions contained in sub sections
(2) and (3) of section 51.
That the Legislature pre supposed the continued existence of section 51 in relation to the High Court of Bombay is clear from the opening words of section 41 of the Bombay Reorganisation Act, 1960 which provides for the setting up of a permanent Bench of the High Court at Nagpur.
That section begins with the words "Without prejudice to the provisions of section 51 of the ".
Thus while enacting that section, Parliament retained in tact the power conferred on the President of India and the Chief Justice under section 51 of the .
[666 D, 665 H, 666 E G, 657 C E] 4.
(a) The Constitution and structure of a High Court depends on the statute creating it.
It is clear from sub sections
(1) and (2) of section 51 that the President has the power to appoint the principal seat of the High Court for a new State and also establish a permanent Bench of that High Court at one or more places within the State.
Under these provisions the President has the power not only to define the territorial jurisdiction of the permanent Bench in relation to the 658 principal seat but also confer on it exclusive jurisdiction to hear cases arising in the territory falling within its jurisdiction.
The creation of a permanent Bench under sub section
(2) of section 51 must therefore, bring about a territorial bifurcation of the High Court.
In contrast, the power of the Chief Justice to appoint, under sub section
(3) of section 51, the sittings of the Judges and Division Courts of the High Court at places other than the place of the principal seat or the permanent Bench, is in the unquestioned domain of the Chief Justice, the only condition being that he must act Justice, the only condition being that he must act with the approval of the Governor.
It is basically an internal matter pertaining to the High Court.
The Chief Justice has full power, authority and jurisdiction in the matter of allocation of the business of the High Court and this flows not only from the provisions contained in sub section
(3) of section 51 but inheres in him in the very nature of things.
The non obstante clause contained in sub section
(3) of section 51 gives an over riding effect to the power of the Chief Justice.
There is no territorial bifurcation of the High Court merely because the Chief Justice directed under sub section
(3) of section 51 that the Judges and division Courts shall also sit at Aurangabad.
The Judges and division Courts at Aurangabad are part of the same High Court and they exercise jurisdiction as Judges of the High Court of Bombay at Aurangabad.[673 G, 675 H, 676 A C, D H, 677 A] Seth Manji Dhana vs Commissioner of Income tax, Bombay Bombay on July 22, 1958), approved.
Manickam Pillai Subbayya Pillai vs Assistant Registrar, High Court of Kerala, Trivandrum, ; overruled.
(b) It is difficult to comprehend how the Chief Justice can arrange for the sittings of the Judges and Division Courts at a particular place unless there is a seat at that place.
It may be true in the juristic sense that the seat of the High Court must mean "the principal seat of such High Court" i.e. the place where the High Court is competent to transact every kind of business from any part of the territories within its jurisdiction.
It is impossible to conceive of a High Court without a seat being assigned to it.
The place where its jurisdiction can be invoked is an essential and indispensable feature of the legal institution known as 'Court '.
Where there is only one seat of the High Court it must necessarily have all the attributes of the principal seat.
But where the High Court has more than one seat, one of them may or may not be the principal seat according to the legislative scheme.
When the Chief Justice makes an order in terms of sub section (3) of section 51 that Judges and Division Courts of the High Court shall also sit at such other place, the High Court in the generic sense has also a seat at such other place.
It is both sound reason and commonsense to say that the High Court of Bombay is located at its principal seat at Bombay, but it also has a seat at the permanent Bench at Nagpur.
Besides administering Justice, the High Court has the administrative control over the subordinate judiciary in the State.
The High Court must necessarily carry on the administrative functions from the principal seat but it may have more than one seat for transaction of judicial business.[673 A G] Nasiruddin vs State Transport Appellate Tribunal, [1976] 1 S.C.R. 505; distinguished.
659 (c) Provisions similar to sub section
(3) of section 51 of the Act existed in almost all the Letters Patent of the Acts under which the various High Courts have been constituted.
Clause 31 in each of the Letters Patent under which the High Courts of Calcutta, Madras and Bombay were established provided for "exercise of jurisdiction elsewhere than at the ordinary place of sitting of the High Court" Whenever a High Court was established by Letters Patent under section 1 of the Indian High Courts Act, 1861, or under section 113 of the Government of India Act, 1935.
The High Court was 'erected and established ' at a particular place mentioned in the Letters Patent.
The expression 'erect and establish ' in relation to a High Court meant nothing more than to indicate the establishment of the High Court at a particular place where the High Court was competent to transact every kind of business arising from any part of the territory within its jurisdiction.
[674 C,
|
Civil Appeal No. 1349 of 1982.
(From the judgment and order dated the 8.3.1982 of the Jammu & Kashmir High Court in W.P. No. 668 of 1981.
AND Civil Appeal No. 1997 of 1982.
Appeal by special leave from the judgment and order dated the 8th March, 1982 of the Jammu & Kashmir High Court in W.P. No. 668 of 1982.
AND Writ Petitions Nos.
2186 82 of 1982.
(Under article 32 of the Constitution of India) K.K. Venugopal S.P. Gupta, R. Satish, E.C. Aggarwala and Krishnamanan, for the appellants in C.A. 1349/82 & for the Petitioners in WP.
2186 89 of 1982.
P.R. Mridul and Vimal Dave for the Respondents in Civil Appeals.
S.N. Kacker and Altaf Ahmed, for the Respondents in W.Ps.
S.N. Kackar and Altaf Ahmed for the Appellant in C.A. 1997/82.
The following Judgments were delivered AMARENDRA NATH SEN, J. Four Petitioners belonging to the cadre of Subordinate Judicial Service in the State of Jammu & Kashmir and whose names were recommended by the High Court 598 for appointment as District Judges, filed a Writ Petition in the High Court of Jammu & Kashmir (Writ Petition No. 668 of 1982) challenging the validity of appointment as District Judges of the Respondents Nos.
3,4,5 and 6 made by the Governor of the State.
In the said Writ Petitions had made the State through the Chief Secretary, Respondent No, 1, the High Court of Jammu & Kashmir through the Registrar, the Respondent No. 2 and the four persons who were appointed District Judges by the Governor, as Respondents 3, 4, 5, and 6.
A learned Single Judge of the High Court directed notice to issue to Respondents Nos 1 to 2 in the first Instance to show cause as to why the Petition should not be admitted and the Learned Single Judge further directed that the matter should be listed before a larger Bench for admission.
The Learned Single Judge also granted stay of the operation of the order appointing the Respondents Nos. 3 to 6 pending disposal of the admission matter.
The matter came up before a Division Bench on 27.2.1982 for admission of the petition and at that time a question was raised as to whether it would be proper for the High Court to hear the Writ Petition since the Court on the administrative side had already taken a decision which forms the basis of the claim of the petitioners in the Writ Petition.
On 27.2.1982 after the arguments had been heard at length, the matter was adjourned to 8.3.1982 for further arguments.
It appears that on 8.3.1982 when the matter came up for further arguments learned Counsel for the Respondents submitted that in fairness and on the grounds of judicial propriety, the High Court might not hear the Writ Petition.
It appears that it was submitted by the learned counsel for the Petitioners that they would have no objection to that course being adopted provided a certificate of fitness to file an appeal in the Supreme Court was granted in their favour.
It appears that the learned Counsel for the Respondents did not have any objection to the grant of this prayer of the Petitioners.
In view of the agreement between the learned Counsel for the parties, the High Court declined to hear the petition on the ground of judicial propriety and vacated the order for stay passed on 27.11.1981; and the High Court granted a certificate of fitness to the Petitioners to file an appeal in the Supreme Court, holding that the point involved in the Writ Petition relating to the interpretation of article 109 of the Constitution of Jammu & Kashmir, raises a substantial question of law of general public importance and the case was a fit one in which a certificate of fitness should be granted, 599 Civil Appeal No. 1349 of 1982 is the Appeal filed by the Appellants on the strength of the certificate granted by the High Court.
Against the Judgment and Order of the High Court dated 8.3.1982 granting certificate of fitness for filing an appeal in this Court after declining to hear the Writ Petition and after vacating the stay, the State obtained Special Leave from this Court to prefer an appeal and Civil Appeal No. 1997 of 1982 has been filed by the State with leave of this Court against this judgment and Order of the High Court dated 8.3.1982.
The Writ Petitioners in the High Court who are also the Appellants in Civil Appeal No. 1349 of 1982 in this Court by certificate granted by the High Court, have filed a Writ Petition in this Court under article 32 of the Constitution substantially for the same reliefs claimed in the Writ Petition in the High Court and now forming the subject matter of Civil Appeal No. 1349 of 1982 in this Court.
In the Writ Petition filed in this Court the Petitioners have prayed for the issue of a Writ of Certiorari or in the nature thereof, quashing the order of appointment of respondents nos.
3 to 6 as District Judges, for a Writ, Order or Direction in the nature of quo warranto quashing the appointment of Respondents Nos.
3 to 6 as District Judges and a Writ of Mandamus directing the State to appoint the Petitioners as District and Sessions Judges in accordance with the recommendations made by the High Court of Jammu & Kashmir.
The Writ Petition filed by the Petitioners bears writ Petition Nos. 2186 to 2189 of 1982.
This judgment will dispose of all the three matters.
As certain preliminary objections have been raised, we consider it proper to deal with the same in the first place.
An objection has been taken with regard to the maintainability of Civil Appeal No. 1349 of 1982 filed in this Court with certificate granted by the High Court.
It has been urged that this appeal is incompetent as the certificate granted by the High Court is invalid and improper.
The argument is that the High Court in its judgment has not decided any point raised in the Writ Petition and the High Court has declined to deal with the matter on the ground of judicial propriety.
It is commented that the only decision of the High Court is the refusal on the part of the High Court to hear the Writ Petition on the ground of judicial pro 600 priety and this decision cannot be the subject matter of a certificate for fitness for filing an appeal in the Supreme Court.
It is on this ground that the State obtained Special Leave from this Court against the judgment of the High Court and Civil Appeal No. 1997 of 1982 has been filed by the State with leave granted by this Court.
It is, no doubt, true that the High Court did not deal with the Writ Petition on its merits as it had been submitted before the High Court on behalf of the Respondents that the High Court should not hear the Writ Petition on the ground of judicial propriety, because the decision taken by the High Court on the administrative side forms the basis of the claim of the Petitioners in the Writ Petition and the Petitioners were agreeable to the course being adopted by the High Court, provided certificate of fitness to file an appeal in the Supreme Court was granted in their favour.
The judgment of the High Court records that the counsel for the Respondents had stated that the respondents had no objection to the grant of the said prayer of the Petitioners and the judgment further records that in view of the agreement between the counsel for the parties, the Court granted certificate of fitness to the Petitioners to file an appeal in the Supreme Court while declining to hear the petition on the ground of judicial propriety.
It is true that the High Court while granting the certificate had not gone into the merits of the writ petition, as the High Court had declined to hear the petition on the ground of judicial propriety.
It is, however, to be noted that the High Court had adopted the said course as the said course was agreed upon by the learned counsel for the parties.
It may also be noted that the High Court in its judgment has pointed out that the interpretation of article 109 of the Constitution of Jammu & Kashmir is involved in the writ petition and the said question is a substantial question of law of general public importance.
It appears to us to be rather unfortunate that the State should adopt this attitude and should raise these objections particularly after having agreed before the High Court to the certificate being granted.
It appears that in the peculiar facts and circumstances of this case, the High Court which found it embarrassing to deal with the writ petition particularly in view of the objection raised on behalf of the 601 State on the ground of judicial propriety, granted certificate with the agreement of the parties and declined to hear the matter.
We have no doubt in our mind that the question raised in the writ petition is a substantial question of law of general public importance.
If on the ground of any technicality, the certificate granted by the High Court can be said to be not a proper one, this Court can always grant special leave in a proper case which deserves to be considered by this Court.
We may further note that the High Court while declining to hear the matter on the ground of judicial propriety had also vacated the stay which had been earlier granted by the High Court.
The real effect of the order amounts to a virtual refusal to entertain the writ petition.
The certificate granted by a High Court in any case after declining to hear the same on any ground may not be appropriate and may not be held to be valid and may have to be revoked.
The present case, however, is a fit case, particularly in view of the peculiar facts and circumstances of this case and the important question of law of general public importance involved, where this Court should grant special leave to the Petitioners.
Accordingly, we revoke the certificate granted by the High Court and we grant special leave to the Petitioners for the filing of this appeal.
We treat this appeal as one filed with leave granted by this Court.
The other preliminary objection is with regard to the maintainability of the Writ Petition filed by the Petitioners under article 32 of the Constitution.
It is urged that there is no violation of fundamental rights of the Petitioners and the jurisdiction of this Court under article 32 of the Constitution is not, therefore, attracted and the writ petition filed in this Court is not maintainable.
It has, however, been pointed out on behalf of the Petitioners that the violation of articles 14 and 16 of the Constitution has been alleged and the Writ Petition under article 32 is, therefore, competent.
The subject matter of the writ petition is absolutely the same as that of the appeal No. 1349 of 1982 and identical questions are involved in these two proceedings.
As we have granted special leave to the Petitioners in Civil Appeal No. 1349 of 1982, the merits of the case have in any event to be decided.
The question of maintainability of the writ petition involving the very same questions becomes purely academic, The preliminary objections are accordingly disposed of.
We now proceed to deal with the case on its merits.
602 The validity of the appointment of respondents 3, 4, 5 and 6 as District Judges is the subject matter of challenge in the writ petition filed in the High Court and also in this Court.
Mr. Venugopal, learned counsel appearing on behalf of the appellants who filed the writ petition in the High Court and who have also filed the writ petition in this Court, have urged two main grounds in support of their contention that the appointment of respondents nos.
3, 4, 5 and 6 are illegal and invalid.
(1) The first ground of attack is that on a proper consideration of article 109 and article 111 of the Constitution of Jammu and Kashmir, the Governor does not have any power to appoint District Judges from the cadre of Subordinate Judges of the State and this power is vested in the High Court.
(2) The second ground of attack is that even if it be held on a consideration of the aforesaid Articles that the Governor is the authority competent to make the appointment, the appointment must be made by the Governor in consultation with the High Court; and, as in the instant case, the appointments have been made without any consultation with the High Court, the appointments must be held to be in breach of the constitutional provisions and, therefore, illegal and invalid.
Mr. Venugopal has drawn our attention to article 109 and article 111 of the Constitution of Jammu and Kashmir.
The said two Articles read as follows: "109.
Appointment of district Judges.
(1) Appointment of persons to be, and the posting and promotion of district Judges in the State shall be made by the Governor in consultation with the High Court.
(2) A person not already in the service of the State shall only be eligible to be appointed a district Judge if he has been for not less than seven years an advocate or pleader and is recommended by the High Court for appointment." "111.
Control over subordinate courts The control over district courts and courts subordinate thereto includ 603 ing the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of the State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this section 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.
Mr. Venugopal has rightly pointed out that the aforesaid two Articles of the Constitution of Jammu and Kashmir correspond to article 233 and article 235 of the Constitution of India.
Mr. Venugopal has fairly submitted that though the aforesaid two Articles 109 and 111 of the Constitution of Jammu & Kashmir have not come up for consideration in any particular decision, the corresponding two articles in the Constitution of India have been considered and interpreted in a number of decisions of this Court and the view that has been expressed by this Court on the interpretation of articles 233 and 235 of the Constitution of India is contrary to the view he wants us now to accept.
Mr. Venugopal has submitted that the view that has been expressed by this Court in the earlier decision should be reconsidered in the interest of judicial administration and for safeguarding the independence of the judiciary.
It is his submission that when a judicial officer in the category of subordinate Judges is promoted to the category of District Judges and becomes a District Judge, the Officer concerned is so appointed as District Judge by promotion.
Such appointment by promotion, according to Mr. Venugopal, clearly comes within article 235 of the Constitution of India which deals with control over subordinate courts and provides: "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 604 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." Mr. Venugopal has also drawn our attention to article 233 which corresponds to article 109 of the Constitution of Jammu & Kashmir.
article 233 reads as follows: "(1) Appointment of persons to be, and the posting and promotion of, district Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment." Mr. Venugopal argues that article 233 is intended to govern the appointment of persons to the District Judges in any State and the posting and promotion of District Judges.
It is his argument that article 233 does not deal with the case of promotion of subordinate Judges to the post of a District Judge and the promotion of person belonging to the judicial service of the State and holding any post inferior to the post of a District Judge is vested in the High Court by virtue of the provisions contained in article 235 of the Constitution of India which corresponds to article 111 of the Constitution of Jammu & Kashmir.
It is to be noted that in the case of State of Assam and Anr.
vs Kuseswar Saikia and ors.(1) this Court had to deal with a similar situation and consider similar arguments.
The State of Assam and the Legal Secretary to the Govt.
of Assam filed an appeal in this Court against the judgment and order of the High Court of Assam, challenging a writ of quo warranto issued by the High Court against Upendra Nath Rajakhowa, District and Sessions Judge, Darrang at Tejpur, declaring that he was not entitled to hold that office.
605 The writ was issued by the High Court at the instance of Respondents Nos. 1, 2, 3 in the appeal before the Supreme Court and these Respondents on conviction by Upendra Nath Rajakhowa in a Sessions Trial challenged their conviction inter alia on the ground that Shri Rajakhowa was not entitled to hold the post of District and Sessions Judge, Darrang as his appointment as District Judge was invalid.
The High Court held that the appointment of Rajakhowa as District and Sessions Judge was void because the Governor had no power to make the appointment under Article 233 of the Constitution and Shri Rajakhowa could only be promoted by the High Court under Article 235.
According to the High Court, this was a case of 'promotion ' of a person belonging to the judicial service of the State and the High Court was the authority to make the 'promotion ' under Article 235.
This view of the High Court was negatived by this Court and this Court allowed the appeal and held at pp.
931 33: "Chapter VI of Part VI of the Constitution deals with Subordinate Courts.
The history of this Chapter and why judicial services came to be provided for separate from other services has been discussed in The State of West Bengal vs Nripendra Nath Bagchi(1).
This service was provided for separately to make the office of a District Judge completely free of executive control.
The Chapter contains six articles (233 to 237).
We are not concerned with article 237 in the present case.
Article 235 vests in the High Court the control over District Courts and Courts subordinate thereto, including the posting and promotion and grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge.
By reason of the definitions given in article 236 the expression 'judicial service ' means a service consisting exclusively of persons intended to fill the post of District Judge and other Civil Judicial posts inferior to the District Judge, and the expression 'District Judge ' includes among others an additional District Judge and an additional Sessions Judge.
The promotion of persons belonging to the judicial service but holding post inferior to a District Judge vests in the High Court.
As the 606 expression 'District Judge ' includes an Additional District Judge and an Additional Sessions Judge, they rank above those persons whose promotion is vested in the High Court under article 235.
Therefore, the promotion of persons to be additional District Judge as Additional Sessions Judges is not vested in the High Court.
That is the function of the Governor under article 233.
This follows from the language of the Article itself: (a) Appointments of persons to be, and the posting and promotion of, district Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
The language seems to have given trouble to the High Court.
The High Court holds: (1) 'appointment to be ' a District Judge is to be made by the Governor in consultation with the High Court vide article 233; and (2) 'promotion of ' a District Judge and not promotion 'to be a District Judge ' is also to be made by the Governor in consultation with the High Court vide article 233.
The High Court gives the example of selection grade posts in the Cadre of District Judges which according to it is a case of promotion of a District Judge.
The reading of the article by the High Court is with respect, contrary to the grammar and punctuation of the article.
The learned Chief Justice seems to think that the expression 'promotion of ' governs 'District Judges ' ignoring the comma that follows the word 'of '.
The article, if suitably expanded, reads as under: 'Appointments of persons to be, and the posting and promotion of (persons to be), District Judges etc. ' 607 It means that appointment as well as promotion of persons to be District Judges is a matter for the Governor in consultation with the High Court and the expression 'District Judge ' includes an additional District Judge and an additional Sessions Judge.
It must be remembered that District Judges may be directly appointed or may be promoted from the subordinate ranks of the judiciary.
The article is intended to take care of both.
It concerns initial appointment and initial promotion of persons to be either District Judges or any of the categories included in it.
Further promotion of District Judges is a matter of control of the High Court.
What is said of District Judges here applies equally to additional District Judges and Additional Sessions Judges.
Therefore, when the Governor appointed Rajkhowa an Additional District Judge, it could either be an 'appointment ' or a promotion under Article 233.
If it was an appointment is was clearly a matter under article 233.
If the notification be treated as 'promotion ' of Rajkhowa from the junior service to the senior service it was a 'promotion ' of a person to be a District Judge which expression, as shown above, includes an Additional District Judge.
In our opinion it was the latter.
Thus there is no doubt that the appointment of Rajkhowa as Additional District Judge by the Governor was a promotion and was made under article 233, it could not be made under article 235 which deals with posts subordinate to a District Judge including an additional District Judge and an additional Sessions Judge.
The High Court was in error in holding that the appointment of Rajkhowa to the position of an additional District Judge was invalid because the order was made by the Governor instead of the High Court.
The appointment or promotion was perfectly valid and according to the constitution.
" In the case of State of West Bengal vs Nripendra Nath Bagchi (1), this Court while considering articles 233 and 235 of the Constitution elaborately traced the background and the history of the constitu 608 tional provisions relating to the judiciary and this Court held at page 786: "Articles 233 to 235 make a mention of two distinct powers, The first is power of appointments of persons, their postings and promotion and the other is power of control.
In the case of the District Judges, appointments of persons to be and posting and promotion are to be made by the Governor but the control over the District Judge is of the High Court.
" The view that on proper construction of Article 233 and 235 the appropriate authority to make the appointment of District Judges is the Governor and not the High Court has also been reiterated by this Court in later decision of this Court.
In a recent decision of this Court in the case of Chief Justice of Andhra Pradesh and Ors.
vs V.A. Dixitulu and Ors.(1) 5 Judges Bench of this Court held at page 46: "Article 233 gives the High Court an effective voice in the appointment of District Judges.
Clause (1) of the Article peremptorily requires that appointments of persons to be, and the posting and promotion of district judges ' shall be made by the Governor in consultation with the High Court.
Clause (2) of the Article provides for direct appointment of District Judges from Advocates or pleaders of not less than seven years standing, who are not already in the service of the State or of the Union.
In the matter of such direct appointments, also, the Governor can act only on the recommendation of the High Court.
Consultation with the High Court under Article 233 is not an empty formality.
An appointment made in direct or indirect disobedience of this constitutional mandate, would be invalid.
'Service ' which under clause (1) of Article 233 is the first source of recruitment of District Judges by promotion means the 'Judicial services ' as defined in Article, 236.
" In another recent decision of this Court in the case of Hari Datt Kainthla & Anr.
vs State of Himachal Pradesh and Ors.(2) 609 this Court referred to earlier decision of this Court and observed at page 372: "Article 233 confers power on the Governor of the State to appoint persons either by direct recruitment or by promotion from amongst those in the judicial service as District Judges. " We have to note that on a proper interpretation of article 233 and 235 of the Constitution this Court has consistently held that the appointing authority is the Governor and this view has held the field for ever two decades.
In our opinion this is the correct view on proper interpretation of the said articles and requires no reconsideration.
The argument of Mr. Venugopal that this interpretation will lead to the subservience of the judiciary and the independence of the judiciary will be undermined is not convincing, as the power to make the appointment conferred on the Governor has to be exercised by him in consultation with the High Court.
This provision regarding exercise of power by the Governor in consultation with the High Court is incorporated to safeguard the independence of the judiciary.
We have earlier pointed out that article 109 and article 111 of the constitution of Jammu & Kashmir correspond to article 233 and 235 of the Constitution of India.
In view of the interpretation of article 233 and 235 of the Constitution of India consistently given by this Court, and with which we are in entire agreement, we hold that on a proper interpretation of article 109 and 111 of the Constitution of Jammu and Kashmir, the Governor is the authority competent to appoint the District Judges and the power of appointment of District Judges is not vested in the High Court.
The first contention of Mr. Venugopal cannot, therefore, be accepted and is negatived.
We now proceed to deal with other contentions of Mr.Venugopal, namely, even if the Governor be held to be the appointing authority the appointment by the Governor must be made in consultation with the High Court and in the instant case, the appointments of the District Judges have not been made in consultation with the High Court and the appointments must, therefore, be held to be invalid and illegal.
It is necessary to state certain facts before we proceed to consider this question.
Four vacancies for the posts of District and Sessions Judges in the State became available for being filled up 610 out of 12 Judicial Officers who were eligible for selection to the posts in questions.
The Judicial Officers eligible for selection in the order of seniority are: 1.
Shri Qazi Mohd. Muzaffar Ud Din 2.
Pavitar Singh 3.
Shri Harcharan Singh Bahri 4.
Shri Sheikh Maqbool Hussain 5.
Shri G.L. Manhas 6.
Shri M.M. Gupta 7.
Shri H.N. Mehra 8.
Shri Jagmohan Gupta 9.
Shri Mohd Yasin Kawoosa 10.
Shri O.P. Sharma 11.
Shri Bashir Ud Din 12.
Shri Sudesh Kumar Gupta The High Court at a meeting of all the Judges held on 29.8.1981 considered the matter and the High Court taking into consideration the merit and suitability of all the 12 eligible officers in the cadre of sub judges, found the following Sub Judges fit to be promoted as District and Sessions Judges against the available vacancies: 1.
Shri M.M. Gupta 2.
Shri O.P. Sharma 3.
Shri Bashir Ud Din 4.
Shri Sudesh Kumar Gupta It is to be noticed that the respective position of the aforesaid officers in the seniority list was 6, 10, 11 and 12.
On 31.8.1981 the Registrar of the High Court forwarded to the Government the recommendations of the High Court of the said four Judicial Officers for filling up the said for vacancies.
The letter of the Registrar to the Law Secretary to the Government reads as follows: 611 "Shri G.H. Nehvi, Secretary to Govt., Law Department, Jammu & Kashmir Govt., Srinagar.
No. 9245/GS dated 31.8.1981 Sub : Appointments and posting of District & Sessions Judges Sir, There are four vacancies available in the cadre of District & Sessions Judges: two of them being available on account of deputation of Shri Ghulam Hassam Nehvi as Law Secretary and the creation of Additional District & Sessions Judge 's Court at Ramben and, two others on account of the proposed retirement of M/s. Mohammad Saleem Durrani and Mohammad Shaffi.
The matter regarding replacement was considered in the meeting of the Court held on 28.8.1981.
The Court considered the comparative merit, ability and suitability of all the eligible officers in the cadre of Sub Judges and found the following sub judges fit to be promoted as District & Sessions Judges against the available vacancies: (1) Shri M.M. Gupta at present Third Civil Subordinate Judge, (Excise Magistrate), Jammu; (2) Shri O.P. Sharma, at present Sub Judge (C.J.M.) Jammu.
(3) Shri Bashir ud Din, at present, Sub Judge, Special Judicial Mobile Magistrate, Traffic, Kashmir.
(4) Shri S.K. Gupta, at present, Sub Judge (Deputy Registrar, Jammu Wing), Jammu.
The four therefore may be promoted as officiating District and Sessions Judges and that their postings may be ordered as under : 612 (1) Shri M.M. Gupta, Second Additional District & Sessions Judge, Srinagar (Single Member Tribunal for Anti Corruption Cases, Kashmir) (2) Shri O.P. Sharma, District & Sessions Judge, Rajouri; (3) Shri Bashir ud Din, Second Additional District & Sessions Judge, Jammu (Single Member Tribunal for Anti Corruption cases, Jammu Province); (4) Shri S.K. Gupta, 1st Additional District and Sessions Judge, Srinagar (Special Judge Anti Corruption, Kashmir) I am, therefore, to request you kindly to obtain the sanction of the competent authority and convey the same to me as early as possible, Yours faithfully Sd/ (S.M. Rizvi) Registrar 31.8.1981 In reply to the said letter of the Registrar, the Law Secretary addressed as follows : No. LD (A) 81/143 Sept. 15,1981, My dear Rizvi, Please refer to your letter No. 9245/GS dated 31.8.1981, regarding appointment and posting of District & Sessions Judges.
I have been directed to request you kindly to send us copy of the resolution of the Hon 'ble High Court on the subject and also the Annual Confidential Reports for the last 5 years pertaining to the officers proposed for promotion and also those who are superseded.
613 With regards, Yours Sd/ (G.H. Nehvi) Shri S.M. Rizvi.
Registrar, High Court of J & K, Srinagar" It appears that on 24.9.1981, the Under Secretary to the Government, Law Department, had sent a reminder to the Registrar of the High Court drawing his attention to the earlier letter dated 15.9.1981.
On 5.10.81 the High Court sent a detailed letter to the Government justifying the selection made by the High Court setting out in detail the reasons for supersession of the senior Officers.
In this long letter, running into 15 pages (pp. 24 39) in paper book of C.A. No. 1997 of 1982), the High Court made its comments on all the officers who have been superseded.
The High Court also forwarded a copy of the resolution dated 29.8.1981.
The concluding portion of this long letter reads : "I would, therefore, request you kindly to have the matter expedited and communicate the sanction of the Governor to the proposal already made as early as possible.
The ACRs of the Officers concerned for the years 1976 77, 1977 78 and 1978 79 as also the court resolution dated 29.8.1981 are enclosed herewith as desired.
" The resolution of the Full Court which was sent along with the letter may be set out: 614 LIST OF ITEMS DISCUSSED IN JUDGES MEETING HELD ON 29.8.1981 PRESENT: The Hon 'ble Mufti Baha Ud Din Acting Chief Farooqui Justice The Hon 'ble Justice Dr. A.S.
Anand Judge The Hon 'ble Mr. Justice I.K. Kotwal Judge The Hon 'ble Mr. Justice G.M. Mir Judge Preamble Resolved 3/ Appointment of Shri Ghulam 3/ After having consi Hassan Nehvi, Distt.
& Sessions dered the comperative Judge, as Law Secretary and crea merit, ability and sui of Additional District Court at tability of all the officers in Ramber filling up of officers in the cadre the vacancy in this behalf of Sub Judges we are of the opinion that the following sub Judges are fit to be promoted as District & Sessions Judges, against the available vacancies: 1.
Shri M.M. Gupta at present Third Civil Subordinate Judge (Excise Magistrate, Jammu) 2.
Shri O.P. Sharma, Sub Judge, C.J.M. Jammu.
Shri Bashir Ud Din, Sub Judge (Special Mobile Magistrate Traffic), Srinagar.
Shri Sudesh Kumar Gupta, Sub Judge (Deputy Registrar, Jammu).
We direct that recommendation shall be made to the Governor accordingly.
We further direct that their place of postings shall be as follows: 1.
Shri M.M. Gupta, Second Addl.
Judge (Single Member Tribunal), Srinagar.
615 2.
Shri O.P. Sharma, District & Sessions Judge, Rajouri.
Shri Bashir Ud Din, 2nd Addl.
District & Sessions Judge, SM.
T. Jammu) 4.
Shri S.K. Gupta (Ist Additional District and Sessions Judge) Special Judge, Anti Corruption Srinagar.
The further recommendation shall go to the Governor accordingly.
Sd/ Hon 'ble Acting Chief Justice Sd/ Hon 'ble Justice Dr. A.S. Anand Sd/ Hon 'ble Mr. Justice I.K. Kotwal Sd/ Hon 'ble Mr. Justice G.M. Mir It appears that the meeting was attended by all the Judges of the High Court.
On the 16th November, 1981, the Secretary to the Government, Law Department, addressed the following letter to the Registrar of the High Court: No. LD (A) 81/143 Dated: 16.11.1981 The Registrar, High Court of J & K, Jammu.
Subject: Appointment of District and Sessions Judges.
Sir, The Governor has been pleased to approve the promotion of the following Judicial Officers as District and Sessions Judges: 1.
Qazi Mohammad Muzaffar Ud Din.
Shri Pavitar Singh.
616 3.
section Harcharan Singh Bahri.
Sheikh Maqbool.
The appointment of Qazi Mohammed Muzaffar ud Din will however, be deferred till he is cleared of the charges against him.
A post for this purpose will be kept vacant and in case he is exonerated of the charges, his appointment will be given retrospective effect from the date of the issue of the orders regarding other three.
Accordingly, a separate proposal may be sent by the High Court regarding the post of the promoted Officers.
Yours faithfully.
Sd/ Secretary to Government Law Department.
It appears that after the recommendations made by the High Court and the detailed reasons by the High Court for recommending the petitioners in supersession of the other officers had been for warded to the State Government by the High Court, the State Cabinet constituted a sub Committee which had gone into the matter and had made its recommendations.
It appears that on the basis of the recommendations made by the Sub committee of the State Cabinet the letter of the Law Secretary dated 16th November 1981 to the Registrar of the High Court was addressed, informing the High Court of the Governor 's approval to the promotion of Respondents Nos. 3, 4, 5 and 6 as District and Sessions Judges.
On receipt of the aforesaid communication from the Government dated 16.11.1981 the High Court on 24.11.1981, at a meeting of the Judges recorded the following minutes: "Copy of extract from the Minutes of Judges meeting held on 24.11.1981 Preamble Resolved 1.
Law Secretary 's letter 1) Considered.
The posting No. LD(A) 81/143 dated of the Offices is pro 16.11.1981 regarding posed as under : 617 appointment of S/Shri i) Shri Pavitar Singh Qazi Mohd. Muzaffar District and Sessions UD Din, Pavitar Singh, Judge, Leh Kargil.
H.S. Bahri and Sheikh ii) S.Harcharan Singh Maqbool Hussain as Bahri District & District and Sessions Sessions Judge, Judge.
Submission of Rajouri.
proposal regarding their iii) Sheikh Maqbool Hussain posting.
1st Addl.
District & Sessions Judge, Srinagar.
It shall be pointed out to the Government that the Communication of the posting shall not be deemed as consultation with the Court in terms of Section 109 of the Constitution of Jammu and Kashmir in so far as the promotion of these officers is concerned.
Thereafter, on 26.11.1981, the following order was passed by the State Government: "Government of Jammu and Kashmir Civil Secretariat: Law Department Sub: Officiating appointment of District & Sessions Judges.
ORDER NO.
717 LD (A) of 1981 dated 26.11.1981 Sanction is accorded to the officiating appointing of the following sub Judges as District and Sessions Judges in the scale of Rs. 1100 1600 against available vacancies with the posting as shown against each in consultation with the Hon 'ble High Court: (1) Shri Pavitar Singh District and Sessions Judge, Leh Kargil (2) Shri Harchran Singh District and Sessions Judge, Rajouri 618 (3) Sheikh Maqbool Ist Additional District and Hussain Sessions Judge, Srinagar, Special Judge, Anti Corrup tion, Kashmir, Srinagar.
By order of the Governor Sd/ G.H. Nehvi Secretary to Government Law Department.
Mr. Venugopal, learned counsel for the Petitioners has argued that the High Court after due consideration of the respective merits and suitability of all the officers, recommended the names of the petitioners for appointment as District Judges and thereafter at the request of the Government, the High Court had on 5.10.1981 forwarded to the Government detailed reasons and the High Court had also forwarded the confidential reports of the officers which were in the possession of the High Court.
Mr. Venugopal points out that without any further reference to the High Court, the State Government on the basis of the report of a Cabinet Sub Committee, chose not only ignore the recommendations made by the High Court but also to appoint respondents nos.
3 to 6 without any kind of consultation with the High Court about the appointment of the said respondents.
Mr. Venugopal has argued that the State Government should as a rule accept the recommendations made by the High Court.
He contends that in any event the State Govt.
cannot appoint any officer as District and Sessions Judge without consultation with the High Court as consultation with the High Court is the mandatory requirement of article 109 of the Constitution of Jammu and Kashmir which empowers the Governor to make the appointments in consultation with the High Court.
It is the contention of Mr. Venugopal that this requirement of consultation with the High Court constitutes a salutary safeguard for preserving the independence of the judiciary.
The consultation envisaged must be full and effective and the point of view of the High Court in the matter of appointment has to be discussed, understood and properly appreciated and generally accepted.
Mr. Venugopal has argued that the responsibility of judicial administration in the State basically rests on the High Court and the High Court for properly discharging its functions, must necessarily have proper judicial officers competent to discharge the duties to be entrusted to them.
It is the argument of Mr. Venugopal that the High Court which has complete control over its judicial officers 619 has all relevant records of the officers and is in a proper position to understand and appreciate their performance and merits, must necessarily be the best Judge as to the suitability for promotion of these officers as District Judges.
In this connection Mr. Venugopal has referred to a number of decisions of this Court.
Mr. Venugopal has submitted that in the instant case, in the matter of appointment of the Respondents Nos. 3, 4, 5 and 6 there has not been any kind of consultation with the High Court and the said respondents have been appointed without any reference to the High Court and even without a formal intimation to the High Court that the recommendations made by the High Court were not acceptable and the State Governments was going to appoint Respondents Nos.
3 to 6 herein.
It is the submission of Mr. Venugopal that these appointments must therefore, be held to be violative of the Constitution and must, therefore, be held to be invalid and illegal and should be quashed.
Mr. Kacker, learned counsel appearing on behalf of the State, has submitted that it is open to the State Government not to accept the recommendations of the High Court and the Governor may refuse to accept the recommendations made by the High Court with out assigning any reason whatsoever.
Mr. Kackar argues that the requirement of the Constitution is that the appointment of District Judges by the Governor of the State must be made by him in consultation with the High Court.
It is his argument that the consultation does not mean either concurrence or recommendation and no particular form or procedure is also necessary to be followed in the matter of this consultation.
He submits that in the instant case, the State Government had asked for all the relevant materials which were in the possession of the High Court and the High Court had forwarded to the State Government the annual confidential reports and other materials and also the comments of the High Court with regard to each and every candidate on the eligible list.
Mr. Kacker contends that consideration by the State Government of all these materials placed by the High Court results in and amounts to consultation within the meaning of the Article.
Mr. Kacker submits that on a consideration of all the materials issued by the High Court, the State Government decided not to accept the recommendations made by the High Court and decided to appoint Respondent Nos. 3, 4, 5 and 6 as District Judges.
It is the submission of Mr. 620 Kacker that there has been consultation within the meaning of the Article and there has been sufficient compliance with the Constitutional requirement as to consultation.
In the case of Chandra Mohan vs State of Uttar Pradesh,(1) this Court while considering article 233 of the Constitution observed after setting out article 233 (1) at pp.
82 83 : "We are assuming for the purpose of these appeals that the 'Governor ' under article 233 shall act on the advice of the Ministers.
So the expression 'Governor ' used in the Judgment means Governor acting on the advice of the Ministers.
The Constitutional mandate is clear.
The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say, he can only appoint a person to the post of District Judge in consultation with the High Court.
The object of consultation is apparent.
The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the 'Judicial service ' or to the Bar, to be appointed as district judge.
Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him.
This mandate can be disobeyed by the Governor in two ways, namely, (i) by not consulting the High Court at all, and (ii) by consulting the High Court and also other persons.
In one case he directly infringes the mandate of the Constitution and in the other he indirectly does so far his mind may be influenced by other persons not entitled to advise him.
That this constitutional mandate has both a negative and positive significance is made clear by the other provisions of the Constitution.
Wherever the Constitution intended to provide more than one consultant, it has said so: See articles 124 (2) and 217 (1) Wherever the Constitution provided for consultation of a single body or individual it said so: See article 222, article 124 (2) goes further and makes a distinction between persons who shall be consulted and persons who may be consulted.
These provisions indicate that the duty to consult is so integrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designated therein.
To state it 621 differently, if A is empowered to appoint B in consultation with C he will not be exercising the power in the manner prescribed if he appoints B in consultation with C and D".
In the case of Chandramouleshwar Prasad vs Patna High Court & Ors.,(1) a 5 Judge Bench of this Court held at p. 674 675: "consultation with the High Court under article 233 is not an empty formality.
So far as promotion of Officers to the cadre of District Judge is concerned the High Court is best fitted to adjudge the claims and merits of persons to be considered for promotion.
The Governor cannot discharge the function under article 233 if he makes an appointment of a persons without ascertaining the High Court 's views in regard thereto It was strenuously contended on behalf of the State of Bihar that the materials before the Court amply demonstrate that there had been consultation with the High Court before the issue of the notification of October 17, 1968.
It was said that the High Court had given the Government its views in the matter; the Government was posted with all the facts and there was consultation sufficient for the purpose of article 233.
We cannot accept this.
Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to other or others and discuss and examine the relative merits of their views.
If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation.
In our opinion, the notification of October 17, 1968 was not in compliance with article 233 of the Constitution.
In the absence of consultation the validity of the notification of 17th October, 1968 cannot be sustained.
In the case of High Court of Punjab and Haryana etc.v.
State of Haryana,(2) the view expressed by this Court in Chanderamouleshwar 622 prasad 's case (supra) noted by another Constitution Bench of 5 Judges at p. 377: "In Chandramouleshwar Prasad vs Patna High Court & Ors. ; it was said that under article 233 the appointment of person to be District Judge rests with the Governor but he must make the appointment in consultation with the High Court.
The Governor should make up his mind after there has been deliberation with the High Court.
The consultation is not complete or effective before the parties thereto make there respective points of view known to the other or others.
It was said that the Governor cannot discharge his functions under Article 233 if he makes the appointment of a person without ascertaining the points of view of the High Court with regard thereto.
" In the case of Chief Justice of Andhra Pradesh and Ors. vs V.A. Dixitulu and Ors.
(supra), the same view has been reiterated in the following observation at p. 46: "Article 233 gives the High Court an effective voice in the appointment of District Judges.
Clause (1) of the Article peremptorily requires that 'appointments of persons to be, and the posting and promotion of, district Judges" shall be made by the Governor 'in consultation with the High Court.
"Clause (2) of the Article provides for direct appointment of District Judges from advocates or pleaders of not less than seven years standing, who are not already in the service of the State or of the Union.
In the matter of such direct appointments, also, the Governor can act only on the recommendation of the High Court.
Consultation with the High Court under article 233 is not an empty formality.
An appointment made in direct or indirect disobedience off his constitutional mandate, would be invalid (See Chandra Mohan vs State of U.P.(1) and Chandramouleshwar vs Patna High Court(2) 'Service ' which under clause (1) of Article 233 is the first source of recruitment of District Judges by promotion, means the 'judicial services ' as defined in Article 236.
" 623 In a recent decision of this Court in Hari Datt Kainthla & Anr.
vs State of Himachal Pradesh & Ors.
(supra) this Court reaffirmed the views earlier expressed at p. 372 373: "Article 233 confers power on the Governor of the State to appoint persons either by direct recruitment or by promotion from amongst those in the judicial service as District Judges but this power is hedged in with the condition that it can be exercised by the Governor in consultation with the High Court.
In order to make this consultation meaningful and purposive the Governor has to consult High Court in respect of appointment of each person as Distt.
Judge which includes an Additional Distt Judge and the opinion expressed by the High Court must be given full weight.
article 235 invests control over subordinate courts including the officers manning subordinate courts as well as the ministerial staff attached to such courts in the High Court.
Therefore, when promotion is to be given to the post of District Judge from amongst those belonging to subordinate judicial service, the High Court unquestionably will be competent to decide whether person is fit for promotion and consistent with its decision to recommend or not to recommend such person.
The Governor who would be acting on the advice of the Minister would hardly be in a position to have intimate knowledge about the quality and qualification of such person for promotion.
Similarly when a person is to be directly recruited as District Judge from the Bar the reasons for attaching full weight to the opinion of the High Court for its recommendation in case of subordinate judicial service would mutatis mutandis apply because the performance of a member of the Bar is better known to the High Court that the Minister or the Governor.
In Candra Mohan vs State of Uttar Pradesh and Ors.
(supra) at page 83, a Constitution Bench of the Court observed as under: "The Constitutional mandate is clear.
The exercise of the power of appointment by the Governor is condi 624 tioned by his consultation with the High Court, that is to say, he can only appoint a person to the post of District Judge in consultation with the High Court.
The object of consultation is apparent.
The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the "judicial service" or to the Bar, to be appointed as a district judge.
Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him.
" This view was reaffirmed in Chandramouleshwar Prasad vs Patna High Court & Ors.
(supra) observing: "The High Court is the body which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges.
The High Court alone knows their merits as also demerits.
" The facts which we have earlier set out establish that after the High Court had forwarded its recommendations and thereafter sent the detailed comments alongwith a copy of the resolution as requested by the Government.
The State Government without any further intimation to the High Court or without any kind of discussion with the High Court had made the appointment of respondents Nos. 3, 4, 5 and 6, ignoring the recommendations made by the High Court.
The facts further go to indicate that on receipt of the detailed comments and the resolution a cabinet sub committee had considered the matter and on the recommendations made by the Cabinet sub committee, the Governor did not act on the recommendations made by the High Court but made the appointments on the recommendations of the sub committee.
The recommendations of the sub committee were never communicated to the High Court and the State Government had not discussed or sought the views of the High Court on the findings and recommendations of the cabinet sub committee.
It is, therefore, abundantly clear from the facts of the present case that the counter proposals sought to be made by the Government in the matter of appointment were never communicated to the High Court and the High Court 's views on the said proposals of the Government were never asked for and the 625 High Court was not at all consulted in the matter of Government 's proposals to appoint respondents Nos. 3, 4, 5 and 6 as District Judges.
It is well settled that consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views.
If one party makes a proposal to the other who has a counter proposal in his minds which is not communicated to the proposer, the direction to give effect to the counter proposal without anything more, cannot be said to have been done after consultation.
We are, therefore, of the opinion that in the instant case there has not only been no effective or complete consultation but, in fact, there has been complete lack of consultation in the matter of appointment of Respondents Nos. 3, 4, 5 and 6.
We must, therefore, hold that the appointment of the Respondents Nos. 3, 4, 5 and 6 in the absence of consultation with the High Court must be held to be violative of the constitutional requirement and therefore, invalid.
The impugned order appointing respondents Nos. 3, 4, 5 and 6 has, therefore, necessarily to be quashed.
Before concluding we consider it necessary to emphasize that independence of the judiciary is one of the basic tenets and a fundamental requirement of our Constitution.
Various Articles in our Constitution contain the relevant provisions for safeguarding the independence of the Judiciary.
Art 50 of the Constitution which lays down that "the State shall take steps to separate the judiciary from the executive in the public services of the State", postulates separation of the judiciary from the executive.
Unfortunately, for some time past there appears to be an unhappy trend of interference in the matter of judicial appointments by the executive both at the State and the Central level.
The unfortunate interference by the executive results in prolonged and unnecessary delay in making the appointments and judicial vacancies continue for months and in cases for years with the result that the cause of justice suffers.
It is common knowledge that members of the Bar who are considered suitable to be on the Bench are reluctant to join the Bench and the Office of a Judge has for various reasons ceased to attract the tenanted members of the Bar.
The further unfortunate fact is that even in cases when competent 626 members of the Bar may be persuaded to accept the office of a High Court Judge or join the higher judicial service, they ultimately withdraw their consent in view of the delay in making the appointments and because of various restrictions sought to be imposed.
As in the present case we are not really concerned with the appointment of a Judge of the High Court or of a direct appointment to the higher judicial service from the Bar, we do not purpose to dilate on this subject.
Article 235 of the Constitution vests the control of judicial administration completely in the High Court excepting in the matter of initial appointment and posting of district judges and the dismissal, removal or termination of services of these officers.
Even in these matters the requirement of the Constitution is that the Governor must act in consultation with the High Court.
If in the matter of appointment, the High Court is sought to be ignored and the executive authority chooses to make the appointment, independence of the judiciary will be affected.
Persons who are interested in being appointed District Judges, whether directly or by promotion, will try to lobby with the executive and curry favour with the Government for getting these appointments and there is every possibility of the independence of such persons so appointed being undermined with the consequence that the cause of justice will suffer.
We are of the opinion that healthy convention and proper norms should be evolved in the matter of these appointments for safeguarding the independence of the judiciary in conformity with the requirements of the constitution.
We are of the opinion that normally, as a matter of rule, the recommendations made by the High Court for the appointment of a District Judge should be accepted by the State Government and the Governor should act on the same.
If in any particular case, the State Government for good and weighty reason find it difficult to accept the recommendations of the High Court, the State Government should communicate its views to the High Court and the State Government must have complete and effective consultation with the High Court in the matter.
There can be no doubt that if the High Court is convinced that there are good reasons for the objections on the part of the State Government, the High Court will undoubtedly reconsider the matter and the recommendations made by the High Court.
Efficient and proper judicial administration being the main object of these appointments, there should be no difficulty in arriving at a consensus as both the High Court and the State Government must necessarily approach the 627 question in a detached manner for achieving the true objective of getting proper District Judges for due administration of justice.
It appears that in the instant case, the State Government without any kind of intimation to the High Court or any discussion or deliberation with the High Court refused to accept the recommendations made by the High Court and proceeded to make the appointments only on the basis of seniority without any kind of consultation with the High Court.
Seniority, undoubtedly, is a relevant factor in considering promotion.
It is, however, to be borne in mind that in the matter of promoting the Subordinate Judge to a District Judge, seniority is not the only criterion, though it is a material factor to be considered.
The true test in the matter of promotion is the suitability of the candidate.
In considering the suitability, no doubt, the seniority plays a very important role.
A senior Subordinate Judge may by virtue of the longer period of his service and wider experience be normally considered to be more suitable than any junior Officer.
The greater length of service also gives the High Court an opportunity of judging his performance and merit for a longer period.
If, howsoever, on a proper consideration of the performance and merit of the officer for this longer period, the High Court comes to the conclusion that the performance of the officer concerned though for a period longer than any officer junior to him is not satisfactory and meritorious enough, to entitle him to be promoted, the High Court cannot be compelled to recommend such an officer only on the ground of his seniority for promotion.
It has to be borne in mind that in such a case the High Court has the further advantage of judging the suitability of the officer, taking into consideration his performance over a longer period of time.
The High Court by virtue of its control over the officers must be considered to be the best judge of the ability and suitability of any officer as the High Court has in its possession all relevant materials regarding the performance of the officer.
The High Court of the State is primarily entrusted with the judicial administration in the State; and for efficient and due discharge of its responsibility, the High Court needs to have proper officers in proper places.
The High Court must be recognised to be the best judge of the requirements for proper and efficient administration of justice and it should generally be left to the High Court to decide as to which of 628 the officers will best serve the requirements in furtherance of the cause of justice.
High Court 's main concern is efficient judicial administration in the State for properly serving the cause of justice.
While making any recommendation, no other extraneous matter weighs with the High Court.
The High Court judges the suitability for promotion in a detached manner taking into consideration all material facts and relevant factors for promoting the cause of justice and efficient judicial administration in the State.
It may be a problem for the High Court to properly post a person as a District Judge whom the High Court considers not be suitable for the post and to entrust him with the responsibility of a District Judge.
The appointment of Respondent Nos. 3, 4, 5 and 6 made by the State Government in violation of the constitutional provisions are, therefore, set aside.
The said vacancies are directed to be filled up in accordance with law.
We, however, wish to make it clear that quashing the appointments of Respondents Nos. 3, 4, 5 and 6 will not render any orders passed and judgments delivered by them during the period they have continued to function as District Judge on the basis of the invalid appointments made, illegal, invalid and void.
To prevent any kind of confusion in the matter of administration of justice and in the larger interest of justice order passed and judgments delivered by the Respondents Nos. 3, 4, 5 and 6 have to be held valid and binding, as if their appointments so long as the same have not been set aside, were valid for the purposes of dealing the matters disposed of by them.
The appeal filed by the appellants and the writ petition filed by them in the High Court of Jammu and Kashmir are accordingly allowed to the extent indicated above with costs against the State Government.
In view of this order no order is necessary on the writ petition filed in this Court.
PATHAK, J. I entirely agree with my learned brother Sen in his observations concerning the incompetence of the certificate granted by the High Court and the maintainability of the writ petition and in the order granting special leave to appeal to the appellants.
On the merits I agree with my learned brother that the promotions of respondents Nos. 3, 4, 5 and 6 as District and Sessions 629 Judges by the State Government is contrary to law inasmuch as there was no consultation between the State Government and the High Court before the promotions were effected.
This contention of the appellants must succeed.
I do not propose to express any opinion on the other contention of the appellants that the promotions fall outside the scope of Article 233 of the Constitution.
P.B.R. Appeal allowed.
| IN-Abs | Independence of the judiciary is one of the basic tenets and a fundamental requirement of our Constitution.
Various articles of the Constitution provide or safeguarding the independence of the judiciary.
Article 50 provides separation of the judiciary from the executive.
For some time past there appears to be a trend of interference by the executive, both at the State and Central levels, in judicial appointments.
This has resulted in prolonged and unnecessary delay in making the appointments to judicial offices.
For various reasons judicial offices have ceased to attract talented members of the Bar and even when competent members of the Bar are persuaded to accept the office of a High Court Judge or of a District Judge they eventually withdraw their consent both because of the inordinate delay in making the appointments as well as of the various restrictions sought to be imposed.
594 Article 235 of the Constitution vests control of the judicial administration completely in the High Court except in certain circumstances.
In these matters the constitutional requirement is that the Governor must act in consultation with the High Court.
If, in the matter of these appointments, the High Court is sought to be ignored and the executive chooses to make the appointments, the independence of the judiciary would be affected.
It is necessary that healthy conventions and proper norms should be evolved for safeguarding the independence of the judiciary in conformity with the requirements of the Constitution.
Normally, as a matter of rule, the recommendations made by the High Court for the appointment of a District Judge should be accepted by the State Government and the Governor should act on the same.
Where the State Government does not agree with the recommendations of the High Court it should communicate its views to the High Court so that the High Court may consider the matter once again.
The State Government must have complete and effective consultation with the High Court in the matter.
Efficient and proper judicial administration being the main object of these appointments, there should be no difficulty in arriving at a consensus as both the High Court and the State Government must necessarily approach the question in a detached manner for achieving the objective of getting proper District Judges for the due administration of justice.
Facts : To fill up four vacancies of District Judges in the State, the High Court, after considering the merit and suitability of 12 eligible officers in the cadre of Sub Judges, recommended four names to the Governor.
The State Government asked the High Court to send the confidential reports of all the officers considered for the post.
While sending the reports, the High Court had also sent its comments justifying the selection and set out in detail the reasons for supersession of senior officers.
However on the basis of the recommendations of a Cabinet Sub Committee constituted by the State Government to make its recommendations on this point, the Law Secretary communicated to the Registrar of the High Court approval of the Governor for the promotion and appointment as District and Sessions Judges certain officers other than those recommended by the High Court.
While giving postings to them the High Court recorded a minute that their postings "should not be deemed as consultation with it in terms of Article 109 of Jammu & Kashmir Constitution.
Four of the Sub Judges whose names had been recommended by the High Court for appointment as District and Sessions Judges but were rejected by the Government, filed a writ petition in the High Court questioning the validity of the Government 's action.
In that petition, the High Court was made one of the respondents.
On the question whether it would be proper for the High Court to hear a writ petition impugning an order passed by it in its administrative capacity, with the consent of both the petitioners and the respondent State, the High Court declined to hear the petition.
Since, however, the respondent State did not 595 have any objection to grant to the petitioners a certificate of fitness to file an appeal in this Court, the High Court granted the certificate holding that the petition involved interpretation of Article 109 of the Constitution of Jammu & Kashmir and also that it raised a substantial question of law of general public importance.
Meanwhile the State obtained special leave to appeal against the order of the High Court alleging that the High Court had not decided any point raised in the writ petition on the ground of judicial propriety and that therefore the High Court should not have granted the certificate of fitness to appeal.
The petitioners in the High Court had also filed a writ petition under Article 32 of the Constitution for substantially the same reliefs claimed by them in their writ petition in High Court.
It was contended on behalf of the appellants that Article 233 (which corresponds to Article 109 of the Constitution of Jammu & Kashmir and which has been judicially interpreted by this Court in a number of cases) deals with appointment, posting and promotion of District Judges but does not deal with promotion of subordinate judges to the post of District Judges and that promotion of subordinate judges is vested in the High Court and that therefore appointments made by the Government without consulting the High Court were void The State on the other hand contended that consultation contemplated by this Article does not mean either concurrence or recommendation and no particular form or procedure was necessary to be followed by the Governor for consultation with the High Court and that in this case all the material which the High Court had submitted to the Governor amounted to consultation within the meaning of the Article.
Allowing the appeal, ^ HELD : On a proper interpretation of Articles 109 and 111 of the Constitution of Jammu & Kashmir, the Governor is the competent authority to appoint District Judges and the power of appointment is not vested in the High Court.
This is settled by a long line of decisions of this Court.
[609 E F] Merely because the power of appointing these officers is vested in the Governor, it cannot be said that it would lead to the subservience of the judiciary to the executive and the independence of the judiciary would be undermined.
The power to make the appointments conferred on the Governor has to be exercised by him in consultation with the High Court.
This provision has been incorporated in the Constitution to safeguard the independence of the judiciary.
[609 C D] It is equally well settled that consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of 596 their views.
If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer, the direction to give effect to the counter proposal, without anything more, cannot be said to have been done after consultation.
[625 B C] Chandra Mohan vs State of Uttar Pradesh, [1967] 1 S.C.R.77, Chandra mouleshwar Prasad vs Patna High Court & Ors., , High Court of Punjab and Haryana etc.
vs State of Haryana, [1975]3 S.C.R. 368; followed.
In the instant case the counter proposals sought to be made by the Government in the matter of these appointments were never communicated to the High Court and the High Court 's views on these proposals were never asked for.
The High Court was not at all consulted in the matter of the Government 's proposal to appoint the respondents as District Judges.
[624 G H; 625A] Secondly, the Government, without any discussion or deliberation with the High Court, refused to accept its recommendation and made the appointment on the basis of seniority.
Though seniority is a relevant factor in promoting subordinate judges as District Judges it is not the only criterion.
The true test is the suitability of the candidate.
If on a consideration of all the relevant factors the High Court comes to a conclusion that the performance of a senior officer was not meritorious enough to entitle him to promotion, it cannot be compelled to recommend such an officer merely on the ground of seniority because the High Court is primarily entrusted with the judicial administration in the State.
The High Court has the advantage of judging the suitability of a person, taking into consideration his overall performance in the previous job over a long period of time.
[627 B F] After declining to hear the petition on grounds of judicial propriety, the High Court granted the certificate with the consent of the parties since the petition involved interpretation of Article 109 of the Constitution of Jammu & Kashmir.
It is unfortunate that the State, after having agreed to the course adopted by the High Court, should raise objections as to the validity of the certificate at the stage of appeal in this Court.
Undoubtedly the question raised is a substantial question of law of general public importance.
Even assuming that the certificate granted by the High Court was not proper this Court could always grant special leave where the question raised deserves to be considered by it.
[600 F H; 601 A B] In the instant case while declining to hear the matter the High Court vacated the stay granted earlier, the result of which was an eventual refusal to entertain the writ petition, In the facts and circumstances of this case this is a special case in which this Court can revoke the certificate and grant special leave to the petitioners for filing an appeal, [601 D E] Since the question involved in this case is substantially the same, both in the appeal as well as in the petition under Article 32 of the Constitution the question of maintainability of the writ petition becomes purely academic.
[601 H] 597 [Pathak, J. agreed with the observations of the majority in concurring the incompetence of the certificate granted by the High Court and the maintainability of the writ petition and in the order granting special leave to appeal.
On merits his Lordship agreed with the majority that the promotions made by the State Government were contrary to law inasmuch as there was no consultation between the State Government and the High Court before the promotions were made.
[628 G H; 629 A] His Lordship, however, did not propose to express any opinion on the appellants ' contention that the promotions fall outside the scope of Article 233 of the Constitution.
[629 B]
|
Civil Appeal No. 94 of 1972.
Appeal by Special leave from the Judgment and order dated the 23rd July, 1971 of the Punjab and Haryana High Court in Execution Second Appeal No. 1941 of 1969.
Uma Datta and Krishna Datta for the Appellant.
S.K. Mehta, P.N. Puri and M.R. Dua for the Respondent.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
In this appeal by special leave under Article 136 of the Constitution, the appellant is the victim of Court 's craze for technicalities of law at the cost of justice.
This Court 846 exercises its discretionary power under Article 136 of the Constitution to meet the ends of justice or to remove miscarriage of justice perpetrated in a case.
This appeal arises out of an execution proceeding.
The facts material for the purpose of disposal of this appeal may be stated thus.
The appellant was the plaintiff in a pre emption suit and Bot a decree.
Respondent No. I was the vendee and respondent No. 2, who was the real brother of the plaintiff appellant, was the vendor.
The suit was for pre emption and possession in respect of some agricultural land.
The trial court decreed the suit, on payment of Rs. 15,500 as the price of the land and Rs. 100 as the charges on account of registration and other charges of the deed.
The appellant deposited the amount as directed by the Court.
3 Respondent No. I filed an appeal and the Additional District Judge who heard and disposed of the appeal dismissed the appeal with the modification directing the appellant to deposit a sum of Rs. 1836.25 more in the trial court for payment to the vendee, within 15.4.1967; in case of failure the suit was directed to be dismissed.
On 14.4.1967, the appellant deposited Rs. 1836.00 instead of Rs. 1836.25.
He, however, made good the short deposit of 25 paise on 28.
10.1968 with the permission of the Court on the allegation that the omission to deposit 25 paise was due to bona fide mistake.
Respondent No. 1 filed a regular second appeal before the High Court of Punjab and Haryana.
The High Court affirmed the decree of the first appellate Court but ordered the appellant to deposit a further sum of Rs. 500.00 for the improvements made to the land.
The appellant was given three months ' time to make the payment of the said sum of Rs. 500.00, failing which, it was directed, the suit would stand dismissed.
The appellant deposited this sum to. within the time limit.
The appellant on 28.10.1968 filed an execution case before the executing court to get possession of the suit land.
The executing court issued notice to the judgment debtor (respondent No. 1 herein).
The judgment debtor filed an application under order XX, rule 14(1)(b) of the Code of Civil Procedure on the ground, inter alia that the appellant was directed to make the payment of the sum of Rs. 1836.25 within April 15, 1967, but the appellant had deposited only a sum of Rs. 1836.00 within the due date and the amount fell short of 25 paise, and as such the execution proceedings 847 should be struck off.
The appellant filed a rejoinder to the objection petition of the judgment debtor.
His plea was that the short deposit of 25 paise was due to a bona fide mistake on his part, but that the shortage was made good on October 28, 1968 after obtaining necessary permission from the trial Court.
The executing Court, by its order dated February 1, 1969, held that the short deposit of 25 paise was due to a bona fide mistake on the part of the degree holder and over ruled the objection of the judgment debtor, taking the view that in the interest of justice the default on the part of the decree holder should be condoned.
The Judgment debtor preferred an appeal in the Court of the IInd Additional District Judge, who, by his order dated October 24, 1969 set aside the order of the executing court.
He held that the provisions of order 20, rule 14(1)(b) of the Code of Civil Procedure were mandatory, and as such the suit should be deemed to have stood dismissed.
He also held that the short deposit of 25 paise was not on account of mistake and the default could not be condoned.
The appellant preferred a second execution appeal, being Execution Second Appeal No. 1941 of 1969 in the High Court.
The appeal was however presented without a certified copy of the order of the executing Court.
The appellant, however, made an application for dispensing with the filing of the certified copy.
The High Court while admitting the appeal passed the following order: E "Admitted.
Certified copy to be filed as soon as it is available . . . . . . " Sd/ R.S. Narula 25.11.69".
The appellant obtained the certified copy on June 3, 1970 and filed it in the High Court on June 10, 1970.
The appellant filed an application on July 17, 1970 under section S of the Limitation Act for the condonation of the delay.
The second appeal came up for hearing on March 25, 1971 before a single Judge.
Respondent No. I raised the preliminary objection that the appeal was barred by limitation.
The objection was upheld by the learned single Judge; asa result he dismissed the execution second appeal filed by the appellant herein.
The appellant prayed for leave to appeal under Letters Patent.
The prayer was also rejected.
Hence this appeal by special leave.
848 7.
Shri S.K. Mehta, learned counsel appearing for Respondent No. I submitted that the execution appeal filed by the appellant in the High Court was incompetent as the certified copy of the impugned order of the lower appellate Court was not filed alongwith the memorandum of appeal.
We do not find any substance in the submission for the reason, as we have already stated above, that the appellant was granted time by the High Court at the time of the admission and was allowed to file the certified copy "as soon as it is available.
" It is not the contention of the respondent that the copy was not filed at all, nor it is his submission that the Court had no power to grant time to file the copy of the impugned order.
As stated above, the copy was obtained on 3.6.1970 and filed in court on 10.6.1970 seven days after the copy was obtained.
So he filed the petition under Section 5 of the Limitation Act.
There was no reason as to why the delay could not be condoned.
That apart, under Section 148 of the Code of Civil Procedure, the Court has enough power to enlarge time from time to time.
Section 148 provides: "Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court, may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.
" The power given to the Court under Section 148 is discretionary and is given for the purpose of securing the ends of justice in case of necessity.
In our opinion, the High Court committed an error in not adverting to, and not exercising its powers under Section 148 C.P.C. and in dismissing the appeal without going to the merit of the matter.
Mr. Mehta drew our attention to the second proviso to subrule of Order 41, rule (1) C.P.C. as amended by Punjab, Haryana and Chandigarh.
The amendment is in the following words: "Provided further that the Court may permit the appeal to be filed with true copies duly authenticated by an advocate as correct." This provision hardly helps him.
It is not understandable, how the counsel for the appellant could file 'true copies ', when his client had not obtained the certificate copy of the order tn question.
849 8.
The next question for decision is whether the first execution A appellate Court was justified in holding that the amount directed to be deposited was not deposited as it fell short by 25 paise.
Order 20, rule 14 CPC provides: "Decree in pre emption suits Where the Court decrees a claim to pre emption in respect of a particular scale of property and the purchase money has not been paid into Court, the decree shall (a) specify a day on or before which the purchase money shall be so paid, and (c) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs if any) are not so paid, the suit shall be dismissed with costs.
(2) . . . . . . . .
Under order 20, rule 14 CPC, the plaintiff decree holder, in order to get delivery of possession of the land, has to fulfil two conditions, (i) he has to deposit in Court the purchase money together with the cost, if any, decreed against him and (ii) the deposit must be made on or before the date fixed by the Court.
F Here the admitted position is that the appellant deposited the entire amount of purchase money together with the costs decreed against him, less 25 paise within the time fixed by the Court and 25 paise too was deposited, but beyond time.
The executing Court held that the short deposit was .
due to a bona fide mistake, while the executing appellate Court held that it was not due to any bona fide mistake, but it was a default and thereby the executing appellate Court deprived the decree holder of the legitimate fruits of the decree he obtained in all the Courts.
The finding of the first executing appellate Court that the non deposit could not be due to any bona fide mistake, is absolutely untenable for the reason that while the 850 appellant has deposited in total Rs. 17,936.00 from time to time as directed by the Courts, there was absolutely no reason as to why he would not have deposited 25 paise, unless it was due to a mistake.
This was pre eminently a case in which the first execution appellate Court ought to have exercised its discretionary powers under section 148 CPC and accepted the delayed deposit of 25 paise, 85 was done by the original executing Court.
In the result, we allow the appeal with costs, set aside the orders of the High Court as well as the first execution appellate Court and restore the order of the original executing Court.
S.R. Appeal allowed.
| IN-Abs | Appellant plaintfull in the pre emption suit against the respondent (vendee) and Respondent 2 (Vendor) got a decree.
As per the Trial Court decree the appellant deposited a sum of Rs. 15,500 as the price of the land and RB.
100 u tho charges on account of registration and other expenses of the dead.
Respondent I (vendee) filed an appeal and the Additional District Judge dismissed the appeal with the modification directing the appellant to deposit a sum of Rs. 1836 25 more in the trial Court for payment to the vendee, within 15.4.1967; in case of failure the suit was directed to be dismissed.
On 14.4.1967, the appellant deposited Rs. 1836.00 instead of Rs. 1836 25.
He, however, made good the short deposit of 25 Paise on 28.10.1968 with the permission of the Court averring that the omission to deposit 25 paise was due to bona fide mistakes.
The vendee held a regular second appeal and the High Court while dismissing the appeal directed the appellant to deposit within three Months ' time, a further sum of Rs. 500 for the improvements made to the land.
The appellant deposited this sum within the time limit.
In the execution case filed before the executing court, the respondent vendee Sled an application under order XX Rule 14(1)(b), raising an objection to the maintainability of the Execution Petition on the plea that short deposit of 25 Paise within 15.4.1967 amounted to deemed dismissal of the suit itself and that the default could not be condoned.
The executing court by its order dt.
1.2.1969 overruled the objections.
The Judgment debtor 's appeal before the II Additional District Judge was accepted holding that the provisions of order XX Rule 14(1)(b) C.P.C. were mandatory, the short deposit was not due to bona fide mistake and the default could not be condoned.
The appellant preferred a second execution appeal before the High Court, without a certified copy of the order of the executing Court, but with an application for exemption from filing the certified copy.
The appellant was directed on 25.11.1969 to file the 845 certified copy "as soon as is available".
Tho appellant obtained a certified copy A on June 3, 1970 and filed it in the High Court on July 17, 1970.
The appellant filed r an application on July 17, 1970 under section 5 of the Limitation Act for condonation of delay.
The preliminary objection raised by the Respondent No. 1 that the appeal was barred by limitation, was accepted by the learned single Judge and the Execution second appeal thus stood dismissed.
Hence the appeal after obtaining special leave of the Court.
Allowing the appeal, the Court ^ HELD: 1.
The High Court committed an error in not adverting to and not exercising its powers under Section 148 of the Code of Civil Procedure and in dismissing the appeal without going into the merit of the matter.
Under section 148 C.P.C., the Court has enough power to enlarge time from time to time.
The power given to the Court under section 148, is discretionary and is given for the purpose of securing the ends of justice in case of necessity.
[848 C D, E F, 850 B] 2.
Under order XX, rule 14 C.P.C. the plaintiff decree holder, in order to get delivery of possession of the land, has to fulfill two conditions : (i) he has to deposit in the court the purchase money together with the cost, if any decreed against him, and (ii) the deposit must be made on or before the date fixed by the Court.
[849 E F] However, in view of the deposit of 25 Paise having been made, under the orders of the court after the acceptance of the bona fide mistake, the finding of the first executing appellate court that the non deposit could not be due to any bona fide mistake is absolutely untenable for the reason that while the appellant has deposited in total Rs. 17,936.00 from time to time as directed by the Courts there was absolutely no reason as to why he would not have deposited 25 paise, unless it was due to a mistake.
Indeed, the appellant is the victim of Courts craze for technicalities of law at the cost of justice.
[845 H, 849 G.H, 850 A]
|
: Criminal Appeal No. 69 of 1981 Appeal by special leave from the Judgment and order dated the 16th December, 1980 of the Allahabad High Court in Criminal Appeal No. 342 of 1976.
Soli J. Sorabjee, R.K Jain, R.P. Singh and Natin Mohan Popli for the Appellant.
P.R. Mridul, Praveen Kumar, A.K. Sharma and Dalveer Bhandari for the Respondent.
The Judgment of the Court was delivered by MISRA J.
The present appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad, 873 dated 16th December, 1980, convicting the appellant under section 448 of the Indian Penal Code.
Premises Aranya Kutir bearing Municipal No. 47A Jakhan in Dehra Dun was owned by one R.C. Sood.
He executed a gift deed in favour of Shri Anand Mayee Sangh, Dehra Dun with the stipulation that the donor shall remain in possession of the premises during his life time and after his death his widow if alive would remain in possession.
The management of the same would be taken up by the Sangh after their death.
The appellant is the widow of the brother of Shri R.C Sood.
It appears that in 1967 the appellant was invited by Shri R.C. Sood to reside with him in the aforesaid house and ever since she has been residing peacefully there.
On 10th of October, 1973, Shri R.C. Sood expired.
The appellant, however, continued to live in the said house.
Respondent No. 1, Shri Nawal Kishore as Secretary of the aforesaid Sangh served a notice dated 13th November, 1973 on the appellant asking her to vacate the premises in dispute immediately, failing which a criminal action under section 448 of the Indian Penal Code would be taken against her as her further stay in the premises would be deemed to be in the nature of a criminal trespass.
The appellant, however, did not vacate the premises as she was convinced that her stay in the said premises could not amount to criminal trespass.
Respondent No. 1, Shri Nawal Kishore thereupon filed a complaint under section 448 of the Indian Penal Code against the appellant in the Court of Sub Divisional Magistrate, Mussoorie.
He examined himself as P.W. 1 and also produced Shri K. Bose as P.W.2.
The appellant in her statement under section 313, as well as in her statement as a witness D.W. 1 admitted the services of notice on her but denied that any criminal action was called for.
She further stated that she had met Anand Mayee who had permitted her to live in the house.
The learned Magistrate, however, took the view t hat the premises in dispute has been vested in the Anand Mayee Sangh by 874 virtue of the gift deed and a notice to vacate having been served upon the appellant, the continued stay of the appellant in the said premises amounted to a criminal trespass within the meaning of section 441 of the Indian Penal Code.
He accordingly convicted the appellant under section 448 to the Indian Penal Code and sentenced her to pay 1 fine of Rs. 100 and in default to undergo simple imprisonment for 40 days.
In addition, the learned Magistrate also passed an order directing the appellant to vacate the premises within two months of the passing of the order, purporting to be one under section 456 of the Criminal Procedure Code.
The appellant feeling aggrieved by the order of the learned Magistrate went up in appeal and took up various grounds.
The learned Sessions Judge allowed the appeal, set aside the order of the learned Magistrate and acquitted the appellant by his judgment Dated 19th August, 1975.
Respondent No. 1 Shri Nawal Kishore assailed the order of acquittal by filing criminal appeal in the High Court and the High Court in its turn allowed the appeal and reversed the order of acquittal passed by the learned Sessions Judge and convicted the appellant.
In the opinion of the High Court the appeal filed by the appellant before the Sessions Judge was incompetent as no appeal could lie against the imposition of fine.
It also took the view under the provisions of section 401(5) of the Criminal Procedure Code it is permissible to treat a revision as an appeal but not vice versa.
It therefore, declined to treat the appeal against the order of Magistrate as a revision.
The High Court further expressed the opinion that the appellant may file a revision if she so chooses which would be considered by the Court of Admission and then It proper the same may be allowed.
The appellant feeling aggrieved by the judgment of the High Court bas filed the present appeal with the special leave as stated earlier.
Shri Soli J. Sorabji appearing for the appellant has contended that on the allegations made in the complaint no offence under section 411 of the Indian Penal Code is made out.
In order to appreciate the contention it will he appropriate at this stage to read section 441 of the Indian Penal Code: "441.
Criminal trespass : Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains 875 there with intent thereby to intimate, insult or annoy any such person, or with intent to commit an offence.
is said to commit "criminal trespass".
There has been local amendment by U.P. Act 31 of 1961 for section 441 of the Indian Penal Code, 1 960, the following shall be substituted: "441.
Criminal Trespass: Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidiate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidiate, insult or annoy any such person, or with intent to commit an offences, or having entered into or upon such property, whether before or after the coming into force of the Criminal Law (U.P.Amendment) Act, 1961, with the intention of taking unauthorised possession or making unauthorised use of such property fails to withdraw from such property, or its possession or use when called upon to do so by that another person by notice in writing, duly served upon him, by the date specified in the notice, is said to commit, 'criminal trespass '.
It may be pointed out that the appellant was allowed to occupy the premises in 1967 by Shri R.C. Sood.
Under the terms of gift deed Shri Sood was entitled to remain in occupation of the premises during his life time.
He could as well grant, leave and licence to p the appellant to occupy the premises along with him.
Now the question arises about her status after the death of Shri R.C. Sood.
At the most, it can be said that after the death of Shri Sood the leave and license granted by Shri Sood came to an end and if she stayed in the premises after the death of Shri Sood, her possession may be that of a trespasser but every trespass does not amount to criminal trespass within the meaning of section 141 of the Indian Penal Code.
In order to satisfy the conditions of section 441 it must be established that the appellant entered in possession over the premises with intent to commit an offence.
A bare persual of the complaint filed by Respondent No. I makes it abundantly clear that there is absolutely no allegation about the intention of the appellant to commit any offence or to intimidate, insult or annoy 876 any person in possession, as will be evident from three material paragraphs which are quoted below: "2.
That the late Shri R.C. Sood was occupying the said premises in accordance with clause No. I of a gift deed executed by him in favour of Shri Anand Mayee Sangh and after his demise the said premises had to be delivered to Shri Anand Mayee Sangh.
That after the demise of Shri R.".
Sood, the accused was repeatedly requested to voluntarily vacate and deliver the possession of the said premises to the Sangh but the accused paid no heed and hence a notice dated 13.11.1973, copy of which enclosed, was sent to the accused as required by U.P. Amendment of Section 448 I.P.C. the said notice was served upon accused on 14.11.73 as per postal A.D. receipt attached herewith.
That the accused was required to quit and vacate the said premises by the 20th day of November, 1973 but instead of vacating the premises the accused has been making unusual pretext and has thus committed an offence under section 448 I.P.C." The appellant may be fondly thinking that she had a right to occupy the premises even after the death of Shri R.C. Sood.
If a suit for eviction is filed in Civil Court she might be in a position to vindicate her right and justify her possession.
This is essentially a civil matter which could be properly adjudicated upon by a competent Civil Court.
To initiate criminal proceedings in the circumstances appears to be only an abuse of the process of the Court.
We also do not agree with the view taken by the Court that the appeal filed by the appellant before the Sessions Judge was incompetent.
If the learned Magistrate had only awarded a sentence of fine, in that case revision alone would be competent and not an appeal but in the instant case the Magistrate not only awarded the fine of Rs. 100 but also directed the appellant to vacate the premises within two months from the date of the order.
This part of the order presumably was passed under section 456 of the Criminal Procedure Code, and this made the order appealable and the High Court has gone wrong in holding that appeal filed by the appellant before the Sessions Judge was not maintainable.
877 There were certain other pleas taken by the respondent before the High Court but it is not necessary to refer to those pleas in the view that we have taken that on the complaint itself no offence under section 448 of the Indian Penal Code is made out.
For the foregoing discussion, the appeal must succeed.
It is accordingly allowed.
The judgment of the High Court dated 16th December, 1980 is set aside and that of the Court of Sessions is restored.
The bail bond if any shall be cancelled.
S.R. Appeal allowed.
| IN-Abs | Premises, "Aranaya Kutir" bearing Municipal No. 47A Jakhan in Dehradun was owned by one Shri R.C. Sood.
He executed a gift deed in favour of Shree Anand Mayee Sangh, Dehradun, with a stipulation that the donor shall remain in possession of the premises during his life time and after his death his widow if alive would remain in possession.
The management of the same would be taken up by the Sangh after their death.
In 1967, the appellant, the widow of the brother of Shri R.C. Sood was invited by Shri Sood to reside with him in the aforesaid house and ever since she has been residing peacefully there.
On 10th of October, 1973 Shri R.C. Sood expired.
Respondent No. 1, Shri Nawal Kishore as secretary of the Anand Mayee Saogh, served a notice dated 13th November, 1973 on the appellant asking her to vacate the premises immediately, and threatening to take criminal action against her on failure to do so, as her further stay in the premises would be deemed to be in the nature of a criminal trespass.
When the appellant did not vacate the premises, respondent No. 1 filed a complaint under section 468 of the Penal Code.
The Sub Divisional Magistrate, Mussorie found that the continued stay of the appellant amounted to criminal trespass within the meaning of section 441 of the Penal Code, convicted her under section 448 and sentenced her to pay a fine of Rs. 100 or in lieu thereof to undergo simple imprisonment for 40 days.
In addition, the learned Magistrate also passed an order directing the appellant to vacate the premises within two months of the order, purporting to be one under section 456 o; the Criminal Procedure Code.
The appeal preferred by the appellant was allowed and the conviction and sentence passed were set aside.
Respondent No. 1, therefore assailed the order of acquittal by filing a criminal appeal before the High Court.
The High Court allowed it and reversed the order of acquittal passed by the Sessions Judge and convicted the appellant.
In the opinion of the High Court, the appeal filed by the appellant before the Sessions Judge was incompetent, as no appeal would lie against the imposition of fine.
The High Court declined to treat the appeal as a division in as much as under the provisions of section 401(5) of the Criminal 872 Procedure Code, it is permissible to treat a revision as an appeal but not vice versa.
Hence the appeal by special leave.
Allowing the appeal, the Court ^ HELD: 1.1.
In order to satisfy the conditions of section 441 of the Penal Code, it must be established that the party, complained of entered in possession over the premises with intent to commit an offence.
Every trespass does not amount to criminal trespass within the meaning of that section.
[875 G] 1:2.
Initiating criminal proceedings in the circumstances of this instant case is only an abuse of the process of the court.
This is essentially a civil matter which could be properly adjudicated upon by a competent civil court.
(a) The appellant was allowed to occupy tho premises in 1967 by Mr. Sood perhaps on 'lease and license ' basis.
(b) A bare perusal of the complaint filed by Respondent No. 1 makes it abundantly clear that there is absolutely no allegation about the intention of the appellant to commit any offence, or to intimidate, insult or annoy any person in possession; and (c) If a suit for eviction is filed in the civil court, the appellant, who may be fondly thinking that she had a right to occupy the premises even after the death of Shri Sood, might be in a position to vindicate her right and justify her possession.
[875 E H, 876 A, E F] 2.
The appeal filed by the appellant before the Sessions Judge was competent and maintainable.
If the learned Magistrate had only awarded a sentence of fine, in that case revision alone would be competent and not an appeal.
But in the instant case, the Magistrate not only awarded the fine of Rs. 100 but also directed the appellant to vacate the premises within two months from the date of the order.
This part of the order presumably was passed under section 456 of Criminal Procedure Code, and this made the order appealable.
[876 F H]
|
N: Criminal Appeal No. 749 Of 1980.
Appeal by special leave from the judgment and order dated the 5th March, 1980 of the Delhi High Court in Criminal Misc.
(Main) No. 501 of 1974.
B.P. Maheshwari for the Appellant.
896 V.S. Desai and Arvind Minocha for the Respondents.
The Judgment of the Court was delivered by PAZAL ALI, J.
This appeal by special leave is directed against a judgment dated 5.3.1980 of the Delhi High Court by which the High Court quashed the proceedings taken by the Municipal Corporation of Delhi against respondent Nos.
I to 11.
This is a case where the facts are almost identical with the facts of Criminal Appeal No. 701 of 1980 which we have decided today, with a vital difference which we shall point out hereafter.
In this case also, Shri M.M. Gupta, Food Inspector in the Municipal Corporation of Delhi purchased a sample of milk toffees from shop of Jagdish Chander Mehta situate at Lajpat Nagar, New Delhi.
The milk toffees which were purchased by the food inspector were found to be adulterated by the Public Analyst.
The toffees in this case were manufactured by Hindustan Sugar Mills, Sl, Mahatma Gandhi Road, Bombay.
A complaint was filed before the Metropolitan Magistrate against accused Nos.
I to 12 under sections 7116117 of the Prevention of Food Adulteration Act mentioning the facts stated above.
The High Court was of the view that the complaint did not disclose any offence and adopting a similar line of reasoning, as in criminal appeal No. 701 of 1980, quashed the proceedings against respondent Nos.
I to 11.
We have already dealt with the law on the subject in our decision in criminal appeal No. 701 of 1980, a copy of which is placed on the file of this case The relevant allegations against the accused respondents are to be found in para S of the complaint which may be extracted thus: "5, That accused Ram Kishan Bajaj is the Chairman, accused R.P. Neyatia is the Managing Director and accused Nos. 7 to 12 are the Directors of the Hindustan Sugar Mills Ltd. and were incharge of and responsible to it for the con duct of its business at the time of commission of offence.
" Unlike the other case, para S of the complaint of this case gives complete details of the role played by the respondents and the extent of their liability.
It is clearly mentioned that Ram Kishan Bajaj is the Chairman and R.P. Neyatia is the Managing Director and respondents 7 to 11 are the Directors of the Mill and were incharge of 897 and responsible for the conduct of its business at the time of the commission of the offence whereas in the other case the complaint has merely drawn a presumption without any averment.
In the instant case, a clear averment has been made regarding the active role played by the respondents and the extent of their 1 liability.
In this view of the matter, it cannot be said that para 5 of the complaint is vague and does not implicate respondents I to 11.
As to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial.
We have already held that for the purpose of quashing the proceedings only the allegations set forth in the complaint have to be seen and nothing further.
From a perusal of the various clauses of the complaint, including para 5, it is quite clear that a prima facie case for summoning the accused has been made out and the High Court was absolutely wrong in holding that the allegations made in para S are vague.
The High Court failed to consider that the allegations were quite clear and explicit so as to be sufficient for taking cognizance of the offence against the accused.
Further details would have to be given in the shape of evidence when the trial proceeds and in view of the clear allegations made in para 5 of the complaint, we are not in a position to agree with the High Court that it is a fit case in which it should have exercised its discretion under section 482 of the Code of Criminal Procedure, 1973 in order to quash the proceedings against the accused respondents.
For these reasons, therefore, we allow this appeal, set aside the judgment of the High Court and restore that of the Metropolitan Magistrate as a result of which all the accused will now be summoned and placed for trial in accordance with law.
H.L.C. Appeal allowed.
| IN-Abs | The facts of this case were almost identical with that of Municipal Corporation of Delhi vs Ram Kishan Rohtagi and Ors.
(the case reported immediately before this one).
However Paragraph 5 of the complaint filed in this case was in the following terms: "That accused Ram Kishan Bajal is the Chairman, accused R.P. Neyatiya is the Managing Director and accused Nos.
7 to 12 are the Directors of the Hindustan Sugar Mills Ltd. and were incharge of and responsible to it for the conduct of its business at the time of commission of offence.
" Adopting a line of reasoning similar to the one adopted by it in the earlier case, the High Court had quashed the proceeding against the accused (respondents here).
After pointing out that the law on the subject had been dealt with in the earlier case and allowing the appeal, ^ HELD: In this case a clear averment has been made in Para 5 of the complaint regarding the active role played by the respondents and the extent of their liability and a prima facie case for summoning the accused has been made out.
It cannot therefore be said that Paragraph 5 of the complaint is vague and does not implicate the respondents.
As to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial.
The High Court went wrong in holding that tho allegations made Paragraph 5 were vague.
[891 B D]
|
CIVIL Appeal No. 2376 of 1969.
From the judgment and order dated the 30th September, 1963 of the Madhya Pradesh High Court in F.A. No. 82 of 1961.
B.D. Bal, Rameshwar Nath and N. Nagarathnam for the Appellant.
S.B.Bhasme, S.S.Khanduja for Respondents 1 (a) to 1(c).
S.S. Khanduja, for Respondent No. 1 (d).
M.N. Phadke, M.M Sapre and J.S. Sinha for Respondents Nos. 3 to 9 and 11.
The Judgment of the Court was delivered by PATHAK, J.
This is a plaintiff 's appeal on a certificate granted under subclass (a) of clause (1) of article 133 of the Constitution by the High Court of Madhya Pradesh.
The appellant, who belongs to a prominent family of Jabalpur, instituted a suit, out of which the present appeal arises, for partition and separate possession and for rendition of accounts.
The properties in suit comprise most of the estate falling to the share of one Seth Jagannathdas on a family partition of October 19, 1939.
855 The genealogy of the family may be set forth: Diwan Bahadur Ballabhdas (died in 1925) Mannoolal Kanhaiyalal Jamnadas Mankuarbai (died in 1916) (died in 1923) (died in 1939) M. Narayanibai (Respondent) Narsinghdas (Respondent) Jagannathdas Balkrishandas Goverdhandas Madhu Tribhu M.Premwati sudandas wandas (appellant) Jagannathdas and his wife Premwati had no children.
Premwati suffered from tuberculosis for several years and died on September 24, 1951.
After her death Jagannathdas created a trust by a registered deed dated March 17, 1952 called the Seth Mannoolal Jagannathdas Hospital Trust in respect of most of his estate He reserved the right to revoke the trust, but subsequently by a further document dated July, 14, 1952 he relinquished that right.
Ever since the inception of the trust the trustees have remained in possession of the estate.
The appellant filed the present suit on September 24, 1957 against Jagannathdas and the other trustees claiming that he had been adopted by Jagannathdas and Premwati as their son on September 24, 1951, that the trust was void and that he was entitled to half the estate.
Jagannathdas died on October 7, 1957 during the pendency of the suit, and in consequence the appellant claimed a F 314th share of the estate, with the remaining 1/4th being conceded to Narayanibai the mother of Jagannathdas.
The suit was decreed by the trial court on September 27, 1961 and a preliminary decree was passed declaring the appellant entitled to the share claimed by him and to partition and separate possession of the properties.
The trust was declared invalid and the trustees, in consequence, were declared trespassers and liable to render accounts to the appellant.
An appeal by the trustees was allowed by the High Court by its judgment and decree dated September 30, 1967 and the suit has been dismissed, 856 Several issues were tried by the trial court and considered on appeal by the High Court, but the most crucial and decisive issue, and which constitutes the core of the controversy between the parties, is whether the appellant can be said to be the adopted son of Jagannathdas.
The trial court found that the appellant was in fact adopted by Jagannathdas and Premwati on September 24, 1951 and that the adoption was valid.
The High Court has reversed the finding, taking a different view altogether of the evidence on the record.
The question whether the appellant was in fact adopted by Jagannathdas and Premwati has been determined essentially on the basis of oral testimony, and reference has been made to a few documents only in supplementation of the oral evidence.
At this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony.
When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies.
In this connection, reference may usefully be made to W.C. Macdonald vs Fred Latimer(1) where the Privy Council laid down that when there is a direct conflict between the oral evidence of the parties, and there is no documentary evidence that clearly affirms one view or contradicts the other, and there is no sufficient balance of improbability to displace the trial court 's findings as to the truth of the oral evidence, the appellate court can interfere only on very clear proof of mistake by the trial court In Watt vs Thomas(2) it was observed: ". it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.
" This was adverted to with approval by the 857 Privy Council in Sara Veeraswami alias Sara Veerraju vs Talluri Narayya (deceased) and others(1) and found favour with this Court in Sarju Parshad vs Raja Jwaleshwari Pratap Narain Singh and Ors.(2).
It seems to us that this approach should be placed in the forefront in considering whether the High Court proceeded correctly in the evaluation of the evidence before it when deciding to reverse the findings of the trial court.
The principle is one of practice and governs the weight to be given to a finding of fact by the trial court.
There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact.
Our attention has been drawn by the respondents to The Asiatic Steam Navigation Co. Ltd. vs Sub.
Lt. Arabindra Chakravarti(3) but nothing said therein detracts, in our opinion, from the validity of the proposition enunciated here.
The judgment of the trial court shows that it analysed the testimony of each material witness and in reaching its conclusions on the issues of fact it relied in some instances upon its own appraisal of the manner in which the witnesses present before it rendered their testimony and weighed with great care the probative value of the evidence in the context of established fact and probability.
On the central issue whether the appellant had been adopted by Jagannathdas and Premwati it commenced logically with an examination of the circumstances in which an adoption could be envisaged.
Jagannathdas and Premwati were without issue.
The wife was suffering from tuberculosis for about eight to ten years without any possibility of improvement and her health was fast deteriorating.
There was no hope that she would bear a child.
Jagannathdas admittedly belonged to an old respected family steeped in tradition and orthodox belief.
He was the owner of considerable property.
It was natural that Jagannathdas and Premwati should conceive the need for adopting a son.
Jagannathdas was on the evidence, a sickly man of weak mind and of weak Will and of little education, and in the administration of his affairs Mankuarbai, his father 's sister, and Narsinghdas, his uncle s son, played a prominent role.
Premwati was aware of her husband 's limitations and handicaps and quite understandably was anxious that a son should be adopted.
The 858 husband and wife were devoted to each other, and all the circumstances point to the conclusion that if Premwati desired the adoption of a son Jagannathdas would readily go along with the idea.
He would willingly agree to whatever she wanted.
There is evidence that Mankuarbai, who lived with Jagannathdas, knew of Premwati 's desire to adopt a son.
The desire to adopt a son was known to others also, and they included Narsinghdas.
For it was first decided to consider the adoption of his son Gopaldas There is clear evidence that the child spent six months to a year in the house of Jagannathdas spending the day with Premwati and sleeping during the night with Mankuarbai.
For some reason, however, it was decided not to r adopt him.
There is a suggestion in the evidence that his horoscope indicated an early death, but the trial court has not relied on this.
The desire to adopt a son continued and it was in the circumstances only natural to consider one of the sons of Seth Jamnadas, the only other brother of the father of Jagannathdas The appellant, Madhusudandas, was then a boy studying in college and the choice alighted on him.
The trial court relied on the evidence of, among others, Narayanibai, mother of Jagannathdas, in reaching this conclusion.
It has also referred to material clearly showing that when Premwati went to Panchmarhi in the summer of 1951 and stayed there for about two months with Narayanibai it was decided to send for Madhusudandas and have him stay with them for some time in order to determine whether, by his deportment and behaviour and the manner of his living, he was a suitable boy for adoption.
The trial court found that the appellant did go to Panchmarhi and stayed with Premwati for some days.
The trial court has also analysed the testimony of witnesses deposing to the contrary, and has given good reason for discarding that testimony.
It inclined to the view that the appellant had found favour with Jagannathdas and Premwati and that they decided to adopt him.
The next question considered by the trail court was whether the appellant was in fact adopted on September 24, 1951.
Consider able evidence was led on both sides to show the physical and mental condition of Premwati on that day, it being the case of the appellant that she was in fit condition to effect the adoption while the case of the contesting respondents was that her condition was so serious that it forbade any such possibility.
There is no doubt that her condition was not good, having suffered deterioration during the preceding four days.
The appellant produced a number of witnesses to prove that as she had grown very weak she requested that the adoption 859 take place that very day and that she was able to participate in the ceremony of adoption.
The contesting respondents on the other hand, led evidence to show that she had slipped into a ' cyanosed state" and was totally incapable of any physical and mental activity.
The trial court devoted detailed attention to the issue and carefully sifted the evidence adduced in support of the allegation that Premwati was unable to speak and "completely cyanosed" on September 24, 1951, and after weighing it in the light of incontrovertible or admitted fact it found the allegation untrue.
In the first place, it observed that the written statement filed by Narsinghdas did not describe her specifically as being "cyanosed '.
It found that the evidence of Dr. Choubey, who deposed that Premwati was unable to respond, could not be believed, nor was it possible to rely on the nurse Rachel, whose name was not mentioned in the original list of fifty six witnesses filed by Narsinghdas, and who stated that she had been told by Dr. Choubey that Premwati was in an unconscious state.
The entire case set up in evidence was completely demolished by the undisputed fact that Premwati had indeed signed the adoption deed on September 24, 1951.
Much capital was made by the contesting respondents of the fact that the appellant had not examined Gopmath Vaidya to establish the condition of Premwati 's health and the fact of adoption on September 24, 1951, but the trial court, in the course of its judgment, has referred in some detail to the appellants efforts to have the evidence of that witness recorded.
At the appellant 's instance a commission had been issued at Hathras for the examination of Ramsarandas and Gopinath Vaidya.
On June 22, 1960 both witnesses were present before the Commissioner at Hathras, but the Commissioner took an unexpectedly long time in examining Ramsarandas on that day, and on the next day, to which he had deferred the examination of Gopinath Vaidya, he left town suddenly to see his sick son.
The appellant, the trial Court pointed out, sought to examine the witness on a subsequent date in court at Jabalpur, but the witness did not appear.
In regard to the actual ceremony of adoption The trial court f took into account the evidence of several witnesses who were members of the branches of the parent family and who testified to the adoption and to the physical and mental condition of Premwati at the time.
The case of the appellant was supported by oral and documentary material evidencing that while he had attended college in the morning on that day he did not do so in the afternoon, thereby leading credence to the appellant 's case that on coming to know 860 from Premwati that she intended the adoption of the appellant that very day Sunderbai, the appellant 's mother, sent for him at mid day from his college.
The trial court then considered the matter of the execution of an adoption deed by Jagannathdas and Premwati as evidence of the adoption.
It took into account the circumstances in which the document was considered necessary, its execution and attestation, and how it was at first entrusted to Seth Govinddas and then returned to Jagannathdas.
It was not disputed that such a document was in fact signed by Jagannathdas and Premwati on September 24, 1951, and the trial court repelled the case of the respondents that Jagannathdas was compelled to sign it without and knowledge of its contents and that Premwati also did so in ignorance of what it set forth.
The fact that Jagannathdas was aware of the nature of the document is fully established by his reference to it as an adoption deed when he wrote out the receipt given to Seth Govinddas in envidence of its return.
The trial court also noted that Jagannathdas disowned the adoption and the document later only when the circumstance around him changed as his wife approached her end and the over powering influence of Narsinghdas began to take hold over his will.
The adoption deed contains certain recitals which appear to militate against the appellant 's case.
It refers to ceremonies, such as the performance of a "havan", to which none of the appellant 's witnesses have testified.
The respondents contended from this that Do adoption had been effected at all.
The trial court examined this apparent inconsistency and explained it with reference to the peculiar circumstances in which the document had been prepared.
On the fact of adoption the trial court found itself fortified by the contents of a letter dated August 21, 1957 written by Jagannathdas to his mother stating that he had accepted the appellant as his son.
The original document had been returned to Jagannathdas and the trial court permitted a photograph of it to be exhibited in evidence.
The signatures on the letters were proved to be those of Jagannathdas and the trial court found that it was not a fabricated document.
The trial court also referred to the testimony of Narayanibai that her son Jagannathdas had desired that his last rites be performed by the appellant, and there is no dispute that the appellant did perform the rites.
861 There was a letter dated September 27, 1957 purporting to have been written by Jagannathdas to Narsinghdas indicating that Jagannathdas had taken exception to the appellant instituting the present suit and he desired that the suit be resisted vigorously in order to protect the trust.
The trial court has commented that this letter was produced very late during the trial of the suit in September 1961, without any adequate reason for the delay, and it observed that the document was not free from suspicion.
In the result, the trial court held that the adoption of the appellant stood proved in fact.
On the validity of the adoption the trial court examined the law and found that legal requisites for a valid adoption in the case of the families of the appellant and Jagannathdas, who belonged to Rajasthan, did not extend to more than the ceremony of giving and taking, and that the ceremony of 'dattak homam" was not necessary to effectuate the adoption of the appellant.
Accordingly, the trial court took the view that the adoption was valid in law.
The High Court disagreed with the trial court and held that the adoption had not been established.
In doing so, it adopted an approach which, to our mind, is plainly erroneous.
It proceeded to judge the credibility of the witnesses mainly with reference to their relationship with the parties without placing adequate weight on the nature of the evidence and the probability of its truth in the context of the surrounding circumstances.
It rejected the testimony of the appellant 's witnesses substantially on the ground that they were related to the appellant or out of favour with Narsinghdas.
This consideration, in our opinion, cannot by itself constitute a sufficient basis for discrediting the witnesses.
We think the proper rule to be that when a witness holds a position of relationship favouring the party producing him or of possible prejudice against the contesting party, it is incumbent on the court to exercise appropriate caution when appraising his evidence and to examine its probative value with reference to the entire mosaic of facts appearing from the record.
It is not open to the court to reject the evidence without anything more on the mere ground of relationship or favour or possible prejudice.
The judgment under appeal indicates that the High Court commenced with that mistaken approach, and we see its influence working throughout its appraisal of the testimony of the several witnesses.
It is only logical that with its approach so oriented even the most 862 significant material adduced by the appellant should, in the eyes of the High Court, take on a negative hue.
The High Court should also have reminded itself that these same witnesses had given their evidence before the trial court, which had the opportunity of seeing their demeanour in the witness box, and the appreciation of their evidence by the trial court should have been given due consideration in the light of that fact.
It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and a its validity.
A. Raghavamma and Anr.
vs A. Chanchamma and Anr.(1) It is also true that the evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth.
Kishori Lal vs Chaltibai.(2) Nonetheless the fact of adoption must be proved in the same way as any other fact.
For a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever the caste.
And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption.
Shoshinath vs Krishnasunder.(3) In Lakshman Singh vs Smt.
Rupkanwar,(4) this Court briefly stated the law.
thus: "Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking.
The object of the corporeal giving and receiving in adoption is obviously to secure due publicity.
To achieve this object it is essential to have a formal ceremony.
No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him.
The nature of the ceremony may vary depending upon the 863 circumstances of each case.
But a ceremony there shall be, and giving and taking shall be part of it.
" In some cases, to complete the adoption a "datta homam" has been considered necessary, but in the case of the twice born classes no such ceremony is needed if the adopted boy belongs to the same gotra as the adoptive father.
Bal Gangadhar Tilak vs Shriniwas Pandit.(1) In the present case, the appellant has pleaded the custom of his community that the act of giving and taking suffices to effect a valid adoption, and nothing has been shown to us to indicate that the further ceremony of 'datta homam" was necessary.
Apparently, for this reason the parties concentrated in the main before the High Court on the limited controversy whether in fact the ceremony of giving and taking had been performed.
In the course of adjudicating on this controversy, the High Court referred to the observations of the Privy Council in Sutroogan v, Sabitra(2): "Although neither written acknowledgments, nor the performance of any religious ceremonial, are essential to the validity of adoptions, such acknowledgments are usually given, and such ceremonies observed, and notices given of the times when adoptions are to take place, in all families of distinction, as those of `Zamindars ' opulent Brahmins, that wherever these have been omitted, it behoves this Court to regard with extreme suspicion the proof offered in support of an adoption.
I would say, that in no case should the rights of wives and daughters be transferred to strangers, or more remote relatives, unless the proof of adoption, by which the transfer is effected, be proved by evidence free from all suspicion of fraud, and so consistent and probable as to give no occasion for doubt of its truth." and it proceeded to hold that the trial court had not scrutinised the evidence relating to the performance of the ceremony of giving and taking and did not have due regard to the probabilities.
On that basis the High Court rested its justification for re appraising the evidence in elaborate detail.
Now, when the Privy Council made 864 those observations it had in mind cases where it was possible no doubt to make the acknowledgements, observe the ceremonies and give the notices adverted to by it.
It had in contemplation the usual kind of case where that was possible and where though possible it had not been done.
The standard of proof required would then have been the standard laid down by the Privy Council.
The High Court applied that standard to a case which was quite different.
The issue here was whether the adoption has been effected in circumstances which plainly did not permit time for making acknowledgements, observing elaborate ceremonies and giving notices generally.
According to both parties, Premwati was seriously a ill.
The appellant 's case is that she was so ill that she wanted to effect the adoption that very day.
The respondents have alleged that she was already incapable of any activity.
It is inconceivable that any elaborate arrangements for adoption could have been envisaged.
In consequence, the High Court misdirected itself in applying a standard of proof to the evidence which the circumstances did not warrant.
Its appreciation of the evidence is founded in that misdirection, leading to findings which are accordingly vitiated.
On the contrary we find that the trial court examined the evidence relating to the actual adoption with great care and pointed out that as Jagannathdas had accepted Premwati 's suggestion to have the adoption that very day and during her lifetime the issue of invitations to relations and friends, the observing of elaborate ceremonies and the taking of a photograph were out of the question and that only the bare essentials of the ceremony of giving and taking were possible.
Even upon the approach adopted by the High Court, we find its findings vitiated by its failure to consider material evidence on the record and its reaching conclusions not substainable in reason.
We have already pointed out that the allegation that Premwati was unconscious and in a cyanosed state on September 24, 1951 is belied by her undisputed signature affixed on the adoption deed on that day.
The High Court omitted to take this aspect of the case into account when it allowed the evidence of Dr. Choubey, the nurse Rachel and others to find favour with it.
The High Court also failed to appreciate that in the application sent by Jagannathdas to the Deputy Commissioner and the District Superintendent of Police on September 27, 1951 Jagannathdas had stated that Premwati 's illness took a serious turn at about 5 O 'clock in the afternoon on September 24, 1951 and it was from that hour that her condition 865 became progressively worse until she expired at about 9 O 'clock the same evening.
This document has been produced by the contesting respondents.
It does not detract from the case of the appellant that Premwati 's condition was not so precarious as to forbid her from participating in the ceremony of adoption at about 3 O 'clock in the afternoon.
On the contrary, had Premwati been unconscious and in a cyanosed state throughout the day, as alleged by the contesting respondents, the statement made by Jagannathdas in his letter of September 27, 1951 would have been phrased differently.
Ramsarandas deposed that he saw Premwati in the morning of September 24, 1951 and she insisted on having the adoption that very day because although "there was still time for the date of adoption" her health was deteriorating.
The High Court declined to believe Ramsarandas because there was no evidence that any date had been fixed earlier for the adoption.
We think the more reasonable way of looking at it is that Premwati had intended to mean that although otherwise there was still time for fixing a date in the future for adoption the poor state of her health did not permit her waiting any longer and the adoption should take place that same day.
The High Court has discovered apparent discrepancies in the testimony of some of the witnesses produced by the appellant, but it seems to us that it has attempted to make too fine a point in regard to what those witnesses said or did not say.
The High Court inferred that Sunderbai did not visit Premwati at mid day on September 24, 1951 and this was based on the statement of Rattan Kumari that Sunderbai was not in Premwati 's room nor in the adjoining verandah when Rattan Kumari visited Premwati between noon and 12 30 p.m.
The High Court failed to note that this was about the time when Sunderbai had left Premwati to make arrangements for summoning the appellant from his college to come to the house.
The High Court has also commented that it was not natural that Sunderbai should not have asked Premwati why her son was being called.
The High Court in our opinion omitted to consider that it had been understood for quite some time ' that Jagannathdas and Premwati would adopt the appellant and it was natural to expect that on knowing of Premwati 's serious condition Sunderbai should visit Premwati and at her instance send for her son for the purpose of adoption.
Further, we have no doubt in our 866 mind in view of the oral and documentary evidence that the appellant attended college up to the lunch recess and left it thereafter.
The High Court has rejected that material without good reason.
The High Court has taken the view that Jagannathdas was IR averse to adopting the appellant, and it has relied on the evidence of Motilal, a witness of the respondents.
It is clear from the evidence that at first Gopaldas, the son of Narsinghdas was considered for adoption and thereafter the appellant was kept in view for that purpose.
There can be absolutely no doubt That Premwati was anxious to adopt a son during her lifetime and was actively involved in finding a suitable boy for that purpose.
It is impossible to believe that Jagannathdas, her husband, was not privy to all that was going on and was not in agreement with Premwati in what she intended.
The evidence demonstrates that he was a loving and devoted husband and greatly concerned with the gratification of his wife 's wishes.
His attitude to the appellant 's adoption changed only as Premwati 's life ebbed away, and the influence of Narsinghdas, without any significant force to counter it, began to spread its pall over him.
We must remember that the real possibility of the adoption of his son Gopaldas, at an earlier stage, must have greatly appealed to Narsinghdas as it would have extended his domain over the estate of Jagannathdas.
When, however, that possibility died and it became evident that Jagannathdas and Premwati would adopt the appellant instead, his attitude towards the intended adoption would inevitably have been hostile.
It must not be forgotten that he had.
been intimately associated with the administration of the affairs of Jagannathdas and there is evidence that they met almost daily.
In the circumstances, the decision of Jagannathdas and Premwati to abandon their intention to adopt his son Gopaldas and to prefer the appellant must have hurt considerably.
The events which took place on September 24, 1951 moved much too rapidly for him to have taken any effective counter measures, and he could have been able to assert his will over Jagannathdas only after Premwati 's restraining influence was removed from the scene.
With a person of Jagannathdas 's weak character and at a time when he was oppressed by his wife 's death and bewildered by the confusion surrounding him, that would not have been difficult.
Indeed, the pressure of Narsinghdas 's influence began to manifest itself almost shortly after the adoption had taken place, and Premwati, who was aware of the injury which he could work on her husband 's simple 867 mind, insisted on the execution of an adoption deed while she was still alive in order to protect the adoption.
That her misgivings were not unfounded is evident from the circumstance that shortly after the document had been entrusted to Seth Govinddas, Jagannathdas asked for its return.
The High Court has declined to accept the adoption also on the ground that the adoption deed mentioned the performance of a "havan" and other ceremonies when in fact there is no evidence whatever that those ceremonies were performed.
It does appear that there is an inconsistency between the case of the appellant and some of the recitals in the adoption deed.
The inconsistency has a been explained satisfactorily by the trial court.
It is apparent that the document was prepared by the lawyer, Jamna Prasad Dubey, containing recitals usual in such a document, and Manmohandas who had entrusted him with the task could have given him only the briefest instructions in regard to its contents.
Time was running out fast as Premwati 's condition grew progressively worse, and when it was brought before her and read out it was too late to effect a change in some of the recitals, and consequently it was signed as it was by Jagannathdas and Premwati.
The complaints made by Jagannathdas to the Deputy Commissioner and the District Superintendent of Police as well as the public notices published in the newspapers disclaiming execution of the adoption deed and the adoption are explicable only in the context of the overpowering influence of Narsinghdas.
So also is the creation of the Trust in which Narsinghdas secured for himself the office of working trustee in respect of most of the properties.
It is significant that the power of revocation reserved to himself by Jagannathdas was relinquished by him within a mere four months of the creation of the Trust.
The entire conduct of Jagannathdas persisting thereafter can be ascribed to the position to which he had been persuaded, namely, one of active opposition to the appellant 's claim of adoption.
The attitude was tempered only later, when a a few weeks before his death he wrote to his mother that he had "owned" the appellant as his adopted son.
The High Court has referred to some instances where the appellant, inconsistently with his claim of adoption, continued to 868 show himself as the son of Seth Jamnadas.
There were the partition deed, the application for mutation of names in Naya Mahal, the Income tax proceeding and other records, but clearly these are matters in respect of which the appellant plainly considered it judicious not to assert his title in proceedings which could only result in its summary determination but to prefer to wait and institute an appropriate suit for an authoritative declaration of his status.
The determination to file the suit must have gathered impetus from the changing attitude of Jagannathdas in favour of the appellant and reflected in his letter dated August 21, 1957 addressed to his mother in which he clearly states his acceptance of the appellant as his son.
It may be noted that this case of adoption was not conceived for the first time by the appellant when the suit was filed; the claim to that status had been asserted by an application made as early as October 20, 1951.
The High Court rejected the letter dated August 21, 1957 written by Jagannathdas to his mother accepting the appellant as his son.
We are not impressed by the reasons given by it.
It erred in assuming that the photostat copy was produced only at the stage of evidence.
It was in fact filed by the appellant on February 15, 1958 before the written statements of the defendants were filed.
We have referred to some of the errors which vitiate the judgment of the High Court.
It is not necessary, we think.
to advert to all of them It is sufficient to say that there was no adequate ground for the High Court to interfere with the finding of the trial court.
We are of opinion that the finding of the High Court that the appellant had not proved his adoption must be set aside and that of the trial court restored.
It is urged by the contesting respondents that in the event of the Court holding that the appellant is the adopted son of the Jagannathdas and Premwati he can be found entitled to a half share only in the properties.
The submission is based on a recital in the trust deed executed by Jagannathdas that if the adoption deed "is declared valid by the highest court then, today, I express, by this writing, a strong and unequivocal intention to separate at once from the heir by the aforesaid alleged adoption deed and direct the trustees that in that event they shall get the property immediately 869 partitioned and apply at least my half share in the property for fulfillment of the objects of the trust:" It is contended that the declaration contained in the trust deed must be regarded as effecting a partition whereby the share of Jagannathdas in the property stood separated from the share of the appellant and the former share must be treated as the subject of the trust.
Both the trial court and the High Court rejected the contention.
They held that a valid partition required notice to the co sharer of the intention to separate, and no such notice was given nor could be inferred from Jagannathdas to the appellant.
We are in agreement with the courts below.
It was held by the Privy Council in Girja Bai vs Sadashiv Dhundiraj(1) and Bal Krishan and Ors.
vs Bal Krishan and Ors.(2) that a separation is effected by a clear and unequivocal intimation on the part of one member of a Joint Hindu Family to his co sharers of his desire to sever himself from the Joint Family.
In A. Raghavamma and Anr.
vs Chenchamma and Anr.
(Supra), Puttrangamma and others vs M.S. Ranganna and Ors.(3) and Kalyani (dead) by L. Rs. vs Narayanan and Ors.(4) this Court held that there should be an intimation, indication or representation of such intention, and that this manifestation or declaration of intention should be to the knowledge of the persons affected because a mere uncommunicated declaration amounts to no more than merely harbouring an intention to separate.
In the present case, there is no evidence whatever to show that the intention to separate was communicated by Jagannathdas to the appellant at any time when creating the trust.
There are other grounds on which the appellant contends that the declaration of separation in the trust deed is wholly in effective, but we consider it unnecessary to consider them here.
It may be pointed out that the High Court also repelled the plea raised by the contesting respondents that pursuant to a compromise affected by Narayanibai in a suit filed by her against the trust it was not open to her to claim from the trust a one fourth share in that estate.
The High Court rightly pointed out that the question did not arise because she could not be regarded as having given up a right then which vested in her only on the death of Jagannathdas on October 7, 1957.
On the question whether the suit was barred 870 by limitation the High Court, in our opinion, also rightly concurred with the trial court in maintaining that it was not.
No argument has been seriously raised before us in respect of these two points.
In the result the appeal is allowed, the judgment and decree of the High Court are set aside and the judgment and decree of the trial court are restored.
The appellant is entitled to his costs from the second and ninth respondents.
H.L.C. Appeal allowed.
| IN-Abs | Jagannathdas and his wife Premwati had no children.
Premwati suffered from tuberculosis and died on September 24, 1951.
Thereafter Jagannathdas created a trust in respect of his estate which comprised of properties falling to his share in a family partition.
The appellant filed a suit claiming that he had been adopted by Jagannathdas and Premwati as their son on September 24,1951, that the trust was void and that he was entitled to a half share in the estate.
The trial court decreed the suit after finding that the appellant had in fact been adopted by Jagannathdas and Premwati and that the adoption was valid.
On appeal by the trustees the High Court reversed the finding of tho trial court taking a different view of the evidence on record and dismissed the suit.
Allowing the appeal against the order of the High Court, ^ HELD: In an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony.
When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies.
The principle is one of practice and governs tho weight to be given to a finding of fact by the trial court.
852 There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact.
[856 D E; 857 B C] W.C. Macdonald vs Fred Latimer, A.I.R. 1929 P.C. 15; Watt vs Thomas, ; Sara Veeraswami alias Sara Veerraju v Talluri Narayya (deceased) and Ors.
A.I.R. ; Sarju Parshad vs Raja Jwaleshwari Pratap Narain Singh and Ors.
, ; ; and The Asiatic Steam Navigation Co. Ltd vs Sub Lt.
Arabinda Chakravarti, [1959] Supp. 1 S.C.R. 979 referred to.
In the instant case the question whether the appellant had in fact been adopted by Jagannathdas and Premwati had been determined by the trial court essentially on tho basis of oral testimony and reference had been made to a few documents only in supplementation of the oral evidence.
The judgment of the trial court showed that it had analysed tho testimony of each material witness and in reaching its conclusions on the issues of fact it had relied in some instances upon its own appraisal of the manner in which the witnesses present before it had rendered their testimony and had weighed with great care the probative value of the evidence in the context of established fact and probability.
But the High Court had, in disagreeing with the trial court, adopted an erroneous approach.
It proceeded to judge the credibility of the witnesses mainly with reference to their relationship with the parties without placing adequate weight on the nature of the evidence and the probability of its truth in the context of the surrounding circumstances.
It rejected the testimony of the appellant 's witnesses substantially on the ground that they were related to the appellant.
This cannot, by itself constitute a sufficient basis for discrediting the witnesses.
When a witness holds a position of relationship favouring the party producing him or of possible prejudice against ' the contesting party, it is incumbent on the court to exercise appropriate caution when appraising his evidence and to examine its probative value with reference to the entire mosaic of facts appearing from the record.
It is not open to the court to reject the evidence without anything more on the mere ground of relationship or favour of possible prejudice.
The High Court should also have reminded itself that the witnesses had given their evidence before the trial court which had the opportunity of seeing their demeanour in the witness box and tho appreciation of their evidence by the trial court bad to be given due consideration in the light of that fact.
[856C; 857 D; 861 E G; 862 A B] (b) It is well settled that a person who seeks to displace the natural ' succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption ar d its validity.
It is also true that the evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth.
Nontheless the fact of adoption must be proved in tho same way as any other fact.
[862 C D] A. Ragavamma and Anr.
vs A. Chanchamma and Anr.
A.I.R. and.
Kishori Lal vs Chaltibai [1959] Supp. 1 S.C.R. 698 referred to.
853 (c) For a valid adoption the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever the caste.
And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption.
In some cases to complete the adoption a "datta homam" has been considered necessary but in the case of the twice born classes no such ceremony is needed if the adopted boy belongs to the same gotra as the adoptive father.
[862 E; 863 B] Shoshinath v Krishnasunder (1881) L.R. 7 I.A. 250; Lakshman Singh v Smt.
Rupkanwar ; and Bal Gangadhar Tilak vs Shrinivas Pandit (1915) L.R. 42 I.A. 135 referred to.
In the instant case the High Court, relying on certain observations made by the Privy Council in Susroogan v Sabitra, held that the trial court had not scrutinised the evidence relating to the performance of the ceremony of giving and talking and also did not have due regard to the probabilities and, on that basis, proceeded to reappraise the evidence in elaborate detail.
When the Privy Council made those observations it had in mind cases where it was possible no doubt to make the acknowledgements, observe the ceremonies and give the notices adverted to by it.
The High Court applied that standard to a case which was quite different.
The issue here was whether the adoption had been effected in circumstances which plainly did not permit time for making acknowledgements, observing elaborate ceremonies and giving notices generally.
According to both the parties, Premwati was seriously ill.
The appellant 's case is that she was so ill that she wanted to effect the adoption that very day.
The respondents have alleged that she was already incapable of any activity.
It is inconceivable that any elaborate arrangements for adoption could have been envisaged.
In consequence, the High Court misdirected itself in applying a standard of proof to the evidence which the circumstances did not warrant.
Even upon the approach adopted by the High Court its findings are vitiated by its failure to consider material evidence on record and by its reaching conclusions not sustainable in reason.
The appellant has pleaded the custom of his community that the act of giving and taking suffices to effect a valid adoption and nothing has been shown to indicate that the further ceremony of 'datta homam ' was necessary [863 D H; 864 A D; 864 F; 863 B] Sutroogan vs Sabitra, referred to (d) Separation from a Joint Hindu Family is effected by a clear and unequivocal intimation on the part of a member of the Family to his co sharers of his desire to sever himself from the Family.
A mere uncommunicated declaration amounts to no more than merely harbouring an intention to separate.
A valid ' partition requires notice to the co sharers of the intention to separate.
[869 C E] Girja Bai vs Sadashiv Dhundiraj, [1960] 43 I.A, 151; Bal Krishan and Ors.
vs Ram Krishan and Ors., [1931] 58 I.A. 220; A Raghavamma and Anr.
vs A Chenchamma and Anr A.I.R. ; Puttrangamma and Ors., vs M.S. Ranganna and Ors. ; and Kalyani (dead) by L. Rs. vs Narayanan and Ors.
, ; referred to. 854 In the instant case the trust deed contained a declaration on the part of Jagannathdas of his intention to separate in the event of the adoption deed being found valid by the court but no notice of such intention was given nor could be inferred from Jagannathdas to the appellant.
Both the trial court and the High Court rightly rejected the contention that the declaration in the trust deed must R be regarded as effecting partition.
[869 E; 869 A]
|
Civil Appeals Nos.
209 & 2280 of 1970.
No. 209/70 arising out of certificate & CA.
No. 2280/70 arising out of special leave from the common judgment and decree dated the 28th February, 1968 of the Patna High Court in Appeal from Appellate Decree No. 1055 of 1962, S.C. Misra and U.P. Singh, for the Appellant in C.A. No. 209/70 and for the Respondent in CA.
No. 2280/70.
Sinha, S.K Sinha and M.L. Chibber for the Appellant in CA.
2280/70 and for the Respondent in C.A. 209 of 1970.
The Judgment of the Court was delivered by MISRA J.
These two connected appeals are directed against a t common judgment dated 28th February, 1968 of the Patna High Court, the first one by certificate and the second by special leave.
421 Bhaiya Rudra Pratap Deo was the holder of an impartible A estate, known as Nagaruntari estate, in the district of Palamau.
The succession to the estate was governed by the rule of lineal primogeniture.
Under the said rule the eldest male member of the eldest line was to succeed to the estate while the junior members of the family were entitled only to maintenance grants subject to resumption on extinction of an heir in the male line of the eldest branch.
It appears that the estate was accorded protection under the Chota Nagpur Encumbered Estates Act, 1876, on the application of Bhaiya Rudra Pratap Deo as per notification dated 17th March 1932 published in the Bihar Gazette dated 23rd March, 1932 and after liquidation of debt it was released from the operation of Chota Nagar Encumbered Estates Act in October 1945.
Eventually the estate vested in the State of Bihar under the Bihar Land Reforms Act, 1950 in pursuance of a notification dated 5th of November, 1951.
Harihar Pratap Deo, who was the younger brother of Bhaiya Rudra Pratap Deo, had died in a state of jointness with his brother Bhaiya Rudra Pratap Deo in 1934 leaving behind his son Lalu Maheshanuj Pratap Deo alias Nila Bacha, and one other step son who also died in 1937 unmarried.
Lalu Maheshanuj Pratap Deo demanded land for khorposh (maintenance) from Bhaiya Rudra Pratap Deo in 1950.
Bhaiya Rudra Pratap Deo executed a deed of maintenance on 14th of April, 1952 in respect of eight h villages in favour of Lalu Maheshanuj Pratap Deo.
A dispute, however, arose between the parties in respect of the plots of village Sigsigi which culminated in a proceeding under section 144 Cr.
The proceedings were, however, later converted into proceedings under section 145 Cr.
P.C. which ended in favour of Lalu Maheshanuj Pratap Deo on 4th of July, 1955.
Bhaiya Rudra Pratap Deo feeling aggrieved by the order filed a suit which has given rise to the present appeals and which was later on numbered as suit No. 16 of 1955, against Lalu Maheshanuj Pratap Deo alias 'Nila Bacha ' in respect of the agricultural plots of village Sigsigi and the grains in the custody and control of the police, Bisrampur, district Palamau.
The case of the plaintiffs as follows: After the vesting of the estate in the State of Bihar the defendant approached him with a request that the plaintiff should give him the villages Bhojpur, Jaungipur, Chitri, Rohila, Bhandar and Khundra but the plaintiff declined to do so as section 12A of the Chota Nagpur Encumbered Estate Act and the provisions of the Bihar Land Reforms Act stood as a bar.
422 The defendant, however, implored and wanted to take a chance and try his luck.
On the beseechment of the defendant the plaintiff allowed him six villages only, namely Bhojpur, Jaungipur Chitri, Rohila, Bhandar and Khundra subject to acceptance of the State of Bihar.
There was neither any proposal for villages Sigsigi and Patihari nor had the plaintiff ever agreed to give these two villages to the defendant.
A formal unstamped and unregistered deed of Khorposh(maintenance) was no doubt created in respect of only six villages on 14th of April, 1952 subject to the approval of the authorities.
The defendant, however, in collusion with the plaintiff 's employees and ex employees and without the knowledge and information of the plaintiff managed to use the plaintiff 's signature and manufactured evidence to show that the two villages Sigsigi and Patihari had also been included in Khorposh grant and included these two villages in the formal deed dated 14th of April, 1952 in collusion with the typist and designing persons by perpetrating fraud on the plaintiff.
When the plaintiff came to know of the fraud and fabrication of the defendant he lodged protest before the authorities and the authorities refused to accept the plea of khorposh and they ordered the villages to be included in the compensation list of the plaintiff and the rent of all the sirjot lands was fixed in favour of the plaintiff.
Thus, no khorposh grant remains even in respect of the six villages and such grants, if any, are void under section 12A of the Chota Nagpur Encumbered Estates Act and the provisions of the Bihar Land Reforms Act.
Even assuming for the sake of argument that the two villages Sigsigi and Patihari were included in the deed dated 14th of April, 1952, the transfer is void ab initio and no title accrued to the defendant on that basis.
At the time of proceedings under section 145 Cr.
P.C. paddy crops grown by the plaintiff were standing and on the petition of the plaintiff the same were harvested by the police.
Subsequent cultivation was also done through the police, Bisarampur and the plaintiff is entitled to all the grains in the custody of the police.
On these allegations the plaintiff sought a declaration that the land in dispute, detailed in Schedule A, situated in village Sigsigi was the khasjot land of the plaintiff, that the defendant had no concern therewith and that he (the plaintiff ) was entitled to the grain or the value thereof as detailed in Schedule B.
The plaintiff also claimed a relief for possession over the disputed plots 423 and the grain or the value thereof.
A relief for mesne profits to be A ascertained in subsequent proceedings was also claimed.
Bhaiya Rudra Pratap Deo, the plaintiff, died during the pendency of the suit and his two sons and four widows got themselves substituted in his place.
His eldest son, Bhaiya Ramanuj Pratap Deo filed a petition before the Trial Court for substitution in place of his deceased father alleging that the Nagaruntari Estate was an impartible estate governed by the rule of lineal primogeniture under which the eldest son alone is entitled to succeed his father.
His prayer was allowed.
Subsequently the second son of Bhaiya Rudra Pratap Deo and his widows filed a petition for being substituted.
The Sub Judge impleaded all these persons provisionally as plaintiffs ordering to strike out an issue as to which of them was or were entitled to the fruits of the litigation, if eventually the court decided the suit as against the defendant.
The conduct of the suit was given to plaintiff No. I under the provisions of rule 11, order 1 C.P.C.
The suit was contested by the defendant on the following grounds amongst others: The Nagaruntari estate was never an impartible estate governed by the rule of lineal primogeniture but in its origin it was a non heritable Ghatwala Jagir and it was subsequently made heritable and raised to the status of a revenue paying estate and thus it became an ordinary joint family property partible amongst the members.
His father died in a state of jointness with Bhaiya Rudra Pratap Deo sometime in 1934 when he was only four years old and he was living under the guardianship of his uncle.
He was made to carry an impression, due to propaganda made by his uncle Bhaiya Rudra Pratap Deo that Nagaruntari estate was an impartible estate and being under this wrong impression he subsequently filed an application against his uncle in 1950 claiming khorposh grant of 22 villages including village Sigsigi from out of Nagaruntria estate and also partition of the self acquired property of his grand father.
That application was, however, rejected.
The Nagaruntari estate later on vested in the State of Bihar under the Bihar Land Reforms Act.
Thereafter Bhaiya Rudra Pratap Deo of his own accord executed a khorposh deed in his favour in respect of eight villages including Sigsigi and got it typed in his house and sent it to him with a direction to take possession of the eight villages and accordingly he took possession of the same.
The defendant denied that he had fraudulently got Sigsigi and Patihari villages inserted in the Khorposh deed or that this deed was illegal.
The defendant 424 claimed that he was a co sharer with the plaintiff and was entitled to remain in possession of all the eight villages covered by the Khorposh deed till partition was made, The Subordinate Judge held that by the khorposh deed Bhaiya Rudra Pratap Deo had in fact given to the defendant in khorposh eight villages including village Sigsigi but the defendant did not acquire any interest in the said land on the basis of the khorposh deed as the same was against the provisions of section 12A of the Chota Nagpur Encumbered Estates Act and the Chota Nagpur Tenancy Act; that Nagaruntari estate was an impartible estate governed by the rule of lineal primogeniture but it ceased to be so after the enforcement of the in June 1956 and since Bhaiya Rudra Pratap Deo died after this Act came into force the succession to the estate would be governed by survivorship as contemplated by section 6 of the .
As such the plaintiffs, as well as the defendant would succeed.
The defendant is thus entitled to remain in possession of the said property as one of the co owners and the plaintiffs could not claim an exclusive khas possession till the matter is decided in a partition suit.
On these findings he dismissed the suit Feeling aggrieved by the decision heirs and legal representatives of Bhaiya Rudra Pratap Deo, the deceased plaintiff, preferred an appeal.
On appeal the District Judge confirmed the findings of the Trial Court.
He, however, held that the grant of khorposh by Rudra Pratap Deo after the release of the estate from the management of the Chota Nagpur Encumbered Estates Act was void under section 12A of the Act as the khorposh grant was not made with the sanction of the Commissioner and also because the possession of the ex proprietor with respect to the Bakasht land became that of a raiyat under the State of Bihar and the raiyati right was not transferable without a registered document.
the possession of the defendant was on the basis of a void document.
The learned Judge further held that the document of khorposh being unregistered was not admissible in evidence but it could be used for a collateral purpose of explaining the nature of possession; that the defendant being a minor member of the family was put in possession of the property covered by it by the holder of the estate and his possession was as khorposh holder (maintenance holder) and not as a trespasser and he was not liable to be evicted.
The Nagaruntari estate was found to be an impartible estate where succession was governed by 425 the rule of lineal primogeniture.
But after the death of Bhaiya A Rudra Pratap Deo section 6 of the. became applicable and the devolution of the property would not be governed by the rule of lineal primogeniture but by the ordinary rule of succession as is provided under the .
It was also held that Rudra Pratap had died in a state of jointness with the defendant and after came into force the Nagaruntari estate became an ordinary joint family property of the parties and that the possession of the defendant was as a co sharer.
On these findings the appeal filed by the plaintiffs was dismissed by the District Judge.
Undaunted, the plaintiffs preferred a Second Appeal in the High Court which was partly allowed inasmuch as the High Court found that the heirs of Rudra Pratap were entitled to get a decree for possession of the suit land jointly with the sole defendant as also for mesne profits for their share, that is, one half in addition to the entire mesne profits to which Rudra Pratap was entitled in his lifetime.
Both the parties have come up in appeal to this Court against the judgment and decree of the High Court to the extent it went against them.
First we take up appeal No. 209 of 1970 filed by Bhaiya Ramanuj Pratap Deo, heir and legal representative of deceased plaintiff.
Mr. S C. Misra assisted by Mr. U.P. Singh raised a number of contentions.
His first contention is that the rule of lineal primogeniture survived even after the enforcement of the .
To appreciate the contention it will be necessary to examine the relevant provisions of the Act.
Section 4(1) (a) of the Act lays down: "4.
(1) Save as otherwise expressly provided in this Act G (a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.
" 426 Section 6 of the Act provides: "6.
When a male Hindu dies after the commencement of this Act, having at the time of his death in interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
" A bare perusal of section 4 would indicate that any custom or usage as part of Hindu law in force will cease to have effect after the enforcement of with respect to any matter for which provision is made in the Act.
If rule of lineal primogeniture in Nagaruntari estate is a customary one it will certainly cease to have effect, even though it was part of Hindu law.
Faced with this situation the learned counsel for the appellant invokes section 5 (ii) of the .
In so far as it is material for the present discussion it reads: "5.
This Act shall not apply to: (i) . . . (ii) any estate which descends to a single heir by the terms of any covenant or agreement entered into. or by the commencement of this Act.
" This section protects an estate which descends to a single heir by the terms of any covenant or agreement entered into or by the terms of any enactment in as much as is not applicable to such an estate.
This section stands as an exception to section 4 of the Act referred to above.
It is urged by Shri Misra that the rule of lineal primogeniture in the instant case is a statutory rule and not a customary rule and 427 therefore it is saved by section 5 (ii) of the .
A In support of his contention he placed reliance upon Bengal Regulation 10 of 1800.
Bengal Regulation 10 of 1800 reads as under: (i) By Regulation 11, 1798 the estates of proprietors of land dying intestate are declared liable to be divided among the heirs of the deceased agreeably to the Hindu or Muhamdan laws.
A custom, however, having been found to prevail in the jungle Mahals of Midnapore and other districts by which the succession to the landed estates invariably devolves to a single heir without the division of the property. the Governor General in Council has enacted the following rule to be in force in the Provinces of Bengal, Bihar and Orissa from the date of its promulgation.
Regulation 11, 1798 (2) shall not be considered to supersede or affect any established usage which may have obtained in the jungle Mahals of Midnapore and other districts, by which the succession to landed estates, the proprietor of which may die intestate, has hitherto been considered to devolve to a single heir, to the exclusion of the other heirs of the deceased.
In the Mahals in question the local custom of the country shall be continued in full force as heretofore, and the Courts of Justice be guided by it in the decision of all claims which may come before them to the inheritance of landed property situated in those Mahals.
" The following propositions are clearly deducible from this Regulation: F (a) The Regulation takes note of an earlier Regulation (Regulation No. 11 of 1798) according to which the estate of a proprietor of land dying intestate was to be divided amongst his heirs according to his personal law.
(b) It further notes that a custom had been found to pre vail in certain areas by which land devolved on a single heir.
(c) It then lays down that such a custom would not be deemed to have been superseded by Regulation No. 11 428 of 1798 and that in the said areas such custom shall be rule of decision.
This analysis of the Regulation leads to the further preposition that it did not by its own force declare that any estate would descend to a single heir.
All that it did was to keep alive the custom sanctioning the rule of primogeniture entailing impartibility of the estate.
The rule of custom was thus recognised as such and no estate by the terms of the Regulation itself was made to descend to a single heir.
In this view of the matter clause (ii) of section 5 of the does not cover such a custom.
Alternatively it was argued that even if the rule of lineal primogeniture did not survive after the enforcement of the the suit land will be deemed to be settled with the plaintiff under section 6 of the Bihar Land Reforms Act and the plaintiff became the exclusive owner of the suit land.
Section 6 of the Bihar Land Reforms Act, 1950, insofar as it is material for this case reads: 6.
(1) On and from the date of vesting all lands used for agricultural or horticultural purposes, which were in 'khas ' possession of an intermediary on the date of , such vesting, including: (a) (i) proprietor 's private lands let out under a lease for a term of years or under a lease from year to year, referred to in Sec.
116 of the Bihar Tenancy Act, 1885 (8 of 1885), (ii) landlord 's privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year or less, referred to in Sec.
43 of the Chota Nagpur Tenancy Act, 1908 (Ben.
Act 6 of 1908), (b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lease of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock, and 429 (c) lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover 'khas ' possession thereof; shall subject to the provisions of Sec.
7 A and 7 be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a 'raiyat ' under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner.
" This section only contemplates that the land will be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold it as a raiyat under the State having occupancy rights in respect of such land subject to payment of fair and equitable rent.
But if the intermediary was in possession in a representative capacity on behalf of the other coparceners, as a necessary corollary the land will be deemed to be settled with all those persons on whose behalf one particular intermediary was in khas possession.
Consequently if the possession of Bhaiya Rudra Pratap Deo was on behalf of other coparceners the land will be deemed to be settled with all those coparceners and they shall all become raiyats.
It is nobody 's case that there has been any partition between the plaintiff and the defendant.
The joint status of the family continued and, therefore, after the death of Bhaiya Rudra Pratap Deo his interest devolved on other coparceners as well.
F It was next contended for the appellant that the defendant got the land under a khorposh deed which was void ab initio and, therefore, the status of the defendant was that of a trespasser and he was liable to ejectment on the suit of the plaintiff.
According to the appellant the khorposh deed was void for two reasons: firstly because there was no sanction of the Commissioner for the deed as contemplated by section 12 A of the Chota Nagpur Encumbered Estates Act, 1876; secondly because the deed was neither stamped nor registered, In order to appreciate the first reason it is pertinent to read section 12 A insofar as it is material for the purpose of the case: "12 A (1) When the possession and enjoyment of 430 property is restored, under the circumstances mentioned in the first or the third clause of section 12, to the person who was the holder of such property when the application under section 2 was made, such person shall not be competent, without the previous sanction of the Commissioner, (a) to alienate such property, or any part thereof, in any way, or (b) to create any charge thereon extending beyond his lifetime.
(2) . . (3) Every alienation and charge made or attempted in contravention of sub section (I) shall be void.
" Section 12 A would be attracted only when possession and enjoyment of the property is restored under the circumstances mentioned in the first or the third clause of section 12.
It was for the plaintiff to show that the conditions contemplated by section 12 were satisfied, which he has failed to do As regards the second reason, the argument is based on section 17 read with section 49 of the Indian Registration Act.
Section 17 of the Registration Act enumerates the documents requiring registration.
Section 49 of the Registration Act provides that no document required by section 17 or by any provision of the to be registered shall be (a) affect any immovable property comprised therein, (b) . (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.
Khorposh (maintenance) deed is a document which requires registration within the meaning of section 17 of the Indian Registration Act and as the document was not registered it cannot be received as evidence of any transaction affecting such property.
Proviso to section 49, however, permits the use of the document, even though unregistered, as evidence of any collateral transaction not required to be effected by registered instrument.
In this view of the legal position the maintenance deed can be looked into for collateral purpose of ascertaining the nature of possession.
431 Admittedly the defendant was a member of a joint Hindu family.
Even in an impartible estate he was entitled to maintenance and the land in dispute had admittedly been given to the defendant by the impartible estate holder.
His possession, therefore, cannot be taken to be the possession of a trespasser and the High Court in our opinion has erred in branding the defendant as a trespasser.
This leads us to the last, but not the least in importance, contention raised on behalf of the appellants.
According to Shri S.C.Misra the original plaintiff being holder of an impartible estate, his estate would go to his successors alone and not to the other members of the family by survivorship.
The learned counsel relied upon the following cases in support of his contention: Rajah Velugoti Kumara Krishna Yachendra Varu & Ors.
vs Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and Ors., Raja Rama Rao vs Raja of Pittapur, Hargovind Singh vs Collector of Etah, Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur vs Court of Wards.
In Rajah Velugoti Kumara Krishna Yachendra Varu and Ors.
vs Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and Ors., (supra) the first and the foremost case relied upon, a contention was raised on behalf of the plaintiff that the property of the impartible estate was held in coparcenary as joint family property and became partible amongst the members once it lost its character of impartibility.
In other words the contention was that the junior members had a present interest in the impartible estate and were entitled to a share in the estate once impartibility was removed.
This argument was repelled and this Court observed: "In our opinion there is no justification for this argument.
The law regarding the nature and incidents of impartible estate is now well settled.
Impartility is essentially the creature of custom.
The junior members of a joint family in the case of ancient impartible joint family estate take no right in the property by birth, and therefore, have no right of partition having regard to the very nature of the estate that is impartible.
Secondly, they have 432 no right to inerdict alienation by the head of the family either for necessity or otherwise.
" This Court, however, further exposed the legal position in these words: "To this extent the general law of Mitakshara applicable to joint family property has been modified by custom and an impartible estate, though it may be ancestral joint family estate, is clothed with the incidents of self acquired and separate property to that extent.
The only vesting of the incident of joint family property, which still attaches to the joint family impartible estate is the right of survivorship which, of course, is not inconsistent with the custom of impartibility.
For the purpose of devolution of the property, the property is assumed to be joint family property and the only right which a member of the joint family acquires by birth is to take the property by survivorship but he does not acquire any interest in the property itself.
The right to take by survivorship continues only so long as the joint family does not cease to exist and the only manner by which this right of survivorship could be put an end to is by establishing that the estate ceased to be joint family property for the purpose of succession by proving an intention, express or implied, on behalf of the junior members of the family to renounce or surrender the right to succeed to the estate.
" The observations extracted above are self explanatory and do not support the contention of the appellant, lather they support the defendant respondent.
In Raja Rama Rao vs Raja of Pittapur (supra) it was held: "An impartible Zamindari is the creature of custom; it is of its essence that no coparcenary in it exists.
Apart, therefore, from custom and relationship to the holder the junior members of the family have no right to maintenance out of it.
" In Hargovind Singh vs Collector of Etah (supra) the Allahabad High Court quoted with approval the following observations made by the Privy Council in Baijnath Prasad Singh vs Tej Bali Singh : 433 ".
Zamindari being the ancestral property of the joint family, though impartible, the successor falls to be designated according to the ordinary rule of the Mitakshara law, and that the respondent being the person who in a joint family would, being eldest of the senior branch, be the head of the family is the person designated in this impartible raj to occupy the Gaddi." In Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur vs Court of Wards (supra) it was laid down that an impartible zamindari was not inalienable by will or otherwise by virtue only of its impartibility, and in the absence of proof of some special family custom or tenure attaching to the zamindari and having that effect.
This question, however, need not detain us long as this Court had the occasion to consider the point at great length in Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur and Ors.
vs Shri Pushavathi Visweswar Gajapathi Raj and Ors.
Dealing with the point in question this Court observed as follows: "Since the decision of the Privy Council in Shiba Prasad Singh vs Rani Prayag Kumari Debi it must be taken to be well settled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate.
If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the undivided Hindu family.
In the illuminating judgment delivered by Sir Dinshah Mulla for the Board, the relevant previous decisions bearing on the subject have been carefully examined and the position of law clearly stated.
In the case of an ordinary joint family property, the members of the family can claim four rights: (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity; (3) the right of maintenance, and (4) the right of survivorship.
It is obvious that from the very nature of the property which is impartible the first of these rights cannot exist.
The second is also incompatible with the custom of impartibility as was laid down by the Privy Council in the case of Rani Sartaj 434 Kuari vs Deoraj Kuari and the First Pittapur case Venkata Surya vs Court of Wards.
Even the right of maintenance as a matter of right is not applicable as laid down in the Second Pittapur case Rama Rao vs Raja of Pittapur.
The 4th right viz., the right of survivorship, however, still remains and it is by reference to this right that the property, though impartible, has, in the eyes of law, to be regarded as joint family property.
The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should not be confused with a mere spes successionis.
Unlike spes successionis, the right of survivorship can be renounced or surrendered.
It also follows from the decision in Shiba Prasad Singh 's case that unless the power is excluded by statute or custom, the holder of customary impartible estate, by a declaration of his intention can incorporate with the estate self acquired immovable property and thereupon, the property accrues to the estate and is impressed with all its incidents, including a custom of descent by primogeniture.
It would be noticed that the effect of incorporation in such cases is the reverse of the effect of blending self acquired property with the joint family property.
In the latter category of cases where a person acquires separate property and blends it with the property of the joint family of which he is a coparcener, the separate property loses its character as a separate acquisition and merges in the joint family property, with the result that devolution in respect of that property is then governed by survivorship and not by succession.
On the other hand, if the holder of an impartible estate acquires property and incorporates it with the impartible estate he makes it a part of the impartible estate with the result that the acquisition ceases to be partible and becomes impartible.
" Prior to the decision of the Privy Council in the case of Rani Sartaj Kuari vs Deoraj Kuari (supra), it was always assumed that a holder of an ancestral impartible estate cannot transfer or 435 mortgage the said estate beyond his own life time so as to bind the coparceners, except, of course, for purposes beneficial to the family and not to himself alone.
In 1888, however, this view was shaken by the decision of the Privy Council in Rani Sartaj Kuari 's case (supra).
In that case, the holder of the estate had gifted 17 of the villages of his estate to his junior wife and the validity of this gift was questioned by his son.
The son 's plea, however, failed because the Privy Council held that "if, as their Lordships are of opinion, the eldest son, where the Mitakshara law prevails and there is the custom of primogeniture, does not become a co sharer with his father in the estate, the inalienability of the estate depends upon custom, which must be proved, or it may be in some cases, upon the nature of the tenure".
This decision was again affirmed by the Privy Council in the First Pittapur case (supra).
As a result of these decisions it must be taken to be settled that a holder of an impartible estate can alienate the estate by gift inter vivos, or even by will, though the family is undivided; the only limitation on this power would flow from a family custom to the contrary or from the condition of the tenure which has the same effect.
Again in Chinnnthayal alias Veeralakshmi vs Kulasekara Pandiya Naicker & Anr.
, it was held by this Court that to establish that an impartible estate has ceased to be joint family property for purposes of succession it is necessary to prove an intention, express or implied, on the part of the junior members of the family to give up their chance of succeeding to the estate.
In each case it is incumbent on the plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendant 's branch in the estate was determined so that it became the separate property of the last holder 's branch.
The test to be applied is whether the facts show a clear intention to renounce or surrender any interest in the impartible estate or a relinquishment of the right of succession and an intention to impress upon the zamindari the character of separate property.
In Pushavathi Viziaram Gajapathi Raj Manne 's cases (supra) this Court reiterated the same legal position.
For the foregoing discussion this appeal must fail.
This leads us to the other appeal filed by the defendant.
The contention of the learned counsel for the defendant appellant in 436 this case is that the possession of the appellant was not as a trespasser but he was a maintenance holder on the khorposh grant (maintenance) given by the impartible estate holder.
The High Court, therefore, erred in law in passing a decree for possession and mesne profits against the defendant appellant.
It was further contended that the Nagaruntari estate was a partible estate.
As regards the first contention it is open to a co sharer to remain in possession of the joint property and the proper remedy for the plaintiff in such case is to file a suit for partition where the equities of the parties would be adjusted.
The learned counsel for the plaintiff respondent on the other hand urged that the defendant 's possession was only as a trespasser.
In support of his contention he placed reliance on Collector of Bombay vs Municipal Corporation of the City of Bombay & Ors.
The majority took the view that: "The position of the Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market.
Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the Corporation took possession of the land under the invalid grant.
This possession had continued openly, as of right and uninterruptedly for over 70 years and the Corporation had acquired the limited title to it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity free from rent but only for the purpose of a market in terms of the Government Resolution of 1865".
In the instant case the defendant being a member of a joint Hindu family was entitled to maintenance from the impartible estate holder.
The impartible estate holder executed a khorposh deed in favour of the defendant.
If the document in question was invalid for want of registration or stamps the same can be looked into for collateral purpose to find out the nature of possession of the defendant appellant.
This being the position in the instant case, the case cited above is not of much help to the plaintiff respondent.
In 437 that case the sole basis of title itself was invalid.
A perusal of the plaint also indicates that the plaintiff had given some grant to the defendant by way of maintenance and a formal deed of maintenance was executed.
The execution of the document is not denied by the plaintiff.
All that he says is that village Sigsigi was not included in the deed.
We find considerable force in the contention raised on behalf of the defendant appellant that the High Court has decree in passing the decree for possession and mesne profits against the defendant.
The proper remedy for the plaintiff in this case was to file a regular suit for partition in respect of all the properties and not a suit for possession of plots of one village and mesne profits.
The second contention that disputed estate was a partible estate has been raised only to be repelled.
The overwhelming evidence on the record leaves no room for doubt that the disputed estate was an impartible estate till the death of the original plaintiff in 1957 In the result the first appeal No. 209 of 1970 filed by the plaintiff is dismissed while the other appeal filed by the defendant, No. 2280 of 1970, is allowed and the decree passed by the High Court is set aside and the decree of the Trial Court as affirmed by the first appellate court, is restored.
In the circumstances of the case we direct the parties to bear their own costs.
V.D.K. C.A. 209/70 dismissed 2280/70 allowed.
| IN-Abs | Bhaiya Rudra Pratap Deo was the holder of an impartible estate, known as Nagaruntari estate, in the district of Palamau.
The succession to the estate was governed by the rule of lineal primogeniture.
Under the said rule the eldest male member of the eldest line was to succeed to the estate while the junior members were entitled only to maintenance grants subject to resumption on extinction of the male line of the eldest branch.
Rudra Pratap Deo Singh had a younger brother Harihar Pratap Deo who died in a state of jointness with his brother Rudra Pratap Deo in 1934 leaving behind his son Lalu Maheshanuj Pratap Deo alias Nila Bacha, and one other step son who also died in 1937 unmarried.
Bhaiya Rudra Pratap Deo executed a deed of maintenance (Khorposh) on 14th April, 1952 in respect of eight villages.
A dispute arose between the parties in respect of the agricultural plots of village Sigsigi.
The proceedings under section 145 Crl.
P.C. ended in favour of Nila Bacha.
Bhaiya Rudra Pratap Deo, therefore, filed a civil suit No. 16 of 1955, on the grounds that (a) a fraud was committed by including two villages, namely, Sigsigi and Patihari in the formal deed of khorposh dated 14th April, 1952 and (b) that F the khorposh grants are void under section 12A of the Chota Nagpur Encumbered Estates Act and the provisions of the Bihar Land Reforms Act, 1950 and therefore, no title accrued to the defendant on that basis.
The suit was contested by the defendant on the grounds amongst others: The Nagaruntari estate was never an impartible estate governed by the rule of primogeniture, but in its origin it was a non heritable Ghatwala Jagir and it was subsequently made heritable and raised to the status of a revenue paying estate and thus it became an ordinary joint family property partible amongst the members; there was no fraud committed by any one; and with the enforcement of the , being a co sharer with the plaintiff, he was entitled to remain in possession of all the eight villages covered by the khorposh deed till partition was made.
The learned Subordinate Judge held that by the khorposh deed the defendant was given all the eight villages, but he did not acquire any interest in the 418 said land as the deed was against the provisions of section 12A of the Chota Nagpur Encumbered Estates Act and the Chota Nagpur Tenancy Act; that the Nagaruntari Estate was an impartible estate governed by the rule of primogeniture but it ceased to be so after the enforcement of the Hinda Succession Act, 1956 and since Bhaiya Rudra Pratap Deo died, during the pendency of the suit and after this Act had come into force, the succession would be governed by survivor ship and as such the legal representatives of the plaintiff as well as the defendant would succeed.
The first appellate court held that: (a) in as much as the khorposh grant was not made with the sanction of the Commissioner, the grant was void under section 12A of the Chota Nagpur Encumbered Estates Act; and (b) because the possession of the ex proprietor with respect to the Bakasht land became that of raiyat under the State of Bihar and raiyati right was not transferable without a registered document, the possession of the defendant was on the basis of a void agreement; and (c) that after the death of Bhaiya Rudra ' Pratap Deo, section 6 of the became applicable and both appellants and the defendants were entitled to succeed as co sharers.
The second appeal by the plaintiffs was partly allowed inasmuch as the High Court found that the heirs of Rudra Pratap Deo were entitled to get a decree for possession of the suit land jointly with the sole defendant as also for mense profits for their share, i.e. One half in addition to the entire mense profits to which Rudra Pratap Deo was entitled in his life time.
Both the parties have come up in appeal to this Court against the judgment and decree of the High Court to the extent it went against them.
Dismissing the plaintiff 's appeal and allowing that of the defendant, the Court ^ HELD: 1.
A bare perusal of Section 4 of the indicates That any custom or usage as part of Hindu law in force will cease to have effect after the enforcement of with respect to any matter for which provision is made in the Act.
If rule of lineal primogeniture in Nagaruntari estate is a customary one it will certainly cease to have effect, even though it was part of Hindu law.
[426 D.E] 2.
Section S(ii) of the protects an estate which descends to a single heir by the terms of any covenant or agreement entered into or by the terms of any enactment inasmuch as is not applicable to such an estate.
Section 5(ii) stands as an exception to section 4 of the Act.
[426 G H] The rule of lineal primogeniture in the instant case, is not a statutory rule but a customary rule and therefore, it is not saved by section 5(ii) of the .
[426 H,427 A] 3.
Section 6 of the Bihar Land Reforms Act only contemplates that the land will be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold it as a raiyat under the state having occupancy rights in respect of such land subject to payment of fair and equitable rent.
But if the intermediary was in possession in a representative capacity on behalf of the other coparceners as a necessary corollary 419 the land will be deemed to be settled with all those persons on whose behalf A one particular intermediary was in khas possession.
Consequently if the possession of Bhaiya Rudra Pratap Deo was on behalf of other coparceners the land will be deemed to be settled with all those coparceners and they shall all become raiyats.
Here, the joint status of the family continued and therefore, after the death of Bhaiya Rudra Pratap Deo, his interest developed on other coparceners as well.
[429 C F] 4: 1.
Admittedly the defendant was a member of a joint Hindu family.
Even in an impartible estate he was entitled to maintenance and the land in dispute had admittedly been given to the defendants by the impartible estate holders.
This possession therefore, cannot be taken the possession of a tresspasser.
[431 A] 4: 2.
Section 12A of the Chota Nagpur Encumbered Estates Act, 1876 would be attracted only when possession and enjoyment of the property is restored under the circumstances mentioned in the first or the third clause of section 12.
The onus to prove that the conditions contemplated by section 12 were satisfied lay on the plaintiff, which he failed to do.
[430 D E] 4: 3.
The maintenance deed can be looked into for collateral purpose of ascertaining the nature of possession.
Khorposh (maintenance) deed is a document which requires registration within the meaning of section 17 of the Indian Registration Act and as the document was not registered it cannot be received as evidence of any transaction affecting such property.
Proviso to section 49, however, permits the use of the document, even though unregistered, as evidence of any collateral transaction not registered to be effected by registered instrument.
[430F H] 5 (a) A holder of an impartible estate can alienate the estate by gift intervivos or even by will, though the family is undivided, the only limitation on this power would flow from a family custom to the contrary or from the condition of the tenure which has the same effect.
Therefore, it is not correct to say that the impartible estate would go to holder s successors alone and not to the other members or the family by survivorship.
[431 B C, 435 C D] (b) It must be taken to be well settled that the estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate.
If the holder has got the estate as an ancestral estate and he has succeeded by primogeniture, it will be a part of the joint estate of the undivided family.
[433 D E] In the case of an ordinary joint family property the members of the family can claim four rights: (1) the right to partition, (2) the right to restrain alienation by the head of the family except for necessity, (3) the right to maintenance, and (4) the right of survivorship.
It is obvious that from the very nature of the property which is impartible the first three rights cannot exist.
The fourth right viz., the right of survivorship, however, still remains and it is by reference to this right that the property, though impartible, has in the eyes of law, to be regarded as joint family property.
The right of survivorship which can be claim 420 ed by the members of the undivided family which owns the impartible estate should not be confused with mere spec successionis.
Unlike spec successionis the right of survivorship can be renounced or surrendered.
[433 G H, 434 A B] Rajah Velugoti Kumara Krishna Yachendra Varu and Ors.
vs Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and Ors ; Raja Rama Rao vs Raja of Pittapur, [1918] L.R. 45 I A. 148; Hargovind Singh vs Collector of Etah, A I R. 1937 All 377 and Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur vs Court of Wards, [1899] L.R. 26 I.A. 83, discussed and distinguished.
Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur and ors.
vs Shri Pushavathi Visweswar Gajapathi Raj and ors.
; , applied.
Chinnathayal alias Veeralakshmi vs Kulasekara Pandiya Naicker and Anr. ; , referred to.
The overwhelming evidence on the record, in the instant case, categorically proves: (a) that the disputed estate was an impartible estate till the death of the original plaintiff in 1957; and (b) it is open to a co sharer to remain in possession of the joint property and the proper remedy for the plaintiff in such case is to file a suit for partition where the equities of the parties would be adjusted and not a suit for possession of plots of one village and for mesne profits.
[436 B, 437 B D] Collector of Bombay vs Municipal Corporation of the City of Bombay and Ors. ; , held inapplicable.
|
N: Criminal Appeal No. 701 of 1980.
Appeal by special leave from the Judgment and order dated the 5th March, 1980 of the Delhi High Court in Criminal Revision No. 335 of 1974.
B.P. Maheshwari for the Appellants.
M.C. Bhandari, Mrs. Madhhu Mull Chandani and R.B. Datar for the Respondents.
F.S. Nariman, Parveen Kumar Jain, Kapil Sibbal and Anil Kumar Sharma for Respondents.
This appeal by special leave is directed against a judgment dated March 5, 1980 of the Delhi High Court quashing the proceedings taken against respondents Nos. 1 to S and arises in the following circumstances.
On March 25, 1974, one Shri M.M. Gupta, Food Inspector, Municipal Corporation of Delhi visited premises No. 5171, Basant Road, Delhi where Shri Madan Lal had kept for sale 'Morton Toffees '.
The said Inspector after purchasing the sample of the article sent it to the Public Analyst who opined that the said sample did not conform to the standards prescribed for toffees.
The toffees were manufactured by M/s. Upper Ganges Sugar Mills.
Respondent No. 1 (Rain Kishan Rohtagi) was the Manager of the company and Respondent Nos.
2 to 5 were the Directors of the Company, including the company also.
A complaint was filed before the Metropolitan Magistrate who summoned all the respondents for being tried for violating the provisions of the Prevention of Food Adulteration Act (hereinafter referred to as the 'Acts).
The said complaint was filed by the Assistant Municipal Prosecutor in the court of Metropolitan Magistrate, Delhi against the accused for having committed offences under sections 7/16 of the Act.
The only point canvassed before us was that on the allegations made in the complaint, a clear case was made out against all the 887 respondents and the High Court ought not to have quashed the proceedings on the ground that the complaint did not disclose any offence.
Before going through the relevant part of the complaint, it mag be necessary to say a few words about the law on the subject.
After the coming into force of the Code of Criminal Procedure, B 1973 (hereinafter referred to as the 'present Code '), there was a serious divergence of judicial opinion on the question as to whether where a power is exercised under section 397 of the present Code, the High Court could exercise those very powers under section 482 of the present Code.
It is true that section 397 (2) clearly bars the jurisdiction of the Court in respect of interlocutory orders passed in appeal, enquiry or other proceedings.
The matter is, however, no longer res integra as the entire controversy has been set at rest by a decision of this Court in Madhu Limaye vs State of Maharashtra(1) where this Court pointed out that section 482 of the present Code had a different parameter and was a provision independent of section 397(2).
This Court further held that while section 397(2) applied to the exercise y of revisional powers of the High Court, section 482 regulated the .
inherent powers of the court to pass orders necessary in order to prevent the abuse of the process of the court.
In this connection, Untwalia, J. speaking for the Court observed as follows: "On a plain reading of section 482, however, it would follow that nothing in the Code, which would include sub section (2) of section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court".
But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers .
But in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by the High Court.
But such cases would be few and far between.
The High Court must exercise the inherent power very sparingly.
" 888 It may be noticed that section 482 of the present Code is the ad verbatim copy of section 561A of the old Code.
This provision confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the Court has been seriously abused.
It is not merely a revisional power meant to be exercised against the orders passed by subordinate courts.
It was under this section that in the old Code, the High Courts used to quash the proceedings or expunge uncalled for remarks against witnesses or other persons or subordinate courts.
Thus, the scope, ambit and range of section 561A (which is now section 482) is quite different from the powers conferred by the present Code under the provisions of section 397.
It may be that in some cases there may be overlapping but such cases would be few and far between.
It is well settled that the inherent powers under section 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute.
Further, the power being an extraordinary one, it has to be exercised sparingly.
If these considerations are kept in mind, there will be no inconsistency between sections 482 and 397(2) of the present Code.
The limits of the power under section 482 were clearly defined by this Court in Raj Kapoor and Ors.
vs State and Ors.(l) where Krishna Iyer J. Observed as follows: "Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances.
Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code." Another important consideration which is to be kept in mind is as to when the High Court acting under the provisions of section 482 should exercise the inherent power in so far as quashing of criminal q proceedings are concerned.
This matter was gone into in greater detail in Smt.
Nagawwa vs Veeranna Shivalingappa Konjalji and Ors.(2) where the scope of sections 202 and 204 of the present Code was consider ed and while laying down the guidelines and the grounds on which proceedings could be quashed this Court observed as follows: 889 "Thus, it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash Proceedings.
" Same view was taken in a later decision of this Court in Sharda Prasad Sinha vs State of Bihar(l) where Bhagwati, J. speaking for the Court observed as follows: "It is, now settled law that where the allegations set out in the complaint or the charge sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence." 890 It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted.
In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting any thing, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under section 482 of the present Code.
In the instant cases the argument of the appellant before us is that taking the complaint as a whole, it cannot be said that no offence is made out or that the facts mentioned in the complaint do not constitute any offence against the respondents or some of them.
On the other hand, the counsel for the respondents submitted that even taking the allegations of the complaint ex facie no case for trial has been made out at all.
Before going to the complaint, we might state that it is common ground that the complaint clearly contains the allegations regarding the visit of the Inspector to the shop of respondent No. 6 (Madan Lal) and that the sample taken by him, which was sent to the Public Analyst, was manufactured by Upper Ganges Sugar Mills, Daryagang, Delhi having its registered office at Calcutta and that the Public Analyst found the samples to be adulterated.
There is no dispute regarding these facts.
The only point on which the contro versy centres is as to whether or not on the allegations, the Manager as also the other respondents I to 5 committed any offence.
The main clause of the complaint which is the subject matter of the dispute is clause No. S which may be extracted thus: "5.
That the accused No. 3 is the Manager, of accused No. 2 and accused No. 4 to 7 are the Directors of accused No. 2 and as such they were incharge of and responsible for the conduct of business of accused No. 2 at the time of a sampling.
" According to this clause, accused No. 3 (Ram Kishan) who is respondent No. I in this appeal and accused Nos. 4 7 who are respondent Nos. 2 to 4, were the Directors of the company, respondent No. 5.
So far as the Manager, respondent No. 1, is concerned it was not and could not be reasonably argued that no case is made out against him because from the very nature of his 891 duties, it is manifest that he must be in the knowledge about the affairs of the sale and manufacture of the disputed sample.
It was, however, contended that there is no allegation whatsoever against the Directors, respondent Nos. 2 to 4.
Reliance has been placed on the words 'as such ' in order to argue that because the complaint does not attribute any criminal responsibility to accused Nos. 4 to 7 except that they were incharge of and responsible for the conduct of the business of the company.
It is true that there is no clear averment of the fact that the Directors were really incharge of the manufacture and responsible for the conduct of business but the words 'as such ' indicate that the complainant has merely presumed that the Directors of the company must be guilty because they are holding a particular office.
This argument found favour with the High Court which quashed the proceedings against the Directors as also against the Manager, respondent No. 1.
So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act.
So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable.
In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (accused Nos 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed.
We, however, do not agree that even accused No. 3, respondent No. 1, who is Manager of the Company and therefore directly incharge of its affairs, could fall in the same category as the Directors.
Hence, we would set aside that part of the judgment of the High Court which quashes the proceedings against the Manager, respondent No. I (Ram Kishan Rohtagi).
Although we uphold the order of the High Court we would like to state that there are ample provisions in the Code of Criminal 892 Procedure, 1973 in which the Court can take cognizance against persons who have not been made accused and try them in the same manner along with the other accused.
In the old Code, section 351 contained a lacuna in the mode of taking cognizance if a new person was to be added as an accused.
1 he Law Commission in its 41st Report (para 24.81) adverted to this aspect of the law and section 319 of the present Code gave full effect to the recommendation of the Law Commission by removing the lacuna which was found to exist in section 351 of the old Code.
Section 319 as incorporated in the present Code may be extracted thus: "319.
Power to proceed against other persons appearing to be guilty of offence.
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the enquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub section (1) then (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance 893 of the offence upon which the inquiry or trial was commenced.
" This provision gives ample powers to any court to take cognizance and add any person not being an accused before it and try him alongwith the other accused.
This provision was also the subject matter of a decision by this Court in Joginder Singh and Anr.
vs State of Punjab and Anr.(1) where Tulzapurkar, J., speaking for the Court observed thus: "A plain reading of section 319 (1), which occurs in chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused.
" In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused.
But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.
More than this we would not like to say anything further at this stage.
We leave the entire matter to the discretion of the court concerned so that it may act according to law.
We would, however, make it plain that the mere fact that the proceedings have been quashed against respondent Nos. 2 to S will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it.
894 For these reasons, therefore, we allow this appeal only to the extent that the order of the High Court quashing the proceedings against the Manager (Rohtagi), respondent No. 1, is hereby set aside and that of the Metropolitan Magistrate is restored.
As regards the other respondents (Directors) the order of the High Court stands and the appeal in respect of these respondents only will stand dismissed.
An attested copy of this judgment be placed on the file of criminal appeal No. 749 of 1980.
H.L.C. Appeal partly allowed.
| IN-Abs | A Food Inspector of the Municipal Corporation visited tho premises of a shopkeeper and purchased a sample of toffees which, when analysed by Public Analyst, was found not to conform to the prescribed standards.
In clause No. S of the complaint filed before the Magistrate it was stated: "That the accused No. 3 is tho Manager of accused No. 2 and accused No. 4 to 7 are the Directors of accused No. 2 and as such they were incharge of and responsible for the conduct of business of accused No. 2 at the time of sampling." Accused No. 2 was the Company which manufactured the toffees, accused No. 3 was its Manager and accused Nos. 4 to 7 were its Directors (respondents l to 5 here).
The Magistrate passed an order summoning all the accused for being tried for violation of sections 7/16 of the Prevention of Food Adulteration Act and that order was assailed before the High Court.
It was argued before the High Court that the complaint did not attribute any criminal responsibility to the Directors inasmuch as there was no clear averment of the fact that the Directors were really incharge of the manufacture of toffees and were responsible for the conduct of business and that the words 'as such ' in clause No. S of the complaint indicated that the complainant had merely presumed that the Directors of the Company must be guilty because they were holding a particular office.
The High Court accepted the argument and quashed the proceedings against the Directors as well as the Manager of the Company.
In appeal, it was contended on behalf.
Of the appellant that on the allegations made in the complaint, a clear case had been made out against all the respondents and the High Court ought not to have quashed the proceedings on the ground that the complaint did not disclose any offence.
Counsel for respondents contended that even taking the allegations of the complaint ex facie no case for trial had been made out.
885 Upholding the order of the High Court in respect of quashing of proceedings against the Directors and allowing the appeal in respect of quashing of proceedings against the Manager, ^ HELD: Where the allegations set out in the complaint do not constitute any offence it is competent to the High Court exercising its inherent jurisdiction under 8.
482 of the Code of Criminal Procedure, 1973 to quash the order passed by the Magistrate taking cognizance of the offence.
It is true that section 397(2) bars the jurisdiction of the court in respect of interlocutory orders.
But section 482 confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the court has been seriously abused.
It is not merely a rovisional power meant to be exercised against the orders passed by subordinate courts.
Nothing in section 397(2) limits or affects the inherent power under section 482.
The scope, ambit and range of the power under section 482 are quite different from those of the power conferred under section 397.
It may be that in some cases there may be overlapping but such cases would be few and far between.
It is well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and Dot where a specific remedy is provided by the statute.
It is clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted.
The test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court would be justified in quashing the proceedings in the exercise of its powers under section 482.
[889 A B, G; 887 C; 888 A B; 887 G H; 888 C D; 890 A B] Madhu Limaye vs State of Maharashtra [1978] 1 S.C.R. 749; Ra; Kapoor and Ors.
vs State and Ors.
, [1980] 1 S.C.C. 43; Smt.
Nagavva vs Veeranna Shivalingappa Konjalgi and Ors., ; and Sharda Prasad Sinha vs State of Bihar.
[9771] 2 S.C.R. 357, referred to.
In the instant case, so far as the Manager of the Company was concerned, from the very nature of his duties it could be safely inferred that he would be vicariously liable for the offence as he must have been in the knowledge of the manufacture and sale of the disputed sample.
So far as the Directors of the Company were concerned, there was nothing to show, apart from the presumption drawn by the complainant, that there was any act committed by them from which a reasonable inference could be drawn to the effect that they were also vicariously liable and the High Court was right in holding that no case had been made out ex facie on the allegations made in the complaint.
{891 D; 891 A; 891 E F] 2.
The mere fact that the proceedings have been quashed against the Directors will not prevent the court from exercising its discretion under section 319 of the Code if it is fully satisfied that a case for taking cognizance against them is made out on the additional evidence led before it.
Section 319 gives ample powers to any court to take cognizance and add any person not being an accused before it and try him along with the other accused.
However, this being an extraordinary power conferred on the court, it should be used very sparingly and only if compelling reasons exist for doing so.
[893 G; 893 G; 893 F] Joginder Singh and Anr.
vs State of Punjab and Anr.
; , referred to. 886
|
ISDICTION: Writ Petition No. 5879 of 1980.
(Under Article 32 of the Constitution of India) AND Writ Petition No. 5877 of 1980.
(Under Article 32 of the Constitution of India) AND Transfered Case No. 29 of 1981.
(Calcutta High Court Writ Petition No. 11508 of 1981) With Civil Appeal No. 2819 of 1980.
(Appeal by special leave from the judgment and order dated 21st November, 1980 of the Division Bench of the High Court of Calcutta in F.M.A.T. No. 3408 of 1980) Soli J. Sorabji, K.K. Venugopal, section Rangarajan, section Balakrishnan, M.K.D. Namboodiry, P. Radhakrishnan, N.A. Subrahmaniam, C.S. Vaidyanathan, M.N. Krishna Mani and Vinnet Kumar for the Petitioners and Appellant.
L.N. Sinha, Attorney General, K. Parasaran, Solicitor General, M.K. Banerji, Additional Solicitor General, Govind Swaminadhan, for R. 3, N. Nettar and Miss A. Subhashini for Respondents Nos. 1 to 4.
T.S. Krishnamoorthy Iyer and Raju Ramchandran for Respondent No. 5.
F.S. Nariman, Anil B. Divan, P.H. Parekh, Mrs. Vineeta Sengupta, Gautam Philip and Sanjeev Agarwal for Respondent Nos.
6 to 240 in WPs.
P.P. Rao, P.C. Kapur and R. Venkataramani for interveners 1 88.
740 FOR APPLICANT/INTERVENERS A.B. Patel: R.B. Datar Indra Sen: N.M. Kshatriya, R.K. Habbu: B.R. Aggarwala, Catholic Bishop Con P.A. Francis, J.B. Dadachanji ference of India: and D.N. Mishra The following Judgments were delivered CHINNAPPA REDDY, J. I have the good fortune of having before me the scholarly judgment of my brother Misra J., I agree with my brother Misra, J that the Writ Petitions must fail.
With much that he has said, also, I agree.
But with a little, to my own lasting regret, I do not agree.
It is, therefore, proper for me to explain the points of my disagreement.
Quite a considerable part of the hearing of the petitions was devoted to a debate on the question, what is Religion ? Religion: Everyone has a religion, or at least, a view or a window on religion, be he a bigot or simple believer, philosopher or pedestrian, atheist or agnostic.
Religion, like 'democracy ' and 'equality ' is an elusive expression, which everyone understands according to his pre conceptions.
What is religion to some is pure dogma to others and what is religion to others is pure superstition to some others.
Karl Marx in his contribution to the Critique of Hegel 's Philosophy of Law described religion as the 'Opium of the people '.
He said further "Basically religion is a very convenient sanctuary for bourgeois thought to flee to in times of stress.
Bertrand Russell, in his essay 'Why I am not Christian ', said, "Religion is based, I think, primarily and mainly upon fear.
" It is partly the terror of the unknown and partly, as I have said, the wish to feel that you have a kind of elder brother, who will stand by you in all your troubles and disputes.
Fear is the basis of the whole thing fear of the mysterious, fear of defeat, fear of death.
Fear is the parent of cruelty, and, therefore, it is no wonder if cruelty and religion have gone hand in hand.
As a worshipper at the alter of peace, I find it difficult to reconcile myself to religion, which throughout the ages, has justified war calling it a Dharma Uddha, a Jehad or a 741 Crusade.
I believe that by getting mixed up with religion, ethics has lost 'much of its point, much of its purpose and a major portion of its spontaneity '.
I apprehend I share the views of those who have neither faith nor belief in religion and who consider religion as entirely unscientific and irrational.
Chanting of prayer appears to me to be mere jingoism and observance of ritual, plain superstition.
But my views about religion.
my prejudices and my predilections, if they be such, are entirely irrelevant.
So are the views of the credulous, the fanatic, the bigot and the zealot.
So also the views of the faithful, the devout, the Acharya, the Moulvi, the Padre and the Bhikshu each of whom may claim his as the only true or revealed religion.
For our present purpose, we are concerned with what the people of the Socialist, Secular, Democratic Republic of India, who have given each of its citizens Freedom of conscience and the right to freely profess, practise and propogate religion and who have given every religious denomination the right to freely manage its religious affairs, mean by the expressions 'religion ' and 'religious denomination '.
We are concerned with what these expressions are designed to mean in articles 25 and 26 of the Constitution.
Any Freedom or Right involving the conscience must naturally receive a wide interpretation and the expression 'religion ' and 'religious denomination ' must therefore, be interpreted in no narrow, stifling sense but is a liberal, expansive way.
Etymology is of no avail.
Religion is derived from 'religare ' which means "to bind".
Etymologically, therefore, every bond between two people is a religion, but that is not true.
To say so is only to indulge in etymological deception.
Quite obviously, religion is much more than a mere bond uniting people.
Quite obviously, again, religion is not to be confined to the traditional, established, well known or popular religions like Hinduism, Mahomedanism, Buddhism and Christianity.
There may be and, indeed, there are, in this vast country, several religions, less known or even unknown escept in the remote corners or in the small pockets of the land where they may be practised.
A religion may not be wide spread.
It may have little following.
It may not have even a name, as indeed most tribal religions do not have.
We may only describe them by adding the suffix 'ism ' to the name of the founder teacher, the tribe, the area or the deity.
The nomenclature is not of the essence.
Again, a band of persons, large or small, may not be said to be 742 adherents of a religion merely because they share some common beliefs and common interests and practise common rites and ceremonies; nor can pietistic recitation and solemn ritual combine to produce religion, on that account only.
Secret societies dedicated to secular tasks and indulging in queer oaths and observances, guilds and groups of persons who meet but to dine and wine but who subject their members to extravagant initiation ceremonies, village and tribal sorcerers and coven of witches who chant rant and dance in the most weird way possible are all far removed from religion.
They appear to lack the 'spiritual connection '.
But, all this is unsatisfactory.
We are not arriving at any definition of religion.
We are only making peripheral journeys and not getting any nearer to the core of the problem presented to us.
Let us examine the relevant provisions of the Constitution for such light as they may throw on the meaning of the expressions 'religion ' and religious denomination '.
They are not defined.
The word 'religion ' does not occur in the Preamble to the Constitution, but the Preamble does promise to secure to its citizens "Liberty of thought, expression, belief, faith and worship".
The Freedom of conscience and the Right to profess, propagate and practice religion,flow of the idea so expressed in the Preamble.
In Part III of the Constitution, under the head "Right to Freedom of Religion", there are four Articles.
Art25(i) guarantees to all persons, subject to public order, morality and health and to the other provisions of Part III of the Constitution, freedom of conscience and the right freely to profess, practise and propagate religion.
Freedom of conscience is not to be separated from the Right to profess, practice and propagate religion.
They go together and together they form part of the Right to Freedom of Religion.
Clause (2) of article 25, however, stipulates that the freedom and the right guaranteed by cl.
(1) shall not prevent the State from making any law regulating or restricting, any economic, financial, political or other secular activity which may be associated with religious practice.
Or to provide for social welfare and reform or to throw open Hindu religious institutions of a public character to all classes and sections of Hindus.
So, the Article makes it clear that secular activity may be associated with Religion, though the guarantee of the article does not extend to such activity, article 26 guarantees that every religious denomination or any section thereof shall have the right, subject to public order, morality and health, to establish and maintain institutions for 743 religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property and to administer such property in accordance with law.
article
27 prohibits compulsion for payment of taxes for promotion of any particular religion.
article 28 bars religious instruction in any institution wholly maintained out of State funds and prevents compulsion to attend any religious instruction or religious worship in educational institutions recognised by the State or receiving aid out of State funds.
Apart from Articles 25 to 28, the word 'religion ' occurs in articles 15(1), 15(2), 16(2), 16(5), 23(2), 29(2) and 30 of the Constitution.
article 15(1) prescribes that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
article 15(2) provides, in particular, that no citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainment; or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
Art.16(2) guarantees that 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.
article 16(5) exempts from the right guaranteed under article 16 the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
article 23(2), while enabling the State to impose compulsory service for public purposes, prohibits the State from making any discrimination on grounds only of religion, race, caste or class or any of them.
744 article 29(2) provides that no citizen shall be denied admission to any educational institution maintained by the State or receiving aid out of State funds on grounds of religion, race, caste, language or any of them.
article 30(1) guarantees to all minorities, whether based on religion or language the right to establish and administer educational institutions of their choice.
article 30(2) further provides that the State shall not, in granting aid to educational institutions, discriminate against any educational institutions on the ground that it is under the management of a minority, whether based on religion or language.
It is readily seen that the several provisions of the Constitution where the expressions 'religion ' and 'religious denomination ' are used are either those which are concerned with equality and equal opportunity or those which are concerned with freedom of religion.
article 15(1), article 16(2), article 23(2), article 29(2) are the several equality and equal opportunity clauses of the Constitution which bar discrimination on the ground of religion, and they place religion in equation with race, caste, sex, place of birth, residence and language for the purposes of the various aspects of equality dealt with by them.
article 30 recognises the existence of minority groups based on religion along with minority groups based on language.
articles 25 to 28 deal with the Right to Freedom of Religion which, as we said earlier is traceable to the idea of "Liberty of Thought, Expression, Belief, Faith and Worship" in the Preamble to the Constitution.
article 25 guarantees freedom of conscience and the right freely to profess, practise and propagate religion, but saves laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.
Reading article 25 in the background of the proclamation regarding Liberty in the Preamble to the Constitution, we may safely conclude that the Constitution views religion, as comprising thought, expression, belief, faith or worship, as involving the conscience and as something which may be professed, practised and propagated and which is any man 's attribute in the same manner as race, sex language, residence etc.
We also see that economic, financial, political or other secular activity may be associated with religious practice though such activity is not covered by the guarantee of freedom of conscience and the right freely to profess, practise and propagate religion.
So, the Constitution considers Religion as a matter of thought, expression, belief, faith and worship, a matter 745 involving the conscience and a matter which may be professed, practised and propagated by anyone and which may even have some secular activity associated with it.
We have already said that any Freedom or Right involving the conscience must naturally receive a wide interpretation and the expressions 'Religion ' and 'Religious Denomination ' must, therefore, be interpreted in no narrow, stifling sense but in a liberal, expansive way.
How has the Court looked at the expression 'religion and 'religious denomination ' and how has the Court attempted to define them ? We begin with the well known Shirur Mutt case where Mukherjea J, speaking for himself and six of his colleagues, examined the question in some detail and, of course, with great erudition.
We must first notice that the Court, there, was considering the question of the vires of the Madras Hindu Religious and Charitable Endowments Act 1951 which was sought to be made applicable to the institution known as Shirur Mutt, one of the eight Mutts situated at Udipi and reputed to have been founded by Shri Madhwa Charya, the renowned exponent of 'dualistic thesim ' in the Hindu Religion.
The trustees and the beneficiaries of the Mutt, it was claim and established, were the followers of Shri Madhwa Charya.
The question arose whether the spiritual fraternity constituted by the followers of Shri Madhwa Charya could be said to be a 'religious denomination ' within the meaning of article 26, entitling them to manage their own affairs in 'matters of religion '.
The Court noticed that while cl.
(b) of article 26 guaranteed to a religious denomination the right to manage its own affairs in matters of religion, other clauses of the Article dealt with the right of a religious denomination to acquire and own property and to administer such property in accordance with law.
The administration of its property by a religious denomination having thus been placed on a different footing from the right to manage its own affairs in matters of religion, the Court said: "the latter is a Fundamental Right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose.
It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the Article applies." 746 Mukherjea, J, then proceeded to consider what were matters of religion ? He noticed that 'religion ' was a term which was hardly susceptible of any rigid definition.
He rejected the definition given in Davis vs Benson as neither precise nor adequate and went on to say, "Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic.
There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause.
A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief.
A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observavances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and dress.
" Mukherjea,J., accepted the following observations of Latham, CJ in Vide Adelaide Company vs The Commonwealth(1), as fully applicable to the protection of religion as guaranteed by the Indian Constitution: "It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion.
It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116.
The section refers in express terms to the exercise of religion, and, therefore, it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion.
Thus the section goes far beyond protecting liberty of opinion.
It protects also acts done in pursuance of religious belief as part of religion.
" 747 Mukherjea, J., thereafter, pointed out that freedom of religion under the Indian Constitution also was not confined to religious beliefs only, it extended to religious practices as well subject to the restrictions which the Constitution itself had laid down.
Under article 26(b) he said, a religious denomination or organisation enjoyed complete autonomy in the matter of deciding as to what rites and ceremonies were essential according to the tenets of their religion they held and no outside authority had any jurisdiction to interfere with their decision in such matters.
But, he said, the scale of expenses to be incurred in connection with the religious observances would be a matter of administration of property belonging to the religious denomination and to be controlled by secular authorities in accordance with any law laid down by a competent legislature.
He added, "It should be noticed, however, that under article 26 (d), it is the Fundamental Right of a religious denomination or its representative to administer its properties in accordance with the law; and the law, therefore, must leave the right of administration to the religious denomination itself, subject to such restrictions and regulations as it might choose to impose a law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority, would amount to a violation of the right guaranteed under cl.
D of article 26".
Mukherjea, J also considered the question whether the followers of Madhwacharya could be considered a religious denomination and whether Sivalli Brahmins constituted a section of that religious denomination.
The meaning of the word denomination was culled out from the Oxford Dictionary where it has been defined to mean 'a collection of individuals classed together under the same name.
a religious sect or body having a common faith and organisation and designated by a distinctive name".
Reference was then made to "a galaxy of religious teachers and philosophers who founded the different sects and sub sects of the Hindu religion that we find in India at the present day".
It was emphatically stated that each one of such sects or sub sects could certainly be called a religious denomination as it was designated by a distinctive name in many cases it was the name of the founder and had a common faith and common spiritual organisation.
It was observed," the followers of Ramanuja, who are known by the name of Shri Vaishnobas, undoubtedly constitute a religious denomination; and so do the 748 followers of Madhwacharya and other religious teachers.
It is a fact well established by tradition that the eight Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher.
The High Court has found that the Math in question is in charge of Sivalli Brahmins who constitute a section of the followers of Madhwacharya.
As article 26 contemplates not merely a religious denomination, but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this article.
" So, in the Shirur Mutt case, Mukherjea J expressed difficulty in defining the term 'religion ' with exactitude, but explained it as something founded upon beliefs or doctrines, regarded by those professing the religion as conductive to their spiritual well being and attended by practices and observances viewed by the religious community as integral to the religion.
Mukherjea J, however, found less difficulty in defining 'religious denomination ' in the same terms as in the Oxford Dictionary.
Ratilal Panachand Gandhi vs The State of Bombay and Ors.(1) was decided by five of the Learned Judges who constituted the Bench which decided the Shirur Mutt case.
What was said in the Shirur Mutt was reiterated and it was again emphasised that religion was not merely an opinion, doctrine or belief and that it had its outward expression in acts as well.
The following observations of Davar J, in Jamshedjee vs Sunnabal(2) were approved: "If this is the belief of the community, and it is proved undoubtedly to be the belief of the Zoroastrian community, a secular judge is bound to accept that belief it is not for him to sit in judgment on that belief, he is not right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind".
I have stated almost at the outset that judges ' faith or lack of faith in religion is irrelevant in deciding what are matters of religion.
In the Durgah Committee Ajmer vs Syed Hussain Ali & others(3) the Court reiterated the position that the freedom guaranteed by article 25(1) was not only the right to entertain such religious beliefs as 749 my appeal to his conscience but also afforded him the right to exhibit his belief in his conduct by such outward acts as may appear to him proper in order to spread his ideas for the benefit of others.
A note of caution was, however, struck and it was said that practices in order to qualify as matters of religion should be regarded by the said religion as its essential and integral part.
Otherwise, it was pointed out, even purely secular practices which were not an essential or an integral part of religion were apt to be clothed with a religious form and stake a claim for treatment as religious practices.
Mukherjea J 's definition of 'religious denomination ' in the Shirur Mutt case was also accepted and the case was permitted to be argued on the broad and general ground that the Chishtia Soofies constituted either a religious denomination or a section of a religious denomination.
In Tilkayat Shri Govindlalji Maharaj vs The State of Rajasthan and Ors.(1) the question was whether the famous Nath Dwara Temple was a public temple? It was held that it was a public temple.
It was assumed that the followers of Vallabha constituted a religious denomination.
In Raja Virakishore vs State of Orissa(2) one of the arguments sought to be advanced before the Supreme Court was that the worshippers of Lord Jagan Nath constituted a religious denomination and that the Shri Jagan Nath Temple Act, which took away the right of management from the denomination, contravened the Fundamental Right guaranteed by article 26(d) of the Constitution.
The answer of the State was that the temple did not pertain to any particular sect, cult or creed of Hindus, but was a public temple above all sects, cults and creeds and, therefore, it was not the temple of any particular denomination The Court however, did not permit the worshippers to raise the argument as the state of pleadings were found to be defective.
In Sasti Yagnapurushad ji and Ors.
vs Muldas Bhudardas Vaishya and Anr.(1) the question arose whether the Swaminarayan sect followed a religion distinct and separate from the Hindu religion and whether, consequently, the temple belonging to the sect was outside the ambit of Bombay Hindu Places of Public Worships (Entry 750 Authorisation) Act ? Gajendragadkar, CJ, on an exhaustive consideration of various Hindu Texts and the texts and history of the Swaminarayan sect, came to the conclusion that the Swaminarayan sect was not a religion, distinct and separate from the Hindu Religion.
It is obvious that religion, undefined by the Constitution, is incapable of precise judicial definition either.
In the background of the provisions of the Constitution and the light shed by judicial precedent, we may say religion is a matter of faith.
It is a matter of belief and doctrine.
It concerns the conscience i.e. the spirit of man.
It must be capable of overt expression in word and deed, such as, worship or ritual.
So, religion is a matter of belief and doctrine, concerning the human spirit, expressed overtly in the form of ritual and worship.
Some religions are easily identifiable as religions, some are easily identifiable as not religions.
There are many in the penumbral region which instinctively appear to some as religion and to others as not religions.
There is no formula of general application.
There is no knife edge test.
Primarily, it is a question of the consciousness of the community, how does the fraternity or sodality (if it is permissible to use the word without confining it to Roman Catholic groups) regard itself, how do others regard the fraternity or sodality.
A host of other circumstances may have to be considered, such as, the origin and the history of the community, the beliefs and the doctrines professed by the community, the rituals observed by the community, what the founder, if any, taught, what the founder was understood by his followers to have taught, etc.
In origin, the founder may not have intended to found any religion at all.
He may have merely protested against some rituals and observances; he may have disagreed with the interpretation of some earlier religious tenets.
What he said, what he preached and what he taught, his protest, his dissent, his disagreement might have developed into a religion in the course of time, even during his life time.
He may be against religion itself, yet, history and the perception of the community may make a religion out of what was not intended to be a religion and he may be hailed as the founder of a new religion.
There are the obvious examples of Buddhism and Jainism and for that matter Christianity itself.
Neither Buddha nor Mahavira, nor Christ ever thought of founding a new religion, yet three great religions bear their names.
If the word 'religion ' is once explained, though with some difficulty, the expression 'religious denomination ' may be defied 751 with less difficulty.
As we mentioned earlier Mukherjea J, borrowed the meaning of the word denomination from the Oxford Dictionary and adopted it to define religious denomination as "a collection of individuals classed together under the same name, a religious sect or body having a common faith and organisation and designated by a distinctive name".
The followers of Ramanuja, the followers of Madhwacharya, the followers of Vallabha, the Chishtia Soofies have been found or assumed by the Court to be religious denominations.
It will be noticed that these sects possessed no distinctive name except that of their founder teacher and had no special organisation except a vague, loose un knit one.
The really distinctive feature about each one of these sects was a shared belief in the tenets taught by the teacher founder.
We take care to mention here that whatever the ordinary features of a religious denomination may be considered to be, all are not of equal importance and surely the common faith of the religious body is more important than the other features.
It is, perhaps, necessary to say that judicial definitions are not statutory definitions, they are mere explanations, every word of which is not to be weighed in golden scales.
Law has a tendency to harden with the passage of time and judicial pronouncements are made to assume the form of statutory pronouncements.
So soon as a word or expression occur in the statute is judicially defined, the tendency is to try to interpret the language employed by the judges in the judicial definition as if it has been transformed into a statutory definition.
That is wrong.
Always, words and expressions to be interpreted are those employed in the statute and not those used by judges for felicitous explanation.
Judicial definition, we repeat, is explanatory and not definitive.
One remark requires to be added here.
Religious denomination has not to owe allegiance to any parent religion.
The entire following of a religion may be no more than the religious denomination.
This may particularly be so in the case of small religious groups or `developing ' religions, that is, religions in the formative stage.
We may now consider whether Aurobindoism if one may be excused for using the word `Aurobindoism ' to describe what Shri Aurobindo taught and practised and what he was understood by his followers to have taught and practised was a religion and whether the followers of Shri Aurobindo could be called a religious denomination.
Shri Aurobindo was a poet, a savant, a philosopher and a mystic.
Was he or was he not a religious teacher ? 752 The Encyclopaedia Brittanica (1978 Edition) describes him as "seer, poet and Indian nationalist who originated the philosophy of cosmic salvation through spiritual evolution, a divine existence that will appear through the development of the "agnostic man" to usher in a transcendant spiritual age in which man and the universe are destined to become divine".
The Encyclopaedia goes on to say, "he devoted himself for the rest of his life solely to the development of his unique philosophy.
There (at Pondicherry) he founded an ashrama (retreat) as an international cultural centre for spiritual development, attracting students from all over the world.
The only requirement for entrance was a sincere wish to develop spiritually." "According to Aurobindo 's theory of cosmic salvation, the paths to union with Brahman are two way streets, or channels, Enlightment comes to man from above, while the spirital mind (supermind) of man strives through logic illumination to reach up ward from below.
When these two forces blend in an individual, agnostic man is created.
This logic illumination transcends both reason and intuition and eventually leads to the freeing of the individual from the bonds of individuality and, by extension all mankind will eventually achieve mukti (liberation)".
"Thus, Aurobindo created a dialectic mode of salvation not only for the individual but for all mankind.
Energy of sachidananda ("existence, thought, joy") comes down from Brahman (thesis) to meet energy from the supermind of man striving upward toward spirituality (antithesis) and melds in man to create a new spiritual superman (synthesis).
From these evolved divine beings, a divine universe also evolved.
" Under the head `History of Hinduism '.
Encyclopaedia Brittanica again refers to Aurobindo and says : "Another modern teacher whose doctrines have had some influence outside India was Sri Aurobindo, who began his career as a revolutionary.
He withdrew from politics, however, and settled in Pondicherry, then a French possession.
There he established an ashrama (a retreat) and achieved a high reputation as a sage.
His followers looked on him as the first incarnate manifestation of super beings whose evolution he prophesied, and apprently he did not discourage this belief.
After his death, the leadership of the Aurobindo Ashram was taken over by "the Mother", Mme Mira 753 Richard, a French woman who had been one of his leading disciples.
" The Encyclopaedia Brittanica refers to Aurobindo again under the head `Idealism ' and says : "Aurobindo, reinterpreting the Indian Idealistic heritage in the light of his own Western education, rejected the maya doctrine of illusion, replacing it with the concept of evolution, aguring that the "illumination of individuals will lead to the emergence of a divine community".
Aurobindo founded the influential Pondicherry Ashram, a religious and philosophical community, and headed it until his death.
" The Encyclopaedia of Philosophy (1972 Edition) says, "Shri Aurobindo was an Indian metaphysician and founder of new religious movement with head quarters at Pondicherry The religious movement associated with him has increased its following in India, and has made some converts in the West. .
God must `descent ' into human experience.
This illumination of individual will lead to the emergence of a divinised community. . .
Aurobindo produced a synthesis between older Indian religious ideas and the world affirming attitudes of Christian theism.
" The Dictionary of Comparative Religion says of Aurobindo : "According to Aurobindo, there is a progressive evolution of the divine being through matter to higher spiritual forms, and the Aurobindo movement is held to represent vanguard of this evolutionary process in our own times.
Aurobindo practised and taught an `integral yoga ' in which meditative and spiritual exercises are integrated with physical, cultural and intellectual pursuits.
" Frederic Spiegelberg, in his book `Living Religions of the World ' refers to Shri Aurobindo : "We pass beyond specific religions to a synthetic vision of the religious impulse itself, a vision designed to embrace all previous and future history all previous and future paths.
Shri Aurobindo is a man worshipped by hundreds of thousands and respected by 754 millions. .
In his retreat at Pondicherry he is less the philosopher of Hinduism than the philosopher of religion in general, the voice of that which comparative religion leaves undisputed.
" On the topic Religion, the Gazetteer of India, published by the Govt.
of India, has this to say : "Shri Aurobindo gave new interpretations of the vedas and The Vedanta, and in his Essays on the Gita, he expounded what he called "the integral view of life".
His great work, the Life Divine, is a summing up of his philosophy of "the Descent of the Divine into Matter".
The importance of Sri Aurobindo 's mission lies in his attempt to explain the true methods of Yoga.
" It is clear from these extracts that the world and India treated and respected Shri Aurobindo as a religious teacher and the founder of a new religious movement whose principal thesis was the evolution or transformation of humanity into divinity through the practice of Integral Yoga.
One may or may not accept Shri Aurobindo 's thesis or teaching, but, without doubt, it was unique ; without doubt, it was novel; without doubt, it had never been so taught before.
Shri Aurobindo first conceived the theory of Ascent and Descent, involution and evolution.
He was the first expositor of the Integral Yoga.
He expressly professed to depart from the Yoga of the Gita and dissented from the Maya Vada.
Pedestrian minds like ours may not understand the niceties of the metaphysical exercises involved.
We do not desire to enter into any polemics over Shri Aurobindo 's teachings as it is not within the judicial province to do so except to the limited extent of finding out whether his teachings have the necessary spiritual content to qualify as religious doctrine and how his followers understood those teachings.
So, we refrain from quoting Shri Aurobindo.
But this fact stands out prominently that whatever else he was, he truly was a religious teacher and taught and was understood to have taught new religious doctrine and practice.
I fail to see why `Aurobindoism ' cannot be classified, if not as a new religion, as a new sect of Hinduism and why the followers of Shri Aurobindo cannot be termed a religious denomination.
755 Shri Aurobindo, of course, disclaimed that he was founding a religion.
No great religious teacher ever claimed that he was founding a new religion or a new school of religious thought.
The question is not whether Shri Aurobindo refused to claim or denied that he was founding a new religion or a new school of religious thought but whether his disciples and the community thought so.
There is no doubt that they did, not only his disciples and followers, but religious leaders all the world over and of all faiths.
If the followers of Shri Aurobindo constitute a `religious denomination ', as, to my mind, they undoubtedly do, the members of Shri Aurobindo Society are certainly a distinct and identifiable section of the `religious denomination '.
The members of the society are followers and disciples of Shri Aurobindo.
The society was formed to preach and propagate the beliefs and ideals of Shri Aurobindo.
The primary object of the society was "To make known to the members of the public in general the aims and ideals of Shri Aurobindo and the Mother, their system of Integral Yoga and to work for its fulfilment in all possible ways and for the attainment of a spiritualised society as envisaged by Shri Aurobindo.
" It is nobody 's case that this is not the principal object of the society or that it is only a facade for other activities.
However, it was argued that the Society had represented itself as, `a non political, non religious organisation ' and claimed exemption from income tax on the ground that it was engaged in educational, cultural and scientific research.
If the society consists of the disciples and followers of Sri Aurobindo, if its primary object is to profess, practise and propagate the system of Integral Yoga, and, if, therefore, it is a section of a religious denomination, the circumstance that it is engaged in several secular activities and has represented itself to be a non religious organisation for certain purposes cannot detract from the fact that it is a section of a religious denomination within the meaning of article 26 Therefore, we must hold, the Aurobindo Society is a section of a religious denomination within the meaning of the expression in article 26 of the Constitution.
But, the question is has the Fundamental Right guaranteed by article 26 been infringed by the .
We have to notice straight away that the Act did not take away or purport to take away the management of the Shri Aurobindo Society.
What it did or purported to do was "to provide for the 756 taking over, in the public interest, of the management of Auroville for a limited period and for matters connected therewith or incidental thereto.
" The long preamble says, "Whereas Shri Aurobindo Society, a non governmental organisation had been a channel of funds for the setting up of a cultural township known as Auroville, where people of different countries are expected to live together in harmony in one community and are expected to engage in cultural, educational, scientific and other pursuits aiming at human unity.
" x x x "AND WHEREAS Auroville was developed as a cultural township with the aid of funds received from different organisations in and outside India as also from the substantial grants received from the Central and State Governments; AND WHEREAS pursuant to the complaints received with regard to the misuse of funds by Sri Aurobindo Society, a committee was set up under the chairmanship of the Lieutenant Governor of Pondicherry with representatives of the Government of Tamil Nadu and of the Ministry of Home Affairs in the Central Government, and the said committees had, after a detailed scrutiny, of the accounts of Shri Aurobindo Society, found instances of serious irregularities in the management of the said Society, misutilisation of its funds and their diversion to other purposes ; AND WHEREAS in view of the serious difficulties which have arisen with regard to the management of Auroville, it is necessary to take over, for a limited period, the management, thereof and any delay in taking over the management of Auroville would be highly detrimental to the interests and objectives of Auroville; The long preamble itself explains what Auroville is.
section 3(c) of the Act defines Auroville as meaning "so much of the undertakings as form part of, or are relatable to, the township which is known as Auroville and the charter of which proclaimed by the `Mother ' on the 23rd day of February, 1968".
757 Now, the idea of Auroville was conceived by Madame M. Alfasse, affectionately and respectfully known to the disciples and followers of Shri Aurobindo as the Mother.
The idea of a cultural township which would promote international understanding and world peace had great appeal to the Government of India and the United Nations Educational, Scientific and Cultural Organisation and they extended their support to the project.
But, things turned out to be not so smooth sailing after all.
There was dissension among the members of the Shri Aurobindo Society.
Things came to such a pass that the impugned Act was necessitated.
Misra J. has narrated the facts leading to the intervention of parliament.
Parliament concerned itself with the management of Auroville only and with no other activity of the Shri Aurovindo Society, including `its affairs in matters of religion '.
In fact, section 4(2) makes it explicit that, except for matters relating to the management of Auroville, the provisions of the West Bengal Societies Registration Act, 1961, under which the Society was registered, shall continue to apply to the Society in the same manner as before.
Since the only activity of the Society which was touched by the Act was the management of Auroville, the question arises whether Auroville is an institution established and maintained for religious and charitable purposes and whether its management of Auroville is `a matter of religion '.
Auroville is a township and not a place of worship.
It is a township dedicated, not to the practice and propagation of any religious doctrine but to promote international understanding and world peace, surely, a secular and not a religious activity.
The highest that can be said in favour of Auroville being a religious institution or its management being a religious matter, is that it was conceived by the Mother and shaped and sculpted by Shri Aurobindo 's disciples and followers in the pursuit of one of the ideas and ideals of Shri Aurobindo, a great religious teacher.
On the other hand, the ideal itself, that is, the promotion of international understanding and world peace is by no means a religious ideal and it was because of the nature of the ideal that the Government of India and the UNESCO adopted the project.
Shri Aurobindo himself was not a mere religious teacher.
He was a visionary, a humanist and a nationalist who had blossomed into an internationalist.
It appears, therefore, that Auroville, though the child of the Mother and though nurtured by the devotees of Shri Aurobindo, has an individuality, distinctly secular, of its own.
The management of the International, cultural township of Auroville is not, in our opinion, a matter of religion.
We have mentioned earlier that laws regulating or restricting any economic, financial, political or other secular 758 activity which may be associated with religious practice are excluded from the guarantee of freedom of conscience and the right freely to profess, practise and propagate religion.
We have also pointed out that the administration of the property of a religious denomination is different from the right of the religious denomination to manage its own affairs in matters of religion and that laws may be made which regulate the right to administer the property of a religious denomination.
Questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of article 26 applies.
It has been so decided in the Shirur Mutt case as well as other cases following it.
We are, therefore, of the view that the Auroville Emergency Provisions Act which provides for the taking over the management of Auroville for a limited period does not offend the rights guaranteed by articles 25 and 26 of the Constitution.
A passing reference was also made in the course of argument to Arts 29 and 30 of the Constitution, and it was said that the rights guaranteed by those Articles were also infringed.
We are entirely at a loss to understand how the rights guaranteed by articles 29 and 30 can be said to have been infringed by the Auroville Emergency Provisions Act.
No section of citizens having a culture of its own has been denied the right to conserve that culture and no religious minority has been denied the right to establish and to administer an educational institution of its choice.
On the several other questions argued before us I accept the conclusion of Misra J.
The Writ Petitions are accordingly dismissed but in the circumstances there will be no order regarding costs.
MISRA J.
The first two petitions under Article 32 of the Constitution of India filed in this Court and the third under Article 226 of the Constitution filed in the Calcutta High Court and later on transferred to this Court, seek to challenge the vires of the Auroville (Emergency Provisions) Ordinance, 1980 (Ordinance No. 19 of 1980), later on replaced by the (Act No. 59 of 1980).
The fourth is an appeal by special leave against the order of the Division Bench of the Calcutta High Court dated 21st of November, 1980 vacating the interim order passed by a Single Judge in the writ petition.
All these cases raise common questions of constitutional importance and, therefore, they were posted before the Constitution Bench.
759 Man as a rational being, endowed with a sense of freedom and responsibility, does not remain satisfied with his material existence.
He wants to know and realise the meaning of his life.
It is this perennial urge in man that inspires him to indulge in great creative activities.
He creates great cultures and civilisations and tries to realise the meaning and value of life in and through them.
To the biologist life is indefinable.
It cannot be defined in terms of any things.
The biologists have, however, explained and illustrated characteristics of life.
But no formulation of the nature and characteristics of life has won general acceptance.
It means that the insignia of life have not as yet been comprehended fully.
Life has not been viewed in its proper perspective.
It still seems to be a riddle, a mystery.
Life appears to be a mystery not only to the scientists but also to the philosophers.
Philosophers may be said to be rather more conscious of the difficulties that the concept of life involves than the scientists.
A philosopher is also aware of the fact that unless one is able to fathom the depths of life and has a full comprehension of its nature, one cannot understand and determine the nature of human personality and its destiny.
Similar other deeper and ultimate problems of life have been agitating the mind of seers and philosophers viz., Where did the world come from ? Was it created or evolved ? Is there any unity in diversity ? Each thinker tried to solve the ultimate problems in his own way.
By and large they believed there is a real creative force behind the process of the world.
Some called it as God, the others as ultimate truth, the conscience.
According to some the objects, if left to themselves, would remain motionless and for their initial movement they must have required some external agency which might have set the universal ball rolling.
In early ages when man knew little about the laws of nature, he attributed all changes in nature to certain agencies, which due partly to his egocentric way of viewing things and partly to his conscious or sub conscious awareness of the supremacy of man in the whole hierarchy of things in nature, were conceived after the image of man.
Later on, in view of the supremacy of kings in all walks of life and their services to society, these unseen mighty agencies were fashioned specifically after them.
Since God was conceived to be the supreme among such agencies.
He naturally was sought to be represented by the supreme among kings.
Thus anthropomorphism, i.e. the idea of 760 God in terms of human figure is partly due to ignorance and partly due to the influence of uncommon persons in the society.
During 18th and 19th centuries the entire scientific thought sought to explain the universe mechanically and strived to do away with God completely.
If it allowed anything like God to enter its universe at all, it did so only after transforming Him into a mechanical principle.
Later on with the formulation of the theory of relativity this isolationist view of things has given way to one of mutual relatedness of each object to every one else.
Recognition of the immense potentiality of dynamism inherent in the mutual relatedness of objects in the universe has precluded the necessity of an extra cosmic or metaphysical principle, such as the God of Aristotle who was supposed to have existed prior to the beginning of the world, and given it the first stroke of movement resulting in continuous motion ever since.
Thus, the idea of God has led to more or less its adjustment to fresh acquisition of knowledge in each epoch.
A view of God which fails to do that tends to become discarded in favour of a new one.
If it fails to keep pace with the expanding horizon of knowledge, it begins to lose its ground and shrink into a mere cult of only historical importance, it becomes fossilised and is liable to crumble at the vital touch of the present.
Our scriptures proclaimed from the very start that there is only one reality in the world which is described in different ways : "Ekam Sad Wipra Bahuda Vadanti.
" One of such Indian sages and philosophers was Sri Aurobindo.
He was born on August 15, 1872 in Calcutta.
When he was barely seven years old he was taken to England for education.
In view of his amazing ability in learning languages he was offered scholarship to join Kings College, Cambridge.
There he distinguished himself by his extraordinary ability to compose Greek and Latin verses.
He is said to have won all the prizes for the year in Kings College for Greek and Latin verses.
He sailed for India in 1893 and settled down at Baroda.
He served in several capacities in Baroda State, sometimes as an administrator and at others as Professor of French and English.
During his stay there he learnt Sanskrit.
761 The years from 1902 to 1910 were stormy ones for Sri Aurobindo as he embarked on a course of action to free India from British rule.
As a result of his political activities and revolutionary literary efforts he was sent to jail in 1908.
Two years later he fled from British India to refuge in the French Mandate of Pondicherry (modern Pondicherry) in South East India.
He took a decision to give up all political activities so as to concentrate himself with the life of meditation and yoga at Pondicherry.
Madam M. Alfassa, a French Lady, who came to be known as 'The Mother ' became a disciple of Sri Aurobindo.
Very soon more and more disciples came to join him from various parts of India and abroad and thus 'the Ashram ' came into being.
The disciples and devoted followers of Sri Aurobindo and the Mother with a view to propagate and practise the ideals and beliefs of Sri Aurobindo formed a Society called Sri Aurobindo Society in the year 1960.
The petitioner Society at all material times was and is still a Society duly registered under the provisions of the West Bengal Societies Registration Act, 1961.
This Society is completely distinct from Aurobindo Ashram in Pondicherry.
The Society was established and registered for the purpose of carrying out inter alia the following objects in and outside India: (i) To make known to the members of the public in general the aims and ideals of Sri Aurobindo and the Mother, their system of integral yoga and to work for its fulfilment in all possible ways and for the attainment of a spiritualised society as envisaged by Sri Aurobindo; (ii) To Train selected students and teachers from all over the world in the integral system or education i.e., spiritual, psychic, mental, vital and physical; (iii)To help in cash and/or kind by way of donations, gifts, subsidies and in also other ways in the all round development of Sri Aurobindo International Centre of Education and to help similar centres of education; (iv) To establish study groups, libraries, Ashrams and other institutions, centres, branches and societies for study and practice of integral yoga of Sri Aurobindo and the Mother and to help the existing ones; 762 (v) To establish centres of physical culture, sports and volunteer organisations for inculcating and promoting the spirit of discipline, co operation and service to others and to undertake activities for promotion of health and bodily perfection: (vi) To organise, encourage, promote and assist in the study, research and pursuit of science, literature and fine arts; (vii)To enquire, purchase, build, construct or take on lease or in exchange or hire any movable or immovable property, or gifts or privileges; and (viii)Generally to do all other acts, deeds and things necessary, conductive, suitable or incidental to or for the attainment of the above objects or any of them or part of them.
The management of the Society vested in its Executive Committee.
Rules and regulations have been duly framed for the management of the Society and also for safe custody and protection of its assets, properties and funds.
Sri Aurobindo Society (hereinafter referred to as 'the Society ') preaches and propagates the ideals and teachings of Sri Aurobindo inter alia through its numerous centres scattered throughout India by way of weekly meetings of its members.
The Mother as the founder president also conceived of a project of setting up a cultural township known as 'Auroville ' where people of different countries are expected to engage in cultural, educational and scientific and other pursuits aiming at human unity.
The Society has been a channel of funds for setting up the cultural township known as Auroville.
At the initiative of the Government of India, the United Nations Educational, Scientific and Cultural Organisation being of the opinion that the Auroville project would contribute to international understanding and promotion of peace sponsored the project by proposing a resolution to this effect at its General Conference in 1966.
This resolution was unanimously adopted at this Conference.
By a further resolution passed in 1961 the UNESCO 763 invited its member States and international non governmental organisations to participate in the development of Auroville as an international cultural township to bring together the values of different cultures and civilisations in a harmonious environment with integrated living standards which correspond to man 's physical and spiritual needs.
1970 UNESCO had directed its Director General to take such steps as may be feasible, within the budgetary provisions to promote the development of Auroville as an important international cultural programme.
Sri Aurobindo Society received large funds in the shape of grants from different organisations in India and abroad for development of the township.
The assistance included contributions from the State Governments of the value of Rs 66.50 lakhs and the Central Government of the value of Rs. 26.14 lakhs.
After the death of the Mother on 17th of November 1973 a number of problems of varying nature affecting the smooth running of the project cropped up.
The Government of India on receiving complaints about mismanagement of the project and misuse of funds by Sri Aurobindo Society set up a committee under the chairmanship of the Governor of Pondicherry with representatives of the Government of Tamil Nadu and of the Ministry of Home Affairs in the Central Government to look into the matter.
The committee made a detailed scrutiny of the accounts of Sri Aurobindo Society relating to Auroville and found instances of serious irregularities in the management of the Society, misutilisation of its funds and their diversion to other purposes.
Further, various other serious difficulties had arisen plaguing the management of Auroville and rendering thereby any further growth of the township almost impossible in the circumstances that taking over the management of Auroville became imperative to ensure growth of the township in tune with its objectives.
Keeping in view the international character of the project and considering the government 's involvement in actively sponsoring the project through UNESCO, the growth and management of the project had become the primary responsibility of the Government of India.
The ideals of the project formed India 's highest aspirations, which could not be allowed to be defeated or frustrated.
Sri Aurobindo Society had lost complete control over the situation and the members of the Auroville approached the Government of India to give protection against oppression and victimisation at the hands of the said Society.
There were internal quarrels between the various factions of Sri Aurobindo Society.
There have also been instances 764 of law and order situation.
Financial management of the project has not been sound and several instances of mismanagement, diversion of funds have been revealed.
A large sum of money was given by Sri Aurobindo Society to AURO Construction an agency whose status is not at all defined, whose functions and capabilities for taking up large construction works also had not been made known.
The Government in the circumstances could not be a silent spectator to the mismanagement of the project and intereine quarrels amongst its members, which if not checked could lead to the destruction of the project so nobly conceived.
The Government, therefore, decided to issue a Presidential ordinance.
After the filing of the writ petition the ordinance has now been replaced by the .
The constitutional validity of the Act has been challenged on four grounds: 1.
Parliament has no legislative competence to enact the impugned statute.
The impugned Act infringes Articles 25, 26, 29 and 30 of the Constitution.
The impugned Act is violative of Article 14 of the Constitution; and 4.
The Act was mala fide.
We take up the first ground first.
According to Mr. Soli Sorabjee, counsel for petitioners, the , hereinafter referred to as the impugned Act, is a law relating to a matter in the State Legislative List and is, therefore, beyond the legislative competence of Parliament, hence unconstitutional and void.
The impugned Act, according to him, provides for taking over the management of Auroville for a limited period from the Society.
The management of Auroville was prior to the impugned Act vested in the Governing Body/Board of Trustees of the Society under the Provisions of the West Bengal Societies Registration Act and memorandum and rules and regulations of the Society, as is evident from section 5(5) of the impugned Act itself.
The society was registered under the but after the enforcement of the West Bengal Societies Registration Act, 1961 the Society was deemed to be 765 registered under that Act.
The West Bengal Societies Registration Act (for short 'the West Bengal Act ') contains specific provisions to deal with the Society adequately.
Sections 22 and 23 of the West Bengal Act empower the Registrar of the Societies to call for an information or explanation relating to the management of the affairs of any society registered thereunder and also to investigate into the affairs of the society, if there were circumstances suggesting that the society was guilty of mismanagement of its affairs or of any unlawful fact.
The Registrar has also the power to prosecute and punish those persons found guilty of mismanagement.
Under section 26 of the Act a society is also liable to be dissolved by the order of the Registrar on the ground inter alia of mismanagement.
Obviously, therefore, the West Bengal Act contains in built self contained provisions for dealing with the mismanagement of the registered societies.
The West Bengal Act is a legislation exclusively relatable to Entry 32 of List II of Seventh Schedule.
The provisions of the West Bengal Act apply to the Society as is evident from section 2(f) and (g) of the impugned Act.
Section 4(2) of the impugned Act, however, excludes the application of certain provisions of the West Bengal Act to the Society and declares that the provisions of the West Bengal Act will continue to apply to the Society subject however, to such exclusions.
Section 8(2) provides that on relinquishment of management by the Central Government the management of the property of the Society forming part or relatable to Auroville shall vest in the Governing Body of the Society and shall be carried on in accordance with the provisions of the West Bengal Act.
Section 11 of the impugned Act gives over riding effect to the impugned Act over all other Acts (including the West Bengal Act) and instruments thereunder.
Therefore, the object and purpose of the impugned Act is to take away the management of Auroville from the Society and to bring it under the management of the Central Government under the provisions of the impugned Act.
This process necessarily involves during the takeover period the suspension of the provisions of the West Bengal Act and the memorandum and rules in so far as they are applicable to the management of the Auroville by the Society.
Consequently, the impugned Act for a limited period abrogates, suspends or temporarily repeals certain provisions of the West Bengal Act or in other words the State Act is pro tanto overborne by the Central Act.
Therefore, the question arises whether Parliament has legislative competence to repeal, permanently or temporarily, any provisions of the West 766 Bengal Act which is a law made by the State Legislature in the exercise of its exclusive legislative competence under Entry 32 of the State Legislative List.
It was contended for the petitioners that the legislature has no authority to repeal statutes which it could not directly enact.
The power to repeal or alter the statute is co extensive with the power of direct legislation of a legislative body.
In support of this contention reliance was placed on the Privy Council decision in Attorney General for Ontario vs Attorney General for the Dominion(1).
The Parliament has no competence to enact the West Bengal Act, and therefore it had no power to repeal the provisions of the West Bengal Act by the impugned Act.
Inasmuch as the Parliament has sought to repeal or override certain provisions of the West Bengal Act which are referable to Entry 32 in List II, and are exclusively within the competence of the State Legislature, the impugned Act by Parliament is without legislative competence and hence void.
It was further contended for the petitioners that the proper approach to the question is to see if the impugned legislation is covered by any of the entries in list II of the Seventh Schedule.
It is not at all necessary to probe into the question as to whether the impugned legislation can be covered by any of the entries of List I or List III of the Seventh Schedule.
Reliance was placed on the Union of India vs H.S. Dhillon(2) wherein the following proposition was laid down : "It seems to us that the best way of dealing with the question of the validity of the impugned Act and with the contentions of the parties is to ask ourselves two questions, first, is the impugned Act legislation with respect to entry 49 List II ? and secondly, if it is not, it is beyond the legislative competence of Parliament ? The positive case of the petitioners is that the subject matter of the impugned Act is covered by entry 32, List II of the Seventh Schedule.
The Solicitor General for the Union of India, however, tried to bring the impugned Act within the four corners of item 44, List I of the Seventh Schedule of the Constitution.
It may be pointed out at the very outset that the function of the Lists is not to confer powers.
They merely demarcate the 767 legislative fields.
The entries in the three Lists are only legislative heads or fields of legislation and the power to legislate is given to appropriate legislature by Articles 245 and 248 of the Constitution.
It would be appropriate at this stage to read entry 32, List II and entry 44, List I of the Seventh Schedule : Entry 32, List II "Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities ; unincorporated trading, literary, scientific, religious and other societies and associations; co operative societies.
" Entry 44, List I: "Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities.
" For the petitioners, however, it was urged that the registration of the Society under the West Bengal Act does not make it a corporation.
Halsbury 's Laws of England, 3rd Edn., Vol. 9, p. 4, deals with corporations in the following terms: "A corporation aggregate has been defined as a collection of individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property, of contracting obligations and of suing and being sued, of enjoying privileges and immunities in common, and of exercising a variety of political rights, more or less extensive, according to the design of the institution or the powers conferred upon it, either at the time of the creation or at any subsequent period of its existence.
" A corporation has, therefore, only one capacity, namely, the corporate capacity.
On an analysis it would appear that the essential elements in the legal concept of a corporation are: (1) a continuous identity, i.e., the original member or members or his or their successors are one, (2) the persons to be incorporated, (3) the name by which the persons are incorporated, (4) a place, and 768 (5) words sufficient in law to show incorporation.
In law the individual incorporators are members of which it is composed or something wholly different from the corporation itself, for a corporation is a legal person just as much as an individual.
A corporation aggregate can express its will by deed under a common seal.
The Society was registered, as stated earlier, under the Societies Registration Act and later on was deemed to be registered under the West Bengal Societies Registration Act, 1961.
Whether such a registered society can be held to be a corporation in the light of the functions of a corporation quoted above ? In the Board of Trustees, Ayurvedic and Unani Tibia College vs The State of Delhi and Ors.(1) it was held that a society registered under the Societies Registration Act may have the characteristics which are analogous to some of the characteristics of a corporation but is not a corporation.
As it is not incorporated and remains an unincorporated society, therefore, it must come under the second part of entry 32 of List II.
Reliance was placed in this case on Taff Vale Railway vs Amalgamated Society of Servants.(2) The petitioners also rely on Katra Educational Society vs State of Uttar Pradesh and Ors.(3) In that case also the appellant was a society registered under the Societies Registration Act 21 of 1860, which conducts an educational institution styled 'Dwarka Prasad Girls Intermediate College ' at Allahabad.
The management of the affairs of the society was entrusted by the memorandum of association to an executive committee whose membership was confined to the members of the society.
The Intermediate Education Act was subsequently passed by the State Legislature.
Section 8 of the Act authorised the State Government to promulgate regulations in respect of matters covered by sections 16A to 161 of the Act.
The Regional Inspector of Girls Schools called upon the society to submit and get approved a scheme of administration of the institution managed by it.
The sections were later on modified by subsequent amendment.
The society challenged the Act on the ground that it was beyond the legislative competence of the State legislature inasmuch as in substance it sought to substitute the provisions of the , a field of legislation which was exclusively within the competence of Parliament and in any case the Act in so far as it affected the powers of the trustees of charitable institutions 769 could not be enacted without conforming to the requirements of Article 254.
The contention was repelled and it was held by this Court, relying on the Board of Trustees, Ayurvedic and Unani Tibia College vs The State of Delhi (supra) that by registration under the a society does not acquire corporate status.
It cannot also be said that the pith and substance of the Act relates to charities or charitable institutions or to trusts or trustees.
It was further held that the true nature and character of the Act falls within the express legislative power conferred by entry 11 of List II and merely because it incidentally trenches upon or affects a charitable institution or the powers of the trustees of the institution, it will not on that account be beyond the legislative authority of the State Legislature.
As the Society is an unincorporated society, says the counsel for petitioners, the impugned Act does not and cannot fall under entry 44 of List I of the Seventh Schedule and it would fall under entry 32 of List II of the Seventh Schedule and once it is covered by entry 32 of List II, it is not at all necessary to examine whether it may or it may not fall in other two lists of the schedule.
On the other hand, the stand of the Union of India as well as of the interveners, is that the first part of entry 32 of List II is not attracted as the subject matter of the impugned Act is not incorporation, regulation or winding up of a corporation.
It has only taken over the management of Auroville from the Society for a short period in respect of the property.
Auroville, of which the management has been taken over by the Central Government under the impugned Act means so much of the undertaking as form part of or relatable to the cultural township which is known as Auroville and the charter of which was proclaimed by the Mother on 25th day of February, 1968.
The property of Auroville is situated not in West Bengal but in Pondicherry in Tamil Nadu.
The fact that the Society, which was registered under the West Bengal Act, has been a channel of funds for the setting up of the cultural township of Auroville and has been managing some aspects of Auroville, does not bring Auroville under the domain of the West Bengal Act.
The right of management of property is itself a property right.
The Solicitor General also tried to bring the subject matter of the impugned legislation under various other entries of List I or List III of the Seventh Schedule viz., entries 10, 20, 41 and 42 of List III and entry 10 of List I.
But it is not necessary for us to examine 770 whether the subject matter of the impugned legislation falls under any of the entries of List I or List III if once we hold that the subject matter does not fall within the ambit of any of the entries of List II.
Even if the subject matter of the impugned legislation is not covered by any specific entry of List I or List III, it will be covered by the residuary entry 97 of List I.
In our opinion the impugned Act even incidentally does not trench upon the field covered by the West Bengal Act as it is in no way related to constitution, regulation and winding up of the Society In R.C. Cooper vs Union(1) it was laid down that a law relating to the business of a corporation is not a law with respect to regulation of a corporation.
Having heard the counsel for the parties, our considered opinion is that the subject matter of the impugned Act is not covered by entry 32 of List II of the Seventh Schedule.
Even if the subject matter of the impugned Act is not covered by any specific entry of List I or III of the Seventh Schedule of the Constitution it would in any case be covered by the residuary entry 97 of List I. The Parliament, therefore, had the legislative competence to enact the impugned Act.
This leads us to the second ground of attack, namely, the impugned Act is violative of Articles 25, 26, 29 and 30 of the Constitution.
Article 25(1) confers freedom of conscience and the right freely to profess, practise and propagate religion.
Of course, this right is subject to public order, morality and health and to the other Articles of Part III of the Constitution.
Sub clause (2) of this Article, however, provides that nothing in this Article shall affect the operation of any existing law or prevent the State from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
771 Article 26 confers on every religious denomination or any section thereof, subject to public order, morality and health, the right (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.
In order to appreciate the contentions of the parties, it is necessary to know the implication of the words 'religion ' and 'religious denomination '.
The word 'religion ' has not been defined in the Constitution and indeed it is a term which is hardly susceptible of any rigid definition.
In reply to a question on Dharma by Yaksha, Dharmaraja Yudhisthira said thus: tarko pratisth,srutyo vibhinna neko risiyasya matan pramanam dharmaya tatwan nihitan guhayan mahajano jein gatah sa pantha Mahabharta Aranyakaparvan 313.117.
(Formal logic is vascillating.
Srutis are contradict ory.
There is no single rishi whose opinion is final.
The principle of Dharma is hidden in a cave.
The path of the virtuous persons is the only proper course.) The expression 'Religion ' has, however, been sought to be defined in the 'Words and Phrases ', Permanent Edn., 36 A, p. 461 onwards, as given below: "Religion is morality, with a sanction drawn from a future state of rewards and punishments.
The term 'religion ' and 'religious ' in ordinary usage are not rigid concepts.
772 'Religion ' has reference to one 's views of his relations to his Creator and to the obligations they impose of re verence for his being and character, and of obedience to his will.
The word 'religion ' in the primary sense (from 'religare, to rebind bind back), imports, as applied to moral questions, only a recognition of a conscious duty to obey restraining principles of conduct.
Tn such sense we suppose there is no one who will admit that he is without religion. 'Religion ' is bond uniting man to God, and virtue whose purpose is to render God worship due him as source of all being and principle of all government of things. 'Religion ' has reference to man 's relation to divinity; to the moral obligation of reverence and worship, obedience and submission, It is the recognition of God as as object of worship, love and obedience; right feeling toward God, as highly apprehended. 'Religion ' means the services and adoration of God or a god as expressed in forms of worship; an apprehension, awareness, or conviction of the existence of a Supreme Being; any system of faith, doctrine and worship, as the Christian religion, the religions of the orient; a particular system of faith or worship.
The term 'religion ' as used in tax exemption law, simply includes: (I) a belief, not necessarily referring to supernatural powers; (2) a cult, involving a gregarious association openly expressing the belief; (3) a system of moral practice directly resulting from an adherence to the belief; and (4) an organization within the cult designed to observe the tenets or belief, the content of such belief being of no moment.
While 'religion ' in its broadest sense includes all forms of belief in the existence of superior beings capable of exercising power over the human race, as commonly accepted it means the formal recognition of God, as members of societies and associations, and the term, "a religious purpose ', as used in the constitutional provision exempting from taxation property used for religious purposes, means 773 the use of property by a religious society or body of persons as a place for public worship. 'Religion ' is squaring human life with superhuman life.
Belief in a superhuman power and such an adjustment of human activities to the requirements of that power as may enable the individual believer to exist more happily is com mon to all 'religions '.
The term 'religion ' has reference to one 's views on his relations to his creator, and to the obligations they impose of reverence for his being and character and obdience to his will.
The term 'religion ' has reference to one 's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.
With man 's relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with.
" These terms have also been judicially considered in The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur MUtt(1) where in the following proposition of law have been laid down: (1) Religion means "a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being".
(2) A religion is not merely an opinion, doctrine or belief.
It has its outward expression in acts as well.
(3) Religion need not be theistic.
(4) "Religious denomination" means a religious sect or body having a common faith and organisation and designated by a distinctive name.
(5) A law which takes away the rights of administration from the hands of a religious denomination altogether 774 and vests in another authority would amount to violation of the right guaranteed under clause (d) of article 26.
" The aforesaid propositions have been consistently followed in later cases including The Durgah Committee, Ajmer & Anr.
vs Syed Hussain Ali & Ors(1) and can be regarded as well settled.
The words "religious denomination" in Article 26 of the Constitution must take their colour from the word 'religion ' and if this be so, the expression "religious denomination" must also satisfy three conditions: (1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well being, that is, a common faith; (2) common organisation; and (3) designation by a distinctive name.
In view of the propositions laid down by the Court in the aforesaid reported cases we have to examine the teachings of Sri Aurobindo to see whether they constitute a religion.
It will be appropriate at this stage to succintly deal with the teaching of Sri Aurobindo.
According to Sri Aurobindo there is a divine consciousness pervading the whole universe.
A portion of this consciousness by a process.
Of involution through various planes has finally resulted in the formation of the physical world, namely the stars, the planets, the earth and so on.
Then came the reverse process of evolution i e., from stone to plant, from plant to animal, from animal to man or in other words from matter to life, from life to mind and so on.
This evolution will not stop with man who is only a transitional species.
The evolution would go further transforming man into superman and the mind into supermind.
The superman according to Sri Aurobindo would be totally different from man as man from animal and animal from plant.
In this transformation back to all prevading divine consciousness in which man would become superman, man would lose his present character of body, vital and mind.
His body would become a body of light, his vital a vital of light and his mind a mind of light.
775 This transformation, or evolution of man into superman is A bound to take place but in the course of thousands of years.
This process, however, according to Sri Aurobindo can be accelerated by the practice of integral yoga.
His theory of this transformation consists of two aspects: (a) An inner ascent of the consciousness to the Divine.
(b) A descent of Divine consciousness in the mind, vital and body.
The distinctive feature of Sri Aurobindo 's yoga is that it is universal.
Any one born in any part of the world, born of parents professing any religion can accept his yoga.
In short, he originated the philosophy of cosmic salvation through spiritual evolution.
Divine existence that will appear through the development of the agnostic man will usher into a transcendental spiritual age in which man and universe are destined to become divine.
D Thus, according to Sri Aurobindo 's theory of cosmic salvation the paths of union with Brahman are two way streets or channels.
Enlightenment comes to man from above while the spiritual mind (supermind) of man strives through yogic illumination to reach upwards from below.
When these two forces blend in an individual agnostic man is created.
This yogic illumination transcends both reason and intuition and eventually leads to the freeing of the individual from the hands of individuality and by exclusion of all mankind, will eventually achieve Mukti or liberation.
Sri Aurobindo created a dialectic mode of salvation not only for individual but for all mankind.
Energy or Sachidananda (existence, consciousness and joy) comes down from Brahma to meet energy from the supermind of man striving upwards towards his spirituality (antithesis) and melts in man to create a new spiritual superman (synthesis).
From these divine beings a divine universe is also evolved.
The Divine, though one, has two aspects one is static and the other dynamic.
The dynamic side of the Divine is the energy or the creative side.
People in the past realised only the static aspect of the Divine and did not know much of the dynamic side as it is much more difficult to realise it.
For this reason, the purpose of the creation was not understood by them and they declared the world to be futile and deceptive.
That means either the Divine was unable to make a perfect world and He had Do purpose in the creation or 776 man has not been able to understand the same.
Sri Aurobindo 's yoga gives the full experience of both the aspects of the Divine, that is why he calls his Yoga the Integral Yoga or the Perfect Yoga.
Sri Aurobindo says the Divine is real and His creation is bound to be real.
He has shown to the world the purpose of the creation and has declared that the world is still in an imperfect condition passing through the transitory Period towards its perfection.
Man is a creature of this world and he cannot know much of things other than this world.
He has, however, a capacity in himself to develop to the next stage of evolution because Nature cannot stop with imperfect results and the present humanity must evolve further till the final perfection is obtained.
We look at things and happenings from the oufer surface, having no knowledge whatsoever of the real causes and effects, the different forces and influences of the subtle worlds working behind them.
We can see and feel only the results on the material plane and nothing more.
Our senses have a very limited scope and they can give us the knowledge of the things which can only materialise.
But in fact that is not all that we are.
We have another part in ourselves which is veiled by the external consciousness and we call that as our soul the spark of divinity within; which is one everywhere the true self.
As our sense give us the knowledge of the external things by directing our consciousness outwardly, in the same way if we can direct our consciousness inwardly and rise into the inner consciousness, we can know the things of the higher worlds and go beyond the limitation of our physical sense, then only can we have the true knowledge of this world and the worlds beyond and that practice is called 'Yoga '.
The meaning of the word. 'Yoga ' is to join join our external consciousness with our true self.
According to Sri Aurobindo, humanity is under the sway of dark and ignorant forces and that is the reason for human sufferings, disease and death all the signs of imperfection.
It is clear that man has to progress towards a Light which brings knowledge, power, happiness! love, beauty and even physical immortality.
The Divine is the essence of the whole universe and to realise and possess Him should be the supreme aim of human life.
To acquire all the qualities of the Divine is the final purpose of Nature 's evolution.
777 The soul progresses by gathering experience in the ordinary life but A it is a very long, slow and devious process from birth to birth.
Yoga hastens the soul 's development.
The progress that can be made in any lives is made in a few years by the help of Yoga.
The Yoga of Sri Aurobindo is called the 'Integral Yoga ' or the 'Supermental Yoga '.
The Yogas of the past were only of ascent to the Spirit.
Sri Aurobindo 's Yoga is both of ascent and descent.
One can realise the Divine in consciousness by the old Yogas but cannot establish the Divine on earth in a collective no less than in an individual physical life.
In the old Yogas the world was considered either an illusion or a transitional phase: it had no prospect of having all the terms of its existence fulfilled.
Sri Aurobindo on the other hand says that the world is a real creation of the Divine and life in it can be completely divinised down to the very cells of the body.
The kingdom of God on earth can be brought about in the most literal sense by a total transformation of collective man.
To put it in Sri Aurobindo 's words: "Here and not elsewhere the highest God head has to be found, the soul 's divine nature developed out of the imperfect physical human nature and through unity with God and man and universe the whole large truth of being discovered and lived and made visibly wonderful.
That completes the long cycle of our becoming and admits us to a supreme result; that is opportunity given to the soul by the human birth and until that is accomplished, it can not cease.
" For this transformation a new power called the 'supermind ' which was sealed to this earth till now is needed, F Shri Soli Sorabjee, for the petitioners, bas contended that the followers of Sri Aurobindo satisfy the aforesaid three conditions and, therefore, they constitute a religious denomination.
Strong reliance was placed on The Commissioner, Hindu Religious Endowments, Madras vs Lakshmindra Thirtha Swamiar of Sri Shitur Mutt (supra).
In that case the followers of Rarnanuja, the fol lowers of Madhwacharya and the followers of other religious teachers were held to be the religious denomination.
On the strength of this case it was contended that Sri Aurobindo was also a religious teacher and, therefore, there is no reason on principle which compels the conclusion that the followers of Aurobindo who share common faith and organisation and have a distinctive name do not constitute a 778 religious denomination.
A similar view was taken in Nalam Ramalingayya vs The Commissioner of Charitable and Hindu Religious Institutions and Endowments, Hyderabad(1).
Dealing with the expression 'religious denomination ', a Division Bench of the Andhra Pradesh High Court relying on Sri Lakshmindra 's case (supra) observed as follows: "To hold that there exists a religious denomination, there must exist a religious sect or a body having a common faith and organisation and designated by a distinctive name .
Of course, any sect or sub.
sect professing certain religious cult having a common faith and common spiritual organisation, such as Vaishnavites, Madhvites, Saivites may be termed as religious denomination but L certainly not any caste, sub caste or sect of Hindu religion, who worship mainly a particular deity or god.
" It was further contended that the words "religion ' and 'religious denomination ' must not be construed in the narrow, restrictive and orthodox or traditional sense but must be given a broad meaning.
It may be observed that in the case of The Commissioner, Hindu Religious Endowments, Madras vs Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra) different sects and sub.
sects of the Hindu religion founded by various religious teachers were called a religious denomination on the ground that they being part of Hindu religion would also be designated as a religious denomination if the followers of Hindu religion constituted a religious denomination as the part must bear the impress of the whole.
This observation was in this content.
The other case taking a similar view viz. Nalam Ramalingayya vs The Commissioner of Charitable and Hindu Religious Institutions and Endowments, Hyderabad (supra) is also based on the same ground.
For the petitioners it was further submitted that Sri Aurobindo and the Mother were adverse to 'religion ' as 'Religiosity" and "Religionism" but not lo "True Religion".
Reference was made to various writings of Sri Aurobindo and the Mother: Sri Aurobindo "In order to exceed our Nature and become divine, we must first get God, for we are the lower imperfect term of 779 Our being.
He is its higher perfect term, The finite to A become infinite, must know, have and touch infinity; the symbol being in order to become its own reality, must know, love and preceive that Reality.
This necessarily is the imperative justification of religion; not of a church, creed or theology for all these things are religiosity, not religion but that personal and intimate religious temper and spirit which moves men to worship, to aspire to or to pant after his own idea of the supreme.
(SABCV 17, p. 54 55) "It is true in a sense that Religion should be the dominant thing in life.
When it identifies with a creed or cult or system of ceremonial acts it may well become a retarding force There are two aspects of religion.
Spiritual Religion and Religionism.
True Religion is spiritual Religion, which seeks to live in spirit in what is .
beyond the intellect.
Religionism on the other hand entrenches itself in some narrow pietistic exaltation of the lower members.
It lays exclusive stress on intellectual dogmas, forms and ceremonies .
(SABCV 15, p. 166 67) The Mother "We give the name of religion to any concept of the world or the universe which is presented as the exclusive Truth in which one must have an absolute faith, generally because this Truth is declared to be the result of a revelation.
Most religions affirm the existence of a God and the rules to be followed to obey him, but there are some Godless religions, such as socio political organisations which, in the name of an Ideal or the State, claim the same right to be obeyed (MCV No. 13, p. 212 13) "The first and principal article of these established and formal religions runs always "Mine is the supreme, the only truth, all others are in falsehood or inferior.
" For without this fundamental dogma, established religions could not have existed.
If you do not believe and.
proclaim that you 780 alone possess the one or the highest truth, you will not be able to impress people and make them flock to you.
(MCV No. 3, p. 77) "He who has a spiritual experience and faith, formulates it in the most appropriate words for himself.
But if he is convinced that this expression is the only correct and true one for this experience and faith, he becomes dogmatic and tends to create a religion.
(MCV No. 13.
p. 22) "Imagine someone who, in some way or other has heard of something like the Divine or has a personal feeling that something of the kind exists, and begins to make all sorts of efforts, efforts of will, of discipline, efforts of concentration, all sorts of efforts to find this Divine, to discover what he is, to become acquainted with Him and unite with Him.
Then this person is doing Yoga.
Now if this person has noted down all the processes he has used and constructs a fixed system, and sets up all that he has discovered is absolute laws for example he says, the Divine is like this, to find the Divine you must do this, make this particular gesture, take this attitude, perform this ceremony and you must admit that this is the truth, you must say "I accept that this is the Truth and I fully adhere to it; and your method is the only right one, the only one which exists" if all that is written down, organised arranged into fixed laws and ceremonies, it becomes a religion.
(MCV No. 8, p. 147) Sri Aurobindo "You express your faith in Sri Aurobindo with certain words, which are for you the best expression of this faith; this is quite all right.
But if you are convinced that these very words are the only correct ones to express what Sri Aurobindo is, then you become dogmatic and are ready to create a religion." (Sri Aurobindo Circle 21 No. 1965) "That is why religions always blunder, always for they want to standardise the expression of an experience and impose it on all as an irrefutable truth.
The experience was 781 true, complete in itself, convincing for him who had it.
A The formulae he has made of it is excellent for him; but to want to impose it on others is a gross error which bas altogether disasterous consequences always and which always takes away, far away from the Truth.
" "That is why all religions, however fine they may be have always led men to the worst excesses.
All crimes, all horrors that have been prepetrated in the name of religion are among the darkest spots in human history." (Bulletin No. 1968, p. 129 31) "You see, this is what I have learned : the failure of the religions.
It is because they were divided.
They wanted people to be religious to the exclusion of the other religious.
And what the new consciousness wants is: no more divisions.
to find the meeting point." (MCV No. 13, p. 293 94) "There is no word so plastic and uncertain in its meaning as the word religion.
The word is European and, therefore, it is as well to know first what the Europeans mean by it.
In this matter we find them. divided in opinion.
Sometimes they use it as equivalent to a set of beliefs, sometimes as equivalent to morality coupled with a belief in God, sometimes as equivalent to a set of pietistic actions and emotions.
Faith, works and pious observances, these are the three recognised elements of European religion.
Religion in India is a still more plastic term and may mean anything from the heights of Yoga to strangling your fellowman and relieving him of the wordly goods he may happen to be carrying with him.
It would, therefore, take too long to enumerate everything that can be included in Indian religion." Sri Aurobindo (Glossary of Terms in Sri Aurobindo 's Writings, p. 132) Emphasis was also laid upon the opinion of the authoritative sources in support of the contention that the teachings of Sri Aurobindo constitute a religion and the Society a religious denomination.
The Encyclopaedia of Philosophy (1972 ed., Vol. 1, pp. 782 208 9) observes: "Sri Aurobindo was an Indian metaphysician and founder of a new religious movement with headquarters at Pondichery.
The religious movement associated with him has increased its following in India, and has made some converts in the West. .
God must 'descend ' into human experience.
This illumination of individual will lead to the emergence of a divinised community,.
Aurobindo produced a synthesis between older Indian religious ideas and the world affirming attitudes of Christian theism.
" The Encyclopaedia Brittanica talking about Sri Aurobindo says: "Sri Aurobindo devoted himself to discover the way by which the Universe might be made divine.
Sri Aurobindo has been acclaimed as the prophet of the Superman, as the hierophant of the 'new age '.
He has called his stand point that of a spiritual religion of humanity." The Dictionary of Comparative Religion (1970 ed., p. 117) mentions: "According to Aurobindo, there is a progressive evolution of the divine Being through matter no higher spiritual forms, and the Aurobindo movement is held to represent vanguard of this evolutionary process in our own times.
Aurobindo practised and taught an 'integral yoga ' in which meditative and spiritual exercises are integrated with physical, cultural and intellectual pursuits.
" Encyclopaedia Americana (1966 Vol. 12, p. 634) states: "He (Sri Aurobindo) abandoned politics to found a religious school(1910) at Pondicherry.
A practising Yoga philosopher, he wrote numerous spiritual and mystical works.
" The Gazetteer of India, published by the Government of India, Vol. 1, Country and People, Chapter 8, Religion, pp. 413 500, Section on Sri Aurobindo, states: "Sri Aurobindo gave new interpretations of the vedas and the Vedanta.
and in his Essays on the Gita he expoun 783 ded what he called "the integral view of Life".
His great A work, The Life Divine, is a summing up of his philosophy of "the Descent of the Divine into Matter".
The importance of Sri Aurobindo 's misiion lies in his attempt to explain the true methods of Yoga.
" In the Newsweek (Nov. 20, 1972) the International Weekly, its 'religion ' Editor, Woodward, writes: "The Next Religion": Some students of oriental thought believe that Sri Aurobindo 's spiritual vision and discipline may blossom into the first new religion of global scope since the rise of Islam thirteen centuries ago .
Sri Aurobindo left behind a nucleus of disciples in Pondicherry where the Master 's work is carried on by 1800 devotees who live in India 's largest Ashram or spiritual community.
" Reference was also made to the opinions of the philosophers and professors of religion about the teachings of Sri Aurobindo.
Frederic Spiegelberg, in his book 'Living Religions of the World ', p. 190 205, writes that in Sri Aurobindo: "We pass beyond specific religions to a synthetic vision of the religious impulse itself, a vision designed to embrace all previous and future history all previous and future paths.
Sri Aurobindo is a man worshipped by hundreds of thousands and respected by millions.
In his retreat at Pondicherry he is less the philosopher of Hinduism than the philosopher of religion in general, the voice of that which comparative religion leaves undisputed.
" Mr. Robert Neil Minor, Professor of Religion, University of Kansas, writes: "on the level of Mind, then Aurobindo 's system can not be falsified.
It therefore cannot be verified on the level of Mind.
But as a religion it is a total package.
Aurobindo did not offer a religious view of which one could accept and reject parts.
He offered an integral system based upon an integral vision.
He offered.
as well, the vision itself." (Sri Aurobindo: The Perfect and the Good, 177) 784 And, the opinions of similar other professors of religion and philosophers have been quoted to show that the teachings of Sri Aurobindo have been treated as religion by theologians and by professors and by important news agencies.
The interpretations of the term 'religion ' used in different Acts were also referred to but it is not necessary to refer to them as we are to interpret the term 'religion ' and 'religious denomination, with references to Articles 25 and 26 of the Constitution.
Mr. section Rangarajan appearing for the petitioners in one of the other writ petitions substantially adopted the contentions raised by Mr. Soli Sorabjee and further supplemented the same by raising the following points.
According to him the ingredients of religion are .
(1) A spiritual ideal; (2) A set of concepts or precepts on God Man relationship underlying the ideal: (3) A methodology given or evolved by the founder or followers of the religion to achieve the ideal; and (4) A definite following of persons having common faith in the precepts and concepts; and in order to constitute a 'religious denomination ' two further ingredients are needed: (5) The followers should have a common organisation; (6) They should be designated and designable by a distinct name This may usually be the name of the founder himself.
The counsel contends that the ideal in Sri Aurobindo 's religion is a 'Divine Life in a Divine Body ' by Divinising Man and by trans forming his mind, vital and physical.
According to Sri Aurobindo, in the beginning the whole universe was full of all pervading Divine consciousness.
He called the dynamic portion of the Divine as 'Supermind '.
The Divine the Supermind according to him, wanted to see its manifestation even in matter.
By a process of involution the Divine.
which is the subtlest became grosser and grosser giving 785 rise to various planes of consciousness.
This was achieved through , lnvolution Evolution and Divinisation of Man.
The methodology for achieving the ideal was the 'Integral Yoga ' which only means using all the methods Bhakthi, knowledge, work meditation, concentration, attaining perfection to derive optimum benefits of each one of them, by total surrender to the Divine and by becoming the instrument of the Divine.
Sri Aurobindo has a definite following.
In the beginning, this consisted of a few disciples.
Slowly their number increased and an Ashram grew.
Then there are definite organisations, Ashrams, Sri Aurobindo Society with more than 300 centres the world over.
The devotees of Sri Aurobindo are also referred to as Aurobindonians.
There are certain other attributes which indicate that the followers of Sri Aurobindo constitute a religious denomination, for example, chanting of Mantras, specially prepared by Sri Aurobindo, a particular symbol also used for identification, place of pilgrimage 1) is the Samadhi of Sri Aurobindo and the Mother, provision for meditation at the Samadhi.
Flowers are offered at the Samadhi by the devotees.
The uniqueness of his philosophy and his teachings according to Mr. Rangarajan constitute religion and the special features in his philosophy also make the Society a religious denomination.
Thus, all the ingredients of religion and religious denomination are satisfied and there is no reason why his teachings be not taken to be religious and the institutions viz, the Society and the Auroville be not taken to be a religious denomination within the meaning of Articles 25 and 26 of the Constitution.
The Solicitor General for the Union of India and Mr. F.S. Nariman, counsel for the respondents Nos. 6 to 238, on the other hand contended that the teachings of Sri Aurobindo do not constitute religion nor is the Society and the Auroville a religious denomination, and in any case there is no violation of Article 26 of the Constitution inasmuch as the impugned Act has taken over only the management of Auroville from the Society and does not interfere with the freedom contemplated by Articles 25 and 26 of the Constitution.
H Reference was made to rule 9 of the Rules and Regulations of 786 Sri Aurobindo Society, which deals with membership of the Society and provides: "9.
Any person or institution or organisation either in India or abroad who subscribes to the aims and objects of the Society, and whose application for member ship is approved by the executive Committee, will be member of the Society.
The membership is open to people everywhere without any distinction of nationality, religion, caste, creed or sex.
" The only condition for membership is that the person seeking the membership of the Society must subscribe to the aims and objects of the Society.
It was further urged that what is universal cannot be a religious denomination.
In order to constitute a separate denomination, there must be something distinct from another.
A denomination, argues the counsel, is one which is different from the other and if the Society was a religious denomination, then the person seeking admission to the institution would lose his previous religion He cannot be a member of two religions at one and the same time.
But this is not the position in becoming a member of the society and Auroville.
A religious denomination must necessarily be a new and one new methodology must be provided for a religion.
Substantially, the view taken by Sri Aurobindo remains a part of the Hindu philosophy.
There may be certain innovations in his philosophy but that would not make it a religion on that account.
In support of his contention the Solicitor Gereral placed reliance on Hiralal Mallick vs State of Bihar(l).
Dealing with meditation this Court observed: "Modern scientific studies have validated ancient vedic insights a bequeathing to mankind new meditational, yogic and other therapeutics, at once secular, empirically tested and transreligious.
The psychological, physiological and sociological experiments conducted on the effects of Transcendental Meditation (TM, for short) have proved that this science of creative intelligence, in its meditational applications, tranquilizes the tense inside, helps meet stress (1) [19781] SCR 301.
787 without distress, overcome inactivities and instabilities and A by holistic healing normalises the fevered and fatigued man.
Rehabilitation of psychiatric patients, restoration of juvenile offenders, augmentation of moral tone and temper and, more importantly, improvement of social behaviour of prisoners are among the proven finding recorded by researchers.
Extensive studies of TM in many prisons in the U.S.A., Canada, Germany and other countries are reported to have yielded results of improved creativity, higher responsibility and better behaviour.
Indeed, a few trial courts in the United States have actually prescribed TM as a recipe for rehabilitation.
As Dr. M.P. Pali, Principal of the Kasturba Medical College, Mangalore, has put down: "Meditation is a science and this should be learnt under guidance and cannot be just picked up from books.
Objective studies on the effects of meditation on human body and mind is a modern observation and has been studied by various investigation at MEERU Maharishi European Research University.
Its tranquilizing effect on body and mind, ultimately leading to the greater goal of Cosmic Consciousness or universal awareness, has been studied by using over a hundred parameters.
Transcendental Meditation practised for IS minutes in the morning and evening every day brings about a host of beneficial effects.
To name only a few: 1.
Body and mind get into a state of deep relaxation.
B.M.R. drops, loss oxygen is consumed.
E.E.G. shows brain wave coherence with 'alpha ' wave preponderance.
Automatic stability increases.
Normalisation of high blood pressure.
Reduced use of alcohol and tobacco.
Reduced stress, hence decreased plasma cortisol and blood lactate.
Slowing of the heart etc.
" 788 This Court dealing with punishment in a criminal case in Giasuddin vs A .
P. State(l ) again observed: "There is a spiritual dimension to the first page of our Constitution which projects into penology.
Indian courts may draw inspiration from Patanjali sutra even as they derive punitive patterns from the Penal Code (most of Indian meditational therapy is based on the sutras of Patanjali).
on the strength of these authorities it is contended for the Union of India that the integral yoga propounded by Sri Aurobindo is only a science and not a religion.
The Society itself treated Auroville not as a religious institution.
Auroville is a township which was conceived, planned and developed as a centre of international culture for the promotion of the ideals which are central to the United Nations Educational Scientific and Cultural organisation (UNESCO).
These ideals have been explained and proclaimed extensively in the writings of Sri Aurobindo and the Mother.
In the year 1966, Sri Aurobindo Society, devoted as it was to the teachings of Sri Aurobindo and guided by the Mother, proposed this cultural township to UNESCO for the commemoration of the 20th anniversary of the UNESCO.
The Union of India took up the matter with UNESCO and it did so on the explicit understanding that Auroville as proposed was in full consonance and conformity with India 's highest ideals and aspirations and that would help Auroville promote the aims and objects of UNESCO.
Accordingly, at the Fourteenth Session of the General Conference of the UNESCO held in Paris in 1966, a resolution was passed noting that the proposal made by Sri Aurobindo Society to set up Auroville as a cultural township where people of the different countries will live together in harmony in one community and engage in cultural, educational, scientific and other pursuits and that the township will represent cultures of the world not only intellectually but also presenting different schools of architecture, paintings, soulpture, music etc.
as a part of living, bringing together the values and ideals of civilisations and cultures, commended the project to those interested in UNESCO 's ideals as the project would contribute to international understanding and promotion of peace.
(1) ; @ 164.
789 The said resolution of the UNESCO was followed by two other resolutions one at the 15th Session in 1968 and the other at the 16th Session in 1970.
In the second resolution the UNESCO had noted that the Society had taken steps to establish Auroville as an international cultural township which would fulfil the ideas of the UNESCO.
The UNESCO invited the member States and nongovernmental organisations to participate in the development of Auroville as an international cultural township designed to bring together the values of different cultures and civilisations in harmonious environment.
The foundation stone of Auroville was laid on 28 February 1968 with the participation of youth or many nations, representing the coming together of all Nations in a spirit of human unity.
The UNESCO conceived Auroville township as an instrument of education, promoting mutual respect and understanding between people in keeping with the spirit of Universal Declaration of Human Rights and Universal Declaration of Principles of International Cultural Cooperation.
The Government of India took active part in making the 1 UNESCO interested in the project and take decision as aforesaid for the development of Auroville as an international cultural township with the participation of countries who are members of the UNESCO.
Sri Aurobindo Society had brought the proposal of Auroville to the Government of India and explained that Auroville was to be an international cultural township.
This fact is evident from the brochure submitted by Sri Aurobindo Society to the Government of India.
The Charter of Auroville given by the Mother also indicates that it is not a religious institution, as is evident from the following: F "1.
Auroville belongs to nobody in particular.
Auroville belongs to humanity as a whole.
But to live in Auroville one must be the willing servitor of the Divine 's consciousness.
Auroville will be the place of an unending education, of constant progress, and a youth that never ages.
Auroville wants to be the bridge between the past and the future.
Taking advantage of all discoveries from without and from within, Auroville will boldly spring towards future realisations.
790 4.
Auroville will be the site of material and spiritual research for a living embodiment of an actual human unity.
On the own admission of the General Secretary of Sri Aurobindo Society, Pondicherry, Auroville was to be a symbol of international cooperation, an effort to promote international under standing by bringing together in close juxtaposition the values and ideals of different civilisations and cultures.
The cultures of different regions of the earth will be represented in Auroville in such a way as to be accessible to all not merely intellectually in ideas, theories, principles and languages, but also in habits and customs; art in all forms paintings, sculpture, music, architecture, decor, dance; as well as physically through natural scenery, dress, games, sports and diet.
It will be a representation in a concrete and Jiving manner; it will have a museum, an art gallery, a library of books, recorded music etc.
It will also have other objects which will express its intellectual, scientific and artistic genious, spiritual tendencies and national characteristics.
While participating in UNESCO meeting "Design for Integrated Living Programme in Auroville" was presented and that also goes a long way to show that it was only a cultural township and not a religious institution.
Numerous utterings by Sri Aurobindo or the Mother unmistakably show that the Ashram or Society or Auroville is not a religious institution.
In Sri Aurobindo 's own words (The Teaching and the Ashram of Sri Aurobindo, 1934, p. 6): "The Ashram is not a religious association Those who are here come from all religions and some are of no religion.
There is no creed or set of dogmas, no governing religious body; there are only the teachings of Sri Aurobindo and certain psychological practices of concentration and meditation, etc., for the enlarging of the consciousness, receptivity to the Truth, mastery over the desires, the discovery of the divine self and consciousness concealed within each human being, a higher evolution of the nature.
" 791 Sri Aurobindo himself said(1): "I may say that it is far from my purpose to propagate any religion, new or old.
" Sri Aurobindo says again(2): "We are not a party or a church or religion," Sri Aurobindo exposes(3): "Churches and creeds have, for example, stood violently in the way of philosophy and science, burned a Giordano Bruno, imprisoned a Galileo, and so generally misconducted themselves in this matter that philosophy and science had a self defence to turn upon Religion and rend her to pieces in order to get a free field for their legitimate development.
" The Mother said on 19.3.1973: "Here we do not have religion." Sri Aurobindo says again(4): "Yogic methods have some thing of the same relation to the customary psychological workings of man as has to scientific handling of the natural force of electricity or of steam to the normal operations of steam and of electricity.
And the, too are formed upon a knowledge developed and confirmed by regular experiment, a practical analysis and constant results.
All methods grouped under the common name of Yoga are special psychological processes founded on a fixed truth of nature and developing, out of normal functions, powers and results which were always latent but which her ordinary movements do not easily or do not often manifest.
" 792 It is pertinent to quote Mother 's answer to a question(1): "Q. Sweet Mother, what is the difference between Yoga and religion; Mother 's Ans: Ah! My child.
It is as though you were asking me the difference between a dog and a cat.
" There can be no better proof than what Sri Aurobindo and the Mother themselves thought of their teachings and their institutions to find out whether the teachings of Sri Aurobindo and his Integral Yoga constitute a religion or a philosophy.
The above utterings from time to time by Sri Aurobindo and the Mother hardly leave any doubt about the nature of the institution.
It was on the basis that it was not a religions institution that the Society collected funds from the Central Government and the Governments of States and from abroad and the other non governmental agencies, Mr. F.S. Nariman appearing for respondents Nos. 6 to 238 adopted the arguments advanced by the Solicitor General Mr. K. Parasaran, and supplemented the same.
He submitted that the Society was registered under the and a purely religious society could not have been registered under the .
Section 20 of the provides what kind of Societies can be registered under the Act.
It does not talk of religious institutions.
Of course, it includes a society with charitable purposes.
Section 2 of the Charitable Endowments Act, however, excludes charity as a religious purpose.
It was further contended that the nature of the institution can be judged by the Memorandum of Association.
The Memorandum of Association does not talk of any religion.
The purpose of the Society was to make known to the members and the people in general the aims and ideals of Sri Aurobindo and the Mother; their system of Integral Yoga and to work for its fulfillment in all possible ways; to train selected students and teachers from all over the world in the Integral System of Education, i.e., the spiritual, psychic, mental, vital and physical; to help in cash or in kind by why of donations etc.; to organise, encourage, promote and assist in the study, research, and pursuit of science literature and fine arts etc.
Nowhere it talks of propagating religion.
This is the surest 793 index to know whether the Auroville or the Society was a religious A institution.
It was further contended that a religious denomination must be professed by that body but from the very beginning the Society has eschewed the word 'religion ' in its constitution.
The Society professed to be a scientific research organisation to the donors and got income tax exemption on the footing that it was not a religious institution.
The Society has claimed exemption from income tax under section 80 for the donors and under section 35 for itself on that ground.
Ashram Trust was different from Auroville Ashram.
The Ashram Trust also applied for income tax exemption and got it on that very ground.
So also Aurobindo Society claimed exemption on the footing that it was not a religious institution and got it.
They professed to the Government also that they were not a religious institution in their application for financial assistance under tho Central Scheme of Assistance to voluntary Hindu organisations.
On the basis of the materials placed before us viz., the Memorandum of Association of the Society, the several applications made by the Society claiming exemption under section 35 and section 80 of the Income tax Act, the repeated utterings of Sri Aurobindo and the Mother that the Society and Auroville were not religious institutions and host of other documents there is no room for doubt that neither the Society nor Auroville constitute a religious denomination and the teachings of Sri Aurobindo only represented his philosophy and not a religion.
Even assuming but not holding that the Society or the Auroville were a religious denomination, the impugned enactment is not hit by Article 25 or 26 of the Constitution.
The impugned enactment does not curtail the freedom of conscience and the right freely to profess practise and propagate religion.
Therefore, there is no question of the enactment being hit by Article 25.
Article 26 as stated earlier confers freedom to the religious denomination: (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and 794 (d) to administer such property in accordance with law.
The impugned enactment does not stand in the way of the Society establishing and maintaining institutions for religious and charitable purposes.
It also does not stand in the way of the Society to manage its affairs in matters of religion.
It has only taken over the management of the Auroville by the Society in respect of the secular matters.
The position before the present Constitution came into force was that the State did not interfere in matters of religion in its doctrinal and ritualistic aspects treating it as a private purpose, but it did exercise control over the administration of property endowed for religious institutions (dedicated to the public) treating it as a public purpose, and this position has not changed even under the present Constitution.(1) The scope and extent of the rights conferred by Articles 25 and 26 of the Constitution are now well settled by the decision of this Court.
To start with, in The Commissioner, Hindu Religions Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt(2) dealing with various aspects of Article 26 of the Constitution this Court observed as follows: "The other thing that remains to be considered in regard to article 26 is, what is the scope of clause tb) of the article which speaks of management of its own affairs in matters of religion ? "The language undoubtedly suggests that there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. .
It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause (b), the next two clauses of article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law.
The administration of its property by a religious denomination has thus been placed on a different footing 795 from the right to manage its own affairs in matters of A religion.
The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose.
It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the article applies . . freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down.
Under article 26(b), therefore, a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.
Of course, the scale of expenses to be incurred in connection with these religious observations would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction of any religion to destroy The institution and its endowments by incurring wasteful expenditure on rites and ceremonies.
It should be noticed, however, that under article 26(b) it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose.
A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause (d) of Article 26." G The same principle was reiterated by this Court in The Durgah Committee, Ajmer and Anr.
vs Syed Hussain Ali and ors.(l).
In Tilkyat Shri Govindlaljl Maharaj vs The State of Rajasthan and ors.(2) it was held that the right to manage the properties of 796 a temple was a purely secular matter and could not be regarded as a religious practice under article 25(1) or as amounting to affairs in matters of religion under article 26(b) consequently, the Nathdwara Temple Act in so far as it provided for the management of the properties of the Nathdwara Temple under the provisions of the Act did not contravane articles 25(1) and 26(b) of the Constitution.
In Sastri Yagnapurushadji and Ors.
vs Muldas Bhudardas Vaishya and Anr.(l) the appellants who were the followers of the Swaminarayan sect and known as satsangis, filed a representative suit for a declaration that the relevant provisions of the Bombay Harijan Temple Entry Act, 1947 (as amended by Act 77 of 1948) did a not apply to their temples because, the religion of the Swaminarayan sect was distinct and different from Hindu religion and because, the relevant provisions of the Act were ultra vires.
Dealing with the question this Court observed as will appear from the headnote: "The Indian mind has consistently through the ages been exercised over the problem of the nature of godhead, the problem that faces the spirit at the end of life, and the interrelation between the individual and the universal soul.
According to Hindu religion the ultimate goal of humanity is release and freedom from the unceasing cycle of births and rebirths and a state of absorption and assimilation of the individual soul with the infinites.
On the means to attain this and there is a great divergence of views; some emphasise the importance of Gyana, while others extol the virtue of Bhakti or devotion, yet others insist upon the paramount importance of the performance of duties with a heart full of devotion and in mind inspired by knowledge, Naturally it was realised by Hindu religion from the very beginning of its career that truth was many sided and different views contained different aspects of truth which no one could fully express.
This knowledge inevitably bread a spirit of tolerance and willingness to understand and appreciate the opponent 's point of view.
Because of this broad sweep of Hindu philosophic concept under Hindu philosophy, there is no scope for ex communicating any notion or principle as hertical and rejecting it as such.
The development of Hindu religion .11 and philosophy shows that from time to time saints and 797 religious reformers attempted to remove from Hindu A thought and practices, elements of corruption and superstition, and revolted against the dominance of rituals and the power of the priestly class with which it came to be associated, and that led to the formation of different sects.
In the teaching of these saints and religious reformers is noticeable a certain amount of divergance in their respec tive views; but underneath that divergence lie certain broad concepts which can be treated as basic and there is a kind of subtle indescribable unity which keeps them within the sweep of broad and progressive Hindu religion.
The first among these basic concepts is the acceptance of the Vedas as the highest authority in religious and philosophic matters.
This concept necessarily implies that all the systems claim to have drawn their principles from a common reservoir of thought enshrined in the Vedas.
Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma, it does not believe in any one philosophic concept; it does not follow any one set of religious rites of performances; in fact, it does not satisfy the traditional features of a religion or creed.
It is a way of life and nothing more.
The Constitution makers were fully conscious of the broad and comprehensive character of Hindu religion; and while guaranteeing the fundamental right to freedom of religion made it clear that reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaila or Budhist religion.
Philosophically, Swaminarayan was a follower of Ramanuja and the essence of his teachings is acceptance of the Vedas with reverance, recognition of the fact that the path of Bhakti or devotion leads to Moksha, insistence or devotion to Lord Krishna and a determination to remove corrupt practices and restore Hindu religion to its original glory and purity.
This shows unambiguously and unequivocally that Swaminarayan was a Hindu saint.
Further, the facts that initiation is necessary to become a Satsangi, that persons of other religions could join the sect by initiation without any process of proselytising on such occasions, and that Swaminarayan himself is treated as a God, are not inconsistent with the basic Hindu religious and philosophic theory.
" 798 In Digyadarsan Rajendra Ramdassji Varu vs State of Andfhra Pradesh and Anr.(1)dealing with Articles 25 and 26 of the Constitution this Court on the facts and circumstances of the case held: "It has nowhere been established that the petitioner has been prohibited or debarred from professing practising and propagating his religion.
A good deal material has been placed on the record to show that the entire math is being guarded by police constables but that does not mean that the petitioner cannot be allowed to enter the math premises and exercise the fundamental right conferred by article 25(I) of the Constitution As regards the contravention of clause (b) and (d) of article 26 there is nothing in sections 46 and 47 which empowers the Commissioner to interfere with the autonomy of the religious denomination in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion the denomination professes or practises nor has it been shown that any such order has been made by the Commissioner or that the Assistant Commissioner who has been put in charge of the day to day affairs is interfering in such matters.
" On these observations the impugned Act in that case was upheld by the Court.
Krishnan vs G.D.M. Committee(2) a full Bench of the Kerala High Court dealing with articles 25 and 26 observed: ". the real purpose and intendment of Articles 25 and 26 is to guarantee especially to the religious minorities in this country the freedom to profess, practise and propagate their Religion, to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire properties and to administer such properties in accordance with law subject only to the limitations and restrictions indicated in those Articles.
No doubt, the freedom guaranteed by these two Articles applied not merely to religious minorities but to all persons (Article 25) and all 799 religious denominations or sections thereof (Article 26).
A But, in interpreting the scope and content of the guarantee contained in the two Articles the Court will always have to keep in mind the real purpose underlying the incorporation of these provisions in the fundamental rights chapter.
When a challenge is raised before a court against the validity or any statute as contravening the fundamental rights guaranteed under Article 25 and 26 it is from the above perspective that tho court will approach the question and the tests to be applied for adjudging the validity of the statutes will be the same irrespective of whether the person or denomination complaining about the infringement of the said fundamental right belongs to a religious minority or not." In Ramalingayya vs The Commissioner of Charitable and Hindu Religious Institutions & Endowments(l) dealing with 'religious denomination ' the Andhra Pradesh High Court held: "Thus it is the distinct common faith and common spiritual organisation and the belief in a particular religious teacher of philosophy on which the religious denomination is founded or based, that is the essence of the matter, but not any caste, or sub caste or a particular deity worship by a particular caste or community." In United States vs Danial Andrew Seegar(2) the U.S. Supreme Court had to construe the provisions of section 6(j) of the Universal Military Training and Service Act of 1948 which, as a prerequisite of exempting a conscientious objector from military service, requires l? his belief in a relation to a Supreme Being involving duties superior to those arising from any human relation.
Defendant 's claim to exemption as conscientious objector was denied after he, professing religious belief and faith and not disavowing, although not clearly demonstrating any belief in a relation to a Supreme Being, stated that "the cosmic order does, perhaps, suggest a creative intelligence" and decried the tremendous "spiritual" price man must pay for his willingness to destroy human life.
The expression 'Supreme Being ' was liberally construed.
800 The Court dealing with the idea of God quoted from various religious teachers thus: "The community of all peoples is one.
One is their origin for God made the entire human race live on all the face of the earth.
One, too, is their ultimate end, God.
Men expect from the various religions answers to the riddles of the human condition: What is man ? What is the meaning and purpose of our lives 1 What is the moral good and what is sin ? What are death, judgment, and retribution after death ? Ever since primordial days, numerous peoples have had a certain perception of that hidden power which hovers over the course of things and over the events that make up the lives of man; some have even come to know of a Supreme Being and Father.
Religions in an advanced culture have been able to use more refined concepts and a more developed language in their struggle for an answer to man 's religious questions The proper question to ask, therefore, is not the futile one.
Do you believe in God ? But rather, What kind of God do you believe in ? Instead of positing a personal God, whose existence man can neither prove nor disprove, the ethical concept is founded on human experience.
It is anthropocentric, not theocentric.
Religion, for all the various definitions that have been given of it, must surely mean the devotion of man to the highest ideal that he can conceive.
And that ideal is a community of spirits in which the latent moral potentialities of men shall have been elicited by their reciprocal endeavours to cultivate the best in their fellow men.
What ultimate reality is we do not know; but we have the faith that it expresses itself in the human world as the power which inspires in men moral purpose.
" On an analysis of the aforesaid cases it is evident that even assuming that the Society or Auroville was a religious denomination, clause (b) of article 26 guarantees to a religious denomination a right to manage its own affairs in matters of religion.
It will be seen that besides the right to manage its own affairs in matters of 801 religion, which is given by clause (b), the next two clauses of article 26 A guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law.
The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion.
The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose.
It is clear, therefore, that questions merely relating to a religious group or institution are not matters of religion to which clause (b) of the article applies.
The impugned Act had not taken away the right of management in matters of religion of a religious denomination, if the Society or Auroville is a religious denomination at all, rather it has taken away the right of management of the property of Auroville.
Thus the impugned Act neither violates Article 25, nor Article 26 of the Constitution.
The impugned Act was also feebly sought to be challenged as violating articles 29 and 30 of the Constitution.
We are at a loss to understand how these two articles have any bearing on the impugned Act.
These two articles confer four distinct rights: (i) Right of any section of citizens to conserve its own language, script or culture (article 29(1)).
(ii) Right of all religious or linguistic minorities to establish and administer educational institutions of their choice (article 30(I)).
(iii) Right of an educational institution not to be dis criminated against in matter of state aid on the ground that it is under the management of a minority (article 30(2)).
(iv) Right of a citizen not to be denied admission into a state maintained or state aided educational institution on grounds only of religion, race, caste, language (article 29(2)).
The impugned Act does not seek to curtail the rights of any section of citizens to conserve its own language, script or culture 802 conferred by article 29.
In order to claim the benefit of article 30(I) the community must show: (a) that it is a religious or linguistic minority, (b) that the institution was established by it.
Without satisfying these two conditions it cannot claim the guaranteed rights to administer it.
In re The Kerala Education Bill(l) Article 30(1) of the Constitution which deals with the right of minorities to establish and administer education institutions, came for consideration.
The Kerala Educational Bill, 1957, which had been passed by the Kerala Legislative Assembly was reserved by the Governor for consideration by the President.
The contention of the State of Kerala was that the minority communities may exercise their fundamental right under Article 30(1) by establishing educational institutions of their choice wherever they like and administer the same in their own way and need not seek recognition from the Government, but that if the minority communities desire to have state recognition they must submit to the terms imposed, as conditions precedent to recognition, on every educational institution.
The claim of the educational institutions of the minority communities, on the other hand was that their fundamental right under article 30(1) is absolute and could not be subjected to any restriction whatever.
This Court, however, did not accept the extreme views propounded by the parties on either side but tried to reconcile the two.
It observed: Article 29(]) gives protection to any section of citizens residing in the territory of India having a distinct language, P script or culture of its own right to conserve the same the distinct languages, script or culture of a minority community can best be conserved by and through educational institutions, for it is by education that their culture can be inculcated into the impressionable mind of the children of their community.
It is through educational institutions that the language and script of the minority community can be preserved, improved and strengthened.
It is, therefore, that article 30(I) confers on all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice.
803 The minorities, quite understandably, regard it as A essential that the education of their children should be in accordance with the teachings of their religion, and they hold, quite honestly, that such an education cannot be obtained in ordinary schools designed for all the members of the public but can only be secured in schools conducted under the influence and guidance of people well versed in the tenets of their religion and in the traditions of their culture.
The minorities evidently desire that education should be imparted to the children of their community .
in an atmosphere congenial to the growth of their culture.
our Constitution makers recognised the validity of their claim and to allay their fears conferred on them the fundamental rights referred to above.
But the conservation of the distinct languages, script or culture is not the only object of choice of the minority communities.
They also desire that scholars of their educational institutions should go out in the world well and sufficiently equipped with the qualifications necessary for a useful career in life.
But according to the Education Code now in operation to which it is permissible to refer for ascertaining the effect of the impugned provisions on existing state of affairs, the scholars of unrecognised schools are not permitted to avail themselves of the opportunities for higher education in the University and are not eligible for entering the public services.
Without recognition, therefore, the educational institutions established or to be established by the minority communities cannot fulfill the real objects of their choice and the rights under article 30(1) cannot be effectively exercised.
The right to establish educational institutions of their choice must, therefore, mean the right to establish real institutions which will effectively serve the needs of their community and the scholars who resort to their educational institutions." In Rev. Sidhaibhai Sabhai and Ors.
vs State of Bombay and Anr.(l) dealing with article 30(I) of the Constitution, this Court held: "The right established by article 30(I) is a fundamental right declared in terms absolute.
Unlike the fundamental 804 freedom guaranteed by article 19, it is not subject to reasonable restrictions.
It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice.
The right is intended to be effective and is not to be whittled down by so called regulative measures conceived in the interest not of the minority educational institutions, but of the public or the nation as a whole.
If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution, the right guaranteed by article 30(1) will be but a "teasing illusion", a promise of unreality.
Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective an educational institution.
Such regulation must satisfy a dual test the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it." In State of Kerala vs Mother Provincial(l) the provisions of the Kerala University Act, 1969 which was passed to reorganise the University of Kerala with a view to establishing a teaching, residential and affiliating University for the southern districts of the State of Kerala, were challenged.
Some of the provisions effected private colleges, particularly those founded by minority communities in the State.
Their constitutional validity was challenged by some members of those communities on various grounds in writ petitions filed in the High Court.
This Court held: "The minority institutions cannot he allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern.
While the management must be left to them, they may be compelled to keep in step with others.
" 805 On an analysis of the two articles, article 29 and article 30 and the three cases referred to above, it is evident that the impugned Act does not seek to curtail the right of any section of citizens to conserve its own language, script or culture conferred by article 29.
The benefit of article 30(I) can be claimed by the community only on proving that it is a religious or linguistic minority and that the institution was established by it.
In the view that we have taken that Auroville or the Society is not a religious denomination, Articles 29 and 30 would not be attracted and, therefore, the impugned Act cannot be held to be violative of Articles 29 and 30 of the Constitution.
This leads us to the third ground, namely, the impugned Act being violative of Article 14 of the Constitution inasmuch as Sri Aurobindo Society has been singled out for hostile treatment, and the legislation is against this particular institution.
In order to appreciate this argument it would be necessary to refer to the circumstances which led to the passing of the impugned Act.
Sri Aurobindo Society is a society registered under the West Bengal Societies Registration Act, 1961.
The main objective of the Society is inter alia to make known to the member.
and people in general the aims and ideals of Sri Aurobindo and the Mother; their system of Integral Yoga and to work for its fulfillment in all possible ways and for the adoption of a spiritualised society as envisaged by Sri Aurobindo.
The Society was engaged right from its inception in collecting funds for the promotion of works of Sri Aurbindo and the Mother.
The Society contributes funds to Sri Aurobindo Ashram and its international Centre of Education, Auroville.
As the work of the Society began to grow it needed larger and larger funds for the sustenance of its own activities.
In due course the Society opened several centres all over India, particularly at Calcutta, Bombay, New Delhi and Madras.
It has centres also in U.S.A., Zurich.
Osaka and Nairobi.
Sri Aurobindo Society has two registered offices, one at Calcutta and another at Pondicherry.
In order to facilitate the work of Sri Aurobindo Society to collect funds, on a representation made by the Society the Income tax Department of the Government of India gave exemption to the Society from income tax under section 35(1)(iii) of the Income Tax Act.
Income tax exemption was claimed by the Society on the ground that it is engaged in educational, cultural and scientific activities and social sciences research.
It was on this understanding that the exemption from income tax was granted to the 806 Society and it is through this exemption that the Society, had collected a huge amount from the public.
For the first few years the development of Auroville showed a remarkable progress and development and things were growing at a rapid pace.
A number of Indians and foreigners settled down in Auroville and devoted themselves to various activities of planning, designing, agriculture, education, construction and other works such as those of hand made paper and other crafts and industries.
A remarkable harmony among members of Auroville was visible and this gave a promise to the Government of India of an early fulfillment of the ideals for which Auroville was established and encouraged by UNESCO and other international organisations of the world.
After the passing away of the Mother in 1973, however, the situation changed and the Government received information that the affairs of the Society were not being properly managed, that there was mismanagement of the funds of the Society and diversion of the funds meant for Auroville to other purposes.
The accounts of Sri Aurobindo Society were audited upto the year ending 31st December, 1974.
For the years 1960 to 1971 the E; audit was conducted by late Sri Satinath Chattopadhyaya, Chartered Accountant and for the years 1972 to 1974 by Sri T. R. Thulsiram, Chartered Accountant and Internal Auditor of the Society.
The letter addressed by him to the President, Sri Aurobindo Society dated May 26, 1976 relating to the affairs of Bharat Niwas as on 31st March, 1976 is revealing one and the relevant portion is extracted below: "Thus we have an unutilised deficit of about 10 lakhs at the end of 31.12.74 and of about 12 lakhs at the end of 1975 or upto 31.3.76.
The situation has not improved uptil now.
The activities of construction have almost come to a close after 31.12 74.
Further, there are heavy bank overdrafts apart from the reduction in O. D. facilities and freezing of the money in O. D. account.
Therefore, in these circumstances it is clearly seen that government monies received for the specific purpose of Bharat Niwas have been diverted for other purposes and there are no more free liquid resources either as cash or in bank accounts.
So we cannot explain saying that monies are immediately available for construction and that the construction activities are 807 being continued without stop.
This really is a serious matter A that calls for the proper solution.
Therefore, in the above circumstances it is absolutely necessary that earlier steps be taken to correct the situation before serious audit objections are raised by the Government Auditors.
We are afraid to say that we ourselves would be constrained to make a qualified report of audit, if the state of affairs does not get corrected immediately.
" The situation in.
Auroville became so acute that at the instance of the Ministry of Home Affairs, Government of India, an enquiry was conducted in 1976 br the Chief Secretary, Pondichery, into certain aspects of the functioning of Sri Aurobindo Society.
The report of the Chief Secretary mentioned instances of serious irregularies in the management of the Society, suspected misuse of funds and auditors ' comments about the misutilisation of funds and its diversion, and it was suggested that a further probe in the financial matters of the Society and organisations connected with the Auroville Project may be made by a team of competent auditors.
Considering the special position of Auroville as a cultural township of international importance, the substantial grants of the order of more than Rs. 90 lakhs given by the Government of India and the State Governments towards the fulfillment of the ideals of Auroville, the presence of a large number of foreigners in Auroville who had left their hearth and home for Auroville which had received sponsorship from Indian Government and UNESCO, the continued groupism and infighting which was bringing bad name to Auroville and the special responsibility of the Government of India in regard p to the foundation and development of Auroville, the Government of India decided to set up a committee under the Chairmanship of the Lt. Governor of Pondichery with the Chief Secretary of the Tamil Nadu and Additional Secretary of the Ministry of Home Affairs as members by a resolution of the Ministry of Home Affairs Government of India, dated 21st December, 1976.
The above Committee got a quick audit made of the funds of the Society and the grants given to the Society for Auroville through a team of competent auditors.
An important finding of this Committee was that the earlier apprehension about instances of serious irregularities in the manage 808 ment of the Society, misutilisation of the funds, and the diversion was confirmed.
This Committee also submitted to the Government of India two volumes of the audit report.
Some of the other important findings of the Committee based on audit reports were as follows: "The professional services required from Architects for the construction of Phase I of Bharat Niwas were not rendered by them and still full payment was made to these architects.
Rs. 13.30 lacs sanctioned by various State Governments for construction of pavillions of their respective States were diverted and utilised towards construction in Bharat Niwas for common zone facilities this was without the approval of the State Government.
Whilst the books of Bharat Niwas show that there was an unutilised balance of Rs. 22.64 lacs the Project was without any liquid resources thus showing that moneys received out of Govt.
grants were diverted for other activities notwithstanding that this position was brought to the notice of the Society by their statutory auditor in its letter dated 26.5.76.
Although there was no fresh receipt of steel in Bharat Niwas Phase 2 the stock was purportely revalued at a higher rate of Rs 2000 per metric ton against the earlier rate of Rs. 1700 per metric ton adopted on 31.12.73 This resulted is an over statement of the value of stock to the amount of Rs. 42,000/ .
There was a transfer of materials of stock worth Rs. 2.30 lacs to Auro Stores by a journal entry on 31.12.1975 Auro Stores is a concern of Navjattas.
The audit team concluded that as a result of this there was an unreal expenditure which had not resulted in outflow of resources and resulted in overstatement of expenditure on Bharat Niwas.
An undischarged amount of Rs. 1.45 lacs payable to the contractors Messrs E.C.C. Ltd. towards the construc tion of Bharat Niwas stood included in the total expenditure as on 31.12.74 the utilisation certificates furnished 809 with regard to total expenditure were held to be incorrect to that extent.
Although materials purchased out of Govt.
grants could not be hypothecated without the approval of the Government the Society hypothecated steel from Auro Stores and obtained a loan of Rs. 6.88 lacs from the State Bank of India resulting in an expenditure of interest charge of Rs. 9561.40 which was held to be inadmissible and an irregularity.
Although the Society completed construction of Health Centre in Dec. 1973 at a total cost of over Rs. 2 lacs and the Health Centre started functioning from Dec. 1973 the Society had not furnished the utilisation certificates in the prescribed form nor was the completion report duly certified by the PWD authorities.
Rs. One lac was stated to have been received for the Project of World University" and the money was stated to be utilised.
There is no such World University in Auroville.
A difference of Rs. 1,29,848/ was noticed in the case of the value of a piece of land purchased the value of the land said to have been purchased and not entered in the register was Rs. 88,5261/ and the amount said to have been paid in excess of the value for the land actually purchased was Rs. 31,322.
The operation of purchase of lands was through individuals who were given huge sums of money as advances.
It was noticed that in one transaction an amount of Rs. 43,250/ representing the balance out of advance paid to one V. Sunderamurthy was adjusted as being the cost of stamp papers used during 1971.
The said individual had already taken into account the cost of stamp papers whilst adjusting all other advances during 1971.
The voucher for this amount also did not give the details of the document numbers in respect of which stamp papers worth Rs. 43,250/ were used.
810 In 1975 76 land to the extent of 23.86 acres was purchased at the cost of Rs. 91,496 but was registered in the names of four individuals and the value of the lands so registered in individual names were treated as advances to these individuals.
The names of these individuals were "Maggi", "Kalit ', "Shyamala" and "Ravindra Reddy".
The audit team found that assets and liabilities of the project were overstated to the extent of Rs. 5,l0,670.
The balance sheet of Auroville project has been so framed that the assets side does not throw any light as to whether the corresponding assets from donations have been acquired and the problem is aggravated by the fact that a register of assets is not maintained.
There was a complete lack of financial control which was the most serious drawback of the system and this want of financial control was revealed in a number of established and conventional procedure which would have serious implications.
It was not possible for the Audit Team to establish nor the Society could establish that moneys paid were really exchanged with certain materials or goods of corresponding value.
The lack of adequate scrutiny resulted in the fact that in most of the cases the bills were not supported by adequate details of materials having been passed.
The expenditure of Auroville project working out to nearly 3 crores, there was no system of control of expenditure no rules and regulations or procedures according to which a particular individual or office bearer could incur an expenditure only upto a particular limit and not above that.
Persons who were authorised to operate bank accounts had full authority to draw as much as they wanted and there was no system of reporting or feed back.
In view of the large scale construction activities, large amounts of stores materials of various descriptions were being handled by the project.
We have not come across proper records of stores and stock accounts being maintained by the project, This indeed was a serious drawback 811 since in the absence of such a system it was not possible to A verify from the records that the moneys which were shown as having been spent for purchase of materials were really paid in exchange of the materials of the required quantity and quality and whether the material purchased was actually received by the project, whether the quantity which was shown as having been utilised for the construction has been actually so utilised and the balance of stores which represented by the value was the real balance representing the various stock items.
Huge amounts of cash were being handled by persons operating the main account and the number of individuals who were given advances there was no system under which cash could be verified at any interval.
Even apart from the audit report, one very important point may be mentioned.
The Society has been claiming that they have been holding more than Rs. 20 lacs in reserve in the account of Aurobindo Society to meet their obligations with regard to Auroville.
And yet the Society has incurred heavy debts in the name of Auroville and allocated huge accumulation of interest to the extent of Rs. 20 lacs.
" The Committee came to the conclusion that the time was ripe for taking recourse two either of the following two alternatives: (a) Incorporation of Sri Auroville Society by a statute as a society of national importance and bringing it under Entry 63 of the Union List of the Seventh Schedule of the Constitution; (b) Takeover of the management of Auroville project by the Government for a limited period by legislation under article 31 A(l)(b) of the Constitution.
There was an intensive examination of the Committee 's report as also of the audit report.
All kinds of possibilities were explored by the Government of India for remedying the situation including several discussions with the managers of the Sri Aurobindo Society.
At the same time, it was apparent that the Government grants which were given for the construction works remained unutilised and 812 diverted.
The construction work itself was stagnant.
The Auroville township had been conceived to be spread over 10 sq.
miles (minimum) for about 50,000 people.
Considering the multi dimensional task, the work which was accomplished by 1976 was not even marginal.
It became obvious that the work had already come to a standstill and that there was not much prospect of further growth of Auroville.
On a close examination of the audit report certain clarifications were sought from those at the helm of the affairs in the Sri Aurobindo Society on various points which had come to light through the audit report.
AD extensive correspondence on this subject was, therefore, undertaken.
The Government of India received from the Sri Aurobindo Society answers which were often evasive and which only confirmed the findings of the Committee 's report and audit report.
It may also be mentioned that the atmosphere in Auroville became so bad that it gave rise to law and order problem.
The Government of Tamil Nadu was obliged several times to promulgate orders under section 144 Cr. P. C.
Even so, the situation remained so bad that there were about three instances in which residents of Auroville sustained injuries because of fighting between groups.
The Government of India examined the charges and counter charges in detail.
Union Education Minister also paid a visit to Auroville towards the end of October, 1980.
Thus after full consideration of various aspects of the problem, the Government of India decided to take recourse to the promulgation of an ordinance.
Accordingly, the impugned ordinance was promulgated on 10th November, 1980.
Mr. K. K. Venugopal, appearing for the petitioners, however, referred to the decision of the respective Ministries on the audit report.
During October November, 1979, he contended the Ministry of Education and the Ministry of Home Affairs took decision on six major points.
One of the points on which decision was taken was that there were no legal grounds for takeover of Auroville and neither the Government was interested.
This decision, among others was later on endorsed by the respective Union Ministers.
The report submitted by Mr. P. P. Srivastava, Joint Secretary, Ministry of Home Affairs, who visited Pondichery and Auroville on a fact finding 813 mission from 8th to 10th October, 1980, contained the following A observations: "All along the view of the Ministry of Home Affairs has been that there is no case of takeover of the administration of Auroville.
This is an internal matter and the Government need not interfere.
The Government of Tamil Nadu should be asked to depute two officers to help the Shri Aurobindo Society for administering the finances and the administration.
" The contention of Mr. Venugopal is that the audit report had once been considered and the Government did not choose to take any further steps on assurance given on the behalf of the Society that the irregularities pointed out by the audit report will be rectified and proper management would be carried out in future.
There was absolutely no reason for Government to have come forward with the proposal of the impugned ordinance or the impugned Act taking over the management of the Auroville from the Society.
The circumstances obtaining on the date of the impugned ordinance or the impugned Act were the relevant considerations for the enactment.
And the earlier report of the audit which had already been considered by the Government and the irregularities having been condoned, they cannot be made the basis for the impugned ordinance or the Act.
For the respondents, however, it is contended that despite the assurance given by the office bearers of the Society nothing tangible had been done and the condition of the institution was going from bad to worse.
The Government was involved in this case inasmuch as it was at the instance of the Government that the UNESCO and other members of UNESCO had generously donated for the construction of Auroville, the cultural township to the tune of crores of rupees.
It was, therefore, a matter of vital concern for the Government of India to see that the donations so generously received from Government of India and from other States as also from abroad were properly utilised to carry out the mission of Shri Aurobindo and the Mother.
In view of the prevailing situation in the Auroville and the Society the only way to put the management on the wheels was to take over the management of the institution.
814 It was further contended by Mr. Venugopal that if the management of the institution had been taken over by the Government on the ground of mis management, there could be other institutions where similar situation might be prevailing.
There should have been a general legislation rather than singling out Shri Aurobindo Society for hostile treatment.
The argument cannot be accepted for two reasons.
Firstly, because it has not been pointed out which were the other institutions where similar situations were prevailing.
Besides, there is a uniqueness with this institution inasmuch as the Government is also involved.
Even a single institution may be taken as a class.
The C: situation prevailing in the Auroville had converted the dream of the Mother into a nightmare.
There had arisen acute law and order situation in the Auroville, numerous cases were pending against various foreigners, the funds meant for the Auroville had been diverted towards other purposes and the atmosphere was getting out of hand.
In the circumstances the Government intervened and promulgated the ordinance and later on substituted it by the impugned enactment.
It cannot be said that it is violative of Article 14 on that account.
We get support for our view from the following decisions.
In Budhan Chowdhury vs The State of Bihar(l) a Constitution Bench of seven Judges of this Court explained the true meaning and scope of Article 14 as follows: "It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation.
In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question.
The classification may be founded on different bases, namely, geographical, or according to objects or occupation or the like, What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.
It is also well established by the decisions of this Court that 815 article 14 condemns discrimination not only by a substantive law but also by a law of procedure.
" These observations were quoted with approval by this Court in Shri Ram Krishna Dalmia vs Shri Justice S.R. Tendolkar and Ors.(l) In this case the Court further laid down: "(a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; (c) that it must be presumed that the legislature under stands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest, (e) that in order to sustain the presumption of consti tutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and (f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of 816 always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.
" In Ram Prasad Narayan Sahi and Anr.
vs The State of Bihar and ors.(l) the Court of Wards had granted to the appellant a large area of land belonging to the Bettiah Raj which was then under the management of the Court of Wards, on the recommendation of the Board of Revenue, at half the usual rates.
The Bihar Legislature passed an Act called the Sathi Lands (Restoration) Act, 1950 which declared that, notwithstanding anything contained in any law for the time being in force the settlement granted to the appellants shall be null and void and that no party to the settlement or his successors in interest shall be deemed to have acquired any right or incurred any liability thereunder, and empowered the Collector to eject the appellants if they refused to restore the lands.
The appellants challenged the constitutionality of the Act under Article 226.
This Court held: "The dispute between the appellants and the State was really a private dispute and a matter to be determined by a judicial tribunal in accordance with the law applicable to the case, and, as the Legislature had, in passing the impugned enactment singled out the appellants and deprived them of their right to have this dispute adjudicated upon by a duly constituted Court, the enactment contravened the provisions of article 14 of the Constitution which guarantees to every citizen the equal protection of the laws, and was void.
Legislation which singles out a particular individual from the fallow subjects and visits him with a disability which is not imposed upon the others and against which even the right of complaint is taken away is highly discriminatory.
" The facts of this case are distinguishable from the case in hand.
In that case the legislation was made only for a particular person.
In the cases in hand on account of the uniqueness of the institution and on account of the involvement of the Government and the 817 stake being a high one about public funds, Parliament could take a particular institution as a class by itself.
In Ram Chandra Deb vs The State of Orrisa(1) Sri Jagannath Temple Act, 1955 was sought to be challenged being violative of Article 14 of the Constitution inasmuch as the legislature had made a separate Act for a particular temple alone and there were adequate provisions in the Orrisa Religious Endowments Act, 1951 which was the general Act applicable to all public temples and religious institutions and contained adequate provisions to meet all situations similar contention as raised in the present cases was raised in that case that a particular temple had been singled out for hostile discrimination.
It was contended that the Commissioner of Hindu Religious Endowments had ample powers under the Act to frame a scheme for the proper management of the temple also and the legislature by enacting a separate piece of legislation for the temple alone, ignoring the other temples of Orrisa such as those at Bhubaneswar where also there might be similar administration, bad contravened Article 14.
This argument was, however, repelled by the Orrisa High Court with the following observations: "The principles underlying article 14 of the Constitution have been reiterated in several decisions of the Supreme Court and it is unnecessary to repeat them in detail.
All that article prohibits is class legislation and not reason able classification for the purpose of legislation so long as such classification is not arbitrary and "bears a rational relation to the object sought to be achieved by the statutes in question".
In Charanjit Lal vs Union of India ; a separate law enacted for one company was held not to offend article 14 of the Constitution on the ground that there were special reasons for passing legislation for that company.
" When that case came up in appeal to this Court at the instance of the son of the petitioner, in Raja Birakishore vs The State of Orrisa(2) this Court held: "There is no violation of article 14 of the Constitution.
The Jagannath Temple occupies a unique position in the State of Orrisa and is a temple of national importance and 818 no other temple in that State can compare with it.
It stands in a class by itself and considering the fact that it attracts pilgrims from all over India, in large numbers, it could be the subject of special consideration by the State Government.
A law may be constitutional even though it related to a single individual if on account of special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by him self.
" It was next contended that there were provisions in the Societies Registration Act itself to meet the situation arising in Auroville.
There was to necessity for the impugned ordinance or the enactment.
Shri Venugopal referred to the various provisions of the Societies Registration Act to show that it was open to the Registrar to call for an explanation from the Society for any illegality or irregularity committed by them or if there was a mis appropriation of funds,.
inasmuch as the Act was a self contained Code and there was absolutely no justification for any ordinance or the enactment.
The law and order situation also could be controlled by resorting to the provisions of the Code of Criminal Procedure.
Whether the remedies provided under the Societies Registration Act were sufficient to meet the exigencies of the situation is not for the Court to decide but it is for the Government and if the Government thought that the conditions prevailing in the Auroville and the Society can be ameliorated not by resorting to the provisions of the Societies Registration Act but by a special enactment, that is an area of the Government and not of the Court.
Para 6 of the preamble of the Act gives the reasons for the enactment.
It reads: "AND whereas pursuant to the complaints received with regard to mis use of funds by Shri Aurobindo Society, a Committee was set up under the Chairmanship of the Lt. Governor of Pondicherry with representatives of the Government of Tamil Nadu and of the Ministry of Home Affairs in the Central Government, and the said Committee had after detailed scrutiny of the accounts of Sri Aurobindo Society found instances of serious irregularities in the management of the said Society, mis utilisation of its funds and their diversion to other purposes.
" 819 On the basis of para 6 of the preamble it is argued that the grounds A given were non existant at the time of the impugned ordinance or the enactment and, therefore, the law made on that basis itself is bad.
We are afraid the argument has no substance.
Obviously, there were serious irregularities in the management of the said Society as has been pointed out in the earlier part of the judgment.
There has been mis utilisation of funds and their diversion to other purposes.
This is evident from the audit report.
There was no material change in the situation on the date of the impugned ordinance or the Act, rather the situation had grown from bad to worse and the sordid situation prevailing in the Auroville so pointed out by the parties fully justified the promulgation of the ordinance and the passing of the enactment.
Of course, each party tried to apportion the blame on the other.
Whosoever be responsible, the fact remains that the prevailing situation in the Auroville was far from satisfactory.
The amount donated for the construction of the cultural township Auroville and other institutions was to the tune of Rs. 3 crores.
It was the responsibility of the Government to see that the amount was not mis utilised and the management was properly carried out.
So, the basis of the argument that the facts as pointed out in the preamble were non est is not correct.
Mr Venugopal tried to explain the various adverse remarks made by the auditors.
On a perusal of the audit report, which is a voluminous one, all we can say is that on the facts found by the audit committee, the report is rather a mild one.
There seems to be serious irregularities in the accounts.
A substantial amount received by way of donations had not been properly spent, there being mis utilisation and diversion of the funds.
The Attorney General appearing for the Union of India contended that even assuming for the sake of argument, but not conceding that the facts brought to the notice of the legislature were wrong, it will not be open to the Court to hold the Act to be bad on that account.
We find considerable force in this contention.
The Court would not do so even in case of a litigation which has become final on the ground that the facts or the evidence produced in the case were not correct.
The Parliament had to apply its mind on the facts before it.
820 The Attorney General also raised a sort of preliminary objection on behalf of the Union of India, that in view of article 31A the petitioners could not challenge the Act on the ground of contravention of article 14 of the Constitution.
In so far as it is material for the purposes of this case, article 31A reads: "31A. (I) Notwithstanding anything contained in article l 3, no law providing for (a) . . . . . . . (b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to assure the proper management of the property, (c) . . . . . . . . (d) . . . . . . . . (e) . . . . . . . . shall be deemed to be void on the ground that it is inconsiststent with, or takes away or abridges any of the rights conferred by article 14 or article 19.
" We find this argument to be plausible but instead of expressing any concluded opinion on this point we preferred to deal with the various contentions raised by Mr. Venugopal on article 14 of the Constitution in view of the importance of the question involved in this case.
A subsidiary point was further submitted by Mr. Venugopal that no qualifications have been prescribed and, therefore any person could be appointed as an Administrator.
We can normally assume that the Government would certainly appoint a responsible person as an administrator especially when there is a heavy stake in which the Government of India is also involved inasmuch as at the instance of the Government the UNESCO gave financial support to the institution.
It was further submitted that the report of the Committee was a tainted one as the Chairman, Kulkarni and the Secretary were parties.
There is no foundation for this submission.
821 We, therefore, hold that the impugned ordinance or the impugned Act is not violative of Article 14 of the Constitution.
Now we turn to the last but not the least important ground of mala fides.
The Act is sought to be challenged on the ground that it is mala fide.
This argument is on the basis that Kirit Joshi, who had his own axe to grind in the matter, was instrumental in getting the impugned ordinance and the Act passed.
This argument bas been advanced only to be rejected.
Allegations about mala fides are more easily made than made out.
It will be too much to contend that Kirit Joshi, who was only an Educational Adviser to the Government of India, Ministry of Education and Culture (Department of Education), was responsible for the impugned enactment.
The impugned enactment was passed following the due procedure and merely because he made a complaint about the situation prevailing in the management of Auroville and the Society, it cannot be said that the impugned enactment was passed at his behest.
For the reasons given above all the writ petitions must fail.
In view of the final decision on the writ petitions themselves, it is not necessary to pass any specific order in the appeal filed against the interim order in one of the writ petitions.
The parties in the circumstances of the case are left to bear their own costs.
section R. Petitions dismissed.
| IN-Abs | Sri Aurobindo, one of the Indian sages and philosphers, after a brilliant academic and administrative career engaged himself for sometime in political activities and revolutionary literary efforts, but later on gave them up to concentrate himself with the life of medition and integral yoga at Pondicherry, in Tamil Nadu.
Madam M. Alfassa a French Lady, who came to be known as the Mother became a disciple of Sri Aurobindo.
Very soon more and more disciples came to join him from various parts of India and abroad and thus the Aurobindo Ashram came into being.
The disciples and devoted followers of Sri Aurobindo and the Mother, with a view to propagate and practise the ideals and beliefs of Sri Aurobindo formed a Society called Sri Aurobindo Society in the year 1960, which at all material times was and is still a society duly registered under the provisions of the West Bengal Societies Registration This Society is completely distinct from Aurobindo Ashram in Pondicherry.
The Society was established and registered for the purpose of carrying out in and out side India the several objects stated in the memorandum of the Society.
The management of the Society vested in its Executive Committee.
Rules and regulations have been duly framed for the management of the Society and also for safe custody and protection of its assets, properties and funds.
Sri Aurobindo Society preaches and propagates the ideals and teachings of Sri Aurobindo, inter alia, through its numerous centres scattered throughout India by way of weekly meetings of its members.
The Mother as the founder president also conceived of a project of setting up a cultural township known as 'Auroville ' where people of different countries are expected to engage in cultural, educational and scientific and other pursuits aiming at human unity.
The Society has been a channel of funds for setting up the cultural township known as Auroville.
At the initiative of the Government of India, the United Nations Educational, Scientific and Cultural Organisation being of the opinion that the Auroville project would contribute to international understanding and promotion of peace sponsored the project by proposing a resolution to this effect at its General Conference in 1966.
This resolution was unanimously adopted at this conference.
By a further resolution passed in 1968 the UNESCO invited its member States and international non governmental organisations to participate in the development of Auroville as an international cultural township to bring together the values of different cultures and civilisations in harmonious environment with integrated living standards, which corresponds to man 's physical and spiritual needs.
In 1970 UNESCO had directed its Director General to take such steps as may be feasible, within the budgetary provisions to promote the development of Auroville as an important international cultural programme.
Sri Aurobindo Society received large funds in the shape of grants from different organisations in India and abroad for development of that township.
The assistance included contributions from the State Governments of the value of Rs. 66.50 lakhs and the Central Government of the value of Rs. 26.14 lakhs.
After the death of the Mother on 17th of November, 1973 a number of problems of varying nature affecting the smooth running of the project cropped up.
The Government of India on receiving complaints about mismanagement of the project and misuse of funds by Sri Aurobindo Society set up a committee under the chairmanship of the Governor of Pondicherry with representatives of the Government of Tamil Nadu and of the Ministry of Home Affairs in the Central Government to look into the matter.
The Committee made a detailed scrutiny of the accounts of Sri Aurobindo Society relating to Auroville and found instances of serious irregularities in the management of the Society, mis utilisation of its funds and their diversion to other purposes.
Further, various other serious difficulties had arisen plaguing the Management of Auroville and rendering thereby any further growth of the township almost impossible.
731 In the circumstances the taking over of the management of Auroville became imperative to ensure growth of the township in tune with its objectives.
Keeping in view the international character of the project and considering the government 's involvement in actively sponsoring the project through UNESCO, the growth and management of the project had become the primary responsibility of the Government of India.
The ideals of the project formed India 's highest aspirations, which could not be allowed to be defeated or frustrated.
Sri Aurobindo society had lost complete control over the situation and the members of the Auroville approached the Government of India to give protection against oppression and victimisation at the hands of the said Society.
There were internal quarrels between the various factions of Sri Aurobindo Society.
There have also been instances of law and order situation.
Financial management of the projects has not been sound and several instances of mismanagement, diversion of funds have been revealed.
A large sum of money was given by Sri Aurobindo Society to AURO construction an agency whose status.
is not at all defined, whose functions and capabilities for taking up large construction works also had not been made known.
The Government in the circumstances could not be a silent spectator to the mismanagement of the project and internecine quarrels amongst its members, which if not checked could lead to the destruction of the project so nobly conceived.
The Government, therefore, decided to issue a Presidential Ordinance.
After the filing of the writ petition the ordinance has now been replaced by the .
The constitutional validity of the Act has been challenged on four grounds: (i) Parliament has no legislative competence to enact the impugned statute; (ii) The impugned Act infringes Articles 25, 26, 29 and 30 of the Constitution; (iii) The impugned Act is violative of Article 14 of the Constitution; and (iv) The Act was mala fide.
Dismissing the petitions, the Court ^ HELD: (Per Misra, J.) 1:1.
The Parliament had the legislative competence to enact the (Act LIX) of 1980.
[770 D] 1:2.
The subject matter of the impugned Act is not covered by Entry 32 of List II of the Seventh Schedule.
Even if the subject matter of the impugned Act is not covered by any specific entry of List I or III of the Seventh Schedule of the Constitution it would in any case be covered by the residuary entry 97 of List I. [770 C D] 1:3.
The function of the Lists in the Seventh Schedule to the Constitution is not to confer powers.
They merely demarcate the legislative fields.
The Entries in the three Lists are only legislative heads or fields of legislation and the 732 power to legislate is given to appropriate legislature by Articles 245 to 248 of the Constitution.
[766 H, 767 A] 1:4.
The Auroville Act even incidentally does not trench upon the field covered by the West Bengal Societies Registration Act, 1961 as it is in no way related to Constitution, regulation and winding up of the Society.
[770 B] R.C. Cooper vs Union of India ; @ 563, applied.
Attorney General for Ontario vs Attorney General for the Dominion @ 366 67; Union of India vs H.S. Dhillon ; @ 45; Board of Trustees, Ayurvedic and Unani Tibia College vs The State of Delhi and Others [1962] 1 Supp.
SCR 156; Katra Education Society vs State of Uttar Pradesh and Others ; , referred to.
The words "religious denomination" in Article 26 of the Constitution must take their colour from the word 'religion ' and if this be so, the expression "religious denomination" must also satisfy three conditions: (i) It must be a collection of individuals who has a system of beliefs or doctrine which they regard as conducive to their spiritual well being, that is, a common faith; (ii) Common organisation: and (iii)Designation by a distinctive name.
[774 B D] 2:2.
The term 'religion ' has been judicially considered in the Commissioner of Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiyar of Sri Shriur Mutt ; and the following propositions of law laid down therein have been consistently followed in later cases including The Durgah Committee, Ajmer and Another vs Syed Hussain Ali & Others ; @ 410 11 : (1) Religion means "a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being"; (2) A religion is not merely an opinion, doctrine or belief.
It has its outward expression in acts as well; (3) Religion need not be theistic; (4) "Religious denomination" means a religious sect or body having a common faith and organisation and designated by a distinctive name; (5) A law which takes away the rights of administration from the hands of a religious denomination altogether and vests in another 733 authority would amount to violation of the right guaranteed under clause (d) of Article 26." [773 E H, 774A] Per Majority [Misra, J for himself, Y. V. Chandrachud, C.J., P. N. Bhagwati and V. Balakrishna Eradi, JJ.
and Chinnappa Reddy, J. dissenting.] 2:3.
On the basis of the materials the Memorandum of Association of the Society, the several applications made by the Society claiming exemption under section 35 and section 80 of the Income tax Act, the repeated uttering of Sri Aurobindo and the Mother that the society and Auroville were not religious institutions and host of other documents there is no room for doubt that neither the Society nor Auroville constitute a religious denomination and the teachings of Sri Aurobindo only represented his philosophy and not a religion.
[793 D E] Numerous Uttering by Sri Aurobindo or the Mother unmistakably show that the Ashram or Society or Auroville is not a religious institution.
There can be no better proof than what Sri Aurobindo and the Mother themselves thought of their teachings and their institutions to find out whether the teachings of Sri Aurobindo and his Integral Yoga constitute a religion or a philosophy.
The Uttering made from time to time by Sri Aurobindo and the Mother hardly leave any doubt about the nature of the Institution.
It was on the basis that it was not a religious institution, that the Society collected funds from the Central Government, the Governments of States, other non Governmental agencies.
and from abroad.
[792 B D, 793 A] Even assuming but not holding that the Society or the Auroville were a religious denomination, the impugned enactment is not hit by Articles 25 and 26 of the Constitution.
The impugned enactment does not curtail the freedom of conscience and the right freely to profess, practise and propagate religion.
Therefore, there is no question of the enactment being hit by Article 25.
[793 E F] 2:4.
The impugned enactment does not stand in the way of the Society establishing and maintaining institutions for religious and charitable purposes, It also does not stand in the way of the Society to manage its affairs in matters of religion.
[794 A B] 2:5.
Even assuming that the society or Auroville was a religious denomination, clause (b) of article 26 guarantees to a religious denomination a right to manage its own affairs in matters of religion.
Besides the right to manage its own affairs in matters of religion, which is given by clause (b), the next two clauses of article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law.
The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in the matters of religion.
The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can take away, 734 whereas the former can be regulated by laws which the legislature can validity impose.
It is clear, therefore, that question merely relating to a religions group or institution are not matters of religion to which clause of article applies.[800 H, 801 A B] 2:6.
The impugned Act had not taken away the right of management in matters of religion or a religious denomination, if the Society or Auroville is a religious denomination at all, rather it has taken away the right of management of the property of Auroville.
Thus the impugned Act neither violates Article 25, nor Article 26 of the Constitution.
[801 C D] The Commissioner of H. R. & C. E. Madras vs Lakshmindra Tirtha Swamiyar of Sri Sirur Mutt ; ; The Durgah Committee Ajmer and Another vs Syed Hussain Ali ; ; Tilkyat Shri Govindlalji Maharaj vs State of Rajasthan & others [1964] 1 S.C.R. 561; Sastri Yagnapurushadri & Others vs Muldas Bhudardas Vysya & Another ; ; Divyadassan Rajendra Ramdassji & Another vs State of Andhra Pradesh ; ; Nalaw Ramalingayya vs The Commissioner of Charitable and Hindu Religious Institutions and Endowments Hyderabad A.I,R. 1971 (AP) 320; T. Krishnan vs G.D.M. Committee A.I.R, 1978 Kerala 68; applied.
On an analysis of Articles 29 and 30 and the decided cases it is evident that the Auroville Act does not seek to curtail the right of any section of citizen to conserve its own language, script or culture conferred by Article 29.
The benefit of article 30(1) can be claimed by the community only on proving that it is a religious or linguistic minority and that the institution was established by it.
Since Auroville or the Society is not a religious denomination, Articles 29 and 30 would not be attached and, therefore, the impugned Act cannot be held to be violative of Articles 29 and 30 of the Constitution.
[805 A C] In re: The Kerala Education Bill [1959] SCR 995; Reverend Sidhaibhai Serbhai and Others vs State of Bombay and Another ; @ 856; State of Kerala vs Mother Provincial ; ; applied. 4.
The Auroville Take over Act cannot be said to be violative of Article 14 of the Constitution, which action was taken after full consideration of various aspects of the problem, for the reasons namely, (i) it has not been pointed out which were the other institutions where similar situations were prevailing; and (ii) there is a uniqueness with this institution inasmuch as the Government is also involved.
Even a single institution may be taken as a class.
The situation prevailing in the Auroville had converted the dream of the Mother into a nightmare.
There had arisen acute law and order situation in the Auroville, numerous cases were pending against various foreigners, the funds meant for the Auroville had been diverted towards other purposes and the atmosphere was getting out of hand.
In the circumstances the Government intervened and promulgated the Ordinance and later on substituted it by the impugned enactment.
[814 B D] 735 Budhan Choudhary vs The State of Bihar ; Shri Ramakrishna Dalmia vs Sri Justice S.R. Tandolkar and Others ; ; Raja Birakishore vs The Sate of Orissa ; , followed.
Ram Prasad Narayan Sahi and Another vs State of Bihar and Others ; ; distinguished.
Whether the remedies provided under the Societies Registration Act were sufficient to meet the exigencies of the situation is not for the Court to decide but it is for the Government and if the Government thought that the conditions prevailing in the Auroville and the Society can be ameliorated not by resorting to the provisions of the Societies Registration Act but by a special enactment, that is an area of the Government and not of the Court.
[818 E F] 5:2.
It is not correct to say that the facts stated in the preamble of the Act were non est.
Obviously there were serious irregularities in the management of the said society.
There has been mis utilisation of funds and their diversion to other purposes.
This is evident from the audit report.
There was no material change in the situation on the date of the impugned ordinance or the Act, rather the situation had grown from bad to worse and the sordid situation prevailing in the Auroville so pointed out by the parties fully justified the promulgation of the Ordinance and the passing of the enactment.
Of course, each party tried to apportion the blame on the other.
Who so ever be responsible, the fact remains that the prevailing situation in the Auroville was far from satisfactory.
The amount donated for the construction of the cultural township Auroville and other institutions was to the tune of Rs. 3 crores.
It was the responsibility of the Government to see that the amount was not misutilised and the management was properly carried out.
On a perusal of the audit report, which is a voluminous one, all that can be said is that on the facts found by the audit committee, the report is rather a mild one.
There seems to be serious irregularities in the accounts.
A substantial amount received by way of donations had not been properly spent, there being mis utilisation and diversion of the funds.
[819 B F] 5:3.
Even assuming that the facts brought to the notice of the legislature were wrong, it will not be open to the Court to hold that Act to be bad on that account.
The Court would not do so even in case of a litigation which has become final on the ground that the facts or the evidence produced in the case were not correct.
The Parliament had to apply its mind on the facts before it.
[819 F H] We can normally assume that the Government would certainly appoint a responsible person as an administrator especially when there is a heavy stake in which the Government of India is also involved in as much as at the instance of the Government the UNESCO gave financial support to the institution.
[820 F G] 6.
The contention that the report of the committee was tainted as Shri Kulkarni the Chairman and Secretary were parties, is without any foundation.
The allegation of the impugne Act being malafide is equally devoid of force.
736 Kiriti Joshi cannot be said to have his own axe to grind in the matter or was instrumental in getting the impugned Ordinance and the Act passed.
Allegations about mala fides are more easily made than made out.
Merely because he made a complaint about the situation prevailing in the management of Auroville and the Society, it cannot be said that the impugned enactment was passed at his behest.
[820 H, 821 B C] Per Chinnappa Reddy, J. (Dissenting) 1:1.
Shri Aurobindo truly was a religious teacher and taught and was understood to have taught new religious doctrine and practice.
Therefore, Aurobindoism, can certainly be classified if not as a new religion, as a new sect of Hinduism and the followers of Sri Aurobindo can be termed a religious denomination.
Sri Aurobindo of course, disclaimed that he was founding a religion.
No great religious teacher ever claimed that he was founding a new religion or a new school of religious thought.
The question is not whether Sri Aurobindo refused to claim or denied that he was founding a new religion or a new school of religious thought but whether his disciples and the community thought so.
There is no doubt that they did not only his disciples and followers, but religious leaders all the world over and of all faiths.
Therefore, Aurobindo Society is a sect of a religious determination within the meaning of the expression in Article 26 of the Constitution.
[754 G H, 755 A B, F G] 1:2.
The word 'religion ' does not occur in the Preamble to the constitution, but the Preamble does promise to secure to its citizens "Liberty of thought, expression, belief faith and worship".
The freedom of conscience and the Right to profess, propagate and practise religion guaranteed in Article 25 flow out of the idea so expressed in Preamble.
Freedom of conscience is not to be separated from the Right to profess, practise and propagate religion.
They go together and together they form part of the Right to Freedom of Religion.
It is clear from Article 25 that secular activity may be associated with Religion.
though the guarantee of the article does not extend to such activity.
Article 26 guarantees that every religious denomination or any section thereof shall have the right, subject to public order, morality and health, to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property and to administer such property in accordance with law.
Several provisions of the constitution where the expression 'religion ' and 'religious denomination ' are used are either those which are concerned with equality and equal opportunity or those which are concerned with freedom of religion.
[742 D, F, G H, 743 A, C] 1:3.
Reading article 25 in the background of the proclamation regarding Liberty in the Preamble to the constitution, it is clear that (i) the constitution views religion as comprising thought, expression, belief, faith or worship, as involving the conscience and as something which may be professed, practised and propagated and which is any man 's attribute in the same manner as race, sex, language, residence etc: (ii) economic, financial, political or other secular activity may be associated with religious practice though such activity is not covered by the guarantee of freedom of conscience and the right freely to 737 profess, practise and propagate, religion; and so Religion is a matter of thought, expression, belief, faith and worship, a matter involving the conscience and a matter which may be professed, practised and propagated by anyone and which may even have some secular activity associated with it.
[744 F H, 745 A] 1:4.
Religion undefined by the constitution, is incapable of precise judicia definition either.
In the background of the provisions of the constitution and the light shed by judicial precedent, it can at best be said that religion is a matter of faith.
It is a matter of belief and doctrine.
It concerns the conscience i.e. the spirit of man.
It must be capable of overt expressions in work and deed, such as worship or ritual.
So religion is a matter of belief and doctrine concerning the human spirit expressed overtly in the form of ritual and worship.
Some religions are easily identifiable as religious; some are easily identifiable as not religious.
There are many in the penumbral region which instinctively appear to some as religion and to others as not religions.
There is no formula of general application.
There is no knife edge test.
Primarily, it is a question of the consciousness of the community, how does the fraternity or sodality (if it is permissible to use the word without confining it to Roman Catholic Groups) regard itself, how do others regard the fraternity or sodality.
A host of other circumstances may have to be considered, such as, the origin and the history of the community, the rituals observed by the community, what the founder, if any, taught, what the founder was understood by his followers to have taught, etc.
In origin, the founder may not have intended to found any religion at all.
He may have merely protested against some rituals and observances, he may have disagreed with the interpretation of some earlier religious tenets.
What he said, what he preached and what he taught, his protest, his distant, his disagreement might have developed into a religion in the course of time, even during his life time.
He may be against religion itself, yet, history and the perception of the community may make a religion out of what was not intended to be a religion and he may be hailed as the founder of a new religion.
[750 B G] And, whatever the ordinary features of a religious denomination may be considered to be, all are not of equal importance and surely the common faith of the religious body is more important than the other features.
[751 C] The Commissioner of HR and C.E., Madras vs Lakshmindra Tirtha Swamiyar of Sri Shirur Mutt ; ; Ratilal Panachand Gandhi vs The State of Bombay [1954] S.C.R. 1055; Durgah Committee of Ajmer vs Sayed Hussain Ali Maharaj vs The State of Rajasthan and Others [1964] 1 S.C.R. 561; Raja Virakishore vs State of Orissa ; ; Sasti Yagnapurushadji and Others vs Muldas Bhudardas Vaisnya and Another ; ; referred to.
Judidial definitions are not statutory definitions; they are mere explanations, every word of which is not to be weighed in golden scales.
Law has a tendency to harden with the passage of time and judicial pronouncements are made to assume the form of statutory pronouncements.
So soon as a word or expression occurring in the statute is judicially defined, the tendency is to try to interpret the language employed by the judges in the judicial definition.
That is wrong.
Always words and expressions to be interpreted are those employed in 738 the statute and not those used by judges for felicitous explanation, Judicial definition is explanatory and not definitive.
[751 C E] 1:6.
Religious denomination has not to owe allegiance to any parent religion.
The entire following of a religion may be no more than the religious denomination.
This may particularly be so in the case of small religious groups or 'developing ' religions, that is, religions in the formative stage.
So Aurobindoism can be termed as a religious denomination.
The world and India treated and respected Shri Aurobindo as a religious teacher and the founder of a new religion.
[751 E G] 2:1.
did not take away or purport to take away the management of the Shri Aurobindo Society.
Parliament concerned itself with the management of Auroville only and with no other activity of the Shri Aurobindo Society, including 'its affairs in matters of religion '.
In fact, section 4(2) makes it explicit that, except for matters relating to the management of Auroville, the provisions of the West Bengal Societies Registration Act, 1961, under which the Society was registered, shall continue to apply to the Society in the same manner as before.
[755 G H, 757 C D] 2:2.
The management of the International, cultural township of Auroville cannot be said to be a matter of religion.
Auroville is a township and not a place of the worship.
It is a township dedicated, not to the practice and the propagation of any religious doctrine but to promote international understanding and world peace, surely, a secular and not a religious activity.
The highest that can be said in favour of Auroville being a religious institution or its management being a religious matter, is that it was conceived by the Mother and shaped and sculpted by Shri Aurobindo 's disciples and followers in the pursuit of one of the ideas and ideals of Shri Aurobindo, a great religious teacher.
On the other hand, the ideal itself, that is, the promotion of international understanding and world peace is by no means a religious ideal and it was because of the nature of the ideal that the Government of India and the UNESCO adopted the project.
Shri Aurobindo himself was not a mere religious teacher.
He was a visionary, a humanist and a nationalist who had blossomed into an internationalist.
Therefore, Auroville, though the child of the Mother and though nurtured by the devotees of Shri Aurobindo, has an individuality, distinctly secular of its own.
Hence, which provides for the taking over the management of Auroville for a limited period does not offend the rights guaranteed by Articles 25 and 26 of the Constitution.
[757 E H, 758 C] 2:3.
The rights guaranteed by Articles 29 and 30 cannot be said to have been infringed by the Auroville Emergency provisions Act.
No section of citizens having a culture and no religious minority has been denied the right to establish and administer an educational institution of its choice.
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